current american government texts

8/14/2019 Current American Government Texts

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ROM ITS VERY BEGIN lING, the challenge for the United States of Americawas to preserve the traditional independence and rights of the states whileestablishing an effective national government. In Federalist No. 51, JamesMadison highlighted the unique structure of governmental powers created by

the Framers: "The power surrendered by the people is first divided between two dis-tinct governments, and then ... subdivided among distinct and separate departments.Hence, a double security arises to the rights of the people."

The Framers, fearing tyranny, divided powers between the state and the nationalgovernments. At each level, moreover, powers were divided among executive, legisla-tive, and judicial branches. The people are the ultimate power from which both thenational government and the state governments derive their power.

Although most of the delegates to the Constitutional Convention favored a strongfederal government, they knew that some compromise about the distribution of pow-ers would be necessary. Some of the Framers wanted to continue with the confederateform of government defined in the Articles of Confederation; others wanted a morecentralized system, similar to that of Great Britain. Their solution was to create theworld's first federal system, in which the thirteen sovereign or independent states werebound together under one national government.

Today, the Constitution ultimately binds more than 87,000 different state andlocal governments, although the word "federal" never appears in that document (seeFigure 3.1). The Constitution lays out the duties, obligations, and powers of the

states. Throughout history, however, the system and the rulesthat guide it have been continually stretched, reshaped, andreinterpreted by crises, historical evolution, public expectations,and judicial interpretation. All these forces have had tremen-dous influence on who makes policy decisions and how thesedecisions get made, as is underscored in our opening vignette.

Issues involving the distribution of power between thenational government and the states affect you on a daily basis.You do not, for example, need a passport to go from Texas toOklahoma. There is but one national currency and a nationalminimum wage. But, many differences exist among the laws ofthe various states. The age at which you may marry is a stateissue, as are laws governing divorce, child custody, and mostcriminal laws, including how-or if-the death penalty is imple-mented. Although some policies or programs are under the.authority of the state or local government, others, such as air traf-fic regulation, are solely within the province of the national gov-

96 CHAPTER 3resulted in $20billion in emergency aid. Forstates likeNevada, "The $67 million we got from Congress ...was a nice little shot in the arm," said its budgetadministrator.3

Some of those dollars went to fund programsmandated by the national government. Thefederal NoChild left BehindAct creates nationwide educationalpriorities, for example, but it also requires states tospendbillions on standardized testinq.s Thenationallymandated Medicaid program establisheshealth cover-

FICURE3.1 Numberof Governmentsin the UnitedStates

u.s. governmentState governmentsLocal governments

CountyMunicipal (city)TownshipsSchool districtsSpecial districts

TOTAL

Source : u . s . Census Bureau, http://www.ccnsus.gov/govslw,, vw/gid.html.

age for the poor, but it also requires states to spendmore than 20 percent of their budgets on Medicaid.5

In theory, this kind of federal/state relationship,which attempts to shrink the size of the federal gov-ernment and return power to state agencies, shouldcreateprograms that aremore tailored to the needsofcitizens. Proponentsof what is known asthe "devolu-tion revolution" argue that state and local govern-ments are closer to their citizens and more able tomeet the needsof the region.


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THE ROOTS OF THE FEDERAL SYSTEM: GOVERNMENTAL POWERS UNDER THE CONSTITUTIOl 97ernment.s In many areas, however, the national and state governments work togethercooperatively in a system of shared powers. At times, the national government cooper-ates with or supports programs only if the states meet certain conditions. To receivefederal funds for the construction and maintenance of highways, for example, statesmust follow federal rules about the kinds of roads they build.

To understand the current relationship between the states and the federal govern-ment and to better grasp some of the issues that arise from this constantly changingrelationship, in this chapter, we will examine the following topics: First, we will look at the roots of thefederal system and governmental powers under theConstitution created by the Framers .

Second, we will explore the relationship between federalism and the Marshall Court . Third, we will examine the development of dual federalism before and after theCivil War.

Fourth, we will analyze cooperativefederalism and the growth of national government. Finally, we will discuss new federalism, the movement toward returning power tothe states.

THE ROOTS OF THE FEDERAL SYSTEM:GOVERNMENTALPOWERSUNDER THE CONSTITUTIONAs DISCUSSED IN CHAPTER 2, the Framers of the Constitution were the first to adopta federal system of government. This system of government, where the national gov-ernment and state governments derive all authority from the people, was designed toremedy many of the problems experienced by the Framers under the Articles of Confed-eration. Under the Articles, the United States was governed by a confederation govern-ment, where the national government derived all of its powers from the states. This ledto a weak national government that was often unable to respond to even small crises,such as Shays's Rebellion.

The new system of government also had to be different from the unitary systemfound in Great Britain, where the local and regional governments derived all their powerfrom a strong national government. (Figure 3.2 illustrates these different forms of gov-ernment.) Having been under the rule of English kings, whom they considered tyrants,the Framers feared centralizing power in one government or institution. Therefore, theymade both the state and the federal government accountable to the people at large.While the governments shared some powers, such as the ability to tax, each govern-ment was supreme in some spheres, as depicted in Figure 3.3 and described in the fol-lowing section.

The federal system as conceived by the Framers has proven tremendously effective.Since the creation of the U.S. system, many other nations including Canada (1867),Mexico (1917), and Russia (1993) have adopted federal systems in their constitutions.(See Global Perspective: Federalism Around the World.)

National Powers Under the ConstitutionChief among the exclusive powers of the national government are the authorities tocoin money, conduct foreign relations, provide for an army and navy, declare war, andestablish a national court system. All of these powers set out in Article I, section 8, ofthe Constitution are called enumerated powers. Article I, section 8, also contains the

federal systemSystem of government where thenational government and state gov-ernments derive all authority fromthe people.

unitary sy stemSystem of government where thelocal and regional gO"ernmemsderive all authority from a strongnational government.

/.-O==-------,JComparativeComparing Federal and

Unitary Systems

e nume ra te d power sSeventeen specific powers granted toCongress under Article I, section 8,of the U.S. Constitution; these pow-ers include taxation, coinage ofmoney, regulation of commerce, andthe authority to provide for anational defense.


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" "....G m [) lb@ll Pe lr R i ~ ~I t m v e ' . , i . ' ' ' . , , ' . : , . . . . . .THE ROOTS OF THE FEDERAL SYSTEM: GOVERNMENTAL POWERS UNDER THE CONSTITUTION 9 9

FEDERALISM AROUND THE WORLD

One of the most fundamental decisionsthat constitutional framers must makeinvolves choosing between a unitary and afederal framework for organizing politicalpower. In a federal system, such as exists inthe United States, political power is firmlydivided between the national governmentand states. In India's federal system, forexample, states have jurisdiction over publichealth, education, agriculture, forests, andfisheries. In a unitary system, all politicalpower rests with the national government. Itmay delegate the power to make or imple-ment policies to lesser governmental unitssuch as states, provinces, or cities, but those decisions residewith the national government alone. Thus, aministry (depart-ment) of education in a unitary system has the power to setthe curriculum for all children in the country regardless ofwhere they live. There may be a national police force and onlyone court system with judges appointed by the central gov-ernment. Great Britain and France are the best-known uni-tary states. A major political controversy currently underwayin France is the decision by the central government to forbidschoolchildren from wearing head coverings in school. ManyMuslims residing in France see this as an affront to their cul-ture, but French authorities view the policy as consistent withthe principles of a secular state and an affirmation of the pri-macy of French culture.

Around the world there are far more unitary politicalsystems than federal ones. A survey of one hundred consti-tutions in 2000 found that only twenty were federal states (seethe figure). What is immediately obvious is that many ofthese states are among the world's largest states, Russia has apopulation of145 million and is divided into 89 components.Brazil has a population of 177 million and has 26 states anda capital territory. Nigeria has a population of 133 million andis divided into 36 states and a capital area. India has a popu-lation of 1.05 billion and contains 25 states.Both systems of governments have their backers.Advocates of federalism assert that it promotes and pro-tects regional/ethnic uniqueness, allows citizens choice,brings citizens closer to their governments, and promotesexperimentation. Critics of federalism and those who advo-cate a unitary system maintain that federalism creates aslow and cumbersome decision-making process, it deniesequal treatment to all citizens, and states lack the financialresources to address many of today's problems. The UnitedStates' immediate neighbors, Canada and Mexico, are fed-

Of 100 constitutions surveyed,20 are federal states ArgentinaAustraliaAustriaBelgiumBrazilCanadaEthiopiaGermanyIndiaMalaysia

MexicoNigeriaPakistanRussiaSudanSwitzerlandTibetUnited StatesVenezuelaYu oslavia

erations illustrating both sides of the debate. Quebec, apredominately French-speaking province in Canada, reliesheavily upon federalism to maintain its identity. In Mex-ico, economic problems and the long history of one-partyrule have led to increased centralization of power in thenational government.

Both federal and unitary political systems around theworld have begun to incorporate elements of the other inorder to deal effectively with contemporary issues. Unitarysystems have undertaken policies to grant subnational regionswithin their respective countries more autonomy. In GreatBritain, this process has focused on Scotland and Wales.Spain, which has long confronted strong regional-national-ist sentiment in northern Spain from the Basques and Cata-lans, has moved to grant increased powers to regionalgovernments and has given them some power over languagerights, taxation policy, and other local matters, along with aregional parliament. Federal systems have moved in theopposite direction, incorporating features that promote cen-tralization and uniformity. In Germany, for example, civil ser-vice rules are the same in all land (state) governments, andthe constitution requires that there be a "unity of living stan-dards" throughout the country.Questions1. Which do you think is better suited for solving problemsin today's world, a unitary or federal system? Why?

2. Which aspects of the American federal system wouldyou most recommend to a country considering rewritingtheir constitution? Which feature would you least rec-ommend to them?

Sour ce: Robert Maddex, Constitutions oj tb e Wqrld, 2nd ed. (Washington, DC: Con-gressional Quarterly Press, 2000).


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100 CHAPTER 3

Because states had all the power at the time the Constitution waswritten, the Framers felt no need, as they did for the new nationalgovernment, to list and restate the powers of the states. Article I,however, allows states to set the "Times, Places, and Manner, forholding elections for senators and representatives." This articlealso guarantees each state two members in the Senate and pre-vents Congress from limiting the slave trade before 1808. ArticleII requires that each state appoint electors to vote for president,and Article IV contains the privileges and immunities clause,guaranteeing that the citizens of each state are afforded the samerights as citizens of all other states. In addition, Article IV pro-vides each state a "Republican Form of Government," meaningone that represents the citizens of the state. It also assures that thenational government will protect the states against foreign attacks

Ph oto cou rt esy :Judy Gel/es/S tock Boston, Inc. and domestic rebellion .It was not until the Tenth Amendment, the final part of the

Bill of Rights, that the states' powers were described in greaterdetail: "The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively,or to the people" (see The Living Constitution: Tenth Amendment). These powers,often called the states' reserve or police powers, include the ability to legislate forthe public health, safety, and morals of their citizens. Today, the states' rights to leg-islate under their police powers are used as the rationale for many states' restrictionson abortion, including twenty-four-hour waiting requirements and provisions requir-ing minors to obtain parental consent. Police powers are also the basis for state crirn-inallaws, the reason some states have the death penalty and others do not. So longas the U.S. Supreme Court continues to find that the death penalty does not violatethe U.S. Constitution, the states may impose it, be it by lethal injection, gas cham-ber, or the electric chair.

Here, in an example of concurrent state and national power,birds are protected by both governments.

p r iv il ege s and immun it ie s c la u seParr of Article IV of the Constitu-tion guaranteeing that the citizens ofeach state are afforded the samerights as citizen of all other states.T ent h AmendmentThe final part of the Bill of Rightsthat defines the basic principle ofAmerican federalism in stating:"The powers not delegated to theUnited States by the Constitution,nor prohibited by it to the States, arereserved to the States respectively, orto the people."r es er ve ( or po li ce ) powe rsPowers reserved to the states by theTenth Amendment that lie at thefoundation of a state's right to legis-late for the public health and welfareof its citizens.concurre nt powersAuthority possessed by both thestate and national governments thatmay be exercised concurrently aslong as that power is not exclusivelywithin the scope of national poweror in conflict with national law.

parts of the United States'? Missouri argued that the TenthAmendment, which reserved a state's powers to legislate for thegeneral welfare of its citizens, allowed Missouri to regulate hunt-ing. But, the Court ruled that since the treaty was legal, it mustbe considered the supreme law of the land. (See also McCulloch v.Maryland [1819].)

State Powers Under the Constitution

Concurrent and Denied Powers Under the ConstitutionAs revealed in Figure 3.3, national and state powers overlap. The area where the sys-tems overlap represents concurrent powers-powers shared by the national and stategovernments. States already had the power to tax; the Constitution extended this powerto the national government as well. Other important concurrent powers include theright to borrow money, establish courts, and make and enforce laws necessary to carryout these powers.

Article I denies certain powers to the national and state governments. In keepingwith the Framers' desire to forge a national economy, states are prohibited from enter-ing treaties, coining money, or impairing obligation of contracts. States also are pro-hibited from entering into compacts with other states without express congressional


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THE ROOTS OF THE FEDERAL SYSTEM: GOVERNMENTAL POWERS UNDER THE CONSTITUTION 101FIGURE 3.3 The Distribution of Governmental Power in the Federal System.

STATE POWERSATIONAL POWERS CONCURRENT POWERSCoin moneyConduct foreign relationsRegulate commerce with foreign

nations and among the statesProvide for an army and a navyDeclare and conduct warEstablish a national court systemMake laws necessary and

proper to carry out theforegoing powers

TaxBorrow moneyEstablish courtsMake and enforce lawsCharter banks and corporationsSpend money for the

general welfareTake private property for

public purposes, withjust compensation

Set time, place, and mannerof electionsRatify amendments to the federal

ConstitutionTake measures for public health,

safety, and moralsExert powers the Constitution

does not delegate to thenational government orprohibit the states from using

Establish local governmentsRegulate commerce within

a state

approval. In a similar vein, Congress is barred from favoring one state over another inregulating commerce, and it cannot lay duties on items exported from any state.

Both the national and state governments are denied the authority to take arbi-trary actions affecting constitutional rights and liberties. either national nor stategovernments may pass a bill of attainder, a law declaring an act illegal without a judi-cial trial. The Constitution also bars the national and state governments from pass-ing ex post facto laws, laws that make an act punishable as a crime even if the actionwas legal at the time it was committed. (For more on civil rights and liberties, seechapters 5 and 6.)

Relations Among the StatesIn addition to delineating the relationship of the states with the national govern-ment, the Constitution provides a mechanism for resolving interstate disputes andfacilitating relations among states. To avoid any sense of favoritism, it provides thatdisputes between states be settled directly by the U.S. Supreme Court under its orig-inal jurisdiction as mandated by Article III of the Constitution (see chapter 10).Moreover, Article IV requires that each state give "Full Faith and Credit ... to thepublic Acts, Records and judicial Proceedings of every other State." The full faithand credit clause ensures that judicial decrees and contracts made in one state willbe binding and enforceable in another, thereby facilitating trade and other com-mercial relationships.

In 1997, the Supreme Court ruled that the full faith and credit clause mandatesthat state courts always must honor the judgments of other state courts, even if to doso is against state public policy or existing state laws. Failure to do so would allow asingle state to "rule the world," said Supreme Court Associate Justice Ruth BaderGinsburg during oral argument.f The Violence Against Women Act, for example,specifically requires states to give full faith and credit to protective orders issued byother states."

b i ll o f a tt ainde rA law declaring an act illegal with-out a judicial trial.

ex post f ac to lawLaw passed after the fact, therebymaking previously legal activity ille-gal and subject to current penalty;prohibited by the U.S. Constitution.

f ul l f ai th a nd c re di t clausePortion of Article IV of the Consti-tution that ensures judicial decreesand contracts made in one state willbe binding and enforceable in anyother state.


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102 CHAPTER 3

SPEED;LIMIT70

Photo (ou rlesy.- K M. C anno n, Nev a d a A p p e a VAP lW ide World Photos Interstate speed limits are federalism issues. The National Highway System Designation Act of 1995 allows statesto set their own speed limits, reversing an earlier national law that set 55 mph as a national standard. Top statespeeds now range from 55 to 75 mph.

i n te r st a te compac tsContracts between states that carrythe force of law; generally now usedas a tool to address multistate policyconcerns.

Article IV also requires states to extradite, or return, criminals to states where theyhave been convicted or are to stand trial. For example, Timothy Reed, an Indian-rightsactivist, spent five years in New Mexico fighting extradition to Ohio'? In 1998, theNew Mexico Supreme Court ordered him released from custody in spite of an orderfrom the New Mexico governor ordering his extradition to Ohio. The US. SupremeCourt found that the Supreme Court of New Mexico went beyond its authority andthat Reed should be returned to Ohio.U

As noted above, the US. Constitution gives the Supreme Court the final author-ity to decide controversies between the states. New York and New Jersey, for example,ended up before the Supreme Court arguing over the title to Ellis Island, based on the1834 agreement between the two states that set the boundary lines between them asthe middle of the Hudson River. New York got authority over the island, where over12 million immigrants were processed between 1892 and 1954, but New Jersey retainedrights to the submerged lands on its side. Ultimately, the Supreme Court ruled thatNew Jersey was entitled to all of the new lands that were created when the US. gov-ernment filled in the island's natural shoreline; New York, however, still retained titleand thus bragging rights to the museum dedicated to chronicling the history of US.immigration.l-

To facilitate relations among states, Article 1, section 10, clause 3, of the US. Con-stitution sets the legal foundation for interstate cooperation in the form of interstatecompacts, contracts between states that carry the force oflaw. It reads, "No State shall,without the consent of Congress ... enter into any Agreement or Compact with

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