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 Central State Central 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 (10 th 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.