The Structure and Meaning of Federalism

The “F Word” Defined (and some others, too) 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 CONFEDERATION: system in which the states are sovereign and that national government is only allowed to do what the states permit FEDERAL SYSTEM: one in which sovereignty is shared, so that national government supreme in some matters, state governments supreme in others

Central State Central State Central State UNITARY CONFEDERAL FEDERAL Pretty Pictures

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 Assumed the federal government would only have powers specifically outlined in the Constitution But everyone had different understandings of federalism (Hamilton v. Jefferson, for example)

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 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 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 Can states declare null and void federal laws? Nope Determined once and for all by Civil War

Dual Federalism National government supreme in its spheres States governments supreme in their spheres Two spheres should and could be kept separate 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 Generally, a state can do anything not prohibited by the Constitution or preempted by federal policy States often have methods of direct democracy