INTRO TO FEDERALISM

A STRUGGLE TO BALANCE

• SINCE INDEPENDENCE, THE STATES AND NATIONAL GOVERNMENT HAVE NOT SEEN EYE TO EYE ON DIVISIONS OF POWER:– ARTICLES OF CONFEDERATION– CIVIL WAR

• THE UNION’S VICTORY ONLY ESTABLISHED THAT FEDERAL LAW COULD NOT BE NULLIFIED BY THE STATES.

• BUT NOTHING ELSE ABOUT THE STATE VS. NATIONAL

FEDERAL VS. UNITARY

• WE HAVE COMPARED FEDERAL AND UNITARY SYSTEMS SEVERAL TIMES. OVER THE NEXT ? SLIDES WE WILL DISCUSS:– FEDERAL SYSTEMS– CONFEDERAL SYSTEMS– UNITARY SYSTEMS–WHY CHOOSE FEDERALISM?

FEDERAL SYSTEMS

• FEDERALISM– A SYSTEM IN WHICH POWER IS

CONSTITUTIONALLY DIVIDED BETWEEN A CENTRAL GOVERNMENT AND A SUB NATIONAL/LOCAL GOVERNMENT• NOTABLE FEDERAL SYSTEMS: US,

NIGERIA, MEXICO, BRAZIL, INDIA, CANADA

AMERICAN STYLE FEDERALISM

• BOTH GOVERNMENTS:– RECEIVE POWER FROM THE PEOPLE–DIVIDES SOVEREIGNTY BETWEEN

THEMSELVES.–HAVE THE POWER TO TAX AND

RECEIVE BENEFITS–DO NOT HAVE THE POWER TO

DISSOLVE THE OTHER.

CONFEDERAL SYSTEMS

• CONFEDERAL-– AKA CONFEDERACY–ONLY HAS THE POWERS GIVEN TO IT

BY MEMBERS OF THE GOVERNMENT– IT IS DISTINCT IN HAVING A LACK

OF CENTRAL AUTHORITY• USA• UN

UNITARY SYSTEMS

• UNITARY SYSTEM– SUPREME, CENTRAL AUTHORITY. – CAN CREATE SUB-NATIONAL

GOVERNMENTS AS IT SEES NEEDED.• WE HAVE A UNITARY SYSTEM AS

WELL– EACH STATE GOVERNMENT FALLS INTO

THIS CATEGORY– THEY HAVE THE ABILITY TO ALTER OR

DISSOLVE LOCAL GOVERNMENTS.

WHY FEDERALISM?

• WE WERE THE FIRST FEDERAL SYSTEM IN THE WORLD:– BY 1960, 50% OF THE WORLD WAS

GOVERNED BY SOME FEDERALIST MODEL

– FEDERALISM ALLOWS FOR DIVERSITY

– KEEPS AREAS UNIFIED MORE THAN GEOGRAPHICALLY

– PREVENTS SECESSIONISM

A FILM!

• SUPERHEROS + FEDERALISM= AWESOME

COSTS VS BENEFITS

BENEFITS OF FISM• CURES “MISCHIEFS

OF FACTION”• PREVENTS

TYRANNY OF THE MAJORITY

• “POLITICS IS THE ART OF THE POSSIBLE”

COSTS OF FISM• MIGHT PAY TOO

MUCH ATTENTION TO REGIONAL DIFFERENCES

• “PSYCHOLOGY OF LOCALISM”

• MIGHT BECOME TOO FRAGMENTED

THE CONSTITUTIONAL BASES OF FISM

• OVER THE NEXT FEW SLIDES WE WILL EXAMINE:–HOW TO STRENGTHEN THE

NATIONAL GOVERNMENT– RESTRICT POWERS OF THE STATE

GOVERNMENT– LIMIT POWERS OF THE NATIONAL

GOVERNMENT

STRENGTHENING THE NATIONAL GOVERNMENT

• THERE ARE TWO CLAUSES IN THE CONSTITUTION ALLOW FOR NATIONAL GOVERNMENT SUPREMACY:–NECESSARY AND PROPER/IMPLIED

POWERS/ELASTIC CLAUSE– SUPREMACY CLAUSE

ELASTIC CLAUSE• AKA – “NECESSARY AND PROPER

CLAUSE”– ART. I, SEC. 8, CL. 18 - "THE CONGRESS SHALL HAVE

POWER - 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."

• IMPOSSIBLE TO PREDICT ALL POWERS CONGRESS WILL NEED TO FUNCTION, SOMETIMES WE MIGHT HAVE TO ALLOW CONGRESS EXTRA POWERS TO FULFILL THEIR DELEGATED POWERS

THE SUPREMACY CLAUSE

• “THE CONSTITUTION AND LAWS IN PURSUANCE THEREOF ARE TO BE THE SUPREME LAW OF THE LAND WHENEVER THEY COME INTO CONFLICT WITH STATE LAWS OR ACTIONS”

RESTRICTING THE POWERS OF THE STATES

• THE CONSTITUTION HAD TO PROHIBIT THE STATES FROM DOING CERTAIN THINGS:– TREATIES– COIN MONEY– IMPORT/EXPORT TAXES

• BANS EX POST FACTO LAWS– ANYONE KNOW SOME LATIN?

LIMITING POWERS OF THE NATIONAL GOVERNMENT

• THE 10TH AMENDMENT– RESERVES POWERS TO THE STATE AND

PEOPLE THAT ARE NOT SPECIFICALLY DELEGATED TO THE NATIONAL GOVERNMENT IN THE CONSTITUTION

– THE “NECESSARY AND PROPER” CLAUSE MAKES THE 10TH AMENDMENT A LITTLE MOOT.

• OTHER STATES RIGHTS PORTIONS OF THE CONSTITUTION:– ARTICLE IV– AMENDMENT IX

INTERPRETING THE CONSTITUTION

• WE WILL LOOK AT:– POLITICAL INTERPRETATIONS– JUDICIAL INTERPRETATIONS

POLITICAL INTERPRETATIONS

• NATION-CENTERED FEDERALISM– THIS COMES FROM HAMILTON IN

THE FEDERALIST PAPERS• THE CONSTITUTION ACKNOWLEDGES

THAT STATES EXISTED FIRST, AND THEY ARE SEMI-SOVEREIGN AND CANNOT BE DISSOLVED, BUT, THE NATIONAL GOVERNMENT MUST BE SEEN AS SUPREME TO PRESERVE A UNION.• THIS WAS USED TO PREVENT THE

SOUTH FROM SECEDING.

MAS POLITICO!

• STATE-CENTERED FEDERALISM–MUST GIVE PRECEDENCE TO STATE

SOVEREIGNTY• MOST SCF THEORISTS FOCUS ON THE

10TH AMENDMENT• PEOPLE POINT TO THE WRITINGS OF

MADISON IN FEDERALIST 45– THIS WAS USED BY THE SOUTH TO

JUSTIFY THEIR SECESSION.

ONE MORE POLITICAL INTERPRETATION…

• DUAL FEDERALISM–MOST COMMON CONSTITUTIONAL

INTERPRETATION– ITS AN ACKNOWLEDGEMENT THAT

BOTH SETS OF GOVERNMENT HAVE SEPARATE GRANTS OF POWER.

– BOTH GOVERNMENTS ARE ESSENTIALLY EQUAL

JUDICIAL INTERPRETATION

• WE WILL EXPLORE ONE INTERP. NOW THAT CHANGED THE SCOPE OF FEDERALISM FOREVER:–MCCULLOCH V. MARYLAND• THE IMPLIED POWERS GIVEN TO

CONGRESS IN THE CONSTITUTION COULD BE BROADLY INTERPRETED.• THE “NECESSARY AND PROPER”

CLAUSE IMPLIES THAT CONGRESS HAS THE RIGHT TO CARRY OUT ITS CONSTITUTIONAL POWERS.

MCCULLOCH V. MARYLAND (1819)

BACKGROUND• BANK OF THE US OPERATED IN

MARYLAND• MARYLAND DID NOT WANT BOUS TO

OPERATE IN STATE, COMPETITION UNWANTED, UNFAIR– MARYLAND TAXED THE BANK TO PUT IT

OUT OF BUSINESS• MCCULLOCH, BOUS EMPLOYEE,

REFUSED TO PAY THE STATE TAX

MCCULLOCH V. MARYLAND (1819)

• IS A BANK OF THE US CONSTITUTIONAL?

YES. THE NATIONAL GOV’T HAS CERTAIN IMPLIED POWERS THAT GO BEYOND DELEGATED POWERS. US NEEDS A NATIONAL BANK FOR BORROWING, LENDING, HOLDING MINTED MONEY, ETC. ALL OF WHICH ARE DELEGATED POWERS.

MCCULLOCH V. MARYLAND (1819)

CAN A STATE TAX THE FEDERAL GOV’T?-NO. THE FEDERAL GOV’T IS SUPREME. SINCE THE BOUS IS CONSTITUTIONAL, ONLY THE FEDS MAY TAX IT.

-JOHN MARSHALL REAFFIRMED SUPREMACY CLAUSE AND ELASTIC CLAUSE

-NATIONAL (FEDERAL) GOV GETS STRONGER