Governing Wisconsin Issue 9

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					             G       overning                   W
                                 From the Wisconsin Legislative Reference Bureau


FEDERALISM IN THE DESIGN OF THE        century and philosophical argu-                    THE EVOLUTION OF FEDERALISM IN
AMERICAN SYSTEM OF GOVERNMENT          ments about the best way to deal                   THE UNITED STATES
                                       with the problem of tyranny. The
Federalism is an institutional         historical situation was the failed                Even though federalism is embed-
arrangement in which political         Articles of Confederation, under                   ded in the Constitution, the alloca-
authority is divided among different which the federal government                         tion of political power between the
levels of government, each with        lacked authority to regulate com-                  federal government and the states
distinct or overlapping powers. In     merce and raise taxes to maintain                  has not remained constant.
the United States, federalism can be an army. State governments simply                    Throughout American history, the
seen in the division of political      had too much power. So the                         federal government has sought to
power between the federal govern- founders drafted a constitution in                      increase its political power, while
ment—consisting of Congress, the which the federal government was                         states have battled to preserve their
president, and the Supreme             granted power to regulate com-                     political powers, and the courts
Court—and 50 individual state          merce among the states—the so-                     have been left with the highly
governments.                           called commerce clause—and to                      charged task of sorting out the
                                       maintain an army.                                  constitutional authority of each
Many democratic countries around                                                          level of government.
the world, such as Great Britain,      The founders were also concerned
have some form of federalism, but      with designing a government that                   In McCulloch v. Maryland (1819),
this is usually only because their     could combat tyranny. As is well                   for example, the Supreme Court
national governments have enacted known, and seen in authoritative                        held that the powers of the federal
laws to grant powers to local          commentary on the Constitution,                    government are not limited to those
governments. At any time, simply       such as the Federalist Papers, the                 expressly enumerated in the Consti-
by enacting new laws, these na-        founders wished to disburse politi-                tution, but also include those
tional governments could take back cal power and make its exercise,                       “necessary and proper” to carrying
all of the delegated powers. In the    even where disbursed, cumber-                      out the enumerated powers. Simi-
U.S., in contrast, federalism is a     some. The founders did not wish to                 larly, in Gibbons v. Ogden (1824),
constitutional doctrine. The federal make the functioning of the federal                  the Court adopted a broad concep-
government is granted certain          government near to impossible, as                  tion of congressional power under
powers under the Constitution, and happened under the Articles of                         the commerce clause, drastically
all other powers, as reaffirmed by     Confederation. Instead, the                        increasing the scope of federal
the Tenth Amendment, are “re-          founders granted the federal gov-                  government authority over the
served to the States.” As a result, in ernment specific powers and                        economy. Together, these decisions
the U.S., the federal government       reserved all others to the states. In              laid the juridical foundation for an
cannot simply enact new laws to        this way, the centralization and                   expansive conception of federal
change the allocation of political     abuse of political power, which                    government power.
authority. At least in theory, this    could result when factions opposed
allocation can be altered only by      to public interest held power, would               The expansion of federal govern-
amending the Constitution.             be made more difficult. Federalism                 ment power throughout the 19th
                                       was thus envisioned as one among                   century and up to President
The design of the American system many weapons against tyranny.                           Franklin Roosevelt’s New Deal
of government includes federalist                                                         occurred in fits and starts. The Civil
elements because of the historical                                                        War consolidated political power in
situation in which the founders                                                           Washington, D.C., and in the war’s
were operating in the late 18th                       LRB
                                                     Serving the Legislature since 1901   aftermath the federal government
assumed new powers over the             income taxes, workers’ compensa-         in and around school grounds. This
economy and even in social policy       tion, civil service, direct party        was the first decision since 1937 to
areas, such as the provision of         primaries, limiting working hours        hold that Congress had exceeded its
pensions to Civil War veterans.         for women and children, collective       commerce clause powers. The
Many of these expansions of             bargaining, workplace safety, and        Court continued in this new direc-
federal government authority,           unemployment compensation.               tion with United States v. Morrison
especially involving the regulation     Much of this legislation served as       (2000), ruling unconstitutional the
of business practices, were initially   the model for subsequent national        civil remedies provisions of the
resisted by the courts. But by the      legislation. Indeed, it is no surprise   1994 Violence against Women Act
late 1930s, the courts had come to      that President Theodore Roosevelt        on the grounds that neither the
accept that the federal government      once referred to Wisconsin as “the       Fourteenth Amendment nor the
could regulate essentially all eco-     laboratory of democracy.”                commerce clause authorized Con-
nomic and related activity through-                                              gress to enact the provisions. While
out the nation and provide virtually    THE NEW FEDERALISM                       the Court has not been entirely
unlimited social services based on                                               consistent in its New Federalism
the commerce clause. President        In his first inaugural address, in         jurisprudence, it has nonetheless
Lyndon Johnson’s Great Society        1981, President Ronald Reagan              demonstrated a newfound willing-
programs—food stamps, Medicare,       described the dire economic prob-          ness to delimit federal government
and Medicaid—extended the             lems facing the United States and          authority and to carve out protected
economic and social programs of       announced, “In the present crisis,         spheres of state political authority
the New Deal. By the late 20th        government is not the solution to          under the Constitution.
century, federalism was no longer     our problem.” Fifteen years later, in
an effective constitutional impedi-   his 1996 State of the Union ad-            THE FUTURE OF FEDERALISM IN
ment to the exercise of federal       dress, President William Clinton           WISCONSIN
government power in the economy       surveyed his first term in office,
and society.                          observing: “We have worked to              Federalism is alive and well in the
                                      give the American people a smaller,        United States. That the Supreme
A NOTE ON WISCONSIN AND               less bureaucratic government in            Court has begun to consider seri-
FEDERALISM                            Washington.” He added, “The era            ously limits on federal government
                                      of big government is over.” Both           authority under the Constitution
Wisconsin has figured prominently men had previously served as state             can only mean that the state gov-
in the history of American federal-   governors and their words reflected        ernments may have more leeway
ism. One of the many attributes of a that the balance of political power         and autonomy in devising policy
federal system is that policy inno-   in the U.S. had tipped a bit too far       solutions to address social, politi-
vation is more likely to occur. State in the direction of the federal            cal, and economic problems within
governments can each be a labora-     government, to the detriment of            their borders. Even in those public
tory, as Justice Louis Brandeis once state governments. In this regard,          policy areas in which the federal
observed, and pursue novel public     both tapped into what has come to          government has clear constitutional
policy solutions to political, eco-   be known as the New Federalism—            authority to act, it is increasingly
nomic, or social problems without     that is, the political and legal           providing states with assistance in
imposing these solutions on the       movement to transfer certain               the form of block grants. Given
entire nation. In this way, public    powers and responsibilities that           Wisconsin’s long history of policy
policies can first be tested on       were assumed by the federal gov-           innovation and willingness to serve
smaller populations and, if they      ernment in the 20th century back to        as a “laboratory of democracy,”
work, Congress can then enact         the states.                                Wisconsin is well-positioned to
legislation to have the policies                                                 respond legislatively in the New
apply to all states.                  Under Chief Justice William                Federalism era.
                                      Rehnquist, the Supreme Court
In this regard, Wisconsin has         began to blaze a new trail in feder-
served as the laboratory for many     alism jurisprudence, reflecting the        By Richard Champagne,
of the major social, labor, and       New Federalism. In United States v.        Senior Legislative Attorney
economic public policies of the       Lopez (1995), for instance, the            Published by the LRB, Madison WI
20th century, having enacted early    Court invalidated a federal law that
versions of laws providing for        prohibited the possession of guns in       No. 9, December 2005
                               Governing Wisconsin: “Federalism"

                                           Study Questions

       Why did the Articles of
       Confederation fail?

       How does federalism protect
       against tyranny?

       Briefly explain a historical or
       current event that illustrates an
  3    instance in which the states and
       the federal government struggled
       over the distribution of power.

       The No Child Left Behind Act
       (NCLB) outlines standards-based
  4    educational reforms for public
       schools in all states. Is NCLB an
       example of New Federalism?

       How will the emergence of a
       dominant international economy
       affect the relationship between the
       states and the federal government?

       How well does federalism
       function as an arrangement for
       sharing powers? Or does it work
       better as a method for transferring
       power from state to federal

Wisconsin Legislative Reference Bureau       See:   GW-SQ-No. 9
                                  Governing Wisconsin: “Federalism"

                              Study Questions in the Cognitive Domain

                                            Under the Articles of Confederation, the states had too

      Why did the Articles of
  1                                         much power. The federal government could not regulate
      Confederation fail?
                                            commerce, raise taxes, or maintain an army.

                                            A tyrant oppressively controls all state power.

                                            Federalism protects against tyranny by distributing power
      How does federalism protect           between the states and the federal government and
      against tyranny?                      dividing the federal government into three branches,
                                            which check each other against taking power from the

      Briefly explain a historical or       Many events can go here. Examples include the Civil

      current event that illustrates an     War and slavery, women's suffrage, the New Deal,
  3   instance in which the states and      abortion rights, No Child Left Behind, the death penalty,
      the federal government struggled      definition-of-marriage amendments, legalization of
      over the distribution of power.       marijuana or peyote, and immigration laws.

      The No Child Left Behind Act
                                            No. New Federalism is a movement toward reducing
      (NCLB) outlines standards-based

                                            federal regulation on the affairs of state governments.
  4   educational reforms for public
                                            NCLB is the largest federal educational reform law in the
      schools in all states. Is NCLB an
                                            history of the United States.
      example of New Federalism?

                                          States will lose power to the federal government, as they
      How will the emergence of a
                                          have in the past. For example, states lost power over

      dominant international economy
  5                                       monetary policy and maintaining a military force. States
      affect the relationship between the
                                          will have less flexibility to experiment as Congress
      states and the federal government?
                                          forces states to have more uniform laws.

      How well does federalism
                                            Initially, federalism served as a political compromise to
      function as an arrangement for
                                            transfer limited power from the sovereign states to a

      sharing powers? Or does it work
  6                                         central federal government. In modern times, federalism
      better as a method for transferring
                                            forms the framework for continued transfer of power
      power from state to federal
                                            from the states.

Wisconsin Legislative Reference Bureau      See:                 GW-SQ-No. 9

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