FEDERALISM -- A CLOSELY-KNIT UNION OF STATES, A POWERFUL CENTRAL GOVERNMENT, & A SUBSTANTIAL DEGREE OF
1. Federalism -- Definition and Characteristics:
The term "Federalism" -- "federation," "federal union," or "federal system" -- refers to a federated sovereign state formed by establishment of a closely-knit, or tightly-knit, union of two or more smaller political communities, which, after formation of the union, are no longer sovereign (completely independent) but do retain a significant degree of autonomy (partial self-government). The smaller political communities that are members of the larger federal union possess and exercise a substantial amount of home rule, but, at the same time, are bound by the constitution and constitutionally valid laws of the national government, or central government -- i.e., the general, or common, government over the entire federation and country.
The fifty smaller regional political communities comprising the membership of the federal union known as the "United States of America" are officially designated as "states." And so are the six constituent political units of the federation called the "Commonwealth of Australia." The ten regional political communities comprising the federation of Canada are officially designated as "provinces."
There are important features which distinguish federalism from unitary government on the one hand and from confederal government on the other -- characteristics that distinguish a federal union from a governmental system characterized by a very high degree of political centralization as well as from a governmental system that is almost completely decentralized. The distinguishing features of federalism, as a set of constitutional power relationships between a country's central government and the governments of its local or regional political subdivisions, place the federation somewhere in between the high level of centralization that characterizes the unitary state and the thoroughgoing decentralization that defines the confederation..
What are the distinguishing characteristics of federalism?
Unlike a confederation, the general government of a federation -- the national, or central, government of the federated sovereign state -- has unchallenged constitutional authority to speak, decide, and act for the entire country in its relations and dealings with foreign governments. In this sense, the national government is the sole possessor and exerciser of sovereignty. Only the national government can operate as the government of a completely independent political community with absolute power to chart its course in the arena of international relations.
The smaller regional or local political communities comprising the larger, federated sovereign community -- the member "states" or "provinces" of the federal union -- are not sovereign states (as they would be in a confederation). That is, the smaller communities are neither completely nor virtually independent. Instead, they are semiautonomous -- i.e., partially self-governing. They possess autonomy, not sovereignty. However, the degree of autonomy, or self-government, is substantial.
In the case of a federation, the national constitution -- the constitution over the whole country -- divides and distributes the constitutional powers of government between the national government and the constituent political units -- the smaller communities comprising the larger community. The national constitution recognizes the existence of two levels of government in the country: (1) the national, or central, government and (2) the governments of the smaller regional communities. And the national constitution grants substantial authority to each of the two levels of government -- national and regional. Each level of government is given the right to make final decisions on at least some governmental activities and services.
In a federal system, the national constitution protects the right of each level of government to exist. Legally, neither level of government can destroy the other level. The U.S.A., for example, has been referred to as "an indestructible union of indestructible states."
In a federal union, the national constitution gives the central government control over matters of general, or common, concern to the country as a whole and permits the constituent political communities to regulate matters of more regional or local concern.
Neither level of government in a federation receives its powers from other. The constituent communities do not receive their powers from statutes enacted by the national legislature. And the national government does not receive its powers from decisions and actions of the regional legislatures. Both levels of government -- national and regional -- receive their respective sets of powers from a common source, and that common source is the national constitution.
Both levels of government in a federal union operate through their own agents and exercise power directly over individuals. In a given geographic, or territorial, region within the country, two different governments -- one national, and the other regional -- simultaneously govern the same land and people.
Under ordinary conditions within the country, neither level of government in a federal system is dependent upon the other for enforcement of its decisions within its own constitutional sphere of authority.
2. Examples of Federal Systems of Government:
Examples of federations in the world today include the United States of America, the Commonwealth of Australia, Canada, the Federal Republic of Germany, Austria, and Switzerland.
Unitary Government: Federal System:
The national constitution The national constitution di- vests all the constitutional vides the constitutional pow- authority of government in ers of government between the the central government. central government and the constituent units. Regional or local political Regional political units re- units are created by acts ceive their powers from pro- of the national legislature visions of the national con- and receive their powers stitution. These powers can from national legislative be taken from the regional statutes. These powers can communities only by amending be withdrawn from the re- the national constitution. gional or local units by Both levels of government statutes of the national must consent to changes in legislature. the national constitution. The national legislature The national constitution can, by statute, abolish or protects the right of the completely reorganize the constituent communities to regional units, which exist exist. and operate at the suffer- ance of the national gov- ernment.
Examples of unitary constitutional democracies include Britain; France, Japan, Spain, Italy, Ireland, Greece, Israel, Norway, Sweden, Finland, Denmark, and the Netherlands.
3. How Federalism Differs from a Confederation:
Confederation: Federal System: The union is a loosely-held- The states joining together together league or associa- in the union yield to the tion of virtually sovereign central government a substan- states--a loose union or al- tial amount of political au- liance of almost completely thority. The constituent independent states. communities are no longer sovereign. They are now sem- iautonomous; they are par- tially self-governing, not completely self-governing. The central government does The national government exer- not have authority to regu- cises power directly over in- late the conduct of individ- dividuals. The central gov- ual persons. To impact on ernment operates through its individuals, the central own agents--not through the government must act through regional governments, unless the states. it chooses to do so. The central government has Under the national constitu- only enumerated, or express, tion, the central government powers--powers expressly has broad power to decide and delegated (granted in so act on matters of general many words) to the central concern to the nation as a government by the constitu- whole. The central govern- tional compact or treaty. ment of the U.S.A., for ex= ample, is by no means limited to the enumerated (express) powers. It also possesses and exercises implied powers --powers which are not men- tioned in so many words in the national constitution--as powers assigned to the cen- tral government, but which can be reasonably implied from the enumerated powers. The powers of the central The national government is government are severely granted substantial authority limited by the constitu- by the national constitution. tional compact or treaty.
Examples of Confederations in Western history include the U.S.A. under the Articles of Confederation (1781-1789) and Germany as the "Holy Roman Empire" (962-1806).
5. Contemporary Example of a Confederation:
The European Union is an example of a contemporary confederation.
The Tenth Article of Amendment to the Constitution of the United States provides:
The foregoing constitutional provision means that:
2. The Tenth Amendment and American Federalism:
The Basic Principle of American Federakism. The Tenth Amendment embodies the basic principle of American federalism -- the fundamental principle governing the constitutional division and distribution of political authority between the national government and the states. According to this basic principle, the U.S. national government possesses all those powers delegated to it by the national constitution and the states possess all those powers which the U.S. Constitution neither delegates to the national government nor prohibits the states from exercising.
What the Tenth Amendment Makes Explicit. The Tenth Amendment expressly states -- i.e., makes explicit -- what was implied, or implicit, in the seven original articles of the U.S. Constitution: Under the Constitution, there are two levels of government, each with its own sphere of authority and each enjoying constitutional protection of its right to exist. All powers neither delegated to the central government nor denied to the states remain within the sphere of state authority.
THREE SPHERES OF POLITICAL AUTHORITY NATIONAL AUTHORITY SHARED AUTHORITY STATE AUTHORITY Delegated Concurrent Reserved Powers Powers Powers Enumerated (Residual Powers Powers) Implied [Original, Inherent, Powers & Largely Undefined] Inherent Powers in Foreign Affairs
The delegated powers are the powers granted to the national government by the U.S. Constitution. The delegated powers are the powers of government which the states gave up when they ratified the U.S. Constitution and which were vested in the central government by the Constitution.
There are two categories of powers delegated to Congress by the U.S. Constitution: (1) the enumerated, or express, powers and (2) the implied powers.
3. Enumerated Powers -- Express Powers:
a. Enumerated Powers -- A Definition:
The enumerated powers, or express powers, of Congress are those powers enumerated -- listed or mentioned in so many words -- in the Constitution as grants of authority to Congress. Particular clauses in the Constitution explicitly delegate these powers to Congress.
b. Location of the Enumerated Grants of Power:
The express grants, or delegations, of power to Congress are contained in the following provisions of the U.S. Constitution:
c. Implied Powers -- Powers Implicit in the Constitution:
The implied powers of Congress are those powers which are not listed or mentioned in the Constitution, but are deemed by Congress and the U.S. Courts to be reasonably implied from the enumerated, or expressly delegated, powers of Congress.
4. Inherent Powers of the National Government:
In a number of cases, the U.S. Supreme Court has ruled as follows:
The inherent powers of the national government are powers that do not depend on the constitutional delegations of power, neither delegation by enumeration nor delegation by implication. The national government's inherent powers in foreign affairs inhere in the national government as the sole spokesman and representative of a sovereign state, the United States of America, in its dealings with other sovereign states in the world. These powers grow out of the very existence of the U.S. central government as the instrument of a sovereign nation-state.
America's national government, in its dealings with the governments of other sovereign states in the world, has the same powers that the governments of all sovereign states have in the area of international relations.
Examples of the inherent powers of the U.S. national government include (1) authority to acquire by discovery and occupation territory outside the existing boundaries of the U.S.A. and (2) authority to make and enforce immigration laws regulating, limiting, and prohibiting the entrance of aliens into the U.S.A.
5. Reserved Powers: Residual Powers -- The Sphere of State Authority:
a. Reserved Powers -- A Definition:
The reserved powers, or residual powers, make up the sphere of political authority allocated to the states by the U.S. Constitution. The reserved powers of the states are the powers which the Constitution neither delegates to the national government nor denies to the states. The Constitution reserves these powers to the states, or the people.
The reserved powers are original, general, inherent, and largely undefined.
b. Examples of the Reserved Powers of the States:
Examples of the reserved powers include state authority to:
6. Concurrent Powers -- The Sphere of Shared Authority:
a. Concurrent Powers -- A Definition:
The concurrent powers constitute the sphere of authority shared by the states and the national government under the U.S. Constitution. The concurrent powers can be exercised by the central government and the states concurrently, i.e., simultaneously (at the same time).
b. Concurrent Powers -- Examples:
Examples of the concurrent powers include authority to (1) lay and collect taxes, (2) spend public funds in the public interest, i.e., spend the taxpayers' money to provide for the general welfare, or common good, (3) borrow money on the public credit, (4) charter banks and other corporations, (5) make and enforce laws, (6) Establish courts, (7) exercise the power of eminent domain, i.e., the right to take private property for public purposes, and (8) Regulate intrastate commerve, i.e., regulate trade and other economic activities carried on within the borders of a state.
1. Necessary and Proper Clause -- A Definition:
The Necessary and Proper Clause, or Elastic Clause, is Article I, Section 8, Clause 18, of the U.S. Constitution. The clause provides as follows:
2. Necessary and Proper Clause -- The Literal Meaning:
Article I, Section 8, Clause 18 -- the Necessary and Proper Clause -- delegates to Congress authority to make any laws necessary and proper for (1) exercising its own enumerated powers and (2) putting into effect the constitutional powers of the other branches or organs of the national government.
3. Necessary and Proper Clause -- Significance:
The Necessary and Proper Clause is the constitutional basis of the implied powers of Congress.
The implied powers of Congress derive from the broad construction -- the very loose and generous interpretation -- the U.S. Supreme Court has given to the authority of Congress under the Necessary and Proper Clause.
The Necessary and Proper Clause is called the "Elastic Clause" because it has been interpreted, or construed, in such manner as to allow the authority of Congress to be stretched far beyond the enumerated, or express, grants of power by the Constitution.
The National Supremacy Clause is Article VI, Paragraph 2, of the U.S. Constitution:
2. National Supremacy Clause -- What the Clause Does:
Article VI, paragraph 2, does two things.
Firstly, the clause defines the content of the supreme law of the land in the U.S.A. -- the law which is superior to and takes precedence over all other laws and public policies in the country. The supreme law of the land is defined to include:
Secondly, the National Supremacy Clause requires that all state judges (as well as federal judges) be bound by the supreme law of the land, regardless of any contrary provisions in state constitutions or state statutes. Thus, any legitimate exercise of national authority under the U.S. Constitution supercedes any conflicting state decisions or actions.
1. The Failure:
In drafting the U.S. Constitution, the Framers were unable to (1) state precisely the constitutional power relationship that would exist between the central government and the states and (2) draw up an exact and comprehensive list of all the powers they intended that the U.S. Constitution vest in the national government.
2. The Consequence:
Different delegates carried away from the Federal Constitutional Convention different views, or perceptions, of the true meaning of federalism under the U.S. Constitution. Different delegates had different notions and opinions regarding the scope and limits of the authority of the central government under the Constitution -- different views of exactly which powers were surrendered by the states to national government and which powers were retained by the states..
3. Alexander Hamilton's View of the Meaning of Federalism:
Alexander Hamilton'c view of the meaning of federalism under the U.S. Constitution is often referred to as the "Hamiltonian interpretation," or :nationalist interpretation", of the U.S. Constitution. His view is also widely known as the "broad construction" -- the "loose construction, or "liberal interpretation" -- of the Constitution.
According to the perception of Hamilton and other broad constructionists, the Constitution of the United States, unlike the Articles of Confederation, is a genuine basic law establishing and empowering a genuine central government for and binding on an entire nation, the United States of America. The U.S. Conatitution is not a compact or treaty establishing an alliance or association of sovereign states.
The U.S. Constitution is the fundamental and supreme law of the U.S.A. -- the fundamental and supreme law ordained and established by the American people, when the popularly elected state constitutional conventions ratified the Constitution. Through ratification of the Constitution by these popularly elected state constitutional conventions, the sovereign people of America provided the national government with ample authority to accomplish the purposes for which the Constitution was drafted, proposed, and adopted -- to achieve the great ends of national government listed in the Preamble to the Constitution, namely, to (1) establish justice, (2) ensure domestic tranquility, (3) provide for the common defense, (4) promote the general welfare, i.e., the national public interest, or the common good of the entire country, and (5) safeguard, protect, and preserve liberty.
The sovereign people intended that a broad construction, or interpretation, be applied to the constitutional powers of the central government. That is, it was the intention of the people that the constitutional grants of power to the national government be interpreted, or construed, broaly and liberally -- loosely and generously. Under a proper and sufficiently broad construction of the Necessary and Proper Clause, Congress possesses and is entitled to exercise numerous powers -- powers in addition to those expressly delegated to Congress by the Constitution. These additional powers are the implied powers, which comprise an immence quantity of authority -- plenary authority that cannot be defined in exact terms.
It was also the intention of the sovereign people that the central government be prevented from exercising a particular power only when the Constitution expressly prohibits, clearly and unambiguously, the government's exercise of that power. The national government has the legitimate right to take action to deal with a given matter, unless one or more provisions of the Constitution specifically forbid the government to take such action. Nothing in the Tenth Amendment denies the national government the right to exercise, to the fullest extent, the powers delegated to it by the Constitution.
Article VI, Paragraph 2, of the U.S. Constitution provides that the supreme law of the land in the U.S.A. consists of (1) the provisions of the U.S. Constitution, (2) all national laws made in pursuance of the Constitution, and (3) all treaties made under the authority of the U.S.A. The National Supremacy Clause, in addition to defining the content of the supreme law of land, provides that the judges in all states -- the judges on the state courts -- are bound by the supreme law.
The supremacy of national law limits and restricts the states in their exercise of the reserved powers. A state, legitimately and legally, cannot employ a reserved power to impede the national government's exercise of a delegated power.
4. Thomas Jefferson's View of the Meaning of Federalism:
Thomas Jefferson's interpretation of the constitutional delegations of power to the central government is called "strict construction," or " "narrow construction," of the U.S. Contution. It is also known as the "Jeffersonian interpretation, or "states rights interpretation."
Jefferson's perception of the character of the U.S Constitution and of the nature of the union of states created by the Constitution was in contrast to Hamilton's perception.
According to the constitutional and political theory of Jefferson, the U.S. Constitution is a constitutional compact or treaty among sivereign states, concluded and entered into by those sovereign states. In accepting this constitutional compact and joining together in the union, or alliance, of states which the compact proposed -- i.e., in ratifying the U.S. Constitution -- the sovereign states (1) created the U.S. central government for joint action by the states to accomplish common purposes and (2) granted the central government strictly limited and circumscribed authority. Therefore, the central government under the U.S. Constitution, a government with a severely restricted and confined sphere of authority, is nothing more than an agent of the states designed to facilitate mutural cooperation and support in joint endeavors to pursue shared interests and achieve common objectives.
Under the U.S. Constitution, the United States of America is merely a smewhat more tightly-knit union than the one that existed under the Articles of Confederation. The Framers of the U.S. Constitution intended to grant the central government under the Constitution only slightly greater authority than that of the Congress under the Articles of Confederation.
Hence, a strict construction should be applied to the constitutional powers of the central government. Each of the constitutional grants of power to the central government should be strictly interpreted. The U.S. Constitution must be interpreted as narrowly defining the powers of Congress and strictly limiting them to the enumerated powers -- the powers expressly delegated to Congress by the Constitution. There are no implied powers of Congress. There are only express powers.
Whenever there is doubt as to whether the states, through ratification of the Constitution, have surrendered a particular power to the central government or reserved that power to themselves, the issue should be decided in favor of the states, not the central government. The focus of America's statesmen and political leaders should be upon their constitutional and moral obligation to protect and preserve "states' rights," i.e., the reserved powers of the states under the Constitution .
The central government should not be allowed to exercise its delegated powers in such a way as to restrict or interfere with the states' exercise of the powers reserved to them by the Constitution.
The first legal question the U.S. Supreme Court had to resolve in McCulloch v. Maryland was:
2. The Supreme Court's Answer -- The Holding, or Ruling, of the Court Regarding Legal Question One:
The holding, or ruling, of the Supreme Court -- the Court's answer -- was as follows:
3. The Answer to Legal Question One -- The Supreme Court's Reasoning:
The Supreme Court's reasoning in support of its holding regarding Legal Question One was as follows:
4. McCulloch v. Maryland -- Legal Question Two:
The second legal question that the Supreme Court had to address in McCulloch v. Maryland was:
The broader legal question involved here was:
5. The Supreme Court's Answer -- The Holding of the Court Regarding Legal Question Two:
As regards Legal Question Two, the ruling of the Supreme Court was as follows:
6. The Answer to Legal Question Two -- The Supreme Court's Reasoning:
The Supreme Court's reasoning in support of its holding regarding Legal Question Two was as follows:
7. The Validity of an Implied Power Claimed by Congress -- The Constitutional Test:
In its ruling regarding Legal Question One, the Supreme Court established an important constitutional test -- a test to ascertain and decide on the constitutional validity, or constitutionality, of an implied power claimed by Congress. The test was stated as follows:
8. The Result of the Supreme Court's Decision in McCulloch v. Maryland:
The answers the Supreme Court gave to the legal questions involved in the case established two very important rules of American constitutional law: (1) the doctrine of implied powers and (2) the doctrine of national supremacy.
The Doctrine of Implied Powers. This judicial doctrine, or rule of law, has developed for the U.S. national government an vast source of constitutional authority. Under the doctrine, the powers of Congress have been enlarged and extended far beyond the enumerated powers.
The Doctrine of National Supremacy.
This rule of law denies to the states any authority to interfere in the constitutional activities and functions of the central government.
The Longterm Significance of the Two Doctrines. The two rules of law have enabled the U.S national government to deal with the problems of American society as it has evolved over more than two centuries, changing from the small, primarily agrarian frontier nation that America was in the late eighteenth and early nineteenth centuries to the highly complex modern industrial and commercial society and principal major world power that the U.S.A. now is. If the Supreme Court, in McCulloch v Maryland, had decided the case in favor of the State of Maryland, had applied a narrow construction to the constitutional grants of congressional power and had adhered to this precedent in subsequent cases, the U.S. central government would have been so weak and impotent that it would have lacked the ability to cope with the problems of a growing nation and changing society operating in a tense and troubled international environment which, over the past two centuries, has become increasingly complex, volatile, and dangerous.
a. Absolute Prohibitions:
Article I, Section 10, of the U.S. Constitution prohibits the states from (1) entering into treaties, alliances, or confederations with foreign nations, (2) coining money, (3) emitting bills of credit, i.e., issuing paper money, (4) making something other than gold or silver tender in payment of debts, (5) passing a bill of attainder, (6) passing an ex post facto law, (7) passing a law impairing the obligation of contracts, and (8) granting titles of nobility.
b. Conditional Prohibitions:
Article I, Section 10, prohibits the states from taking certain actions without the consent of Congress. These conditional prohibitions apply to such actions as (1) taxing imports or exports, (2) entering into an agreement or compact with another state or with a foreign government, (3) levying any duty of tonnage, i.e., a duty on ships at so much per ton of cargo, (4) keeping troops or ships of war in time of peace and (5) engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.
2. Additional Federal Constitutional Limitations on State Power:
a. Fourteenth Amendment Prohibitions:
Amendment 14, Section 1, contains three clauses which limit state authority:
b. Fifteenth Amendment Prohibition:
The Fifteenth Amendment prohibits the states from denying or abridging the right of citizens to vote on account of race or color.
c. Nineteenth Amendment Prohibition:
Under the Nineteenth Amendment, the states are prohibited from denying or abridging the right of citizens to vote on account of sex (gender).
d. Twenty-fourth Amendment Prohibition:
By the terms of the Twenty-fourth Amendment, the states are prohibited from denying or abridging the right of citizens to vote in federal elections by reason of failure to pay any poll tax or other tax.
e. Twenty-sixth Amendment Prohibition:
The Twenty-sixth Amendment prohibits the states from denying or abridging the right of citizens eighteen years of age or older to vote on account of age.
Under Article IV, Section 3, of the Constitution, the national government must observe and protect the territorial integrity of every state in the Union. In admitting new states into the American federal union, Congress may not, without the consent of the legislatures of the states concerned, (1) form or erect a new state within the jurisdiction, or borders, of another state or (2) form a new state by the junction, or merger, of two or more existing states or parts of states.
2. Article IV, Section 4, Obligations:
Article IV, Section 4, obligates the national government to (1) guarantee to every state in the union a "republican form of government," (2) protect the states against foreign invasion, and (3) protect any state against domestic violence, or armed insurrection, whenever the state requests the national government to provide such protection, i.e., the state asks for federal help in suppressing the widespread violence, restoring domestic order and maintaining the legitimate political regime in that state -- federal assistance that will very likely involve sending into the state the U.S. Armed Forces, federalized National Guard units, and paramilitary units connected to federal law-enforcement agencies.
3. Article I, Section 8, Clause 1, Obligation:
Article I, Section 1, Clause 1 -- the Tax Clause of the U.S. Constitution requites that taxes levied by Congress -- federal taxes -- be uniform throughout the U.S.A. This clause obligates the national government to equal treatment of the states, as regards the imposition of taxes. Federal taxes must not be levied on or in some states, but not on or in other states. And federal tax rates must not be higher in some states than in other states.
4. Article V Obligation:
Article V contains the Entrenchment Clause," which provides:
The U.S. Constitution cannot be amended to provide for unequal representation of the states in the U.S. Senate, unless such a proposed amendment is ratified by all the member-states of the federal union.