2FederalismBackground: Federalism is the constitutional division of authority between a national government and states or constituent governments. The Constitution enumerates federal powers but does not define them. This has brought about an endless debate over the definition of the boundaries of national authority.
3Federalist 16, 17: Alexander Hamilton The goal is to construct a federal government capable of regulating common concerns and preserving general tranquilityGovernment should be empowered to execute its own resolutionsCommerce, finance, negotiation, and war should be in the hands of a national governmentLocal governments must have jurisdiction over the administration of private justice, agriculture, etc.The national government would never encroach on such issues since it would be troublesome and nugatory
4Federalist 16: Alexander Hamilton Greater possibility for states to intrude upon the national authoritiesStates have a greater degree of influence over peoplePeople of each state are apt to be more biased toward local governments
5The Anti-Federalist Papers Background: All the Federalist Papers were signed under the nom de plume Publius. The Anti-Federalists were disjointed, with no unified direction and would be signed under various names: Brutus, Country Boy, Cato, etc. Nonetheless, both recognized the importance of a nation of law, not of men.
6Anti-Federalist 17: Brutus The necessary and proper clause provides absolute and uncontrollable powers to the national governmentIt will control protection, security, and defense, possible weapons for oppression and tyrannyThe supremacy clause of the national Constitution nullifies the laws of every state that are inconsistent with itA small degree of power is left to the statesThe national government has unlimited power to raise taxesStates will see their power dwindle as their authority to raise taxes diminishes
7Anti-Federalist 17: Brutus The necessary and proper clause will abolish the state legislaturesThe national courts will eclipse and swallow up the powers of the state courtsThe Constitution’s goal is to revert to a unitary government
8Federalist 44: James Madison Without the necessary and proper clause, the Constitution would be uselessEnumerating all the powers would have been disastrousOmitting powers could be interpreted as automatically granting themState legislatures will be quick in their vigilance of the national government and to exert their power to prevent any infringement over their jurisdiction
9Federalist 45: James Madison Not one of the powers granted to the federal government is unnecessary or improperIf the Union is essential to the security of the people, the power to secure against oppressive factions should be under the national governmentThe supreme objective of the national government is to protect the welfare of the great body of peopleThe state and national governments will be interdependentThe states are regarded as the constituents of the national governmentSenate will be elected by state legislaturesThe president of the Union will be elected with the assistance of the states
10Federalist 45: James Madison The number of people working for the national government will be by far less than those working for the statesPowers delegated under the Constitution to the federal government will be few and definedWar, peace, negotiations, and foreign commercePowers reserved under the Constitution to the states will be numerous and indefiniteLives, liberties, properties of the people, internal order, improvement, and prosperity of the statesThe new Constitution is not proposing new powers for the central government but the strengthening of its original powers
11Federalist 39: James Madison Definition of Republic:A government that derives its powers from the peopleThe government is administered by individuals holding offices for a limited tenureIn state governments:Tenure of highest offices is extended to a definite periodTenure for justices based on good behaviorAt the federal level:House of Representatives is elected directly by the peopleSenate is elected indirectly by the peopleJudges are a remote choice of the peopleThe president may be impeached at any time
12Federalist 39: James Madison States appointed delegates to ratify the Constitution on behalf of the peopleThe proposed government has enumerated powers. All other powers belong to the states.
13The Merits of the Federal System: James Bryce A federal system:Offers the means to unify a country at the same time that it respects the uniqueness of the different institutions or levels of governmentSupplies the best means of developing a new country in a natural and spontaneous wayPrevents the rise of a despotic central governmentFederalism and local self-government:Self-government stimulates the interests of the people; sustains local political life; educates citizens in their duties, teaches perpetual vigilance to attain the goals of a good administration; liberty and collective prosperityFederalism diminishes risks
14The Merits of the Federal System: James Bryce Federalism enables people to experimentFederalism distributes power in such a way that it relieves the national legislature of duties that would prove otherwise too heavy for itThe American Constitution provides the national government direct authority over all citizens while at the same time empowering the states as wellBoth states and the national government look for mediation through an independent body
15Implied Powers and the Supremacy of National Law Background: The Supreme Court has played a determinant role in developing the federal system. Often, its most historic opinions have upheld the national power at the expense of the states by applying the doctrines of implied powers and the supremacy of national law.
16McCulloch v. Maryland (1819) Does Congress have a right to incorporate or charter a national bank even though it is not stipulated anywhere in the Constitution?Government of the Union is supreme within its sphere of actionThe incorporation of a bank is not stipulated in the Constitution; nonetheless, the powers to collect taxes, borrow money, regulate commerce, raise an army, and declare war areThe federal government should have the means to execute its ample and vital powersThe intent of the framers was not to deprive the national government of the means to carry out its enumerated powers
17McCulloch v. Maryland (1819) The Constitution must allow the national legislature the discretion to carry out the powers it confers to itThe power to tax is a concurrent powerThe power to create implies a power to preserveWhen powers are concurrent, the authority which is supreme must controlThe states have no power to burden or impede the operations of a constitutional law enacted by CongressThus, the act of incorporating the bank is constitutional
18Interpretation of the Commerce Clause Background: Gibbons v. Ogden is the first major case interpreting the commerce clause. In 1798, the New York legislature granted R. Livingston a monopoly over the navigation of its state waters by steam boats. In 1793 Congress passed an act providing for the licensing of vessels engaged in coastal trade and Gibbons obtained under this new law a license to operate boats between New York and New Jersey. Ogden was engaged in a similar operation under a license granted by Livingston and wanted to prevent Gibbons from further operation.
19Gibbons v. Ogden (1824)Gibbons contends that the New York law is unconstitutional because Congress has the right to regulate commerce and to promote the progress of science and the useful artsThe last of the enumerated powers gives Congress the right to do anything that is necessary and proper to carry out its enlisted powersFrom its very beginning, navigation has been regulated by the national government with the consent of allThe power to control commerce does not stop within the jurisdictional lines of the several statesCongress has the power to control commerce with foreign nations, among states, and with Indian tribes
20Gibbons v. Ogden (1824)Laws created by the states have validity insofar that they do not interfere with those acts enacted by CongressInsofar that the laws of New York contradict the Constitution, they are null
21National Power Over the States: a Recurring Constitutional Debate Civil War Amendments13th: Abolishes slavery14th: grants citizenship to those born in the country; establishes due process; bars states from denying privileges and immunities to citizens15th: prohibits both federal and state governments from denying the right to vote on account of race, nationality, or previous condition of servitudeThe enforcement clause of the Civil War gave Congress the ability to create the appropriate legislation to enforce the 13th, 14th, and 15th amendments, thus expanding its power over the states on the issue of civil rights
22National Power Over the States: a Recurring Constitutional Debate Gibbons v. Ogden Revisited: Federalism and the Commerce ClauseAfter 1836, the Court adopted a more restrictive view of the national commerce clause. However, this changed in 1937 with Franklin D. Roosevelt’s New Deal. Congress turned to the commerce clause for the legal authority to enact the Civil Rights Act of Government argued that racial discrimination in public accommodations impedes interstate travel by those discriminated against, causing disruption in interstate commerce.The road has not been easy for either the states or the national government, both of which have defended their sphere of power enormously
23The Supreme Court Redefines “Necessary and Proper” Background: In 1994, Congress passed the Violence Against Women Act, stipulating that all people within the U.S. shall have the right to be free from crimes of violence motivated by gender. This law was based on the right of Congress to regulate commerce. Although the law had general support, had Congress gone too far?
24United States v. Morrison (2000) In 1994, Cristina Brzonkala, a student at Virginia Tech, was assaulted and raped repeatedly by two football players. In early 1995, she filed a complaint with the school against the two football players. The school found one of the students guilty (Morrison) but had insufficient evidence against the other student (Crawford). Morrison was suspended for two semesters. In July 1995, Morrison appealed and was found guilty again, not of sexual assault but of using abusive language. By August of 1995, the VP of Virginia Tech set aside Morrison’s punishment and Ms. Brzonkala decided to sue Morrison, Crawford, and Virginia Tech in a U.S. District Court. The District Court dismissed her case, stating that Congress lacked the authority to pass the Violence Against Women Act.
25United States v. Morrison (2000) The interpretation of the commerce clause has changed to fit the timesGender-motivated crimes of violence are not in any way economic activitiesThe interpretation by Congress that it would be able to create such a law based on the impact violence against women has on employment, production, transit, or consumption is too broad since it would mean that it would be able to regulate murder or any other type of violenceFamily law traditionally has been a reserved powerMs. Brzonkala deserves reparation from the state of VirginiaThe Violence against Women Act exceeds congressional power
26California Medical Marijuana Law Background: California voters, though a state initiative, passed a proposition in 1996 that would allow the use of marijuana for limited medical conditions. The California law conflicted with the federal Controlled Substance Act under Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.
27Gonzales v. Raich (2005)California is one of at least 9 states to authorize the use of marijuana for medicinal purposesThe question is whether California’s law is in conflict with Congress’ right to do anything necessary and proper to carry out its powersThe law creates an exemption from criminal prosecution for physicians, patients, and primary caregivers who posses or grow marijuana for medical reasons under the approval of a doctorAngel Raich and Diane Monson were patients protected under the state lawIn August 2002, the DEA and county deputy sheriffs seized and destroyed their cannabis plants
28Gonzales v. Raich (2005)Raich and Monson were seeking injunctive and declaratory reliefCongress has the right to control local activities that have an effect on interstate commerceEnforcement of federal laws would be difficult when trying to distinguish locally grown marijuana from that grown elsewhere or resulting from illicit channels
29Modern Federalism in the Madisonian System UP-TO-DATE IN KANSAS CITY:REFLECTIONS ON AMERICAN FEDERALISMby Martha Derthick
30Meaning of FederalismBy American federalism I mean an arrangement whereby the functions of government are divided between one national government and numerous sub-national ones, all resting on popular consent and written constitutions.
31States and National Government American states are not creatures of the national government. State governments derive authority from their respective constituent communities.
32Constitutional Protections for the States the guarantee of a republican form of governmentthe reservation of powers in the Tenth Amendment.the assurance of equal representation in the Senate, which is secured against amendment,and the assurance that the states’ boundaries will not be changed without the consent of their legislatures.
33Horizontal and Lateral Distribution of Power First the power surrendered by the people is divided between [national and state] governmentsthen [under the separation of powers doctrine] the portion allotted to each is subdivided among distinct and separate [legislative, executive, and judicial] branches.
34Hamilton Federalist 28Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments,and [state governments] will have the same disposition toward the general government.
35Federalist 28The people, by throwing themselves into either [federal or state] scale, will infallibly make it preponderate.If their rights are invaded by either, they can make use of the other as the instrument of redress.
36Madison on Evils of Consolidation of the states into one government Congress would be unable to deal with the vast universe of local problems and pressuresConsolidation would increase the power of the president by compelling a legislative delegation on practical grounds
37Federalism Reduces the Legislative Burden of Congress Federalism reduces the burden on Congressional governancewhich leads to less Congressional incentive to delegate excessive power to the President
38Federalism Advances Popular Control of Government “Were the State governments abolished, the same space of country that would produce an undue growth of the executive power, would prevent that control on the Legislative body which is essential to a faithful discharge of its trust ”
39The Madison of 1791 thus points us in two directions: he invites us to look at how federalism affects the roles of and relations among the institutions of the national government,and, second, to consider how federalism affects the relation between the people and the national government, its legislature in particular.
40Evolution of Federalism Federalism did not evolve in a way that helped to sustain popular control of national governing institutions.One major effect of federalism was the growth of judicial power.
41Federalism Requires an Umpire Most obviously, federalism enhances judicial power in two main ways. By dividing power among governments, it necessitates an umpire.Courts often, although not necessarily, perform that function. They do so in the United States, as the byzantine history of Commerce Clause interpretation amply attests
42Court Interpret Constitutional Prohibitions Against the States Second, American federalism has been characterized by sweeping constitutional prohibitions against the states, which are cast in language that invites judicial interpretation:“No State shall pass any Law impairing the Obligation of Contracts ”“[No state shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
43State Legislatures Expected to Exert Great Influence on Congress Madison expected the institutions of federalism to help control the national legislatureParties and elections early proved more efficacious than address by the state legislatures to deter Congress from pursuing “a self-directed course.”
44Federalism Failed to bring about National harmony In the end federalism failed to bring about the social harmony and national community Madison wanted.The Civil War was the greatest failure of federalism.