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Federalism:

A form of government that distributes power across a national government and subnational governments, and that ensures the existence of subnational governments 1. As a remedy for factions 2. As division of governmental authority

3. Its Constitutional basis


4. As an evolving concept

Federalism as Remedy for Faction

Factions
a number of citizens, whether amounting to a
majority or minority of the whole, who are united and actuated by some impulse of passion, or of interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community. Federalist 10

Much of what we know about Founders intentions comes from the Federalist Papers All signed Publius Authored by Hamilton, Madison, Jay #10, #51 the most important, both authored by Madison

Federalist #10
Two ways to eliminate factions: authoritarianism and conformism

Causes of factions cannot be eliminated in a free country, therefore control the effects of faction

Two kinds of factions


Minority factions - less of a problem in a democracy

Majority factions - the problem of democracy

Solution: a compound, extended republic


In a legislature, the larger and more diverse the constituency, the more diluted is the influence of any particular faction on the preferences of the representative Therefore, an extended republic - greater diversity of interests makes majority faction less likely. Federalism - two layers of government, making majority factions even less likely at the national level

Founders Reasons for Federalism


Combine a central government strong enough to maintain order with strong states.

Take advantage of the large geographical size of a country.


State governments have served as training grounds for national politicians and as laboratories in which new ideas can be tested.

Federalism allows for many political subcultures.

Federalism as the division of governmental authority

In a federal system, sovereignty is divided between central and regional governments

In a federal system, sovereignty is divided between central and regional governments

Under federalism, the states as well as the national government are have power to rule. The regional or state units exist independently of the national government.

Regional units cannot be abolished by national government. Regional units can make decisions on some matters without regard to preferences of the national government.

Unitary government:
Unitary governments may have regional, state, or local units

But they exist at the will of the national government.

Example: France

France has a unitary structure with 26 regions


Regions administer national laws Regions can be altered or abolished by national government; have no authority of their own

Copyright 2011 Pearson Education, Inc. Publishing as Longman

To Learning Objectives

Constitutional Basis of Federalism

Federal structure of government is not stated but is implicit in the Constitution


Constitution guarantees existence of states:
No state can be divided without its consent Each state must have two representatives in the Senate (& Constitution cannot be amended on this point) States assured of republican form of government

Powers not granted to Congress are reserved to the states

What powers to federal, state governments have?


Some powers are exclusive to the national government

Some powers are exclusive to the state governments Some powers are concurrent to (shared by) state and national governments

Powers of the National Government


Enumerated Powers
Specifically grated by Constitution

Implied Powers
Necessary and Proper Clause

Inherent Powers (all sovereign nations)


The executive power is vested in the president

Powers Exclusive to National Government


Coin money Regulate interstate & foreign commerce Tax imports & exports Make treaties Make war Regulate postal system All laws necessary & proper to fulfill delegated powers

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.

Powers of State Governments (Reserved Powers)


According to the Tenth Amendment, all powers that were not delegated to the national government are reserved to the states or to the people.
In theory, states still retain all powers not delegated to the national government, but in reality the national government has expanded the scope of governmental action on a grand scale. Defined differently at different points in history.

Powers Exclusive to State Governments


Run elections Regulate intrastate commerce Establish republican form of state & local governments Protect health, safety, morals of the people

All powers not delegated to the national government nor denied to the states by the Constitution

Concurrent Powers
Concurrent Powers

National Government

State Government

Power to Tax

Power To Make and Enforce Laws

Power To Establish Courts

Power To Police (Limited)

Prohibited Powers

Apply to both the national and state governments

Powers Denied to National Government


Tax state exports Change state boundaries (without consent of involved states) Impose religious tests Pass laws in conflict with the Bill of Rights

Powers Denied to State Governments


Tax imports and exports Coin money Enter into treaties Impair obligations of contracts Enter contract with other states without Congressional consent

Article VI: The Supremacy Clause


Article VI of the Constitution mandates that actions by the national government are supreme. Any conflict between a legitimate action of the national government and a state will be resolved in favor of the national government.

Article IV on Interstate Relations


Article IV of the Constitution attempts to resolve potential problems between states by stipulating the following:
Full faith and credit clausestates must honor actions of other states (including same sex marriage?) Privileges and immunities Interstate extradition Interstate compacts

Defining Constitutional Powers through Case Law


McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824) The Dred Scott Decision (1857)

Supreme Court Justice John Marshall Bettmann /Corbis

What is the nature of federalism: a compact?


A nationalist view:
McCullough v. Maryland (1819) Gibbons v. Ogden (1824)

A states rights view: The Dred Scott Decision (1857) Doctrine of nullification The Civil War (1861-1865)

McCullough v. Maryland (1819)


Did Congress have the power to create the bank? Can Maryland interfere with what Congress has created?

When both national & state government are exercising legitimate powers, and they conflict, which must give to the other? Established:
Doctrine of implied powers Validity of a broad construction Clear meaning of supremacy clause

McCullough v. Maryland (1819)


Doctrine of implied powers: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Gibbons v. Ogden (1824)


New York law gave Ogdens company the exclusive right to operate steamboats on NY waterways.
Gibbons, who was operating a steamboat between NY and NJ, would have to pay a substantial fee to navigate those waters.

Congress had already passed a law that would allow a company like Gibbonss to operate.
Is the NY law inconsistent with the Constitution? NY: Constitution gives Congress power to regulate interstate commerce; NYs law dealt with intrastate commerce.

Gibbons v. Ogden (1824)


Court:
Commerce includes navigation when used to promote the buying and selling of goods. States cannot pass legislation restricting commerce between states because this is a power reserved to Congress by the Commerce Clause. A broad construction of the Interstate Commerce Clause and Congresss powers Gibbons set the precedent for the national government to regulate a wide range of economic activities

The Dred Scott v. Sandford (1857)


Missouri Compromise of 1820 outlawed slavery in free states and territories Does Congress have the power to abolish slavery in the territories? No, not an enumerated power. But Constitution does protect private property such as slaves. Missouri Compromise unconstitutional because Congress exceeded its enumerated powers. State law trumps federal law. Scott was not entitled to sue because he was not a U.S. citizen; former slaves could never be citizens because of intentions of framers.

Nullification and the Civil War


John C. Calhoun (drawing on some of the works of Madison and Jefferson): states can nullify a federal law that violates the Constitution; states can decide whether a federal law violates the Constitution. Union is a compact among states from which states can withdraw. Issue settled by the Civil War. Federal union cannot be dissolved by the states; states cannot declare acts of Congress unconstitutional.

Defining Federalism with Ideas & Blood


John C. Calhoun (drawing on some of the works of Madison and Jefferson): states can nullify a federal law that violates the Constitution; states can decide whether a federal law violates the Constitution. Union is a compact among states from which states can withdraw. Issue settled by the Civil War. Federal union cannot be dissolved by the states; states cannot declare acts of Congress unconstitutional.

The Civil War


Initially a battle over states rights; later a battle to end slavery
The siege and capture of Vicksburg, Mississippi in 1863 Library of Congress

Post Civil War


Post Civil War amendments represented a serious enhancement of national power.
13th Amendment: Abolishment of slavery 14th Amendment: States must provide each person with due process of law 15th Amendment: States cannot abridge voting rights because of race Civil Rights Cases (1883): Congressional authority is limited to state discrimination, does not apply to private discrimination

Dual Federalism: 1860-1936


Rigid separation between federal and state responsibilities, each sovereign in its own sphere. What one can do, the other cannot. Reasonable people can tell where each sphere ends and begins; the layer cake metaphor Compatible with laissez-faire capitalism Courts & Commerce Clause (e.g., Sugar Trust Case, 1895): Congress cannot regulate a sugar monopoly, only shipping is interstate commerce.

Dual Federalism Declines


More difficult to distinguish inter-state from intra-state commerce. Growth of national corporations. Commerce is like a stream flowing through the country, drawing to itself the contributions from many persons and places. Industrialization increased demand for government action.

The Great Depression and the changing judicial role (FDRs court packing plan)
Results: Congress has the Constitutional power to regulate anything that affects interstate commerce, e.g., 1964 Civil Rights Bill. A broad expansion of national authority.

Because Congress can regulate interstate commerce, the national government can require health and safety warnings on food and other products.

The New Deal and Cooperative Federalism


New Deal legislation vs. Dual Federalism Cooperative federalism emphasized an expanded role for the national government, and cooperation between the national government and the states.

Share of Nonmilitary Spending by the Federal, State, and Local Governments before and after the Passage of New Deal Legislation

The New Deal and Cooperative Federalism


Roosevelts programs typically were funded by the federal government, but administered by states and local governments, thus creating a cooperative framework for federalist relations. Often called picket-fence federalism

The national government implements policy through the states in two broad ways.
Federal government can direct states to take action. Mandates oftentimes with no federal assistance. Preemption legislation federal government declares certain actions off-limits for state governments. Federal government can use fiscal persuasion to influence states. Categorical grants funds appropriated for a specific purpose in the states Block grants funds to states for broad categories of spending

The Politics of Federalism


States rights have been associated with conservatism, and national authority has been associated with liberalism. Why?

The Politics of Federalism


The expansion of national authority has been associated with social change, usually a liberal purview. The national government has been more willing than state governments to initiate change, such as during the Civil War, when an expansion of national authority led to the end of slavery, or when New Deal policies intervened in a failing economy.

Accomplishments of National Authority


Economic relief
The New Deal and Social Security

Civil rights and desegregation War on Poverty States have traditionally favored the status quo
More socially conservative on some issues Want to keep taxes low, attract business Local economic interests = local political influence

Federal Grants to State and Local Governments, 2008 (in billions of dollars)

Federalism Becomes a Republican Issue


New Federalism: Beginning with President Richard Nixon (19691974), the Republican Party championed devolution, or the transfer of powers from the national government to the states. They called this policy the new federalism. Starve the beast

States as Protectors of Rights

Civil Rights era federal government as protector 80s and beyond state governments as protectors?

Same Sex Marriage

Gay Rights Protestors 2004 AP/Wide World Photos

How much federal responsibility for the general welfare?


Pressure for federal involvement: federal government's superior ability to tax and borrow interdependence of the economy arbitrariness of state lines for solving national problems, e.g., air and water pollution, race discrimination, education

The Federal System


Advantages
Permits diversity, diffusion of power
Local governments can handle local problems

Disadvantages
Makes national unity difficult to achieve, maintain
State governments may resist national policies May permit economic inequality, racial discrimination Law enforcement & justice uneven

More access points for political participation


Protects individual rights

Fosters experimentation and innovation

Smaller units may lack expertise and money

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