b. Federalism & the American Constitutional System
The Nature of Federalism: (1) What is FEDERALISM? What are its characteristics? Cite examples of federal systems in the world today. [46] (2) What is a UNITARY SYSTEM? How does a unitary system, or unitary state, differ from a federal system? Cite examples of unitary systems in the contemporary era. [47] (3) What is a CONFEDERATION? How does it differ from a federation, or federal system? Cite an important ex- ample of a confederation in U.S. constitutional his- tory? Cite a contemporary example of a confederation. (4) In drafting the U.S. Constitution in 1787, why did the Constitutional Convention provide for a federal sys- tem, rather than a confederation or unitary system? [47] American Federalism--Its Formal Constitutional Structure: (1) Describe the formal constitutional framework of America's federal system of government. That, is describe the formal constitutional power relationship between the national government and the 50 member- states of the American federal union, or federation. Under the U.S. Constitution, what powers belong to the national government? In what sense is the national government supreme? What powers belong to the states? Are any powers constitutionally denied, or prohibited, to one or both levels of government. Explain. [49] [Also: U.S. Constitution, Tenth Amendment] (2) What is meant by "the delegated powers"? What is meant by "the express powers," or "the enumerated pow- ers"? What is the NECESSARY AND PROPER CLAUSE? [49 & 52][Also: U.S. Constitution, Article I, Section 8, Clauses 1-18, & Tenth Amendment] (3) What are the "inherent powers" of the U.S. national government? How do they differ from the delegated powers? [49 & 52] (4) What four constitutional pillars have made possible enlargement of the functions of the national govern- ment? What is the significance of this expansion of national governmental functions? [50] (5) What is the NATIONAL SUPREMACY CLAUSE? What does the clause mean, as regards the scope of the national gov- ernment's authority? How does the clause restrict the authority of the states? [50] [Also: U.S. Constitu- tion, Article VI, paragraph 2] (6) What is meant by "the war power," or "the war powers"? Under the War Powers Clauses in the U.S. Constitution, what is the scope of the authority of the national government? [50] [U.S. Constitution, Article I, Sec- tion 8, Clauses 11-16] (7) What is the COMMERCE CLAUSE? What formal constitu- tional power does it grant, or delegate, to the U.S. Congress? Under this clause, how has the power of Congress been expanded to include authority to regu- late virtually all aspects of the American economy? Can the COMMERCE CLAUSE be used to justify and uphold congressional legislation that goes beyond economic, or commercial, matters? Explain. Cite and explain an example. [50-51] [Also: U.S. Constitution, Article I, Section 8, Clause 3] (8) What is the TAX CLAUSE? How has this clause been used to expand the power of the national government? How may Congress enact legislation to promote the "general welfare," or "common good"? How may Congress regulate activities which it lacks the constitutional authority to directly and formally control by law? Cite and explain examples. What are "federal man- dates"? [51] [Also: U.S. Constitution, Article I, Section 8, Clause 1] (9) What are "reserved powers," or "residual powers"? Cite examples of the reserved powers. What are the "concurrent powers," or "shared powers"? Cite exam- ples of the concurrent powers. In general, what may the states do under the concurrent powers? How is state authority limited under the concurrent powers? [51-52] [Also: U.S. Constitution, Tenth Amendment] (10) Under the concurrent powers, who decides whether a matter requires uniform national regulation or whether state action on a matter might place an undue burden on interstate commerce? What is the role of Congress? What is the role of the U.S. Courts? When Congress is silent or does not clearly state its intentions in na- tional legislation, which governmental organ or organs decide whether a state governmental action is in con- flict with the U.S. Constitution or whether the na- tional government has, by law or regulation, PREEMPTED the field of activity? [52] (11) In order to make federalism work, what powers does the U.S. Constitution prohibit the states from exercising? [52] {Also: U.S. Constitution, Article I, Section 10] (12) In order to make federalism work, what restraints, or limitations, does the U.S. Constitution impose on the national government? What are the constitutional ob- ligations of the national government to the states? [52-53] [Also: U.S. Constitution, Article 9, Clauses 5 & 6, and Article IV, Sections 3 & 4] (13) What is the role of Congress in enforcing the federal constitutional requirement that the national govern- ment guarantee to each state a "republican form of government"? [53] (14) What is the role of the President in carrying out the federal constitutional requirement that the central government protect each state from "domestic violence" (domestic insurrection, or internal rebellion)? How did the President acquire this role? [53] (15) What is the FULL FAITH AND CREDIT CLAUSE? What does it require each state to do? Does this requirement apply to state criminal law? Explain. [53] [Also: U.S. Constitution, Article IV, Section 1] (16) What is required of each state by the PRIVILEGES AND IMMUNITIES CLAUSE in Articvle IV? What restrictions does this clause impose on state authority? [53] [Also: U.S. Constitution, Article IV, Section 2] (17) What is EXTRADITION? What is the EXTRADITION CLAUSE? What obligation does this clause impose on the states? How has Congress supplemented this constitutional ob- ligation? [53] [Also: U.S. Constitution, Article IV, Section 2] (18) Under the U.S. Constitution, how must the states set- tle their disputes with one another? What is an IN- TERSTATE COMPACT? What is required for an interstate compact to go into effect? Once such a compact goes into effect, is it binding? Explain. Cite examples of matters covered by interstate compacts. [54-55] The United States Courts as Umpires of Federalism: (1) What is the role of the U.S. Courts in shaping the division and distribution of governmental authority in the American federal system? (2) In 1819, the U.S. Supreme Court, in the case of MCCUL- LOCH V. MARYLAND, had its first opportunity to inter- pret and define the constitutional division of author- ity between the central government and the states. What were the facts that resulted in this case being brought before the U.S. Supreme Court? What was the role of Luther Martin in the case? Daniel Webster? John Marshall? In its brief to the Supreme Court, what argument did the State of Maryland make? What argument was made by chief counsel for the national government? What was the decision of the Supreme Court in the case? What two important constitutional doctrines did the Court establish? Describe each. On which clause in the U.S. Constitution was each of these doctrines based? What is the longterm signifi- cance of the Supreme Court decision in MCCULLOCH V. MARYLAND? [55-56] (3) What is the IMPLIED POWERS DOCTRINE? What is the NA- TIONAL SUPREMACY DOCTRINE? [55] (4) What restrictions does the FOURTEENTH AMENDMENT place on the authority of the states? What impact have mod- ern judicial interpretations of the Fourteenth Amend- ment had on the authority of the U.S. Courts to review the activities of state and local governments? To what lengths have federal judges gone in reviewing state and local governmental actions? What important restriction on this expanded role of the federal courts did the U.S. Supreme Court impose in a series of 1999 cases? [56] (5) What is meant by "preemption," or "federal preemp- tion"? When are state and local laws "preemted" by the national government? Cite examples of federal preemption. In deciding cases in which the question of preemption is involved, what has been the prevail- ing tendency or bias of the federal judges? Have there been recent indications that this tendency or bias of the federal courts may be shifting? Explain. Cite examples. [56] (6) In the ongoing debate over what is the politically desirable as well as constitutionally valid distribu- tion of powers, functions, and responsibilities be- tween the central government and the states, what has been and still is the position of the "decentralists," or "states' righters"? What has been and still is the position of the "centralists"? Cite past and present examples of advocates of the decentralist position. Cite past and present examples of advocates of the centralist position. [56-58] (7) Beginning in 1995, the U.S. Supreme Court has rendered a series of decisions restricting the authority of Congress to enact federal laws infringing on the re- served powers of the states. Cite and explain exam- ples. What is the significance of these decisions? [58-59]