federalism

Federalism:

  • Federalism: division of sovereign power across the local, state, and national government

  • Sovereign power: each unit of government (state and national) have some level of authority and autonomy

  • Federal gov. refers to national gov.

  • Autonomy: each level of gov can do some things without interference from other levels

    • Ex national gov: national defense, foreign policy

    • Ex state gov: public safety, run elections

  • Police powers: power to enforce laws and provide for public safety

  • Concurrent powers: when responsibility Is shared among the levels of gov.

    • Ex: transportation, taxation, establishing courts

 

Levels of Government:

  • Local governments are created by state characters

  • They lack autonomy but still provide important services

    • Ex: education, police, fire

 

Comparative Perspective:

  • Unitary government: national, centralized government holds ultimate authority

    • Most common form of gov

    • Ex: UK, Scotland may have their own but national gov can dissolve it

  • Confederate government: states have most of the power with a limited national government

    • Ex: US under articles of confederation

  • Intergovernmental organization: to coordinate policy across member nations.

    • Ex: UN, NATO, EU

 

Balancing power:

  • The founders wanted a stronger national gov. than under the Articles

  • BUT they also wanted to ensure the states held some power

  • Strong national government:

    • Limits on state power and the powers of interstate commerce and national defense being secured for national gov.

    • Necessary and proper clause (Article 1, Section 8)

    • National supremacy clause (article IV) - supreme law of the land

    • Nation centered focus on constitution

  • State power:

    • There's many provisions upholding the power of the states

      • Ex: Article II (states choose electors) and Article V (3/4 must ratify amendments)

    • Limits on congress's ability to regulate interstate commerce only

    • 10th amendment: powers not given to the national government 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:

  • ARTICLE IV:

    • Full faith and credit clause: each state's laws must be honored by other states

      • favors states

      • Ex: marriage license, driver's license, birth certificates

    • Privileges and immunities clause: all states must treat nonstate residents within the border the same as they would treat their own residents

      • favors national gov

      • Ex: public services

    • States are allowed to have some differences

      • Ex: voting, tuition to universities

 

Evolving Concept of Federalism:

  • Overtime, the national government has gained more power over the states

 

Timeline:

  • The Federalists: George Washington, John Adams, Alexander Hamilton

    • Favored strong national gov

  • Democratic republicans: Thomas Jefferson, James Madison,

    • Favored state power

  • First confrontation: federalists established a national bank in 1791

    • Came to head in 1816 with a second national bank

  • Maryland (controlled by dem-rep party) tried to kill it with taxes

    • 2nd national bank refused to pay

  • Could congress make a bank? Could states tax it?

  • McCulloch v. Maryland (1819): the court ruled in favor of national government on both questions

    • Congress can have a bank and states cannot tax

    • Reasoning: congress has the power to coin money and levy taxes and borrow money, so you need a bank to do that even if it's not stated in the Constitution per say (implied power). State cannot tax national bank because of national supremacy clause

  • Gibbons v. Ogden (1824): congress has broad power to regulate interstate commerce. Struck down NY law which gave a monopoly to a private steamboat company to operate on the Hudson River

    • New York cannot interfere with interstate commerce

 

Emergence of States' Rights:

  • State's rights: states are entitled to a certain amount of self-government, free of federal government intervention. Central issue leading up t Civil War

    • Especially prevalent in the south (slavery)

  • Nullification: supposed states' right to ignore a law passed by congress if it thought the law was unconstitutional.

    • Especially fraught around the issue of slavery

 

Dual Federalism:

  • Defined intergovernmental relations for almost first 150 years

  • Court had a narrow interpretation of the 14th amendment and the commerce clause

    • This limited the power of national gov.

 

Marshall Court vs the Taney Court:

  • John Marshall: 1801-35, federalist who opposed states' rights

  • Roger Taney: 1835-64, supported states' rights, dual federalism

  • Dual federalism: national and state governments are seen as distinct entities providing separate services. Limits the power of national gov.

    • 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 therefore, under Missouri Compromise (slavery was illegal in any free state), he should be free

    • Court ruled that slaves were not citizens. They were property and the Missouri Compromise was unconstitutional because it violated 5th amendment and deprived slave owners of property without due process of law

    • Contributed to the Civil War because it showed that there was not a political solution to slavery

 

Supreme Court and Limited National Government:

  • After the war, 13th amendment banned slavery

    • 14th amendment- equal protection under the laws and due process protections form states

      • 15th amendment - newly freed male ex-slaves have the right to vote

    • 14th has been most important to federalism. Justifies civil rights laws passed by congress

  • This assertion of power did not last

  • 1873: court ruled that due process and equal protection only applied to the national citizenship, not state citizenship. Furether applied to bill of rights. 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 manufacture as a definition of a commerce