Before Moving On…..

Before Moving On… Due to the difficulty of adding a Constitutional Amendment there have been ways devised to “informally”* amend the Constitution Basic Legislation (Use of Elastic Clause) Supreme Court Interpretation Political Parties Custom * Not really an amendment, but a change in “meaning” or interpretation.

Federalism Constitutional Underpinnings #3

Federalism Defined Political system with local government units, besides national one that can make final decisions regarding some governmental activities and whose existence is protected

A New System Unitary System Strong Central Government Trampled on Liberty Confederate System Weak Central Government Couldn’t Protect the People NATIONAL STATE Federal System Split Powers Between State and National NATIONAL STATE

A New System The plan had no historical precedence The idea was neither the Federal nor State governments would ever dominate over the other since the power comes from the people, and the people would shift their support

Federalism in the Constitution Types of Powers Expressed Powers Powers granted to the Federal Government (Article 1, Section 8) Reserved Powers Powers reserved to the States by the 10 th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”) Concurrent Powers Powers that both the Federal and the State Governments hold to some extent (Taxation, Construction, Etc…)

Federalism in the Constitution Full Faith and Credit Clause (Article IV, Sec 1) States must respect the laws and decisions of other state governments (Driver’s License, Marriage License, Divorce, Etc..) Privileges and Immunities (Article IV, Sec 2) Can’t deny a non-state resident of the same protections of law as a resident Extradition (Article IV, Sec 2) Return fugitives to the state they are wanted in

Two Theories of Federalism Dual Federalism The national and state governments are partners, and co- equals, sovereign in their own areas Belief that the federal government only can act in areas specifically stated in the Constitution Cooperative Federalism The national government is supreme over the states. The state governments act as agents to help design programs that go along with the national interest The Tenth Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Supremacy Clause This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Evolution of Federalism Dual Federalism The easiest way to picture how Dual Federalism Works is to picture this….. Dual Federalism is referred to as LAYER CAKE federalism. In this case the layers exist independently of the other layers. There is no interaction between them. Each is responsible for their own flavor. Federal Government State Government Local Government

Evolution of Federalism Founding until 1930s (Dual Federalism) Although, for the most part, the federal and the state government remained independent of each other, certain things chipped away at the balance of power between the two.

Evolution of Federalism 1819: McCulloch v. Maryland Ruled of the existence of “Implied Powers.” Powers not specifically given to the government but implied by the “elastic” or “necessary and proper clause” Ruled that the Federal Government was supreme and immune from state challenges such as taxes 1824: Gideon v. Ogden Congress's right to regulate commerce under the Commerce Clause could be "exercised to its utmost extent, and acknowledges no limitations, other than those prescribed in the constitution...“ Nullification The doctrine that a state can declare a federal law null and void, if the state believes it is unconstitutional. Used by the South against efforts to limit or abolish Slavery. The Civil War answer that question

Dual Federalism Breaks Down As time went on Dual Federalism erodes due to several factors – Defining “Intrastate” and “Interstate” Commerce As the economy grew due to advance in technology and transportation it became impossible to differentiate between the two. By 1940s almost all commerce was considered “interstate.” – Expansion of the definition of Commerce By far the biggest way the national government has expanded its power is through redefinition of “commerce.” Today “pollution”, “crime”, and “education” all fit into “commerce” in some way.

Cooperative Federalism is referred to as MARBLE CAKE federalism. In this case the layers get mixed in with each other to where it is impossible to separate them from one another. Usually it results in one flavor being the dominant one. Evolution of Federalism Cooperative Federalism The easiest way to picture how Cooperative Federalism Works is to picture this….. FEDERAL GOVERNMENT STATE GOVERNMENT