The Founding 

• A Confederation 

• A Bold New Plan: 

  • Only 21 of 185 nations use a federal system, but comprise 50% of the world’s population. 

• A ‘federal republic’ for which there was no precedent. 

• Elastic Language 

  • Expanded on what Congress can do. (Enumerated Powers). ‘Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers’

  • Coin money

  • Regulate interstate and foreign commerce

  • Conduct foreign affairs

  • Establish rules of naturalization

  • Punish counterfeiting

  • Establish copyright/patent laws

  • Regulate postal system

  • Establish courts inferior to

  • Supreme Court

  • Declare war

  • Raise and support armies

Powers Reserved for/denied to States 

• Reserved Powers: Regulate commerce, conduct elections, provide for public health, safety, welfare, and morals, establish local governments, maintain militia (National Guard), ratify amendments to the Constitution. 

• Powers Denied: tax imports and exports, coin money, enter into treaties, impair obligation of contracts, abridge the privileges or immunities of citizens or deny due process and equal protection of the laws. 

Why Federalism Matters 

• Federalism is a system in which the national government shares power with state/local governments. 

• State governments have the authority to make final decisions over many governmental actions. 

• The most persistent source of political conflict is between national and state governments. 

• The thinking in Philly on the part of some was that the federal government would only have those powers given to it. 

  • Many of the framers thought there was no need for any language regarding states because that has been settled— we said what the government could do and what states could not. 

  • The elastic clause (“necessary and proper”) and Article VI left others under the impression the federal government was the more powerful entity. 

  • State governments operate their judicial systems, charter corporations, provide public education, and regulate property rights. 

  • In addition, they oversee ownership of property, maintain schools, implement welfare and other benefits programs and distribution of aid, protect people from local threats, maintain a justice system, set up local governments, oversee state highways and local roads, regulate industry and  nl, raise funds to support their activities. 

• Unitary system: Central government → States → Citizens

  • Power is centralized 

  • State or regional governments derive authority from the central government (ex. France, United Kingdom)  

• Confederation system: State governments → Central government → Citizens 

  • Power held by independent states. Central government is a creature of the constituent governments. Example: United States under the Articles of Confederation. The E.U is also an example. 

• Federal System: central government and state or local governments → Citizens 

• Power divided between central and state or local governments. Both the government and constituent governments act directly upon the citizens. Both must agree to constitutional change. Examples: Canada, United States since adoption of Constitution. 

The Debate on the Meaning of Federalism 

• Nullification is the attempt to impose state will over federal law. 

  • A great example of this would be the Little Rock Nine. 

• Dual Federalism is the power is divided in clearly defined terms, with state governments exercising those powers according to them without interference from the federal government. 

• Today, powers of the federal government permeate our lives. In the past, it was like a cake. Now, it's like a marble cake (cooperative federalism). As they added more amendments, including the federal government in processes. For example: the inclusion of the 15th amendment, involved the government in the voting process. 

• I do not want to learn today 

What is interstate commerce? 

• Interstate commerce refers to the purchase, sale, or exchange of commodities, transportation of people, money or goods, and their navigation among states.

  • Dave’s is involved in interstate commerce despite being a Rhode Island marketplace. 

  • Amazon is considered interstate, you order online. 

  • Geico and Progressive are two insurance companies that are interstate.  

  • Citizens Bank is an interstate business despite headquarters being in Rhode Island. 

  • Twin River Casino is owned by Bally’s which operates 13 different casinos, a horse track, and online sports betting. 

Nullification 

• South Carolinians promoted an idea called nullification in order to remove the Tariff of 1828. 

• Madison and Jefferson proposed doctrines presented in the Virginia and Kentucky Resolutions of 1798. 

  • Alien and Sedition acts inspired it. The Alien Act allowed deportation of non US citizens who were considered dangerous. The Sedition Act permitted imprisonment and fines for criticizing the government. 

• Nullification stated that states could void/cancel any Federal laws they deemed unconstitutional. 

• States have fundamental rights that the federal government cannot abridge. 

• Marbury V. Madison was the Supreme Court decision that established judicial review. 

McCulloch v. Maryland: 1819

• In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank/ James W. McCulloh, the cashier of the Baltimore Branch of the bank, refused to pay the tax. The state appeals court held the Second Bank was unconstitutional because the Constitution did not provide textual commitment for the federal government to charter a bank. 

• Questions: 1. Did congress have the authority to establish the bank? 2. Did the Maryland law unconstitutionally interfere with congressional powers? 

• In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Pursuant to the Necessery and Proper Clause (Ar. 1, Section 8), Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the U.S. Constitution.

Necessary to mean "appropriate and legitimate," covering all methods for furthering objectives covered by the enumerated powers. 

• Marshall also held that while the states retained the power of taxation, the Constitution and the laus made in pursuance thereaf are supreme and cannot be controlled or threatened by the states.

Gibbons v. Ogden 1824

• The state of New York permitted Thomas Gibbons to perate steamboat between the two states. 

• Aaron Odgen believed that the decision was under the jurisdiction of the Federal government to grant Gibson permission to operate between different states. 

• Question: Did the state of New York exercise an authority that is reserved to the federal government through the Commerce Clause? 

• The answer was yes New York assumed power reserved for congress 

What is the Commerce Clause?

‘[The Congress shall have Power] to regulate commerce with foreign nations, and among the several states…’

• United States v. Darby: In 1938, COngress passed the Fair Labor Standards Act to regulate many aspects of employment, including minimum wages, maximum weekly hours, and child labor. When a Georgia lumber manufacturer, Fred Darby, shipped lumber out of state, he was arrested for violating FLSA. 

• The Court held that the purpose of the Act was to prevent states from using substandard labor practices to their own economic advantage by interstate commerce. (e.g lower wage than neighboring states). Congress’s power over interstate commerce extended to interstate activities, so long as the interstate activities have a ‘substantial’ effect on commerce. 

• The Court effectively converted the commerce clause into a general regulatory power. Congress may properly regulate any items or objects which themselves move in interstate commerce. Congress could also regulate the channels of interstate commerce – i.e. roadways, airways, rail lines, waterways, and airwaves. Over the next five decades, that power gradually expanded to include issues affecting workers and consumers. 

• Congress thus used the power to expand federal criminal legislation (e.g. carjacking, hate crimes, sexual violence against women, etc…), a minimum wage, the regulation of the airwaves, the regulation of controlled substances, and other major social reforms (e.g. the Civil Rights Act of 1964)

Expanding the Commerce Clause 

• Congress passed the Carjacking Correction Act of 1996. The law defined the penalty for a carjacking that resulted in no serious bodily harm or death, as up to 15 years in prison. 

• If a death occurred as a result of the carjacking, the penalty ranged from life in prison to the death penalty. 

  • Depends on whether federal or state prosecute a crime. 

• ‘..prosecutors should be aware that the “commerce’ nexus utilized by the Congress in the carjacking statute, namely that the motor vehicle has been transported in interstate or foreign commerce at some point of time prior to the completion of the carjacking offense, is an extremely broad assertion of Federal jurisdiction.’ 

  • A warning to Congress that the law is too broad and could lead to an overturning of the clause. 

• During the 2004 Super Bowl, Janet Jackson and Justin Timberlake performed. Justin Timberlake pulled her corset. They tried to play it off as a wardrobe malfunction but NBC was fined 500,000 by FCC. Later overturned on an appeal. 

Landmark Cases (Federal - State Relations) 

• Gibbon v. Ogden (1824): Ferry 

• McCulloch v. Maryland (1819): National bank 

• Wabash, St. Louis and Pacific Railroad v. Illinois (1886): The Supreme Court agreed with the railroad. 

US v Lopez

• After more than 50 years, the Supreme Court began to defer to states on disputes related to federalism. There cecent cases (U.S. v Lopez, Printz v U.S., and U.S v Morrison) reflected this trend, the product of a more conservative Supreme Court. 

• U.S v. Lopez: Alfonzo Lopez, a 12th grade high school student, carries a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zone Act of 1990. The act forbids ‘any individual knowingly to possess a firearm at a place that [he] knows.. ‘Is a school zone’ Lopez was found guilty following a bench trial and sentenced to six months ‘imprisonment and two years’ supervised release. 

• Is the 1990 Gen-Free School Zone Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?

  • Yes. The possession of a gun in a local school zone is not an economic activity that will have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with “commerce” or any sort of economic activity. 

  • ‘We start with first principle, Chief Justice Williams Rehnquist wrote in the Lopez decision. ‘The Constitution creates a Federal Government of enumerated powers’. 

  • ‘If we were to accept the government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.’

Printz v. United States - 1997

• The Brady Handgun Violence Prevention Act (Brady Bill) required local chief law enforcement officers" (CLEOs) to perform background checks on prospective handgun purchasers, until such time as the Attorney General establishes a federal system for this purpose: County sheriffs Jay Printz and Richard Mack, separately challenged the constitutionality of this interim provision of the Brady Bill on behalf of CLEOs in Montana and Arizona respectively.

• No. (5-4) The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. While Congress may require the federal government to regulate commerce directly, in this case by performing background checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily.

  • Question: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bars handgun applicant background-checks?

  • No (5-4) The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. While Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily.  

Good or Bad? 

• Harold Laski stated that ‘states are poisonous and parasitic’

  • States are taking too much from the federal government and costing it too much money. Or the federal government is generous for states that need it. States that can’t cut costs for certain things. (example: The Washington Bridge; we would have to cut back costs to pay for it like social programs)

• William Riker: federalism allowed the perpetuation of racism. 

  • States have historically passed very racist legislation around voting. They only could because states oversaw voting. The federal government ensured that all people could vote.  

• Daniel Elazar: Federalism actually provided for and ensured strength, flexibility, liberty, and opportunity. 

Referendum 

• A process by which the registered voters of a state or municipality have an opportunity to accept or reject a proposed law. Also referred to as ballot questions or plebiscites.

Initiative 

• Type of referendum in which a proposed law is placed on the ballot as a result of a petition signed by a certain number of registered voters. We don't have initiative in Rhode Island. 

Recall 

• Recalling is a procedure which gives voters an opportunity – after collecting a certain number of signatures should be removed from office. In 2003, Gray Davis was removed from office by voters in California. He was replaced by Arnold Schwarzengger. In 2019, Fall River Mayor Jasiel Correia was arrested by the FBI for a ponzi scheme. The people of Fall River recalled him and then re-elected him. 

• Providence Councilman Kevin Jackson was removed from office for embezzlement. He was caught skimming a taxpayer funded program for youth sports. 

•  We have a recall system in Rhode Island. 

Federal - State Relations 

• Some of the nation’s best known universities (Penn State, MIT, UVM, URI, UConn) began as land grant colleges. 

• Categorical grants might include highway funds, the Food Stamp Program, head Start, and Medicaid. One form of aid from federal to state and local government. Grant finances particular policies. No state or local discretion. 

  • States are required to: Contribute their own funds, obey federal guidelines for the grant, have an agency monitor the grant, the federal government is able to exert greater control over states. 

• Block grants include fewer requirements as to the way it is to be spent. 

• Grand Forks County, North Dakota received $1.5 million for bio-chemical suits, semi-armored vans, denomination tents, etc.