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II. Models of Federalism in America
III. Origins of American Federalism
A. Initial Plans for Union
B. The Constitutional Convention
IV. Federalism in the Constitution
B. Article I
1. Congressional Elections, Apportionment, and Representation
2. Enumerated Powers
3. Prohibitions on State Action
C. Article II
D. Article III
E. Article IV
F. Article V
G. Article VI
H. Article VII
V. Supreme Court Cases
The United States has a federal political system. Federalism is a system in which political power is shared by national and subnational governments. A national government is the central governing authority in a country. Examples of subnational governments include states, provinces, and territories. Political scientists tend to distinguish federal systems from the two other major categories: confederal and unitary systems. A confederal system is one in which subnational units have nearly all the political power. A unitary system is one in which the national government has nearly all the political power. There are few countries in the world with an identifiable confederal system, with Switzerland being the prominent example. Accordingly, the two main types of political systems in practice throughout the world today are unitary and federal systems.
There are 21 nations that have a federal system of government. These nations account for nearly 40% of the world’s population. In addition to the United States, other countries that have federal systems—to one extent or another—include Australia, Belgium, Brazil, Canada, Germany, India, Mexico, Nigeria, and Russia. Although the autonomy enjoyed by subnational units varies from nation to nation, federal systems have a few things in common. Political scientist William Riker (1964) identified three characteristics that federal systems share: (1) National and subnational governments, simultaneously, share power over the same territory and population; (2) national and subnational governments each have at least one policy area in which they are preeminent; and (3) the autonomy of each level of government is officially recognized. Among democratic nations, the American system is the oldest continuous federal political structure in the world. American federalism divides power between the national government, headquartered in Washington, D.C., and the governments of the 50 states. Additional power is distributed between the national government and federally administered territories, in addition to hundreds of federally recognized Native American tribes.
II. Models of Federalism in America
From the installation of the Constitution in 1789 until the 1930s, the relationship between the national and state governments could be described as dual federalism (Bowman & Kearney, 2009). Each level of government was understood to be supreme within its own sphere of authority. The national government was supreme in such areas as national defense, foreign relations, mail delivery, and customs enforcement. The state government was supreme in such areas as education and law enforcement. This model allowed for a significant amount of state autonomy with the federal structure.
An extreme version of state-centered federalism is nullification. John Calhoun was the principal advocate of this idea. This understanding of federalism holds that states— as sovereign political entities—have the authority to ignore, that is, nullify, national laws with which the states may disagree. Although not a predominant view, even among those who favored a state-centered interpretation of federalism, the spirit of nullification contributed greatly to the crisis that eventually led to the Civil War (1861–1865).
Dual federalism continued to be the dominant model of federalism until the 1930s. The inauguration of President Franklin Roosevelt (1933–1945) ushered in the New Deal, a program to bring more national involvement and finances into the provision of services in the states. President Roosevelt succeeded where other national-minded political leaders had failed due, for the most part, to the economic collapse of the Great Depression. Unemployment levels hovered around 20% until the buildup to World War II (1941–1945). Arguments for limited government and state-centered federalism became much less popular during this period. This period of cooperative federalism lasted until the Great Society of Lyndon Johnson.
In the aftermath of President Johnson’s (1963–1969) landslide reelection in 1964, the dominance of the national government in the American system of federalism reached new levels. Where the hallmark of intervention of Roosevelt’s New Deal was a combination of aid to states and localities, Johnson’s Great Society was characterized by direct national aid to local governments. The national government greatly expanded its role in health, education, and welfare policy. These were areas in which the states had traditionally been dominant. This effort, however, was met with some resistance.
With the ascendancy of Richard Nixon (1969–1974) to the presidency, the concept termed New Federalism became a rallying point for those who wanted to restore the balance between the national government and the states. Richard Nixon pursued this, in part, through revenue sharing: direct transfers from the national government to states and localities, with the intent of bypassing the federal bureaucracy. The New Federalism program of Ronald Reagan (1981–1989) emphasized the concept of block grants, whereby the national government would send less money to the states in exchange for the states receiving more autonomy in the implementation of programs. This attempt to move power from national to state governments is known as devolution.
Despite these attempts to devolve power back to the states, the national government continues as the dominant force in American federalism. The economic crisis that began in late 2008 has further tilted the balance of power in American federalism in favor of the national government. The bank bailout effort during the closing days of the George W. Bush administration and the economic stimulus plan enacted at the start of Barack Obama’s administration have ushered in an era of even greater influence by the national government on state policy.
The national government has established itself as the dominant member in the national–state relationship. This is evidenced by the current usage of the term federal. At the time of the founding, the term federal was synonymous with a system of government that reserved significant authority for state governments. Federal meant decentralized. Presently, the term federal government is synonymous with national government. When people speak of federal as a political concept, it is synonymous with centralized authority.
Even in this current era of national dominance, policymakers at all levels of government must confront the complex national–state relationship. Federalism is an important part of the American political tradition. It is, as political theorist Vincent Ostrom (1991) contended, a way of life, not merely a method of administrative organization. The origins of federalism go back beyond the framing of the Constitution to the very establishment of the colonies themselves.
III. Origins of American Federalism
American federalism has its origins in the method by which the British settled what is now the Atlantic coast of the United States. The settlement of the American Atlantic coast took place by means of colonies. The manner of settlement and political organization of each colony was different. The pace of settlement was uneven. The colonies were formed at different times, under different conditions, and under different monarchs—from 1606 to 1732—under the reigns of King James I, King Charles I, King Charles II, Queen Anne, and King George II.
There were three main categories of colonies: corporate, proprietary, and royal. Corporate colonies were chartered by officially recognized companies. Proprietary colonies were chartered by one person or a small group. Royal colonies were under direct authority of the Crown. Those colonies originally settled as corporate colonies were as follows: Massachusetts (1629, Charles I), Connecticut (1639, Charles I), Rhode Island (1644, Charles I), New Hampshire (1680, Charles II), and Georgia (1732, George II). Those colonies originally settled as proprietary colonies were as follows: Virginia (1606, James I), Maryland (1632, Charles I), Carolina (1663, Charles II), New York (1667, Charles II), Pennsylvania (1681, Charles II), and Delaware (1704, Anne). Those colonies first recognized as royal colonies were as follows: New Jersey (1702, Anne) and the two Carolina colonies—North and South—that were formed when Carolina was split in two (1729, George II). Eventually, the original charters of all the colonies were dissolved by Great Britain, with direct authority reverting to the Crown—except for Connecticut, Maryland, and Rhode Island. Because of these differing experiences—of time, place, and circumstance—each colony had a distinct identity, a distinctness that was retained in the period after independence. Each colony was different. The different colonies became different states. Therefore, each state was different. According to political scientist Daniel Elazar (1966), the modern differentiation in state policies can be explained, in part, by differences in the political culture of each state.
Any leader who called for greater unity in America would have to confront the existential fact that such a union would have to be formed by entities—states or colonies—that had enjoyed many years as separate political bodies. This tension has been ever present in the American experience. Political historian M. J. C Vile (1961) understood American federalism as something more than a political system. It is a state of mind that has been engrained in the American tradition for more than 400 years.
A. Initial Plans for Union
The first significant attempt to unify the colonies under an organized political structure was the Albany Plan of Union in 1754. In this year, war had broken out between France and Great Britain. This war is known as the French and Indian War (1754–1763). French forces in Canada posed a grave threat to colonial security. Meeting in Albany, New York, representatives from the Northern colonies drafted a plan of union for all of British America. The hope was that the proposed union would—among other things—provide for a better defense against a French invasion. Benjamin Franklin—inspired, in part, by the political structure of the Iroquois Confederacy—was the principal architect of this plan. The plan called for a union that would be headed by a president, who would be appointed by the Crown, and a representative body, which would be chosen by the colonial assemblies and proportioned according to the amount each colony contributed to the general treasury. For example, Massachusetts would have been entitled to seven representatives, while Rhode Island would have been entitled to two representatives. Both the Crown and the colonies eventually rejected this plan. Many colonists feared a central authority so close to home. The Crown feared an organized colonial entity that could resist royal authority. The Albany Plan, however, set the precedent for subsequent attempts to form an American union.
The second significant attempt to unify the colonies took place as a result of the War of Independence between the colonies and Great Britain (1775–1783), during which representatives of the colonies—now states—declared their independence from Great Britain. The Declaration of Independence was drafted and signed in 1776. Although the Declaration sets forth principles that could animate the formation of a government, it did not lay out particular arrangements by which the new, independent American political system would be formed. The document that laid out such a system was the Articles of Confederation, which was drafted in 1777. It was not ratified, however, until 1781, when Maryland finally approved the plan. In the interim between the drafting of the document and the ratification, national affairs were conducted by the Continental Congress. On ratification of the Articles, the Congress of the United States came into being. This Congress, however, was different from the modern version. Each state was entitled to a single vote—regardless of population or wealth. Furthermore, the powers of this new Congress to regulate commerce and to collect taxes to fund such activities as national defense was virtually nonexistent. The Congress had the authority to ask the states for money but had no power to collect. Even though it was poorly funded under such an arrangement, the Continental Army secured victory in the War of Independence. The troubles for America, however, did not dissipate after the official cessation of hostilities in the Treaty of Paris in 1783.
The postwar economy was in a shambles. War debts mounted, and national security threats still loomed on all sides. To address these concerns, representatives from the various states—except Rhode Island—gathered in Philadelphia in the summer of 1787. The initial task of the delegates was to revise the Articles of Confederation so that the country could better deal with the challenges it faced. The gravity of the nation’s troubles, however, led many delegates to believe that the Articles of Confederation were beyond repair. New plans for the country’s government were introduced.
B. The Constitutional Convention
There were two main plans under consideration at the Philadelphia convention: the Virginia Plan and the New Jersey Plan. The Virginia Plan was drafted by James Madison. The plan called for the creation of a strong national government. The principal governing body set forth in the Virginia Plan would be a bicameral Congress. The number of representatives each state would have in the Congress would be determined, in effect, by state population. This is a clear rejection of the principle of equal state representation that was embedded in the Articles of Confederation. The New Jersey Plan, proposed by Samuel Patterson, recognized the need for a stronger national government yet maintained the unicameral Congress, with equal representation for each state. As political scientist Martin Diamond (1981) pointed out, the dispute over these plans was not mere bickering between large and small states. Much more was at stake: the legacy of republican theory going back to the ancients.
Although it was widely recognized that the Articles of Confederation were defective, the core dispute was over the appropriate territorial size of a republic. The disagreement over the creation of a national government and the means of representation in the Congress forced the delegates at the convention to confront the very nature of republican government. The popular belief—offered by the political theorist Montesquieu in The Spirit of the Laws—was that republics could function only in smaller territories. After all, ancient republics had predominantly been city-states. According to those inspired by this line of thinking, a republic could not survive in a large nation, and the new constitution, like the Articles of Confederation, must hold dear to the idea of state-centered sovereignty. As scholar Samuel Beer (1993) observed, however, James Madison set about to turn this argument on its head.
Madison’s argument in the convention—which later became famous in written form as “Federalist No. 10”— was that republics were safer in large territories. According to Madison, the chief threat to the stability of a republic was an oppressive majority faction—a group driven by a common impulse. In a large territory, however, no single faction could form a majority. There would be too many factions in a nation the size of the United States. This would force factions to form coalitions and, thus, require them to make compromises. Republics in the past had failed because they were small. Although those eager to protect the autonomy of states did not give up on the small republic idea, Madison’s argument was persuasive enough for a compromise to take place.
Delegates from Connecticut—Roger Sherman, Oliver Ellsworth, and Samuel Johnson—offered a compromise that eventually broke the deadlock. The Connecticut Compromise—or Great Compromise—was for the creation of a bicameral Congress. The House of Representatives would be composed of representatives selected by the voters in the individual states, with the number of representatives from each state determined by population. This was similar to the method proposed by Madison in the Virginia Plan. The Senate would consist of representatives chosen by state legislatures, with each state receiving equal representation—two per state—that was similar to the method proposed in the New Jersey Plan. Through this compromise, a strong national government could be created while protecting state autonomy. The state governments themselves would provide representatives to one of the two branches of the national legislature.
By September, a draft of the Constitution was ready to be sent to the states for ratification. Many of the same arguments took place in state ratification conventions that took place in the Philadelphia convention. Along with Alexander Hamilton and John Jay, James Madison contributed to a series of articles that became known as The Federalist Papers. Writing under the collective pseudonym Publius, these articles were the most systematic and coherent defense of the new Constitution. These writings were used by pro-Constitution delegates at ratification conventions throughout the country. As for the so-called anti-Federalists, writers using pen names such as Cato and the American Farmer argued against the ratification of the Constitution. This collection has come to be known as the Anti Federalist Papers. Despite the best efforts of the anti-Federalists, the proposed Constitution was ratified in the late spring of 1788. The new national–state experiment, which we know today as federalism, would be implemented in 1789.
IV. Federalism in the Constitution
The Constitution, as it went into effect in 1789, contained seven articles:
IV. National State Relations
V. Method of Amending Constitution
VI. Constitutional Supremacy
VII. Method of Ratification
Article IV specifically deals with national–state issues, though the principles of federalism can be found throughout the Constitution. The document is infused with mention of the need of both states and the national government to share authority and responsibility for the operation of government. By its design, the national and state governments interact throughout the system of government in the United States.
The intent of the framers of the Constitution is clear from the start of the document:
We the people of the United States, in order to form a more perfect union [emphasis added], establish justice, insure domestic tranquility, provide for the common defense, pro mote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. (U.S. Constitution, 1787, Preamble)
The government that was to be created by the Constitution was to provide for “a more perfect union.” They did not seek to provide a perfect government system. On the other hand, they did not merely tinker with the Articles of Confederation. This union was designed to bring together the various states under a common government yet allow the states to retain power and identity. However, as discussed in previous sections, there has been controversy—in disputes over nullification, dual federalism, and cooperative federalism—over how to balance the power and identity of the union between state and national governments.
B. Article I
The first article of the Constitution has a dual character. In one sense, it is the section of the document in which the powers of the legislature are outlined. In a more fundamental sense, however, it is also the section of the Constitution in which the general powers of the national government are laid out.
1. Congressional Elections, Apportionment, and Representation
One of the first topics mentioned in Article I was the manner of elections to the bicameral Congress, which would consist of the House of Representatives and the Senate. The House would be selected by the “people of the various states.” If a representative is no longer able to fill the seat—because of death, illness, or resignation—the governor of the state shall call for a special election to fill the seat. Those eligible to vote in state legislative elections would be eligible to vote in House elections. The number of representatives of each state would correspond to the population of the state. Each state would have at least one representative, with the remaining proportion being determined by population.
At the constitutional convention in 1787, the Southern states wanted slaves to be counted for the purposes of representation in the House, even though they were denied basic political rights. It was in the interest of slave-holding states to have slaves count fully in the population, even though they would be denied the right to vote. This would swell the number of House members from Southern states and help these states maintain their power. If the goal were to weaken the power of Southern states in the national government—thus leading to the eventual abolition of slavery—the practical result would have been for slaves to not count at all toward the representation of Southern states in the House. This would leave the Northern states in a clearly dominant position and, perhaps, able to legislate slavery out of existence. The Southern states, however, would have balked at this notion and, most likely, walked out of the convention, leaving the fragile union in tatters. An unsavory compromise was reached in which slaves would count as three fifths of a person for the purposes of representation in the House. This preserved the Union and the hope that, one day, under a strong Union, slavery would be abolished. The alternative would have left the country divided, with the Southern slave-holding states left to form their own union, a union under which slavery could have expanded unabated by any political influence from the Northern states. Martin Diamond (1981) argued, “Not striking the bargain would have freed not a single slave while it would have destroyed the possibility of union” (p. 39). This possibility, with respect to slavery, was finally realized in the aftermath of a brutal Civil War (1861–1865).
In the Senate, the proportion of members from each state was less controversial, at least during the framing of the Constitution. There would be two members per state, regardless of state population. State legislators themselves would decide who represented their state in the U.S. Senate. The state governments would have their direct representatives fill the seats of the U.S. Senate, thus providing a valuable check—from the perspective of the states—against potential power grabs from the national government. State governors would appoint replacements in the event of an unexpected vacancy in a Senate seat.
As for the “time, places, and manner” of congressional elections, the Constitution prescribed that the national government would be allowed to determine the time and manner, but the states were reserved the power to determine the places. Furthermore, the national government reserved to itself the power to decide who was duly elected to the House and Senate. The final arbiter of disputed elections would be the Congress, not the states. In addition, members of Congress would be paid out of the national treasury and not the state treasury.
2. Enumerated Powers
The powers of the Congress and, by extension, the national government are described in Article I, Section 8. The national government would have, among others, the power to collect taxes, borrow money, regulate commerce, administer immigration, coin money, establish a post office, declare war, raise armies, provide a navy, and make laws “which shall be necessary and proper for carrying into execution the foregoing powers” (U.S. Constitution, 1787, Article I, Section 8). These powers have been described by scholars as enumerated powers. These powers are those that are directly given to the national government and listed in a systematic fashion.
There are two main schools of thought on how to interpret the list of powers in Article I, Section 8. At first glance, they appear to be a simple, straightforward accounting of the basic powers any government should have in order to function properly. A strict constructionist reads the list as a limitation on the power of the national government; the national government’s activities are limited to those on the list. A loose constructionist reads other powers—implied powers—into the list that the national government could exercise. For example, the responsibility to regulate commerce may give the government power over a wide variety of activities that are related to or affect commerce. In addition to the commerce clause, the necessary and proper clause has been interpreted by loose constructionists in a manner that would facilitate activity of the national government that goes well beyond those specifically described on the list. For example, the commerce clause could allow the government to provide health insurance, income subsidies, and regulate labor laws.
As for the necessary and proper clause, this could allow the government to establish a national bank, for example, even though the establishment of such a bank is not listed as one of the national government’s delegated powers. In fact, dispute over the constitutionality of a national bank was perhaps—after slavery—the most controversial political debate in America, from the founding period until the Civil War. The meaning and interpretation of Article I, Section 8 is fraught with both partisan debate and thoughtful deliberation on both sides of the issue.
3. Prohibitions on State Action
The concluding section of Article I prohibits states from engaging in a wide variety of activities, which are better suited for a national-level government. States are prohibited from entering into treaties or alliances with foreign governments. State governments may not coin money. They cannot, without the permission of Congress, impose import and export taxes on goods passing through their jurisdictions. In addition, states cannot pass laws that impair “the obligation of contracts.” This issue could come to the fore if, for example, a state attempted to provide debt relief to some of its residents by nullifying loans.
C. Article II
The second article of the Constitution deals with the executive branch, which is headed by the president. The Constitution does not prescribe a national method by which the president is chosen. Instead, the Constitution sets forth a method by which each state appoints electors to perform this task. This body of electors is known as the Electoral College. The number of electors each state may appoint to this body is equal to the number of members each state has in the U.S. House and U.S. Senate. Current members of Congress, however, along with national government officials, are prohibited from serving as electors.
It was assumed by the framers that electors would tend to favor candidates from their own state. Accordingly, electors were required to place two votes for president, with the stipulation that both votes could not be for a candidate from the same state as the elector. The candidate receiving a majority would be president. The candidate receiving the second-highest number of votes would be vice president. This was changed somewhat by the Twelfth Amendment (1804). Electors are now required to make one choice for president and one choice for vice president, with the stipulation that an elector cannot vote for both a president and vice president from the same state if the elector is also from that state.
As for the manner of selecting the electors themselves, it is left to each state legislature to make this decision. Although popular election in each state is the current method by which electors are chosen, this has not always been the case and could change in the future. In fact, in the midst of the recount controversy in Florida during the 2000 presidential election, the legislature of that state appeared willing to select Florida’s electors, if the courts failed to resolve the controversy in a timely fashion. Furthermore, several state legislatures have expressed interest in awarding their states’ electors to the winner of the national popular vote, regardless of the winner in their own state.
Federalism also appears in the manner of selecting a president if the election aforementioned procedures fail to produce a majority. The House of Representatives, in the original Constitution, would choose the president from among the top five candidates. However, the House members would not vote as individuals. Instead, they would be required to caucus by state, with the state delegation voting as a unit. The winning candidate would have to receive a majority of state delegations to secure the presidency.
In addition to presidential elections, federalism appears in the Constitution’s description of the president’s role as commander in chief and principal negotiator with foreign powers. The president, in times of emergency, may assume command of the various militias in each state. As for foreign negotiations, treaties brokered by a president may not go into effect unless a two-thirds majority of senators approves. Since the Senate is apportioned equally by state, this procedure protects the interests of a minority of states against treaties—such as commercial or trade agreements—that would have a disproportionate effect on such states.
D. Article III
The third article of the Constitution outlines the judicial power of the national government. Although most court cases are heard at the state level, the Constitution, as drafted in 1787, granted original jurisdiction to the Supreme Court in cases “in which a state shall be a party” (U.S. Constitution, 1787, Article III). The role of the national courts in state matters was further refined in the Eleventh Amendment in 1795.
E. Article IV
Although the principle of federalism is expressed throughout the Constitution’s seven articles, the fourth article of the Constitution could be named the Federalism article. The entire contents are taken up with interstate issues and the relationship between the state and national government. The Constitution requires the “full faith and credit” be rendered to the public acts of one state in that of another. For example, marriages in one state are generally recognized in others. However, the early-21st-century controversy over gay marriage has caused considerable debate over the proper interpretation of this element of the Constitution. In addition to the full-faith-and-credit clause, Article IV also establishes the principle by which the “citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States” (U.S. Constitution, 1787, Article IV). For example, this clause guarantees a right to travel from state to state. In addition to this interstate provision, a person charged with a crime who subsequently flees to another state must be extradited back to the state in which the alleged crime took place.
As for the creation of new states, Congress is given this authority. However, Congress may not create a new state out of part of an existing state or by combining parts of more than one state, without the approval of the affected states. This is a critical protection for states in a federal system. Without this protection, a national government, displeased with a state, may seek to destroy it as a political entity by carving it up into new states or adjoining it to another.
F. Article V
The fifth article of the Constitution is taken up with the method by which the Constitution is to be amended. The manner in which this is prescribed in the Constitution protects state governments, to some extent, against unilateral action by the national government. The Constitution cannot be amended without the cooperation of state governments. In fact, there is one method by which the states, without the involvement of the national government, could amend the Constitution.
Of the two methods available to amend the Constitution, only one has been employed to date. This method begins with a proposal introduced into the United States Congress. This proposed amendment must be passed by a two-thirds vote of each chamber, voting separately. If the proposed amendment passes, then it is sent to the states. If three fourths of the state legislatures—or state conventions, depending on the nature of the proposal—approve the amendment, it is ratified and becomes part of the Constitution. This last step, however, is even more difficult than it appears. Since 49 of the 50 legislatures are bicameral—with Nebraska as the exception—a proposed amendment must win approval in two legislative chambers in each state in order to have that state count toward the three-fourths requirement.
The second method by which amendments could be added to the Constitution is initiated by the state legislatures. If two thirds of the state legislatures approve an application for a constitutional convention, delegates would gather for the purpose of proposing amendments to the Constitution. These proposed amendments would then be sent back to the states for approval, with three fourths being necessary for ratification, either by legislatures or conventions, whichever is prescribed in the amendment proposal.
G. Article VI
The sixth article of the Constitution contains the supremacy clause. This clause states that the Constitution is the supreme law of the land. This clause is one of the main bulwarks of the school of thought that holds that the national government should hold the balance of power in the national–state relationship. In addition to the supremacy clause, the sixth article mandates that both national and state officials “shall be bound by Oath or Affirmation, to support this Constitution” (U.S. Constitution, 1787, Article VI).
H. Article VII
The seventh article of the Constitution established the method by which the Constitution would be ratified. The document, as drafted in Philadelphia in 1787, was sent to ratification conventions in the 13 states. To be implemented, 9 of the 13 states would need to approve. In effect, a much larger majority would need to be secured. It is doubtful that the new union would have survived if 9 of those states did not include the likes of Virginia, New York, or Pennsylvania. As it happened, the Constitution went into effect in 1789 with 2 states still left to ratify: North Carolina and Rhode Island. North Carolina ratified the Constitution in November of that same year, with Rhode Island delaying ratification until 1790.
There have been 27 amendments to the Constitution. Those with a significant impact on the operation of federalism include the following: the Sixth, Tenth, Eleventh, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Twenty-Fourth, and Twenty-Sixth Amendments. The Sixth Amendment, ratified in 1791 as part of the Bill of Rights, established the right of the accused to a speedy trial by an impartial jury in the state in which the crime was committed.
The Tenth Amendment assigns those powers not specifically delegated to the national government to be reserved for the states or the people. Just as those who advocate a national-centered view of federalism point to the supremacy clause in Article VI of the Constitution, those who advocate a state-centered view of federalism point to the language of the Tenth Amendment. This amendment was also ratified in 1791 as part of the Bill of Rights. The Eleventh Amendment, ratified in 1795 in response to the Supreme Court’s decision in Chisolm v. Georgia, held that the Supreme Court could hear cases between private citizens and states. The Eleventh Amendment grants states protection against federal lawsuits from citizens of other states and from citizens of other countries.
The Thirteenth, Fourteenth, and Fifteenth Amendments— ratified in 1865, 1868, and 1870, respectively—deal with the aftermath of the Civil War. The Civil War was the most contentious and most violent conflict in the American history of federalism. Eleven Southern slave-owning states seceded from the union, on the election of Abraham Lincoln to the presidency. This crisis manifested itself, primarily, in a dispute over the future expansion of slavery into the Western territories. In the course of the war, the elimination of slavery became the goal of the union. On the war’s conclusion, these three amendments abolished slavery (Thirteenth), mandated equal protection under the laws (Fourteenth), and established voting rights for former slaves (Fifteenth).
The Sixteenth and Seventeenth Amendments, both ratified in 1913, contributed greatly to the subsequent dominance of the national government over the states. The Sixteenth Amendment established the constitutionality of a national income tax. This provided the federal government with the opportunity to establish a consistent and significant source of revenue, from which the potential could be realized to fund larger national government programs. The usage of such funds to influence state policy is known as fiscal federalism.
The Seventeenth Amendment changed the method by which senators were elected. In the original Constitution, senators were selected by state legislatures—a vital element of the national–state balance of power. With the ratification of the Seventeenth Amendment, senators were directly elected by the voters. State governments would no longer have a direct hand in the selection of legislators. According to political scientist Ralph Rossum (2001), the balance between national and state government, arguably, has not been the same since.
The Twenty-Fourth and Twenty-Sixth Amendments relate to the right to vote. The Twenty-Fourth Amendment was ratified in 1964 to eliminate the poll tax in elections for national office. Some Southern states used this practice to prevent African Americans from exercising their right to vote. This issue, along with desegregation, was a legacy of the conflict in the Civil War. The Twenty-Sixth Amendment was ratified in 1971 and established a uniform, nationwide voting age of 18 years. Until then, some states still had a minimum voting age of 21. The draft policy in the Vietnam War—with a minimum-age requirement of 18—created political momentum for this amendment.
V. Supreme Court Cases
It is a characteristic of the American system that policy debates become constitutionalized. This is no less true of controversies over the proper balance of state and national powers within the American system of federalism. As is the case with many areas of policy, Supreme Court cases have proved influential in how the balance of power is decided between the national and state governments. A sample of influential cases follows. Although not exhaustive, this list is a representative sample of the kind of issues that can arise out of the complexities of the American system of federalism:
- Chisolm v. Georgia (1793): The Court ruled that the Supreme Court could hear disputes between citizens and states. This was overruled by Eleventh Amendment.
- Fletcher v. Peck (1810): The Court ruled a state law unconstitutional.
- Martin v. Hunter’s Lessee (1816): This established supremacy of the Supreme Court over state courts in national matters.
- McCulloch v. Maryland (1819): This expanded the powers of the national government through the necessary and proper clause.
- Gibbons v. Ogden (1824): This affirmed the national role in the regulation of interstate commerce.
- Worcester v. Georgia (1832): This recognized tribal sovereignty with respect to the states.
- Cooley v. Board of Wardens (1851): The states can regulate interstate commerce in limited instances.
- Wabash v. Illinois (1886): The ability of states to regulate interstate commerce is limited.
- NRLB v. Jones (1937): This significantly enhanced the power of the national government through a broad interpretation of the commerce clause.
- United States v. Darby (1941): This affirmed the power of the national government to regulate wages and working hours through the commerce clause.
- Wickard v. Filburn (1942): This affirmed the power of the national government to regulate prices through the commerce clause.
- Cooper v. Aaron (1958): State law may not contradict Supreme Court decisions.
- National League of Cities v. Usery (1976): The power of the national government to regulate commerce has limits under the Tenth Amendment.
- Garcia v. San Antonio (1985): The power of the national government to exercise authority through the commerce clause is limited only by the intentions of Congress.
- South Dakota v. Dole (1987): The national government can impose drinking age standards on states as a condition of federal funds.
- U.S. Term limits v. Thornton (1995): The states cannot set term limits on members of Congress.
- United States v. Lopez (1995): This set limits on the national government’s power through the commerce clause.
- Seminole Tribe of Florida v. Florida (1996): This affirmed the sovereign immunity of states under the Eleventh Amendment.
- Printz v. United States (1997): This provided some protection for state government officials against being forced to administer federal law.
- United States v. Morrison (2000): This further expanded on the Court’s decision in United States v. Lopez.
- Gonzalez v. Raich (2005): National power under commerce clause extends to regulating use of medical marijuana, even if state law is to the contrary.
The United States is one of 21 nations that have a federal political system. Federalism is a model of government that distributes political power between a national government and subnational governments. Political power in the United States is balanced between the national government, headquartered in Washington, D.C., and each of the 50 state governments. Political power is also dispersed between the national government and U.S. territories, along with officially recognized Native American tribes. The American system of federalism has its origins in the method of European settlement on the North American continent. The British colonies were formed at different times, with different charters, under different conditions. This contributed to a diversity of state experiences that made a balance of power between national and state governments a practical necessity at the nation’s founding. From 1789 until the New Deal of the 1930s, national and state government operated under the principle of dual federalism—each remaining supreme within its traditional policy areas. With the onset of the New Deal, the national government became more involved in policy areas that had customarily been reserved to the states. By the 1960s, the national government had been firmly entrenched as the dominant power in the national–state balance. This is symbolized by the current usage of the term federal. At the time of the founding, the term federal was synonymous with decentralized. Today, the term federal is synonymous with national and connotes a centralized approach to governing. Even though the national government is dominant, federalism is an important tradition in the American polity and, as political scientist Thomas Dye (1990) is keen to note, “a defense against tyranny” (p. 5). Disputes over the proper balance of powers in the national– state relationship are common, and many of these disputes have been settled by Supreme Court decisions.
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