Federalism

What is federalism

The division of sovereign power across the local, state, and national governments
Sovereign power- each unit of gov have some level of authority
Side note- federal gov is national government, federalism is the division

Levels of Gov and the autonomy

Autonomy int his case- each level of gov can do some things w/o interference from other levels
Ex. National gov- national defense foreign policy. State gov- public safety, run elections
Police powers- the powers to enforce laws and provide for public safety
Concurrent powers- the power to enforce laws and provide for public safety
Ex. Transportation, taxation, establishing courts
Chart on page 92
Local governments are created by state charters
They lack autonomy, but still provide important services. Ex. Education, police, fire etc.

A comparative perspective

Unitary government- national, centralized gov holds ultimate authority, most common type of gov
Ex. UK, Scotland may have its own gov but the national gov can dissolve it at any time
Confederate Government- states have most of the power with a limited national government
Ex. Us under the articles of confederation
Intergovernmental organizations- to coordinate policy across member nations
Ex. UN, NATO, EU and more

Balancing Nation and State power in the constitution

A strong national government

Limits on state power and the powers of interstate commerce and national defense being secured fort he national gov
Necessary and proper clause (Art 1, sec 8)
National supremacy clause (Art VI) - supreme law of the land
Nation-centered focus on the constitution

State powers and limits of national power

There are many provisions, upholding the power of the states ex. Art II (states choose electors) and Art V (3/4 must ratify amendments)
Limits on congress's ability to regulate interstate commerce only
10th amendment- powers not given to the national gov are reserved for the states and the people as long as the states are not prohibited from having that power

Clauses that favor both perspectives

In Art IV
Full faith and credit clause- each states laws must be honored by other states. Ex. Drivers license
Privileges and immunities clause- all states must treat non-state residents within their border the same as they would treat their own residents Ex. Public services
States are allowed to have some differences. Voting and tuition for example

The evolving concept of federalism

The early years

The federalists- George Washington, John Adams, and Alexander Hamiltion. Favored strong national government
Democratic republicans- Thomas Jefferson, James Madison, favored state power

Establishing national supremacy

First confrontation- federalists established a national bank in 1791. Came to a head in 1816 with the second national bank
Mary land tried to kill it with taxes. 2nd national bank refused to pay
Could congress make a national bank? Could states tax it?
McCulloch v. Maryland (1819)- the court ruled in favor of the national government on both questions
Congress had the power to coin money and levy tazed and borrow money so you need a bank to do that even if its not stated in the constitution per say (this is an implied power). States cannot tax the national bank b/c of the national supremacy clause
Gibbons v. Ogden (1824)- Congress has broad power to regulate interstate commerce. Struck down NY law which gave monopoly to a private steamboat company to operate on the Hudson river
New York cannot interfere with interstate commerce

The emerge of state's rights

This was especially prevalent in the south
State's rights- states are entitled to a certain amount of self-government, free of federal gov intervention. Central issue leading up to the civil war
Nullification- suppose state's right to ignore a law passed by congress if it thought that the law was unconstitutional
The was especially fraught around the issue of slavery

Dual federalism

The Marshall court vs. the Taney court

John Marshall- 1801-1835- federalists who opposed state's rights
Roger Taney- 1835-1864- Supported state's rights. Dual federalism
Pg 98 has a good breakdown of federalism-related cases
Dual federalism- national and state government are seen as distinct entities providing separate services. Limits the power of the national government
Ex. Bill of rights only applies to national citizenship, not state citizenship

Dred Scott and Civil War

Dred Scott v. Sandford(1857)- Scott petitioned for his freedom after his master died. He had lived with his master in the free Wisconsin territory and therefor, under the Missouri Compromise he should be free
The court ruled that slaves were not citizens. They were property and that the Missouri compromise was unconstitutional b/c it violated the 5th amendment b/c it deprived slave owners of property w/o due process
The contributed to the Civil War b/c it showed that there was not a political solution to slavery
After the war, the 13th Amendment - banned slavery and the 14th amendment - equal protection under the laws and due process protections from states and the 15th amendment- newly freed male ex-slaves have the right to vote
14th has been the most important to federalism. Justifies civil rights laws passed by congress

The supreme court and limited national government

This assertion of national power would not last
1873, court ruled that due process and equal protection only applied to the national citizenship, not state citizenship. This further applied to the bill of rights. It held that this only applied to laws passed by congress, not state laws.
This paved the way for Jim Crow laws in the south
The court also endorsed laissez-faire capitalism. Made a clear distinction between interstate and intrastate commerce.
Held congress could not regulate commerce that occurred entirely within a state
Focused on the transportation, not manufactured as a definition of commerce.