Federalism is surrounded by controversy.

 Federalism means allowing states to block actions, prevent progress, upset national plans, protect powerful local interest, and cater to the self-interest of politicians.  William Riker American political scientist ◦ The main effect of federalism since the civil war was to perpetuate racism

 Virtue of the federal system lies in its ability to develop and maintain mechanisms vital to the perpetuation of the unique combination of government strength, political flexibility, and individual liberty.

Whenever the opportunity to exercise political power is widely available it is obvious that in different places different people will use power for different purposes. A. Allow states to make decisions that maintain racial segregation, facilitate corruption, protect interests B. Allows states to pass laws that end segregation, or regulate harmful economic practices before these idea gain national policy.

 The existence of independent state and local governments means that different political groups pursuing different political purposes will come to power in different places. The smaller the political unit the more likely it is to be dominated by a single political faction.  (James Madison Federalist 10) ◦ When Riker condemns federalism he is thinking that some ruling factions have opposed groups  When Elazar praises federalism he is saying that some ruling factions have taken the lead (advance of national government) in developing measures to protect citizens and improve social conditions.

 THE FOUNDING OF FEDERALISM ◦ It was a way to protect personal liberty  Fear that placing final political authority in any one set of hands (elected) risk tyranny.  NEW PLAN ◦ This federal republic would derive its power directly from the people, both levels of government would have certain powers, but neither would have supreme authority over the other.  Madison (federalist 46) both state and federal gov. are in fact the same agents and trustees of the people but with different powers  Hamilton (federalist 28) people would shift their support from one government to the other to keep the two in balance. ◦ The Constitution does not spell out the powers of the states (not until the 10 th Amendment) Why? ◦ The framers believed the federal government would only have the powers given it by the Constitution.

 ELASTIC LANGUAGE ◦ The need to reconcile the competing interests of both the small, large and Northern, southern states was real difficult without trying to spell out exactly what relationship should exist between the national and state governments. (example regulate commerce)  Some clauses on federal/state relations were clear others were quite vague. Why? ◦ Article I sec 8 clause 18 ◦ 2 views of what federalism meant  Hamilton believed that the national was the superior and leading force in political affairs, and that its powers ought to be broadly defined and liberally construed.  Jefferson the federal government was the product of an agreement among the states, and though the people were the ultimate sovereigns, the biggest threat to their liberties was to come from the national government.  Madison Federalist 45 powers of the national government should be narrowly construed and strictly limited  The powers delegated by the Constitution to the federal government are few and defined those given to the state governments are numerous and indefinite.

 Meaning of Federalism ◦ Civil War was fought over states rights VS national supremacy. It only solved that the national government was supreme and the states could not secede. Other aspects of the national supremacy issue continued  Supreme Court ◦ It was led by advocate of Hamilton’s position John Marshall. In a series of decisions he and the court defended the national supremacy view of the federal government.  McCulloch V. Maryland (1819) answered 2 questions in ways to expand the powers of congress and confirmed the supremacy of the federal government to use those powers  1 did Congress have the power to set up the bank such a right is not explicitly in the Constitution court says yes necessary and proper.  2 could the federal bank be taxed by the states lawfully the court ruled no federal government is supreme

 NULLIFICATION ◦ When Congress passes a law to punish newspaper editors who published stories critical of the federal government (1798 Virginia and Kentucky Resolutions Madison and Jefferson) never went to court ◦ That states had the right to nullify a federal law that in the states opinion violated the Constitution ◦ John C Calhoun of South Carolina in opposition to a tariff enacted by the federal government, and later in opposition to federal efforts to restrict slavery he said the states could nullify this law because it violated the Constitution.  Civil war solved this issue states could not declare acts of Congress unconstitutional and the supreme court later confirmed.

 DUAL FEDERALISM ◦ The national government was supreme in its sphere, the states were equally supreme in their sphere, and these two spheres should be kept separate. ◦ (These came after the Civil War debate on the interpretation of the commerce clause) ◦ Interstate commerce Congress could regulate ◦ Intrastate commerce Only the states could regulate  The Courts could tell which was which  That was a real problem why? How was it solved?  Congress, provided that it had a good reason, could pass a law regulating almost any kind of economic activity anywhere in the country and the Supreme Court would allow it “Constitutional.”

 The Supreme Court has recently ruled that Congress has exceeded its commerce power. ◦ 1995 United States vs Lopez ◦ 2000 overturned the Violence Against Women Act of 1994 United States vs Morrison.  The Court has strengthen states’ rights ◦ Printz vs United States 1997  Court has given new life to the 11 th amendment which protects states from lawsuits by citizens of another state or foreign nations. ◦ Alden vs Maine

 Federal Maritime Commission v South Carolina Ports Authority ◦ Court further expanded states’ sovereign immunity from private lawsuits.  Justice Thomas “states did not consent to become mere appendages of the federal government” ◦ The court did rule against state sovereignty in 1999  State welfare programs may not restrict new residents to the welfare benefits they would have got in the state from which they moved.

 Sometimes confusion or controversy about which government is responsible for which functions happens. (finger pointing) ◦ Hurricane Katrina  Bad legacies of federalism ◦ State laws that legalized racial discrimination ◦ Allowed states to block actions, prevent progress, upset national plans, protect powerful local interests, and cater to the self-interest of politicians (William H. Riker)

 Good legacies of Federalism ◦ State laws that advance equality before federal law ◦ Daniel J Elazar “virtue of the federal system lies in its ability to develop and maintain mechanisms vital to the perpetuation of unique combination of governmental strength, political flexibility, and individual liberty.”  Issue if federalism is that in different places people will make use of power for different purposes. ◦ Allowing states and local governments to make autonomous political decisions will allow people to  A. maintain racial segregation/ facilitate corruption  B. pass laws that end segregation regulate harmful economic practices.

 The existence of independent state and local governments means that different political groups with different purposes will hold power. The smaller the political unit, the more likely it will be controlled by a single faction.  Madison know this (Federalist 10) ◦ A large republic people would find the greatest opportunity for all interests to be heard.  Condemn federalism why?  Praise federalism Why?

 INCREASED POLITICAL ACTIVITY  One effect of federalism is an increase in political activity. ◦ A. people are more likely to get involved in government if they feel like they have a chance to make an difference. B. This is only true in a place where there are many elected officials and independent bodies, each with a relatively small constituency. C. Federal system, by virtue of the decentralization of authority, lowers the cost of organized political activity. Did the founders plan to produce such opportunities for political participation?

 This calls forth old truths about the constitutional basis of state and local government. ◦ States can do an thing that is not prohibited by the constitution or preempted by federal policy and that is consistent with its own constitution.  Police power laws and regulations that promote health safety and morals  Many states give their citizens direct democracy  Initiative allow voters to place legislative matters on ballots  Referendum allows voters to reject laws that have been passed  Recall voters can remove an elected official

 Existence of the states is guaranteed by the federal constitution ◦ No state can be divided without its consent ◦ Each state must have 2 Senators (no amendment) ◦ Every state is assured of a republican form of government. ◦ 10 th Amendment  No protection for local and city governments they only exist at the will of the states.  Federal –state relationship can be complicated because the Constitution invites elected leaders to struggle over sovereignty.