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
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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.
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