1. Federalism chapter 3
What is federalism and what is the constitutional basis for the division of power between national and state governments?

2. Defining Federalism
"Federalism" is the process by which two or more governments share powers over the same geographic area (National Government and State governments)
Unitary system
Power given to central government
Confederation
Weak national government and power given to states
Federalism is a way of organizing a nation so that two or more levels of government have formal authority over the same area and people. If you are a citizen of Vermont, for example, you have to obey both Vermont state laws and federal laws. Both the state and federal governments receive their authority directly from the Constitution, not from each other.
Federalism is not a common way of organizing government. Only 11 out of 190 countries use a federal system. Most nations have unitary systems, in which all power resides with the central government. States in the U.S. have a unitary relationship with local governments.
No country uses a confederate system of government, in which almost all power resides with the states and the central government is weak. The U.S. tried that under the Articles of Confederation and it did not work well at all. It is not a viable system to govern a nation.
The dealings of federal and state governments with one another in a federal system are called intergovernmental relations. Table 3.1 summarizes the authority relations in the three systems of government.

3. Authority relations in three systems of government
As we see in this table, the power relationship between the central government and subunits is different in unitary, confederate, and federal systems.

4. Constitutional Basis of Federalism
Division of Power
National Supremacy
States’ Obligations to Each Other
So, why did the Framers choose federalism as the system of government? Most citizens felt a strong loyalty to their states, more than they did toward a national government.
Also, the United States was so large and its people too widespread for a single, central government to govern efficiently. In 1787, creating a federal system of government was the only practical choice.

5. Division of Power States retained many powers
Organize local governments and elections
Ratify Constitutional amendments
Equal representation in Senate
Even though the states could see that they needed a stronger central government, there were limits to the powers that they would concede. The Constitution did not need to specify all state powers; states simply retained all powers that were not expressly forbidden.
The Constitution does designate states’ authority to organize local governments, and makes them responsible for both federal and state elections. They must ratify constitutional amendments and they have equal representation in the Senate regardless of size.
Even though the states could see that they needed a stronger central government, there were limits to the powers that they would concede. The Constitution did not need to specify all state powers; states simply retained all powers that were not expressly forbidden. 5

6. Some Powers Denied States by the Constitution
As we can see in Table , the Constitution is more specific about the powers states do not have than about those they possess.
The Constitution denies certain powers to the states in the realms of economic and foreign affairs and individual rights.

7. Division of Power Federal obligations to states
Cannot divide states
Cannot tax interstate exports
Protect states against invasion
Overlapping responsibilities-such as establishing courts, maintaining law and order, protecting citizens’ health and safety, and regulating financial institutions. They can both levy taxes and take private property by eminent domain.
The federal government has certain obligations to the states. It cannot subdivide them nor tax interstate exports. It must protect them against invasion and violence.
There are some responsibilities shared by both levels of government, such as establishing courts, maintaining law and order, protecting citizens’ health and safety, and regulating financial institutions. They can both levy taxes and take private property by eminent domain.
Activity: Have students create lists, on the board, both in support for nationalization of issues and for reacquisition of states’ rights. Have the class reach a consensus on the value (e.g., 1–10 points) of each point on each list. Which issue(s) finally has consensus, in points, regarding support for power in the federal system?

8. National Supremacy
Which level should do what?
Debates over areas of policy responsibility
Supremacy clause
Civil War-established national sovereignty over states
The Struggle for Racial Equality-forcing integration in schools and other public accommodations, and ending legal discrimination in jobs, housing, and voting over the strong objections of the states.
Tenth Amendment-“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.”
Eleventh Amendment – A citizen of one state cannot sue another state
Although the division of power may sound clear enough at first, American history has been a tug-of-war over which level of government should legislate in various policy areas.
The supremacy clause clearly states that national laws supersede state laws, but that does not end the debate over power and authority.
The Civil War was a defining moment in establishing national sovereignty over the states.
A century later, the federal government again prevailed against the states by forcing integration in schools and other public accommodations, and ending legal discrimination in jobs, housing, and voting over the strong objections of the states.
The Tenth Amendment states that 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.” States’ rights advocates maintain that this amendment gives the national government only those powers specifically assigned it and that the states have supreme power. The Court has not upheld this view.
The Eleventh Amendment forcing integration in schools and other public accommodations, and ending legal discrimination in jobs, housing, and voting over the strong objections of the states.

9. Wallace and segregation
In 1963, Alabama Governor George Wallace made a dramatic stand at the University of Alabama to resist integration of the all-white school. Federal marshals won this confrontation, and since then the federal government in general has been able to impose national standards of equal opportunity on the states.
In 1963, Alabama Governor George Wallace made a dramatic stand at the University of Alabama to resist integration of the all-white school. Federal marshals won this confrontation, and since then the federal government in general has been able to impose national standards of equal opportunity on the states.

10. National Supremacy Implied Powers
Some of the powers of the national government are clearly enumerated in the Constitution. Other powers are implied from the so-called elastic clause. This clause authorizes Congress to make all laws that are “necessary and proper” to carry out its enumerated functions.
The case of McCulloch v. Maryland illustrates how Congress uses this clause. The federal government established a national bank and the state of Maryland tried to tax it. Chief Justice John Marshall stated that although the Constitution does not say that the national government has the power to establish a bank, it had the implied power to do so because such power is necessary for the government to function.
Implied Powers
McCulloch v. Maryland (1819)
Enumerated powers
Elastic clause

11. National Supremacy Commerce power
Gibbons v. Ogden (1824)-Ogden defined commerce so broadly as to encompass virtually any commercial activity.
After the Industrial Revolution when Congress sought to use its commerce powers to regulate worker health and safety, the Court said that the power to regulate interstate commerce did not extend so far. When the Great Depression placed new demands on the national government, the Court reluctantly allowed considerable expansion of Congress’s regulatory power.
Promote economic development
Regulate economic activity
Expansion then retraction (US v Lopez)
Although the Constitution gives Congress the power to regulate commerce, American courts have struggled to define “commerce.” The Court’s opinion in Gibbons v. Ogden defined commerce so broadly as to encompass virtually any commercial activity. After the Industrial Revolution when Congress sought to use its commerce powers to regulate worker health and safety, the Court said that the power to regulate interstate commerce did not extend so far. When the Great Depression placed new demands on the national government, the Court reluctantly allowed considerable expansion of Congress’s regulatory power.
Since the 1990s, the pendulum has swung the other way, with more recent Court opinions restricting Congressional power under the commerce clause. 11

12. States’ Obligations to Each Other
Full faith and credit
Defense of Marriage Act (1996)
The Constitution requires that states give full faith and credit to the public acts, records, and civil judicial proceedings of every other state. In practical terms, this means that if you are married or divorced in one state, you are married or divorced in all states. A moment’s reflection will make it clear that this clause is essential to the functioning of the economy and society.
Because of the full faith and credit clause of the Constitution, marriage certificates issued by one state are valid in every state. People are also entitled to most of the benefits—and subject to most of the obligations—of citizenship in any state they visit, thanks to the privileges and immunities clause. Gay marriage is straining these principles, however, as most states refuse to recognize marriages between same-sex partners.
When Hawaii legalized same-sex marriage, Congress passed the Defense of Marriage Act, which allows states to make an exception to the full faith and credit clause and not recognize same sex marriages performed in other states. Is DOMA constitutional?
The Constitution requires that states give full faith and credit to the public acts, records, and civil judicial proceedings of every other state. In practical terms, this means that if you are married or divorced in one state, you are married or divorced in all states. A moment’s reflection will make it clear that this clause is essential to the functioning of the economy and society.
Because of the full faith and credit clause of the Constitution, marriage certificates issued by one state are valid in every state. People are also entitled to most of the benefits—and subject to most of the obligations—of citizenship in any state they visit, thanks to the privileges and immunities clause. Gay marriage is straining these principles, however, as most states refuse to recognize marriages between same-sex partners.
When Hawaii legalized same-sex marriage, Congress passed the Defense of Marriage Act, which allows states to make an exception to the full faith and credit clause and not recognize same sex marriages performed in other states. Is DOMA constitutional?

13. Obergefell v. Hodges Question
Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?
Decision
Yes, yes

14. States’ Obligations to Each Other
Extradition-The Constitution requires states to return a person charged with a crime in another state to that state for trial or imprisonment
Privileges and immunities-prevent discrimination by states against visitors or new residents coming from other states. But there are many exceptions to this clause. State universities, for example, can charge higher tuition to out-of-state students.
The Constitution requires states to return a person charged with a crime in another state to that state for trial or imprisonment, a practice called extradition.
The privileges and immunities clause of the Fourteenth Amendment are designed to prevent discrimination by states against visitors or new residents coming from other states. But there are many exceptions to this clause. State universities, for example, can charge higher tuition to out-of-state students. 14

15. Which clause of the Constitution requires states to honor contracts signed in other states?
Without this clause, a person could cross a state border and refuse to pay for a contractual obligation in his home state. Businesses in one state can do business in another state.
Privileges and immunities
Full faith and credit
Necessary and proper
Commerce 15