CHAPTER TWO
Federalism, a central feature of the American political system, is the division and sharing of power between the national government and the states. The balance of power between the two levels of government has spawned some of the most intense controversies in American history. Historically, national interests have clashed with states' rights, and even today, when most Americans think of the government in Washington as vastly more powerful than the state governments, federalism is still one of the most important founding principles of the United States.
UNITARY, FEDERAL, AND CONFEDERAL POLITICAL SYSTEMS
All political systems may be evaluated according to their geographic
distribution of power. A unitary
system is one that concentrates all policymaking powers in one central
geographic place; a confederal system spreads the power among many sub-units
(such as states), and has a weak central government.
A federal system divides the power between the central government and the
sub-units. All political systems fall on a continuum from the most
concentrated amount of power to the least.
Unitary governments may be placed on the left side, according to the
degree of concentration; confederal governments are placed to the right; and
federal governments fall in between.
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UNITARY FEDERAL CONFEDERAL
SYSTEM SYSTEM SYSTEM
(China, Britain, (U.S. Canada) (U.S. under the Articles
France) of Confederation, The
Confederate States
of America during the
Civil War)
THE HISTORICAL
DEVELOPMENT OF FEDERALISM
Federalism was carefully defined in the Constitution as a founding principle
of the U.S. political system. Even so, the nature of federalism is dynamic and has been
shaped through the years by laws, Supreme Court decisions, and debates among
prominent elected officials and statesmen.
FEDERALISM AS PROVIDED IN THE CONSTITUTION
When the colonies declared their independence from Britain in 1776, they
reacted against the British unitary system in which all political and economic
power was concentrated in London. Although
the British did not impose this power consistently until after the French and
Indian War ended in 1763, new controls on the colonial governments during the
1760s became a major source of friction that eventually led to war.
During the American Revolution, the states reacted to Britain's unitary
system by creating the Articles of Confederation that gave virtually all powers
to the states. The framers at the
Constitutional Convention tried to balance the perceived tyranny of the unitary
system with the chaos created by the confederal system by outlining a hybrid
federal system in the Constitution. Federalism,
then, became a major building block for preserving freedoms while still
maintaining order in the new nation.
Delegated Powers
The Constitution grants the national government certain delegated powers,
chief of which are the war power, the power to regulate interstate and foreign
commerce, and the power to tax and spend. Delegated powers (also called expressed or enumerated powers)
are those that are specifically granted to the federal government by the
Constitution.
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The Power to Regulate Interstate and Foreign Commerce - The
national government has the responsibility to regulate commerce between the U.S.
and foreign nations, as well as trade between states (interstate commerce.)
The commerce clause (Article One, Section 8, Clause 3) gives Congress the
power "to regulate Commerce with foreign Nations, and among the several
states, and with the Indian Tribes." The government regulates a wide range of human activity,
including agriculture, transportation, finance, product safety, labor relations,
and the workplace. Few aspects of
today's economy affect commerce in only one state, so most activities are
subject to the national government's constitutional authority.
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The Power to Tax and Spend - Even when Congress lacks the
constitutional power to legislate (for example, education and agriculture), its
power to appropriate money provides Congress with a great deal of control.
When Congress finances an undertaking, it determines how the money will
be spent. Congress may threaten to
withhold funds if a project does not meet federal guidelines.
In recent years Congress has refused to finance any program in which
benefits are denied because of race, color, or national origin, and more
recently, gender and physical handicap.
Other powers specifically delegated to the national government include
coining money, establishing a postal system, and the right of the government to
borrow against its credit.
Concurrent Powers
All powers not granted in the Constitution to the national government are reserved for the states. States, however, may hold some of the same powers that the national government has, unless they have been given exclusively to the national government, either by provision of the Constitution or by judicial interpretation. Concurrent powers are those that both national and state governments hold. Examples are the concurrent powers of levying taxes and establishing and maintaining separate court systems. Even so, federalism limits state powers in that states cannot "unduly burden" their citizens with taxes. Neither can they interfere with a function of the national government, nor abridge the terms of a treaty of the United States government.
Reserved Powers
Reserved powers are those held by the states alone.
They are not listed (as delegated powers are), but they are guaranteed by
the 10th Amendment as ãreserved to the states respectively, or to
the people.ä Reserved powers
include establishing local governments and regulating trade within a state. States also have police power ö the authority to legislate
for the protection of the health, morals, safety, and welfare of the people.
However, because these powers are not listed in the Constitution, there
is sometimes a question about whether certain powers are delegated to the
national government or reserved for the states.
Prohibited Powers
Prohibited powers are denied to either the national government, state
governments, or both. For example,
the federal government canât tax exports, and state governments cannot tax
either imports or exports. States canât make treaties with or declare war on foreign
governments
The ãNecessary and Proper Debateä
From the beginning, the meaning of federalism has been open to debate.
In the late 18th century, Alexander Hamilton ö the first Secretary of
the Treasury ö championed loose construction, the view that the Constitution
should be broadly interpreted. The
national government created by the government represented "the supreme law
of the land" (Article Six), and its powers should be broadly defined and
liberally construed. The opposite
view of strict construction, articulated by Thomas Jefferson, was that the
federal government was the product of an agreement among the states and that the
main threat to personal liberty was likely to come from the national government.
Jefferson's strict construction required that the powers of the national
government should be narrowly construed and sharply limited.
This famous clash in interpretations of the Constitution shaped the
political culture of the United States for many years, well into the
mid-twentieth century.
Realizing that they could not make a comprehensive list of powers for the
national or the state governments, the founders added to Article I the
"necessary and proper clause.ä This clause states that Congress shall have the power
"to make all laws which shall be necesary and proper for carrying into
execution the foregoing powers." Hamilton's
arguments for national supremacy relied heavily on the "necessary and
proper" (or ãelasticä)
clause. Jefferson's states rights
point of view rested partially on the 10th Amendment that reserves
powers to the states.
McCULLOCH V. MARYLAND
During the early 19th century, the Supreme Court tipped the
balance of the debate to national
supremacy, the point of view that the national government should have relatively
more power than the states. Chief
Justice John Marshall advocated this view in a series of decisions, including
the influential 1819 case known as McCulloch v. Maryland.
The case arose when James McCulloch, the cashier of the Bank of the United
States in Baltimore, refused to pay a tax levied on the bank by the state of
Maryland. When state officials
arrested him, McCulloch appealed to the Supreme Court.
The Court's opinion set an important precedent that established national
supremacy over states rights. The
case questioned the right of the federal government to establish a bank, since
no such right is enumerated in Article I.
Marshall ruled the Maryland law that established the tax unconstitutional
with his famous statement: "The power to tax is the power to destroy."
The power to destroy a federal agency would give the state supremacy over
the federal government, so the states may not tax a federal agency.
THE NULLIFICATION CONTROVERSY
The issue continued to rage during the early 19th century.
Eventually James Madison and Thomas Jefferson defined the states rights
point of view as nullification, the right of a state to declare null and void a
federal law that in the state's opinion, violated the Constitution.
Before the Civil War, John C. Calhoun led the charge for southern states
that claimed the right to declare ãnull and voidä any attempts by the
national government to ban slavery. The
issue was settled with the northern victory in the Civil War that determined
once and for all that the federal union is indissoluble and that states cannot
declare acts of Congress unconstitutional.
THE "COMMERCE CLAUSE"
The meaning of the commerce clause was at issue in the 1824 Gibbons vs. Ogden
case. Aaron Ogden had been given exclusive license by the state of New York to
operate steam-powered ferryboats between New York and New Jersey.
Thomas Gibbons obtained a license from the U.S. government to operate
boats in the same area, and when he decided to compete with Ogden, Ogden sued,
and the case went to the Supreme Court. Several
issues were at stake in defining federalism:
John Marshall wrote the majority opinion in the case, an expansive
interpretation of the commerce clause that increased the national governmentâs
authority over all areas of economic affairs. Marshall defined commerce as all
business dealings, not just the transfer of goods, and he ruled that the
national government could regulate within statesâ jurisdiction.
On the other hand, interstate commerce is solely the right of the
national government, and so the New York court had no right to prohibit
Gibbonsâ trade.
Expansion of the Commerce Clause
With the booming Industrial Revolution of the late 1800s, the debate over the
balance of power between state and national government focused on the
interpretation of the commerce clause, which gives Congress the power "to
regulate Commerce with foreign Nations, and among the several States, and with
the Indian Tribes." At first,
the Court tried to distinguish between interstate commerce, which Congress could
regulate, and intrastate commerce, which only the states could control.
Because most companies participate in both types of commerce, the Court
had a great deal of trouble distinguishing between the two.
If a company is canning vegetables, some of which will be shipped within
the state, and some outside the state, should different regulations apply to
canning the same product? Is a
shipment destined for another state under state control as long as it travels to
the border? At what point does it
become interstate commerce?
Over the years this clause has been interpreted more and more broadly, so
that today, the national government regulates a wide range of commercial
activities, including transportation, agriculture, labor relations, finance, and
manufacturing. Almost no type of
commerce is controlled exclusively by the states, and the current Court
interpretation of commerce laws is extremely complex.
The Commerce Clause and Civil Rights
The Commerce clause also has been used to sustain legislation outside of
commercial matters. In 1964 the
Supreme Court upheld the 1964 Civil Rights Act forbidding discrimination based
on race in public accommodations because
"Congress's action in removing the disruptive effect which it found racial
discrimination has on interstate travel is not invalidated because Congress
was also legislating against what it considers to be moral
wrongs."
Discrimination affects interstate commerce, so Congress constitutionally
could legislate against discrimination. Again, many years later, Hamilton's
loose interpretation of the Constitution insured that the principle of national
supremacy prevailed over that of states rights.
Reining in the Commerce Power
Since the 1990s the Supreme Court has been limiting the national
governmentâs power under the commerce clause.
In United States vs. Lopez (1995) the Court ruled that Congress had
exceeded its authority when it banned possession of guns within one thousand
feet of any school. The law was declared unconstitutional because it had
ãnothing to do with commerce.ä In
2000, the Court held that the 1994 Violence against Women Act also overstepped
the Constitution with the statement that violence against women had an adverse
effect on interstate commerce.
TWO TYPES OF FEDERALISM
Until the 1930s, the relationship between the national and state governments
was usually described as dual federalism, a system in which each remains
supreme within its own sphere. However, as the commerce controversy in Gibbons vs. Ogden
points out, separating national from state jurisdiction isnât always easy.
With the New Deal programs of the 1930s the separation proved to be
virtually impossible, ushering in the era of cooperative federalism.
During this era state and federal governments cooperated in solving the
common complex problems brought on by the Great Depression.
The New Deal programs often involved joint action between the national
government and the states. Cooperative
federalism remains in place today, with the national government involved to some
extent in virtually all public policymaking.
The two types of federalism are often compared by using an analogy with two
types of cakes: the layer cake (dual federalism) with its clearly distinct
separations, and the marble cake (cooperative federalism) where the two
intertwine and swirl together.
THE POLITICS OF MODERN FEDERALISM
The structures of the federal system have not changed much since the
Constitution was written, but modern politics have changed the relationship
between national and state governments, especially over the past 50 years or so.
Today a major aspect of federalism is the grants-in-aid system: the
national government provides millions of dollars for federal grants to states.
GRANTS-IN-AID
One of the national governments most important tools for influencing policy at the state and local levels is the federal grant. Congress authorizes grants, establishes rules for how grants may be used, and decides how much control the states have over federal funds.
Federal grants fall into two general types:
Today, even though block grants still exist, Congress is always tempted to
add "strings" that set requirements for how federal grants are to be
spent. As a result, block grants
gradually become more categorical, a phenomenon known as "creeping
categorization."
MANDATES
A recent federal control on the activities of state governments is a mandate,
a rule that tells states what they must do in order to comply with federal
guidelines. Often the mandates are
tied to federal grants, but sometimes the mandates have nothing to do with
federal aid.
Most mandates apply to civil rights and environmental protection.
State programs may not discriminate against specific groups of people, no
matter who pays for them. Today,
anti-discrimination rules apply to race, sex, age, ethnicity, and physical and
mental disabilities. States must
comply with federal laws and standards regarding the environment, as well.
Mandates have been criticized strongly by state and local governments.
From their point of view, it is easy enough for Congress to pass mandates
when the states must foot the bills. For
example, the 1986 Handicapped Children's Protection Act provided federal
regulations meant to assure equal access and opportunity for disabled children.
Federal guidelines included requirements for public schools to build
access ramps and elevators, provide special buses and personnel, and widen
hallways, all with no federal money to help schools comply.
Examples of Federal Mandates for State and Local Governments
1983 - Social Security Amendments
1984 - Hazardous and Solid Waste Amendments
Highway Safety Amendments
1986 - Asbestos Emergency Response Act
Handicapped Children's Protection Act
Safe Drinking Water Act Amendments
1988 - Drug-Free Workplace Acts
Ocean Dumping Ban Act
1990 - Clean Air Act Amendments
Americans with Disabilities Act
THE ADVANTAGES AND DISADVANTAGES OF FEDERALISM
Few Americans believe that the federalist system should be abandoned, but the nature of federalism is still a controversy today, and Americans still disagree about the balance of power between national and state governments.
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ADVANTAGES |
DISADVANTAGES |
| 1. Mobilization of political activity
The various levels of government provide many alternatives for a citizen to be heard regarding a concern. If a local official won't listen, a citizen may appeal to someone on the state or national level. |
1. Confusion of
political activity
The various levels of government can be confusing to a citizen, so that he or she does not know which official to contact. |
| 2. Interest groups cannot easily take over the government. Powerful interest groups cannot force their will upon less powerful groups because in order to control, they would have to take over not only the national government, but state and local governments as well. Small groups of people have a chance to be heard and influence legislation. | 2. Small but motivated interest groups can block the will of
the majority for extended periods of time.
Sometimes small groups of people can impose
their will for extended periods of time on the majority.
For example, a relatively small group of southern
senators blocked civil rights legislation for many years after most
citizens favored such legislation.
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| 3. Diversity of policies among states encourages
experimentation and
creativity.
50 different state governments tackle similar issues, and a good solution in one state can be modeled in another. For example, if a state finds a good way to finance public education, other states can mimic the plan, altering for special needs. On the other hand, if a state tries something that fails, at least it affects only one state, not all. |
3. Diversity of policies among states creates inequality between citizens of different states. Because states provide different levels of support, citizens in some states have more advantages than those in other states. For example, welfare benefits vary widely among the states, as do funding levels for public education. |
| 4. Diverse policies among states are
good because uniform laws don't
make sense in many areas.
For example, speed limits on highways should be under state and local control, as should the minimum age for obtaining a driving license. Crowded New Jersey should not have the same speed limits as does wide-open Montana. Young people in farm states should be allowed to drive at early ages in order to help support the farm. |
4. Diverse policies among states even for speed limits and
driving ages creates confusion and inequality.
Although speed limits obviously need to vary, arbitrary differences in state laws are confusing and outdated in this era of interstate highways. Differences in driving ages are not fair to young people in states with higher age requirements.
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An individual's attitude about
federalism depends partly on how much he or she values equality vs. freedom. Uniform laws passed by a unitary government tend to emphasize
equal treatment of citizens. Diverse
laws by their very nature allow a great deal of individual freedom.
THE ãDEVOLUTION REVOLUTIONä
Although the trend toward national supremacy has continued throughout most of
American history, a movement has begun in recent years to devolve more
responsibilities back to the states. The movement began as a Republican initiative shortly after
the 1994 elections, when the Republicans became the majority party in both
houses of Congress. The new
conservative leadership looked for ways to scale back the size and activities of
the national government. A major
focus was the welfare system, and as a result, the ãwelfare to workä
legislation passed in 1996 has led to a major shift of responsibility for
welfare programs from federal to state governments.
The national government continues to give block grants to states, but
overall federal funding for welfare programs has decreased dramatically.
Although the balance of power between national and state governments has
varied over time, the federalist system is an essential building block of
American government. States sponsor
major programs to fund education, help distressed cities, and provide welfare. Local
governments have wide controls over a myriad of services and regulations.
The federalist system is rooted in the Constitution, and governmental
powers certainly will continue to be shared among national, state, and local
levels.
IMPORTANT DEFINITIONS AND IDENTIFICATIONS
block grants
categorical grants
the ãcommerce clauseä
concurrent powers
confederal systems
creeping categorization
delegated powers
devolution revolution
federal systems
federalism
grants-in-aid system
loose construction
mandate
national supremacy
necessary and proper clause
nullification
reserved powers
revenue sharing
strict construction
unitary governments