Federalism Lecture

For those of us who have always lived in the US - it's hard to imagine a system of government that is not FEDERAL. In fact, most of the countries in the world operate in another system altogther.

So what are the other systems?

1. Unitary

2. Confederal

3. Federal

A UNITARY system is a CENTRALIZED GOVERNMENTAL SYSTEM that decides all policy.

There can be smaller divisions of govt - however, they are ONLY authorized to do what the central gov't wants them to do.

Who can give me an example? UK is a prime example, until 1997.

All policy was decided in Parliament, at Westminster.

So local Scottish councils could make decisions - but if they did something Westminster didn't like, they had to reverse it.

2. Confederal system

System consisting of a league of independent states, each having essentially sovereign powers. The central govt has only limited powers over the states.

Best example: (Not mentioned in txt) CANADA

Canada is divided into ten provinces and 3 territories - and provinces act as semi-independent states. They decide all policy. Ottawa - Canada's capital - is the seat of the federal government, but the fed govt has very limited powers to decide policy. Canadians pay more provincial taxes than federal taxes, so fed govt has fewer financial resources. Also - Supreme Court of Canada is on the federal level. But when they make decisions - it's not as binding as the US SC, because of the "nullification" clause.

Confederal states have problems - provinces sometimes want to secede (Quebec, Alberta, Newfoundland).

3. Federal system -

Shares power between central government and other levels. Authority is divided between national govt and regional govt (states, towns), usually aided with a WRITTEN CONSTITUTION (officially delineates how levels interact). It is assumed that each is supreme in its own sphere.

So the federal govt cannot dictate NYC policy. However, NYC mayor cannot make political decisions for DC.

Why Federalism?

Practicality

colonists were already used to having considerable power within their towns and states, and did not want to give that up

founders realized that, given the size of the US at that time, unitary was not going to work

plus - regions are very different (North and South). better to have more levels

Other benefits -

Means that one level of govt doesnt take all the blame

When state decides to raise taxes - it's state officials who hear it, not local or national

Brings govt closer to the people - so people actually feel like the democracy is working for them

Direct access - heads of revolutionaries, makes people believe in the system, less likely to overthrow it

In the US:

Allows leaders to prove themselves on multiple levels

Pataki: started out as mayor of Peekskill, NY. Worked his way up to Governor of NY

In unitary states, there is no such training ground - Blair was an MP in small town northern England and a shadow secretary, but these do not really "prove" you're capable of leading an entire state

Also - you get to try out POLICY on local levels first before taking it national

Ex: unemployment compensation in WI, air pollution measures in CA

Also - allows for POLITICAL SUBCULTURES

Not everybody is going to have the same idea about policy. Abortion, gun control, same sex marriage - all up for debate, nearly impossible to form a NATIONAL CONSENSUS on these matters. So why is federalism good?

Allows regions to decide for themselves

San Fran - allows same sex marriage

Alabama/Mississippi/Georgia - abortion is illegal

Wyoming/middle states - gun laws reflect desires of hunters

Arguments against Federalism

Some people think these blocs/groups/regions could block national progress

So if you're pro-choice, you might think that the southern states are standing in the way of real national consensus

Same thing if you're anti-gun or anti-gay marriage

Also an argument that federalism results in inequality - in safety, in crime, in wealth. Certain states, because of their policies, are better at attracting industries and funds, while others might be driving capital away

So how did our constitution create this federal system?

Gives separate powers to the national government, to the state government, and to the local government

Powers of the Federal Government

ENUMERATED POWERS - powers SPECIFICALLY laid out by the constitution.

Includes: setting standards for measurements, admitting new states, starting wars, regulate commerce

NECESSARY AND PROPER CLAUSE: (also referred to as the ELASTIC CLAUSE)

Founding fathers were smart enough to realize that situations would arise that they could not anticipate. Not wanting the federal government to be PARALYZED due to their lack of foresight, they created this clause

Grants CONGRESS (not the President) the power to do whatever is necessary to execute is specifically granted powers

INHERENT POWERS

Deals with foreign policy

Recognizes that the US FEDERAL govt is the only govt that can represent the American people in dealing with other nations

So in making treaties, engaging in war, creating trade alliances, negotiating land deals - all fall under the purview of the federal govt

Remember - in AofC time is was individual states who took this upon themselves

POWERS OF THE STATE GOVERNMENTS

Constitution does not outline what powers states have. Instead, they say that everything that is NOT included in the list of the federal powers, is assumed to be the rights of the states. As it happens, sometimes there is real conflict over what is a state's right and what is the national govt's right.

Usually, it is assumed to include the right of states to regulate commerce WITHIN their borders, and to maintain order within their borders. States also have the right to make laws and policies that do not contradict the constitution.

States also have POLICE POWER - not what it sounds like

It's the right to "legislate for the protection of the health, morals, safety, and welfare of the people." Morals - illegality of birth control

The nature of the 10th amendment changes depending on the situation. At times, states are militant about protecting their rights. But, if they want a particular policy really badly, they encourage the national government to take a stand on it.

Discussion: Does the system work smoothly as is? Or would it have been better for the founders to outline state rights more clearly?

CONCURRENT POWERS

Powers shared by the national and state governments

Power of tax - you pay state tax and federal tax (IRS). But this limited somewhat - states cannot tax imports, for example

Other concurrent powers - power to create banks and courts

PROHIBITED POWERS

C. specifically says the national government CANNOT:

1. tax exports

2. cannot assume to have powers that are not given to it by the constitution

States are limited too - cannot negotiate treaties with other countries

SUPREMACY CLAUSE

States that the C. is the SUPREME LAW OF THE LAND

It is supreme over conflicting state laws. And also, conflicting court opinion.

Lately, this has been used more and more by the federal government - over the past 90 years, Congress has passed 120 statutes that directly override state legislation

VERTICAL CHECKS AND BALANCES

(Draw difference between horizontal - executive, legislative - and vertical -state and nation-)

` Federal can change the constitution (amend) without states

States can act as check on govtal power.

INTERSTATE RELATIONS

Equally important in Am. govt, but tends to be overshadowed by state-national relations

States are obliged to recognize each other's laws - so a fugitive in one state is a fugitive in another states.

But what about gay marriage? If it's performed in MA, is NY required to recognize it?

Discuss.

States also enter into INTERSTATE COMPACTS - an agreement between 2+ states. Minor agreements can be done without congress knowing about it, but in a situation where the compact allows a group of states to become more powerful can be a problem, and must be approved by Congress

CONSTITUTIONAL POWERS - THE EARLY YEARS

Still had to get the relationship between the federal government and the state government down

This took some ironing out

This was when the Supreme Court first began to assert its importance in Am govt. Remember - this was the first judicial body in the world to have a real impact on governmental affairs. Set the precedent for many other countries to follow.

Referred to as the Marshall court - established the power of the SC

One of the biggest cases - McCulloch vs Maryland (1819)

NATIONAL BANKS

The constitution said nothing about the federal govt's right to create national banks. So, when it established the First and Second Banks of the US, the state of MD imposed a tax on the Baltimore branch of the Second bank. McCulloch was the federal bank's cashier, who refused to pay the tax. It went to the SC.

Questions before the Court:

Did the national government have the power to create banks?

If it did, did the states have the right to tax it?

Marshall's Decision:

1. The national government had the right to charter the bank

Why? 3 reasons

a. The government was created by the people at the Constitutional convention. Therefore, the govt derived this right FROM THE PEOPLE.

b. Because there are 'implied powers,' Congress has the right to USE them. So, although the right to establish a bank is not written explicitly, Congress has the right to collect taxes, borrow money, and regulate commerce - it is only natural that the right to create a bank should exist.

c. Because a national bank assists the government in the exercise of its designated powers, it is therefore constitutional

Because of Madison's position, the federal government was allowed to use these implied powers and really exercise their federal position.

Gibbons v. Ogden (1824)

And so the fights between NY and NJ began....

Issue of steamboats shuttling between NY and Elizabeth - NY attempted to grant one steamboat company a monopoly over this path

Thomas Gibbons wanted to operate a competing ferry service. NY barred him, he took it to court

What the decision said:

The issue here centered around the word "commerce." NY thought it could get away with this inter-state monopoly because it did not involve the exchange.

However, Marshall defined "commerce" as "trade, as well as the navigation and transport of people." By establishing ferry services as "commerce," he asserted that all interstate commerce must be controlled by Congress, not individual states.

Set the stage for the national govt to play more of a role in economic affairs and determining economic policy

States' Rights and the push for civil war

Common perception that the Civil War was fought purely over slavery - but really, it wasnt about that. It was about who had the power to decide.

So as you can infer, Marshall wasn't a huge "states' rights" advocate. He firmly believed that the federal government had to have more power in order to function well.

However, during the Jacksonian era (Andrew Jackson - very populist, was all about bringing the power home to the people) - there was a remarkable swing back to states' rights. First example - when federal govt passed a tariff in 1828, SC refused to abide by it. And so it began.

The textbook really skims over a lot of the landmark constitutional decisions and fights over states rights - but if you're interested, I definitely recommend reading up on the Compromise of 1820 (Missouri Compromise), and the Compromise of 1850. Unfortunately, no time to go over these.

Fast forwarding to the Civil War - war declared in 1861, when SC secedes, followed by six other southern states.

End of the Civil War - North (or Union) one. By the UNION winning, it said NO STATE IS ALLOWED TO SECEDE.

1865 - because so many people had to work to create this victory, the federal govt was suddenly saddled with a bevy of debts. Had to pass the first formal budget in US history to make sure it could cover it, and established the practice that continues today.

Also imposed the INCOME TAX for the first time - govt needed money badly, and it was considered the best way to raise it.

Heralded the EXPANSION OF THE FEDERAL GOVERNMENT at a newer pace than ever before.

Affect of the Civil War on the Constitution:

"Civil War Amendments" - national government realized newly readmitted states could not be trusted to pass these regulations on their own, so did it themselves.

13th Amendment - abolished slavery altogether, and consequently, got rid of the 3/5 rule

14th Amendment - made slaves formal citizens of each state, with all rights included

15th Amendment - African-Americans have the right to vote. Had to say this specifically, to ensure that Southern states would allow this. Of course - they found ways around it. But the fed govt did make a great effort at the end of the Civil War to preclude this.

Where has the debate between states' rights and federal rights gone since the Civil War?

Two paths:

Dual Federalism/Retreat of National Authority

Dual Federalism:

System in which states and national government each remain supreme within their own spheres. Sees the nation and the state as equal in stature. Neither can interfere in other spheres.

Reestablished teh constitutional status quo as was before the expansion of national authority. Ex: National income tax repealed in 1872. 1877 - President Rutherford P. Hayes withdrew last of federal troops from the South.

ROLE OF THE SUPREME COURT

While the SC had been growing in prominence in the wars before the Civil War, its power was drastically reduced in the years following it.

Because of its Dred Scott decision, the SC ruled that the federal government did not have the power to decide issues of slavery. Obviously, after the Civil War, that question was put to rest.

Testament to lack of confidence in the SC - Congress said all legal questions resulting from Southern reconstruction is not subject to judicial review.

How did the SC then regain its previous stature?

By working through the context of dual federalism, siding more often with the federal government.

Ex: 1895 - declared federal income tax to be unconstitutional

However, over the years it had mollified this decision, and finally, allowed the federal government to impose an income tax once again. (16th Amendment - 1913).

How did SC view dual federalism?

Federal government had a wide reach of power - but when it came to purely local issues, it was up to them to decide, not the feds, esp when concerning police power.

THE NEW DEAL - a new chapter in American govt

Great depression and worldwide economic collapse triggered a series of responses throughout the world. In the US, it marked the end of dual federalism as it had been practiced.

Herbert Hoover - really held on to this idea of dual federalism. Hoover did not want to be the one responsible for the unraveling of the American system. But his inaction very nearly led to that.

In essence, he viewed poverty and unemployment as local issues, that should have local solutions. However, he failed to recognize that the CAUSE for local unemployment and local poverty was much larger, and needed to be addressed by the state and national governments.

FDR - recognized that serious actions needed to be taken to get the US out of such poverty

IMPLEMENTED THE NEW DEAL - A TURNING POINT

Previously, Am. politicians had held fast to "laissez-faire economics" - distrusted state interference

However, New Deal said, capitalism is an imperfect system, and needs the assistance of the state

So - first 100 days - Emergency Banking Act, Economy Act, Agricultural Adjustment Administration, Farm Security Administration, Tennessee Valley Authority, employment programs, social security programs

National Recovery Administration (NRA) - restrict competition and regulate labor relations

All of this was necessary to get the American economy back on its feet. But it marked a growth in the federal government, while states remained weak

The SC attempted to declare these programs unconstitutional, on the grounds that it dealt with INTRAstate commerce and not INTER-state commerce. Roosevelt threatened to "pack the court" by adding six new justices, and the Court backed down.

So if it's the end of dual federalism, what do we have?

Some describe it as COOPERATIVE FEDERALISM

states and the national government should cooperate when solving problems

before, states did their thing, the nat'l gov't did its thing, and they never really met to discuss problems

now - it's more of a cooperative effort.

Marble cake imagery - it's not so cut-and-dried where states' rights end and fed's rights begin