Plan: “Evaluate the view that federalism is no longer an effective principle of the US
Constitution.”
Introduction
Founding fathers - federalism is firmly embedded within the constitution. The constitution divided
sovereignty between the states (10th amendment) and the federal government, giving each distinct powers
which were protected by the constitution itself.
Federal govt powers – declare war, treaties, to make laws ‘necessary and proper’ to achieve their
constitutional powers.
Concurrent powers – constitutional amendments, levy taxes, establish courts.
State powers – regulation of elections, establish local govt, assume all powers not listed in the constitution –
10th amendment.
The division of powers as laid out by the constitution was meant both to ensure state sovereignty and also to
allow for a stronger federal govt to overcome the problems of the articles of confederation. The 10th
amendment is crucial in protecting states' power.
Thesis: federalism is becoming less of an effective principle due to the 10 th amendment opposition, the
inability to create federal law and the reinforcement of a limited govt. but this is okay as it no longer
appropriate for 1 govt to govern over such a large country and it is more beneficial for states to be ran this
way.
Point 1 The 10th amendment and N&P law are in direct opposition, making federalism hard to define and
often creating tension between state and federal govts.
Example Roe v Wade (not in the N&P clause or Article 10) - buts hands power back to the states.
Explain ARTICLE 10 - ANYTHING NOT DEFINED IN THE CONSTITUTION IS LEFT UP TO THE STATES.
‘NECESSARY AND PROPER' LAW: enables Congress to pass special laws to require other
departments of the government to prosecute or adjudicate particular claims, whether
asserted by the government itself or by private persons. Known as 'implied powers'.
Used as constitutional cover to encroach on the powers of state.
We might be entering a turning point to which there will be a rolling back of federal govt, so
that states can reassert their power.
Example Even though many things are left up to the individual state to decide, there are still some areas in
which state sovereignty is challenged.
Explain 1. Citizens rights - certain rights have been dictated by federal govt. The drinking age is set
federally at 21 and the supreme court case of Obergefell v Hodges in 2015 effectively
legalised same-sex marriage in every state. Equally, cases such as Arizona v US even
challenged the powers of Arizona when enforcing a federal law.
2. Criminal punishment - Kennedy v Louisiana limit the use of the death penalty.
3. Electoral regulation - numerous federal laws and constitutional amendments have extended
voting rights - lowering voting age regardless of sex and colour. Campaign finance laws and
regulation are also set at a federal level.
4. Taxes - not only do citizens have to pay federal income tax, states are also reliant on grants
from federal govt when their own finances run low or in response to unexpected
circumstances. The federal govt spent more than $100 bn on the recovery effort following
Hurricane Katrina in 2005, money which would have amounted to around half of the
Louisiana annual GDP.
Judgement Therefore, whilst the development of new federalism does seem to be coming, the reserved powers
of federal govt are still seen in many areas of the law.
Point 2 Federal govt remains reliant on states to enforce any federal law – therefore, we can see a return
to New Federalism which was outlined by Nixon where federal govt returns power back to the
states.
Constitution.”
Introduction
Founding fathers - federalism is firmly embedded within the constitution. The constitution divided
sovereignty between the states (10th amendment) and the federal government, giving each distinct powers
which were protected by the constitution itself.
Federal govt powers – declare war, treaties, to make laws ‘necessary and proper’ to achieve their
constitutional powers.
Concurrent powers – constitutional amendments, levy taxes, establish courts.
State powers – regulation of elections, establish local govt, assume all powers not listed in the constitution –
10th amendment.
The division of powers as laid out by the constitution was meant both to ensure state sovereignty and also to
allow for a stronger federal govt to overcome the problems of the articles of confederation. The 10th
amendment is crucial in protecting states' power.
Thesis: federalism is becoming less of an effective principle due to the 10 th amendment opposition, the
inability to create federal law and the reinforcement of a limited govt. but this is okay as it no longer
appropriate for 1 govt to govern over such a large country and it is more beneficial for states to be ran this
way.
Point 1 The 10th amendment and N&P law are in direct opposition, making federalism hard to define and
often creating tension between state and federal govts.
Example Roe v Wade (not in the N&P clause or Article 10) - buts hands power back to the states.
Explain ARTICLE 10 - ANYTHING NOT DEFINED IN THE CONSTITUTION IS LEFT UP TO THE STATES.
‘NECESSARY AND PROPER' LAW: enables Congress to pass special laws to require other
departments of the government to prosecute or adjudicate particular claims, whether
asserted by the government itself or by private persons. Known as 'implied powers'.
Used as constitutional cover to encroach on the powers of state.
We might be entering a turning point to which there will be a rolling back of federal govt, so
that states can reassert their power.
Example Even though many things are left up to the individual state to decide, there are still some areas in
which state sovereignty is challenged.
Explain 1. Citizens rights - certain rights have been dictated by federal govt. The drinking age is set
federally at 21 and the supreme court case of Obergefell v Hodges in 2015 effectively
legalised same-sex marriage in every state. Equally, cases such as Arizona v US even
challenged the powers of Arizona when enforcing a federal law.
2. Criminal punishment - Kennedy v Louisiana limit the use of the death penalty.
3. Electoral regulation - numerous federal laws and constitutional amendments have extended
voting rights - lowering voting age regardless of sex and colour. Campaign finance laws and
regulation are also set at a federal level.
4. Taxes - not only do citizens have to pay federal income tax, states are also reliant on grants
from federal govt when their own finances run low or in response to unexpected
circumstances. The federal govt spent more than $100 bn on the recovery effort following
Hurricane Katrina in 2005, money which would have amounted to around half of the
Louisiana annual GDP.
Judgement Therefore, whilst the development of new federalism does seem to be coming, the reserved powers
of federal govt are still seen in many areas of the law.
Point 2 Federal govt remains reliant on states to enforce any federal law – therefore, we can see a return
to New Federalism which was outlined by Nixon where federal govt returns power back to the
states.
