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       Week 4
A Comparative Perspective
Three forms of Government Organization
 Unitary Government
     Centralized, All power at the center
 Federal Government
     Some power at the center
     Some power in sub-units (States)
 Confederal Government (Confederation)
     Decentralized, All power in the sub-units
A Comparative Perspective
Unitary Government
 Examples: England, France, China
 Strong Centers
 Delegated power to counties etc. can be withdrawn

 Good at coordination and solving local tyranny
 Poor at addressing special local needs
 Poor at protecting against a central tyranny
 No place for experimentation
A Comparative Perspective
Confederal Government (Confederation)
 Decentralized, All power in the sub-units
 Real examples: US under Articles of
  Confederation, UN, NAFTA, European Union.
 Ineffective at national coordination
 Can’t resolve tyranny at the local level
 Good at dealing flexibly with local needs
 Provides local laboratories for experiments
 Blocks a central tyranny
A Comparative Perspective
Federal Government (the hybrid model)
 Examples: USA, Canada, Switzerland, India, Mexico, Germany
 Some power at the center
 Some power in sub-units (States)
        Division of power spelled out in the structure and can’t be
         changed by the central authority

   Moderately good at national coordination
   Moderately good at local need
   Partially blocks central tyranny
   Slowly overcomes local tyranny
   Creates local laboratories for experimentation
A Comparative Perspective

 Expressed Powers of the National
 Implied Powers of the National Government
     Necessary and Proper Clause
         (I will call it the Necessary and Proper Clause,
          not the simple-minded term in the text –
          elastic clause)
Implied Powers
Necessary and Proper Clause
  (this is college, I will use the legal language, not the simple
  minded “elastic clause” language)

"To make all laws which shall be necessary and
  proper for carrying into execution the
  foregoing powers, and all other powers
  vested by this Constitution in the government
  of the United States, or in any department or
  officer thereof.”
       (Article 1 Section 8 Clause 18)
          Federalism: Selected Constitutional Powers

Federal Powers:                                                          Powers Reserved to the
EXPRESSED                                 -Levy and Collect Taxes        States
- Coin Money                              -Borrow Money                  -Regulate Intrastate Commerce
- Conduct Foreign Affairs                 -Make and Enforce Laws         -Conduct Elections
- Regulate Interstate Commerce            -Establish Courts              -Provide for Public Health, Safety,
-Levy and Collect Taxes                   -Provide for General Welfare   and Morals
-Declare War                              -Charter Banks and             -Establish Local Governments
-Raise / Support a Military               Corporations                   -Ratify Amendments to the
-Establish Post Offices                                                    Federal Constitution
-Establish Inferior Courts                                               -Establish a State Militia
-Admit New States

IMPLIED: "To make all Laws which
shall be necessary and proper for
carrying into Execution the foregoing
powers, and all other Powers vested
by this Constitution in the
Government of the United States, or
in any department or officer thereof.”.
(Article 1 Section 8 Clause 18)
                               Powers denied both
Powers Denied to the           Federal and State              Powers Denied to the States
Federal Government             Government
                               -Tax exports from any          -Tax Imports or Exports
-Tax exports from any state       state                       -Coin Money
-Violate the Bill of Rights    -Violate the Bill of Rights    -Enter into Treaties
-Change State Boundaries       -Change State Boundaries       -Impair Obligations of
-Suspend the right of Habeas   -Suspend the right of             Contracts
   Corpus                         Habeas Corpus               -Abridge the Privileges or
-Make ex post facto laws       -Make ex post facto laws          Immunities of Citizens
                               -Subject office holders to a
-Subject office holders to a      religious test
                                                              -Deny Due Process
   religious test                                             -Deny Equal Protection
Interstate relations

Full Faith and Credit Clause
 Article IV, Section 1.
 Full faith and credit shall be given in each state to the
  public acts, records, and judicial proceedings of every
  other state. And the Congress may by general Laws
  prescribe the Manner in which such Acts, Records
  and Proceedings shall be proved, and the Effect

 Birth certificates, Marriage Licenses, etc.
Interstate relations

Gay Marriage?
 1995: Hawaii
   Defense of Marriage Act: 1996
    1.   No state (or other political subdivision within the
         United States) need recognize a marriage between
         persons of the same sex, even if the marriage was
         concluded or recognized in another state.
    2.   The Federal Government may not recognize same-
         sex or polygamous marriages for any purpose, even
         if concluded or recognized by one of the states.
   Now: Massachusetts, California, etc?
   Is Defense of Marriage Act Constitutional???
   A: Yes B: No C: I just don’t know.
Defining Federalism

McCulloch V. Maryland, 1819
       RE: US National Bank
       Outcome: Feds win, a National bank is constitutional
       Justification: “Necessary and Proper” clause and
        “Supremacy” clause

 Article 6: Supremacy Clause:
 This Constitution, and the laws of the United States which shall
   be made in pursuance thereof; and all treaties made, or which
   shall be made, under the authority of the United States, shall be
   the supreme law of the land; and the judges in every state shall
   be bound thereby, anything in the Constitution or laws of any
   State to the contrary notwithstanding.
Defining Federalism

Gibbons V. Ogden, 1824
      RE: Ferry service in New York Harbor
      Outcome: Feds win: states must recognize licenses
       issued by federal government
      Justification: “Interstate Commerce” clause and
       “Supremacy” clause

Interstate Commerce: Article 1 Section 8 Clause 3
 “To regulate commerce with foreign nations, and
   among the several states, and with the Indian tribes”
Defining Federalism
Wickard V. Filburn 1942
     Re: Grain Production in Ohio
   Isthis issue properly Interstate
    commerce or Intrastate commerce?
   A: interstate   B: Intrastate
     Outcome: Feds win. Farmers crops can be
      regulated by Federal government
     Justification: Interstate Commerce clause,
      argued that farmers effect interstate
      commerce even if they buy or sell nothing.
Defining Federalism
Heart of Atlanta Motel V. US 1964
     RE: Discrimination in private business,
      specifically a motel that wanted to serve only
      white clients
     Outcome: civil rights laws can be imposed by
      the federal government even on private
     Justification: Interstate Commerce and
      Supremacy clauses
Defining Federalism
CIVIL War Amendments: Especially 14th
 Defines Citizenship
 Guarantees:
      Privileges and Immunities from State violation
      Due Process from State violation
      Equal Protection from State violation
 Applies most of the Bill of Rights to States,
  expanding Federal Role
 Expansion of Federal powers
Other Stuff…
 Federal Mandates:
 Orders
 Grants:
    Categorical-formula Grants
    Project Grants
    Block Grants

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