THE STRUCTURE AND MEANING OF FEDERALISM

The “F Word” Defined (and some others, too)

FEDERAL SYSTEM: one in which sovereignty is shared, so that national government supreme in some matters, state governments supreme in others

CONFEDERATION: system in which the states are sovereign and that national government is only allowed to do what the states permit

SOVEREIGNTY: supreme or ultimate political authority; sovereign governments legally and politically independent of other governments

UNITARY SYSTEM: one in which sovereignty entirely in hands of national governments (can overrule state decisions) ex. France, Britain, Egypt, Japan

Central

State State State

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State State

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State State State

UNITARY CONFEDERAL

FEDERAL

Visualize

Federalism: Good or Bad?

Arguments FOR Federalism: Allows continuation of government’s

strength, flexibility and individuals’ liberty

In big countries, can “farm out” functions to states

Size can make it impractical to locate all political authority in one place

Brings government closer to people (more direct access to and influence on government)

Federalism: Good or Bad?

Arguments AGAINST Federalism: Allows too much power to states

“parasitic and poisonous” Way for powerful state and local

interests to block national plans Americans suffer from inequalities

across states Potential for expansion of national

powers at states’ expense

The Founding

Founders considered federalism a way to protect personal liberties -too powerful= tyranny-too weak= Articles of Confederation

Assumed the federal government would only have powers specifically outlined in the Constitution (10th amendment)

But everyone had different understandings of federalism (Hamilton v. Jefferson, for example)

The Fathers Debate

Jefferson (and later Madison) National govt. a product of agreement

among states Powers of national govt. should be narrow

and strictly limited to protect peoples’ liberties States’ Rights

Hamilton National govt. superior Powers of national govt. should be broadly

defined and liberally construed

Elastic Language

Constitution is very vague since it would have taken too long at the convention to write everything clearly

NECESSARY AND PROPER CLAUSE (aka Elastic Clause): Founders couldn’t make an exhaustive list of Congressional powers, so included this clause

*THIS BECOMES VERY IMPORTANT*

McCulloch v. Maryland 1819

Most important decision of Marshall court

James McCulloch, cashier at Baltimore branch of Bank of the United States, refused to pay tax levied by the state of Maryland

Convicted of failing to pay a tax; case eventually appealed to Supreme Court

McCulloch v. Maryland 1819

Court answered two questions that expanded the powers of Congress and confirmed the supremacy of the national government

1) Does Congress have the right to set up a bank? - Yes - Though not listed as a power in the Constitution, the

powers listed can be interpreted - Granted through the Necessary and Proper Clause

2) Can a federal bank be taxed by the states?- No - U.S. established not by the states, but by the people, and

so it is supreme in its powers - States may not tax any federal institution, so Maryland law

unconstitutional

Nullification

John C. Calhoun brought back the idea when he said states could nullify law if Washington tried to ban slavery.

Can states declare null and void federal laws?…Nope-Settled by the Civil War

Dual Federalism

National government supreme in its spheres

States governments supreme in their spheres

Two spheres should and could be kept separate

Commerce made this tricky- intra vs. interstate

Distinctions eventually lost (at least in regard to commerce)

Delicious federalism

Sidebar: Gibbons v. Ogden, 1824

Dual federalism debate focused on commerce clause

So what is commerce? Defined in this fine case

Gibbons v. Odgen

Aaron Ogden licensed by NY state to operate steam-powered ferry boats between NY and NJ

Thomas Gibbons had license from U.S. government to operate boats in interstate waters; competed with Ogden without NY’s permission

Ogden sued Gibbons, NY state prohibited Gibbons from operating in NY waters, Gibbons appealed

Gibbons v. Odgen Issues in case

How should commerce be defined? Does the national government power to regulate

interstate commerce extend to commerce within a state?

Is the power to regulate interstate commerce national or concurrent?

Ruling Commerce = all business including navigation and

transport of people Commerce power of the national government can be

exercised in state jurisdictions Regulating interstate commerce an exclusive national

power Gibbons could not be prohibited from operating in

interstate waters

(HA! You thought this was about commerce, when really it was about federalism!!)

State Sovereignty

Dual federalism not entirely gone-US vs. Lopez (govt. exceeded commerce clause by limiting guns in school zone)

-US vs. Morrison (overturned Violence Against Women Act- nothing to do with commerce)

Generally, a state can do anything not prohibited by the Constitution or preempted by federal policy Law enforcement, public education, etc.

State Level

States often have methods of direct democracy Initiative- voters can place legislative

measures on the ballot Referendum- voters can reject measure

adopted by legislature Recall- voters can remove an elected official

from office

*No debate about city sovereignty. States guaranteed by the Constitution, cities aren’t.