CHAPTER 3 – FEDERALISM
FEDERALISM IS ESTABLISHED BY THE CONSTITUTION: The constitution shapes
American life through federalism, the division of powers and functions between a
national government and lower levels of government, such as regions or states.
Federalism contrasts with a unitary system, in which lower levels of government have
little independent power and primarily just implement decisions made by the central
government. The United States was the first nation to adopt federalism as its governing
framework. By granting “expressed powers” to the national government and reserving
the rest to the states, the original Constitution recognized two authorities: state
governments and the federal government. The nations most likely to have federalism
are those with diverse ethnic, linguistic, or sectional groups, such as Switzerland and
Canada and certainly the United States. Multiple governments at the national, state, and
local levels present many opportunities for citizens to express their preferences,
promising to maximize democratic participation. Because states and even localities
have their own taxing, spending, and policy-making powers (especially in the United
States), policy experimentation and innovation is another feature, as is the tailoring of
policy to local preferences. And competition among states and localities to attract
individuals and businesses promises to maximize the efficiency of government services.
The question is how well federalism delivers on these promises. In the American version
of federalism, state and local governments have even more policy-making
responsibilities than in most federal systems. The result is wide variation in policies and
a centuries-long tug-of-war between the national and state governments, and between
state and local governments. The federal structure’s division of labor across the levels
of government make intergovernmental relations – the processes by which those levels
of government negotiate and compromise over policy responsibility – one of the most
characteristic aspects of American government.
o THE POWERS OF THE NATIONAL GOVERNMENT: The expressed powers
grated to the nation government are found in Article I, Section 8, of the
Constitution. These 17 powers include the power to collect taxes, coin money,
declare war, and regulate commerce. Article I, Section 8, also contains another
important source of power for the national governments: the implied powers that
enable Congress “to make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers.” Not until several decades after
the Founding did the Supreme Court allow Congress to exercise the power
implied in this necessary and proper clause. But this power allowed the national
government to expand considerably – if slowly – the scope of its authority. In
addition to these expressed and implied powers, the Constitution affirmed the
power of the national government in the supremacy clause (Article VI), which
made all national laws and treaties “the supreme Law of the Land.”
o THE POWERS OF STATE GOVERNMENT: One way in which the framers
preserved a strong role for the states in the federal system was through the Tenth
Amendment to the Constitution, which says that the powers the Constitution does
not delegate to the national government or prohibit to the states are “reserved to
the States respectively, or to the people.” The Antifederalists, who feared that a
strong central government would encroach on individual liberty, repeatedly
pressed for such a “reserved powers amendment.” The most fundamental power
that the states retain is that of coercion – the power to develop and enforce
criminal codes, to administer health and safety rules, and to regulate the family
through marriage and divorce laws. State also have the power to regulate
individuals’ livelihoods; if you’re a doctor or a lawyer or a plumber or a barber,
, you must be licensed by the state. Even more fundamentally, the states have the
power to define private property – which exists only because state laws against
trespass define who is and is not entitled to use it. Owning a car isn’t worth
much unless government makes it a crime for someone else to drive your car
without your consent. A state’s authority to regulate these fundamental matters
of the health, safety, welfare, and morals of its citizens is much greater than the
powers of the national government and is commonly referred to as the police
power. Policing is what states do – they coerce you in the name of the
community and, for example, order you to self-isolate during the coronavirus
pandemic, in the interest of maintaining public order and safety. This was exactly
the type of power that the Founders intended the states, not the federal
government, to exercise. States also share with the national government
concurrent powers to regulate commerce and the economy – for example, they
can charter banks, grant or deny charters for organizations, grant or deny
licenses to engage in a business or practice a trade, regulate the quality of
products or the conditions of labor, and levy taxes. Wherever there is a direct
conflict of laws between the federal and state levels, the issue will most likely be
resolved in favor of national supremacy.
o STATES’ OBLIGATIONS TO ONE ANOTHER: The Constitution also creates
obligations among the states, spelled out in Article IV. By requiring the states to
recognize or uphold governmental actions and decisions in other states, the
framers aimed to make the states less like independent countries and more like
components of a unified nation. Article IV, Section I, calls for “Full Faith and
Credit” among states, meaning that each state is normally expected to honor the
“Public Acts, Records, and Judicial Proceedings” of the other states. So, for
example, if a restraining order is placed in one states, other states are required to
enforce that order as if they had issued it. Nevertheless, some courts have found
exceptions to the full faith and credit clause: if one state’s law is against the
“strong public policy” of another state, the state may not be obligated to
recognize it. The history of interracial marriage policy shows how much leeway
states have had about marriages performed in other states. In 1852, 30 states
prohibited interracial marriage, and many of these also refused to recognize such
marriages performed in other states. For example, in the 1967 Supreme Court
case of Loving v. Virginia, which successfully challenged state bans on interracial
marriage, Mildred and Richard Loving, a Black woman and a White man, were
married in the District of Columbia. However, when they returned to their home
state of Virginia, it refused to recognize them as a married couple. Until recently,
same-sex marriage was in a similar position to interracial marriage. 35 states
had passed “Defense of Marriage Acts,” defining marriage as a union between
one man and one woman, or had adopted constitutional amendments to this
effect. In 1996 Congress passed a federal Defense of Marriage Act, which
declared that states were not required to recognize a same-sex marriage from
another state and that the federal government did not recognize same-sex
marriage even if it was legal under state law. In 2015, however, the Supreme
Court ruled that the Fourteenth Amendment guaranteed a fundamental right to
same-sex marriage. The case, Obergefell v. Hodges, challenged 4 home states’
refusal to grant same-sex marriages or recognize same-sex marriages performed
out of state. The Court’s 5-4 decision meant that all states must now offer
marriage licenses to 2 people of the same sex and recognize same-sex
marriages licensed by other states. In one stroke, same-sex marriage turned
from a state-level policy choice to a nationally recognized right. Article IV,
FEDERALISM IS ESTABLISHED BY THE CONSTITUTION: The constitution shapes
American life through federalism, the division of powers and functions between a
national government and lower levels of government, such as regions or states.
Federalism contrasts with a unitary system, in which lower levels of government have
little independent power and primarily just implement decisions made by the central
government. The United States was the first nation to adopt federalism as its governing
framework. By granting “expressed powers” to the national government and reserving
the rest to the states, the original Constitution recognized two authorities: state
governments and the federal government. The nations most likely to have federalism
are those with diverse ethnic, linguistic, or sectional groups, such as Switzerland and
Canada and certainly the United States. Multiple governments at the national, state, and
local levels present many opportunities for citizens to express their preferences,
promising to maximize democratic participation. Because states and even localities
have their own taxing, spending, and policy-making powers (especially in the United
States), policy experimentation and innovation is another feature, as is the tailoring of
policy to local preferences. And competition among states and localities to attract
individuals and businesses promises to maximize the efficiency of government services.
The question is how well federalism delivers on these promises. In the American version
of federalism, state and local governments have even more policy-making
responsibilities than in most federal systems. The result is wide variation in policies and
a centuries-long tug-of-war between the national and state governments, and between
state and local governments. The federal structure’s division of labor across the levels
of government make intergovernmental relations – the processes by which those levels
of government negotiate and compromise over policy responsibility – one of the most
characteristic aspects of American government.
o THE POWERS OF THE NATIONAL GOVERNMENT: The expressed powers
grated to the nation government are found in Article I, Section 8, of the
Constitution. These 17 powers include the power to collect taxes, coin money,
declare war, and regulate commerce. Article I, Section 8, also contains another
important source of power for the national governments: the implied powers that
enable Congress “to make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers.” Not until several decades after
the Founding did the Supreme Court allow Congress to exercise the power
implied in this necessary and proper clause. But this power allowed the national
government to expand considerably – if slowly – the scope of its authority. In
addition to these expressed and implied powers, the Constitution affirmed the
power of the national government in the supremacy clause (Article VI), which
made all national laws and treaties “the supreme Law of the Land.”
o THE POWERS OF STATE GOVERNMENT: One way in which the framers
preserved a strong role for the states in the federal system was through the Tenth
Amendment to the Constitution, which says that the powers the Constitution does
not delegate to the national government or prohibit to the states are “reserved to
the States respectively, or to the people.” The Antifederalists, who feared that a
strong central government would encroach on individual liberty, repeatedly
pressed for such a “reserved powers amendment.” The most fundamental power
that the states retain is that of coercion – the power to develop and enforce
criminal codes, to administer health and safety rules, and to regulate the family
through marriage and divorce laws. State also have the power to regulate
individuals’ livelihoods; if you’re a doctor or a lawyer or a plumber or a barber,
, you must be licensed by the state. Even more fundamentally, the states have the
power to define private property – which exists only because state laws against
trespass define who is and is not entitled to use it. Owning a car isn’t worth
much unless government makes it a crime for someone else to drive your car
without your consent. A state’s authority to regulate these fundamental matters
of the health, safety, welfare, and morals of its citizens is much greater than the
powers of the national government and is commonly referred to as the police
power. Policing is what states do – they coerce you in the name of the
community and, for example, order you to self-isolate during the coronavirus
pandemic, in the interest of maintaining public order and safety. This was exactly
the type of power that the Founders intended the states, not the federal
government, to exercise. States also share with the national government
concurrent powers to regulate commerce and the economy – for example, they
can charter banks, grant or deny charters for organizations, grant or deny
licenses to engage in a business or practice a trade, regulate the quality of
products or the conditions of labor, and levy taxes. Wherever there is a direct
conflict of laws between the federal and state levels, the issue will most likely be
resolved in favor of national supremacy.
o STATES’ OBLIGATIONS TO ONE ANOTHER: The Constitution also creates
obligations among the states, spelled out in Article IV. By requiring the states to
recognize or uphold governmental actions and decisions in other states, the
framers aimed to make the states less like independent countries and more like
components of a unified nation. Article IV, Section I, calls for “Full Faith and
Credit” among states, meaning that each state is normally expected to honor the
“Public Acts, Records, and Judicial Proceedings” of the other states. So, for
example, if a restraining order is placed in one states, other states are required to
enforce that order as if they had issued it. Nevertheless, some courts have found
exceptions to the full faith and credit clause: if one state’s law is against the
“strong public policy” of another state, the state may not be obligated to
recognize it. The history of interracial marriage policy shows how much leeway
states have had about marriages performed in other states. In 1852, 30 states
prohibited interracial marriage, and many of these also refused to recognize such
marriages performed in other states. For example, in the 1967 Supreme Court
case of Loving v. Virginia, which successfully challenged state bans on interracial
marriage, Mildred and Richard Loving, a Black woman and a White man, were
married in the District of Columbia. However, when they returned to their home
state of Virginia, it refused to recognize them as a married couple. Until recently,
same-sex marriage was in a similar position to interracial marriage. 35 states
had passed “Defense of Marriage Acts,” defining marriage as a union between
one man and one woman, or had adopted constitutional amendments to this
effect. In 1996 Congress passed a federal Defense of Marriage Act, which
declared that states were not required to recognize a same-sex marriage from
another state and that the federal government did not recognize same-sex
marriage even if it was legal under state law. In 2015, however, the Supreme
Court ruled that the Fourteenth Amendment guaranteed a fundamental right to
same-sex marriage. The case, Obergefell v. Hodges, challenged 4 home states’
refusal to grant same-sex marriages or recognize same-sex marriages performed
out of state. The Court’s 5-4 decision meant that all states must now offer
marriage licenses to 2 people of the same sex and recognize same-sex
marriages licensed by other states. In one stroke, same-sex marriage turned
from a state-level policy choice to a nationally recognized right. Article IV,
