Federalism
Madison created federalism so the
delegates at the convention could “have
their cake and eat it too.”
Defined:
Constitution divides power between state and
national governments (National is stronger)
Both levels are created by the people
Power cannot be formally rearranged without
permission from both levels
JAMES MADISON, THE
FEDERALIST, NO. 39
Selection Summary
Answering the criticisms of the anti-Federalists that the Constitution
established an overpowerful national government, Madison stresses the
essentially republican character of the proposed government. He argues
that the Constitution compares favorably with many other national
constitutions in possessing republican characteristics (for example, limited
terms of office, consent of the governed, and prohibition of titles of nobility).
In addition, Madison states that the Constitution is “neither a national nor a
federal constitution” but a combination of both. National powers are strictly
enumerated, with additional powers reserved for the states. The system’s
mixed character, Madison argues, is perhaps best reflected in the
amendment process. Were the system totally national, supreme authority
would reside in the majority of people in the Union. Were it wholly federal,
all states would have to concur with constitutional change.
Benefits?
Closer to the people
Multiple points of access for citizens (increased
participation)
Diffuses power, (limits government) and may
prevent tyranny
States act as “laboratories” for innovation
Cons
Expensive!
Inefficient
Unfair (Why / How?)
Local solutions on some problems, national
effort on others
Controversy over federal vs. state control
Constitutional Basis for Federalism
National Powers
Enumerated or Expressed powers
Found in Article 1 Section 8 Clauses 1-17 as
powers of Congress
Lay and collect taxes; borrow money; coin money;
declare war; regulate foreign and interstate
commerce
Implied Powers
Necessary and Proper Clause or “elastic” clause
Clause 18 – Congress can do whatever is
“necessary and proper for carrying into effect its
foregoing powers”
Sole National Powers
Admit new states into the Union
Coin Money
Conduct Foreign Affairs
Declare War
Establish courts inferior to the Supreme Court
Raise and Maintain Armies and Navies
Regulate Commerce with Foreign nations and
among the states
State Powers:
“Reserved Powers”
10th Amendment – The States may exercise
those powers not delegated to the national
government (and not prohibited to the states)
are “reserved” to the states.
“Police powers” – regulation of individual
conduct; normally in areas of health, safety
and morals (How does the state regulate
health; safety; morals?)
Also education falls to the states
State Powers
Conduct elections and determine voter
qualifications
Establish Local Governments (Dillon’s
Rule)
Maintain Militia (National Guard)
Ratify Amendments to the Federal
Constitution
Regulate Intra-state Commerce
Denied Powers
Federal
Pass bills of attainder or ex post facto laws
Tax exports
Suspend Habeas Corpus
State
Coin money; make treaties; engage in war;
pass bills of attainder or ex post facto laws;
suspend Habeas Corpus
Concurrent Powers
Tax,
Borrow money, spend money on the
General welfare
establish courts and make and
enforce laws
Establish Highways
Powers of Eminent Domain
Charter and Regulate banks and
Corporations
Additional Federalism Concepts
Full Faith and Credit
Privileges and Immunities
Interstate Compact
Extradition
Avenues of Federalism that favor national
encroachment into state jurisdiction and
activity.
Amendment XIV
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the state wherein they reside. No state shall make
or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.
Avenues of Federalism that favor national
encroachment into state jurisdiction and
activity.
Grants and Aid
State / Federal Tug of War
1791 to 2005
Why? New system; vague wording
The Marshall Court
Strictconstruction of the constitution (strict
constructionist-Jefferson, fearful of
encroachment of national power to the states
which according to the Anti-Federalists were
the bulwark of democracy
Loose construction-the belief of implied
powers-allowing the national government to
address national needs without restrictions
from the states
McCulloch v Maryland 1819
Facts
Questions:
Does the national government have the power
to charter a bank?
If so, can it be taxed by the state?
McCulloch v Maryland 1819
Yes. Since it is necessary and proper for
Congress to have a bank to facilitate
borrowing and coining of money. Affirmed
the “doctrine of implied powers.” *****
No. The “power to tax is the power to
destroy.” The Supremacy Clause (Article
VI) does not allow the state to destroy a
creation of the national government.
Affirmed the Supremacy Clause.*****
Gibbons v Ogden 1824
Question: Can the State of NY grant a
monopoly to a steamship company on the
Hudson River – also: is navigation
commerce?
No – Commerce is more than just direct
dealing in products - includes navigation.
Broadened the concept of commerce.*****
Summary of the Marshall Court
Dramatically placed more Power in the Federal
Court System
Marbury V. Madison-greatly expanded the role
of the court by the instituting the doctrine of
judicial review. Marbury V. Madison set a
precedent for Federal Cases. Thus placing an
additional check on the Legislature (Separation
of Powers-Montesquieu.)
Summary of the Marshall Court
McCullugh V. Maryland continued to
solidify the concept of Judicial Review, but
expanded this authority to the states ergo
over the states (Art VI, Supremacy
Clause) The Power to tax is the Power to
Destroy, no state can tax the Federal
government for to do so would to relegate
the national govt. to one of servitude.
Summary of the Marshall Court
Gibbons V Ogden expanded the role of the
Federal Government as supreme in matters of
regulating commerce. Art 1 Sec.8 #3. The
Marshall Court expanded the meaning of
commerce to also mean navigation, not just
commercial trade.
End result-more power to the Federal
government was enshrined and the Court was
now an equal member in power to the other two
branches-thus debunking Hamilton’s view that
the court would be the weakest of the three
branches as he stated in Fed. Paper 78.
Dred Scott 1857
Roger B. Taney court
Issue of States’ Rights, slavery and
admission of new states
Dred Scott
Dred Scott - continued
Decision:
Dred Scott is property, not a person, and has
no standing to sue
In passing the Missouri Compromise,
Congress exceeded its powers. Deciding
slavery in the new states is a state power.
StrengthenedState power and led to Civil
War by removing the possibility of legislative
compromise.
Civil War – Effect on Federalism
Civil War ended the “doctrine of
nullification” – that the states could nullify
national laws they found objectionable
Civil War – Effect on Federalism
Civil War Amendments
13th Abolished slavery (1865)
14th No state could deny any person “equal
protection of the law.” (Equal Protection Clause)
15th Voting rights for all races
Civil War – Effect on Federalism
Brought to finality the concept of a
supreme national government.
Article VI of the Constitution (the
supremacy clause) would no longer be
challenged as established doctrine.
Plessey v Ferguson 1896
Decision that “separate but equal” facilities
under state law does NOT violate the 14th
Amendment equal protection law
Plessy v. Ferguson
Homer Plessy
Validates Jim Crow laws and Black Codes
Movement toward Federal Power
Cooperative Federalism
Progressive reform
16th Amendment – Direct Income Tax
17th Amendment – Direct Election of Senators
Federal control of monopolies, food industry,
Merit System applied to hiring federal
employees (replaced spoils system)
Movement toward Federal Power
New Deal as response to the Depression
1930s Federal response to the crisis
Huge growth of federal programs and funding
Affectation Doctrine – Jones Laughlin
Steel v Nat’l. Labor Relations Board 1937
Ruling – Congress has the power to regulate
anything that affects interstate commerce
NLRB v. Jones & Laughlin Steel Corp
Movement toward Federal Power
Cooperative Federalism
Shelley v Kraemer 1948
Equal Protection Clause Case
Courtrules that state courts cannot enforce
Private covenants with clauses to exclude
minority races
Heart of Atlanta Motel Versus U.S.
Heart of Atlanta Motel v. U.S
Title II of the Civil Rights Act 1964
Commerce Clause
Brown v Board of Education 1954
Overturns Plessey
Segregated schools is an equal protection
violation (14th Amendment)
“De Jure” (by law) segregating is
unconstitutional
Swann v. Charlotte-Mecklenburg Bd. of Ed.
Enforceability of Federal Courts on
previous rulings on state matters
Swann v. Charlotte-Mecklenburg Bd. of Ed
14th Amendment Equal protection clause
Other areas of Increased Federal
Power: (Creative Federalism)
Categorical Grants (specific purpose) with
“crosscutting conditions”
Achieve national goals through creative
means
Some go to States, others directly to local
governments (transportation, school lunch,
vaccinations, sewage treatment, clean water,
etc.)
Creative Federalism
Also: Clean Air Act; Clean Water Act; Civil
Rights Act; Federal gun control; Federal
Drug Laws
(all
passed under Commerce Power of
Congress)
Devlolution (1980s to Present)
Control and responsibility returned to the states
Block Grants
Court begins to narrow the meaning of
commerce and to recognize greater state
sovereignty
Problem: States cannot adequately fund
programs
Printz V. U.S.
Printz v. United States
Commerce Clause
Necessary and Proper Clause
State Legislatures subject to Federal
directives
States Rights (10th Amendment Reserve
Powers)
United States v. Lopez 1995
United States v. Lopez
Gun-Free School Zones Act of 1990
Enumerated Powers
Commerce Clause
Federal Government exceeded its
authority into state policing powers
Webster v. Reproductive Health Services
Webster v. Reproductive Health Services
14th Amendment Due Process
Restrictions on abortion
Unfunded Mandates
No Child Left Behind (NCLB)