CYBERLAND UNIVERSITY OF NORTH AMERICA
Dr. Almon Leroy Way, Jr.
University President & Professor of Political Science
SECOND PAGE
NOTES ON FEDERALISM & THE AMERICAN FEDERAL SYSTEM
(Continued)
THE FRAMERS' FAILURE TO SPELL OUT, IN EXACT TERMS, THE CONSTITUTIONAL RELATIONSHIP BETWEEN THE NATIONAL
GOV- ERNMENT & THE STATES & THE FULL EXTENT OF THE CONSTITU- TIONAL POWERS OF THE NATIONAL GOVERNMENT:
THE FAILURE:
In drafting the U.S. Constitution, the Framers were
unable to--
Spell out exactly what relationship was to
exist between the central government and the
states;
Make an exact and exhaustive enumeration, or
express delegation, of all the powers they in-
tended the U.S. Constitution to assign to the
national government.
THE CONSEQUENCE:
Different delegates carried away from the Federal
Constitutional Convention different views, or percep-
tions, of what federalism under the U.S. Constitution
meant.
Different delegates had different views of the
scope of the authority of the central govern-
ment under the Constitution.
THE MEANING OF FEDERALISM UNDER THE U.S. CONSTITUTION-- THE VIEW OF ALEXANDER HAMILTON:
Hamilton's view is often referred to as the "HAMILTONIAN,"
or "NATIONALIST" interpretation of the U.S. Constitution.
It is also called the "BROAD CONSTRUCTION"--the "LOOSE,"
or "LIBERAL," construction (interpretation)--of the Con-
stitution.
HAMILTON'S VIEW:
The U.S. Constitution is not a compact or treaty
establishing an alliance or association of sovereign
states.
It is the supreme law of the U.S.A.--the su-
preme law established by the American people,
when the popularly elected state conventions
ratified the Constitution.
Through ratification of the Constitution by popularly
elected state conventions, the sovereign people gave
the national government sufficient authority to ac-
complish the great objectives listed in the Preamble
to the Constitution:
(1) To establish justice;
(2) To ensure domestic tranquility;
(3) To provide for the common defense;
(4) To promote the general welfare--i.e., the
the national public interest, or the com-
mon good of the entire country;
(5) To safeguard, protect, and preserve liber-
ty.
The sovereign people intended that a BROAD CONSTRUC-
TION 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 BROADLY AND
LIBERALLY (loosely ang generously).
Under the NECESSARY AND PROPER CLAUSE, Congress
has many IMPLIED POWERS--a vast amount of au-
thority that cannot be precisely defined.
It was also the intention of the sovereign people
that the central government be denied authority only
when the Constitution clearly prohibits it from act-
ing.
Nothing in the Tenth Amendment denies the national
government the right to exercise to the fullest ex-
tent the powers delegated to it by the Constitution.
Article VI, paragraph 2, of the Constitution declares
the the supreme law of the land in the U.S.A. con-
sist of--
(1) The provisions of the U.S. Constitution;
(2) All national laws made in pursuance of the
Constitution;
(3) All treaties made under the authority of
the U.S.A.
The judges in all states are bound by the su-
preme law of the land.
The SUPREMACY OF NATIONAL LAW restricts and
limits the states in their exercise of the re-
served powers.
A state may not use a reserved power to
interfere with the national government's
exercise of a delegated power.
THE MEANING OF FEDERALISM UNDER THE U.S. CONSTITUTION-- THE VIEW OF THOMAS JEFFERSON:
Jefferson's interpretation of the constitutional delega-
tions of power to the central government is called "STRICT
CONSTRUCTION," or "NARROW CONSTRUCTION," of the U.S. Con-
tution. It is also known as the "STATES' RIGHTS INTERPRE-
TATION."
JEFFERSON'S VIEW:
The U.S. Constitution is a constitutional compact or
treaty among sovereign states.
In agreeing to this constitutional compact (i.e., in
ratifying the U.S. Constitution), the sovereign
states thereby--
Created the U.S. central government for their
own common purposes;
Gave it carefully limited powers.
Therefore, the central government under the U.S.
Constitution is nothing more than an agent of the
states.
Under the U.S. Constitution, the U.S.A. is merely a
SOMEWHAT MORE TIGHTLY-KNIT CONFEDERATION 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 Con-
stitution only SLIGHTLY GREATER AUTHORITY than
that of the Congress under the Articles of Con-
federation.
Hence, a STRICT CONSTRUCTION should be applied to the
constitutional powers of the central government.
Each of the powers of the central government
should be NARROWLY DEFINED and STRICTLY INTER-
PRETED.
The U.S. Constitution must be interpreted as strictly
limiting the powers of Congress 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 given
a particular power to the central government or
reserved that power to themselves, the doubt should
be resolved in favor of the states.
The emphasis should be on protection and pre-
servation of "STATES' RIGHTS"--i.e., the re-
served powers of the states.
The central government should not be allowed to exer-
cise its delegated powers in such a way as to inter-
fere with the states' exercise of the powers reserved
to them by the Constitution.
AMERICAN FEDERALISM & THE POWERS OF CONGRESS UNDER THE U.S. CONSTITUTION--THE DECISION OF THE U.S.
SUPREME COURT IN MCCULLOCH V. MARYLAND (1819):
LEGAL QUESTION ONE:
Does Congress, under the U.S. Constitution, have the
power to incorporate a bank, even though this power
is not listed, or enumerated, in the Constitution as
one of the expressly delegated powers of Congress?
THE COURT'S ANSWER--THE HOLDING, OR RULING, OF THE COURT
REGARDING LEGAL QUESTION ONE:
Yes, Congress DOES have the power, under the U.S.
Constitution, to incorporate a bank.
It is not necessary fo the Constitution EXPRESSLY to
authorize Congress to create a bank.
Rather, the power can be REASONABLY IMPLIED
from some of the expressly delegated powers of
Congress.
THE COURT'S REASONING IN SUPPORT OF ITS HOLDING REGARDING
LEGAL QUESTION ONE:
The authority to establish a bank is not among the
ENUMERATED, or EXPRESS, powers of Congress.
However, Congress possesses IMPLIED powers as well as
the expressly delegated powers.
A major source from which the implied powers of Con-
gress can be drawn is ARTICLE I, SECTION 8, CLAUSE 18
--The NECESSARY AND PROPER CLAUSE, or ELASTIC CLAUSE.
This clause gives Congress the power to make
any laws NECESSARY AND PROPER for exercising
its enumerated powers.
"Necessary and proper" does not mean "absolute-
ly necerrary," "essential," or "indispensable."
Rather, it means "APPROPRIATE."
Congress may legally employ ANY MEANS THAT ARE
APPROPRIATE to the exercise of its enumerated
powers.
In short, Congress may legally exercise--
Not only every power expressly delegated to it
by the U.S. Constitution--
But also every power which can be reasonably
implied from one or more of the expressly
delegated powers.
LEGAL QUESTION TWO:
Can the State of Maryland, without violating the U.S.
Constitution, tax the bank notes issued by the Balti-
more Branch of the Bank of the United States?
THE BROADER LEGAL QUESTION:
Can a state legally tax an instrumentality of
the national government?
THE COURT'S ANSWER--THE HOLDING OF THE COURT REGARDING
LEGAL QUESTION TWO:
No, Maryland cannot legally tax an instrumentality
of the national government.
Congress has full authority, under the U.S. Constitu-
tion, to establish such an entity as the Bank of the
United States.
Therefore, Maryland's tax on the Bank of the United
States is--
An invasion of NATIONAL SUPREMACY;
Hence, a violation of Article VI, paragraph 2,
of the U.S. Constitution.
The Maryland tax is UNCONSTITUTIONAL and NULL AND
VOID (of no force and effect).
THE COURT'S REASONING IN SUPPORT OF ITS HOLDING REGARDING
LEGAL QUESTION TWO:
The national government is supreme in the exercise
of the powers conferred upon it by the U.S. Constitu-
tion.
The national government and its instrumentalities
must be immune from destruction by the states.
The power to tax is the power to destroy.
Therefore, the states cannot legally tax any
instrumentality of the national government.
"The states have no power, by taxation or
otherwise, to retard, impede, burden, or
in any manner control the operation of
the constitutional laws enacted by Con-
gress to carry into execution the powers
vested in the general [national, or cen-
tral] government."
The states do not have any right to
interfere in the constitutional op-
erations of the national govern-
ment.
State actions or instrumen-
talities cannot be legally
used to impede, hinder, or
negate exercise by the na-
tional government of its
legitimate powers under the
U.S. Constitution.
The legitimate exercise of national power supercedes
any state action which is in conflict.
If there is a conflict between a state law and
a national law that Congress has a constitu-
tional right to pass, then it is the STATE law
that has to give way.
THE CONSTITUTIONAL TEST FOR DETERMINING THE VALIDITY OF AN
IMPLIED POWER CLAIMED BY CONGRESS:
In its holding regarding Legal Question One, the Su-
preme Court established the following TEST FOR DE-
TERMINING THE CONSTITUTIONALITY of an implied power
claimed by Congress:
"Let the end be legitimate, let it be within
the scope of the Constitution, and ALL MEANS
WHICH ARE APPROPRIATE, which are plainly
adapted to that end, which are not prohibited,
but consist with [are consistent with] the let-
ter and spirit of the Constitutional, are con-
stitutional."
THE RESULT OF THE SUPREME COURT'S DECISION IN MCCULLOCH V.
MARYLAND:
The answers the Supreme Court gave to the legal ques-
tions involved in the case established two very im-
portant RULES OF AMERICAN CONSTITUTIONAL LAW:
(1) The DOCTRINE OF IMPLIED POWERS:
This doctrine, or rule of law, has given the
U.S. national government an enormous source of
constitutional authority.
Under the doctrine, the powers of Congress have
been expanded far beyond the enumerated powers.
(2) The DOCTRINE OF NATIONAL SUPREMACY:
This rule of law denies to the states any right
to interfere in the constitutional operations of
the central government.
Operating under these two rules of law, the national
government has been able to cope with the problems of
a growing nation and changing society.
The U.S. central government would have been
unable to do this, if the Supreme Court, in
MCCULLOCH V. MARYLAND, had ruled in favor of
the State of Maryland and applied a strict con-
struction to the constitutional grants of con-
gressional power.
FEDERAL CONSTITUTIONAL LIMITATIONS ON STATE AUTHORITY-- POWERS DENIED TO THE STATES BY THE U.S. CONSTITUTION:
ARTICLE I, SECTION 10, LIMITATIONS ON STATE POWER:
ABSOLUTE PROHIBITIONS:
Article I, Section 10, of the U.S. Constitution pro-
prohibits the states from--
(1) Entering into treaties, alliances, or con-
federations 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;
(8) Granting titles of nobility.
CONDITIONAL PROHIBITIONS:
Article I, Section 10, prohibits the states from do-
ing certain things WITHOUT THE CONSENT OF CONGRESS:
(1) Taxing imports or exports;
(2) Entering into an agreement or compact with
another state or with a foreign power;
(3) keeping troops or ships of war in time of
peace;
(4) engaging in war, unless actually invaded
or in such immediate danger as will not
admit of delay.
ADDITIONAL FEDERAL CONSTITUTIONAL LIMITATIONS ON STATE
POWER:
FOURTEENTH AMENDMENT:
Amendment 14, Section 1, prohibits the states from--
(1) Making or enforcing a law which abridges
the basic rights and liberties ("privi-
leges and immunities") of citizens of the
United States; [PRIVILEGES AND IMMUNITIES
CLAUSE]
(2) Depriving a person of life, liberty, or
property without due process of law;
[DUE PROCESS CLAUSE]
(3) Denying a person within its jurisdiction
the equal protection of the laws. [EQUAL
PROTECTION CLAUSE]
FIFTEENTH AMENDMENT:
The states are prohibiting from denying or
abridging the right of citizens to vote on
account of race or color.
NINETEENTH AMENDMENT:
The states are prohibited from denying or
a bridging the right of citizens to vote on
account of sex (gender).
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.
TWENTY-SIXTH AMENDMENT:
The states are prohibited from denying or
abridging the right of citizens 18 years of
age or older to vote on account of age.
CONSTITUTIONAL OBLIGATIONS OF THE NATIONAL GOVERNMENT TO THE STATES:
ARTICLE IV, SECTION 3, OBLIGATION:
The national government must observe and protect the
territorial integrity of every state in the Union.
In admitting new states into the Union, Congress may
not, WITHOUT THE CONSENT OF THE LEGISLATURES OF THE
STATES CONCERNED--
Form or erect a new state within the jurisdic-
tion (borders) of another state;
OR
Form a new state by the junction (merger) of
two or more existing states or parts of states.
ARTICLE IV, SECTION 4, OBLIGATIONS:
The national government is obligated to--
(1) Guarantee to every state a "republican
form of government";
(2) Protect the states against foreign inva-
sion;
(3) Protect any state against domestic vio-
lence, or armed insurrection--whenever
the state requests federal protection.
ARTICLE I, SECTION 8, CLAUSE 1, OBLIGATION:
Taxes levied by Congress must be UNIFORM throughout
the U.S.A.
Federal taxes may not be levied on or in some
states, but not on or in other states.
Federal tax rates may not be higher in some
states than in other states.
ARTICLE V OBLIGATION:
"... no state, WITHOUT ITS CONSENT, shall be deprived
of its EQUAL SUFFRAGE [equal voting power, or equal
representation] in the Senate." [ENTRENCHED CLAUSE]
The U.S. Constitution may not be amended to
give states unequal representation in the U.S.
Senate--
UNLESS, such a proposed amendment is
ratified by ALL the states.
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