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Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern. Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other. United StatesIn the United States, the Constitution has established a system of “dual sovereignty,” under which the States have surrendered many of their powers to the Federal Government, but also retained some sovereignty. Examples of this dual sovereignty are described in the U.S. Constitution. Supremacy ClauseArticle VI of the U.S. Constitution contains the Supremacy Clause, which reads, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This effectively means that when the laws of the federal government are in conflict with the laws of a state's government, the federal law will supersede the state law. Article I, Section 8Article I, Section 8 of the Constitution describes specific powers which belong to the federal government. These powers are referred to as enumerated powers. Tenth AmendmentThe Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. Among other powers, this includes creating school systems, overseeing state courts, creating public safety systems, managing business and trade within the state, and managing local government. These powers are referred to as reserved powers. Concurrent PowersConcurrent powers refers to powers which are shared by both the federal government and state governments. This includes the power to tax, build roads, and create lower courts. Further ReadingFor more on federalism, see this Florida State University Law Review article, this Vanderbilt Law Review article, and this Stanford Law Review article.
Federal Versus State Government
After the American colonies won their freedom from England, the thirteen colonies became thirteen states. The new states decided to work together. Their system of government was described in the Articles of Confederation. In this system, the state governments had most of the power. The Federal Government was very weak. This was very different from the government under the King of England. The Founding Fathers thought that this system left the nation too weak. They decided to develop a new system of government. They wrote a new document called the Constitution, to replace the Articles of Confederation. The Constitution made a stronger Federal Government. It gave power to both the Federal Government and the state governments. This system is called federalism. Here are some examples of how powers are shared between the Federal Government and state governments.
In addition, the Federal Government and state governments share these powers:
Federalism is the system where sovereignty is constitutionally divided between a central governing authority and constituent units.
Discuss the origins and development of federalism in the United States from the ratification of the Constitution to the Great Depression, and identify the structure of federalism Key TakeawaysKey Points
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Federalism is the system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units. It is based upon democratic rules and institutions in which the power to govern is shared between national and state governments, creating a federation. Dual federalism is a political arrangement in which power is divided between national and state governments in clearly defined terms, with state governments exercising those powers accorded to them without interference from the national government. Dual federalism is defined in contrast to cooperative federalism, in which national and state governments collaborate on policy. Dual and cooperative federalism are also known as ‘layer-cake’ and ‘marble cake’ federalism, respectively, due to the distinct layers of layer cake and the more muddled appearance of marble cake. Federalism was the most influential political movement arising out of discontent with the Articles of Confederation, which focused on limiting the authority of the federal government. The movement was greatly strengthened by the reaction to Shays’ Rebellion of 1786-1787, which was an armed uprising of farmers in western Massachusetts. The rebellion was fueled by a poor economy that was created, in part, by the inability of the federal government to deal effectively with the debt from the American Revolution. Moreover, the federal government had proven incapable of raising an army to quell the rebellion, so Massachusetts was forced to raise its own. The most forceful defense of the new Constitution was The Federalist Papers , a compilation of 85 anonymous essays published in New York City to convince the people of the state to vote for ratification. These articles, written by Alexander Hamilton and James Madison, examined the benefits of the new Constitution and analyzed the political theory and function behind the various articles of the Constitution. Those opposed to the new Constitution became known as the Anti-Federalists. They were generally local, rather than cosmopolitan, in perspective, oriented toward plantations and farms rather than commerce or finance, and wanted strong state governments with a weaker national government. The Anti-Federalists believed that the legislative branch had too much unchecked power, that the executive branch had too much power, and that there was no check on the chief executive. They also believed that a Bill of Rights should be coupled with the Constitution to prevent a dictator from exploiting citizens. The Federalists argued that it was impossible to list all the rights and that those not listed could be easily overlooked because they were not in the official bill of rights.
 The Federalist Papers: Title page of the first printing of the Federalist Papers. After the Civil War, the federal government increased its influence on everyday life and its size relative to state governments. Reasons included the need to regulate businesses and industries that spanned state borders, the attempts to secure civil rights, and the provision of social services. The federal government acquired no substantial new powers until the acceptance by the Supreme Court of the Sherman Anti-Trust Act. From 1938 until 1995, the Supreme Court did not invalidate any federal statute as exceeding Congress ‘ power under the Commerce Clause. The Great Depression marked an abrupt end to dual federalism and a dramatic shift to a strong national government. President Franklin D. Roosevelt’s New Deal policies reached into the lives of U.S. citizens like no other federal measure had done. As the Supreme Court rejected nearly all of Roosevelt’s economic proposals, in 1936, the president proposed appointing a new Supreme Court justice for each sitting justice aged 70 or older. The expansion of the court, along with a Democrat-controlled Congress, would tilt court rulings in favor of Roosevelt’s policies. The national government was forced to cooperate with all levels of government to implement the New Deal policies; local government earned an equal standing with the other layers, as the federal government relied on political machines at the city level to bypass state legislatures. In the final analysis, federalism in the United States has been structured to protect minority rights while giving enough power to the states to control their own affairs. This conflict and duality remains a contested territory, especially after the Reagan devolution and his insistence on “marble-cake” federalism.
The federal government is composed of three branches: executive, legislative, and judiciary, whose powers are granted by the Constitution.
Describe the power-sharing arrangements enshrined in the Constitution Key TakeawaysKey Points
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The federal government is composed of three branches: legislative, executive and judicial. Powers are vested in Congress, in the President, and the federal courts by the United States Constitution. The powers and duties of these branches are further defined by acts of Congress, including the creation of executive departments and courts inferior to the Supreme Court. The government was formed in 1789, making the United States one of the world’s first, if not the first, modern national constitutional republic. It is based on the principle of federalism, where power is shared between the federal government and state governments. The powers of the federal government have generally expanded greatly since the Civil War. However, there have been periods of legislative branch dominance since then. Also, states’ rights proponents have succeeded in limiting federal power through legislative action, executive prerogative, or constitutional interpretation by the courts. A theoretical pillar of the United States Constitution is the idea of checks and balances between the powers and responsibilities of the three branches of American government.
Congress: The U.S. Congress holds legislative power. Congress is the legislative branch of the federal government. It is bicameral, comprised of the Senate and the House of Representatives. The Constitution grants numerous powers to Congress, including the power to:
Since the United States was formed, many disputes have arisen over the limits on the powers of the federal government in the form of lawsuits ultimately decided by the Supreme Court. The executive power in the federal government is vested in the President, although power is often delegated to the Cabinet members and other officials. The President and Vice President are elected as running mates by the Electoral College for which each state, as well as the District of Columbia, is allocated a number of seats based on its representation in both houses of Congress. The President is limited to a maximum of two four-year terms. If the President has already served two years or more of a term to which some other person was elected, he may only serve one more additional four-year term. The Judiciary explains and applies the laws. This branch hears and eventually makes decisions on various legal cases. Article III, section I of the Constitution establishes the Supreme Court of the United States and authorizes the United States Congress to establish inferior courts as their need shall arise. Section I also establishes a lifetime tenure for all federal judges and states that their compensation may not be diminished during their time in office. Article II, section II establishes that all federal judges are to be appointed by the president and confirmed by the Senate.
2008 Democratic Party Presidential Candidate Barack Obama: Barack Obama
State governments are republics formed by citizens in the jurisdiction as provided by the Constitution.
Describe the distribution of powers within individual states Key TakeawaysKey Points
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State governments in the United States are the republics formed by citizens in the jurisdiction as provided by the Constitution. State governments are structured in accordance with state law and they share the same structural model as the federal system; they also contain three branches of government: executive, legislative, and judicial. The Tenth Amendment states that all governmental powers not granted to the federal government by the Constitution are reserved for the states or the people.
Map of the United States: Map of the United States. Each of the state has its own government. Legislative BranchThe legislative branch of the states consists of state legislatures. Every state except for Nebraska has a bicameral legislature, comprised of two chambers. In the majority of states, the state legislature is called the Legislature. The rest of the states call their legislature the General Assembly. Executive BranchAn elected Governor heads the executive branch of every state. Most states have a plural executive, where several key members of the executive branch are directly elected by the people and serve alongside the Governor. These include the offices of Lieutenant Governor, Attorney General, Secretary of State, auditors, Treasurer, Commissioner of Agriculture, and Commissioner of Education. Each state government is free to organize its executive departments and agencies in any way it likes, resulting in substantial diversity among the states with regard to every aspect of how their governments are organized. Judicial BranchA supreme court that hears appeals from lower state courts heads the judicial branch in most states. Each state’s court has the last word on issues of state law and can only be overruled by federal courts on issues of Constitutional law. The structure of courts and the methods of selecting judges are determined by each state’s constitution or legislature. Most states have at least one trial-level court and an intermediate appeals court from which only some cases are appealed to the highest court.
Powers of local governments are defined by state rather than federal law, and states have adopted a variety of systems of local government.
Distinguish among the various types and levels of local government within the States Key TakeawaysKey Points
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Local government in the United States is structured in accordance with the laws of the individual states, territories and the District of Columbia. Typically each state has at least two separate tiers of local government: counties and municipalities. Some states have their counties further divided into townships. There are several different types of local government at the municipal level, generally reflecting the needs of different levels of population densities; typical examples include the city, town, borough and village. The Tenth Amendment to the Constitution makes local government a matter of state rather than federal law, with special cases for territories and the District of Columbia. The states have adopted a wide variety of systems of local government. The US Census Bureau conducts the Census of Governments every five years to compile statistics on government organization, public employment, and government finances. The categories of local government established in this Census of Governments is a convenient basis for understanding local government: county governments, town or township governments, municipal governments and special-purpose local governments. County governments are organized local governments authorized in state constitutions and statutes. Counties form the first-tier administrative division of the states. All the states are divided into counties for administrative purposes. A number of independent cities operate under a municipal government that serves the functions of both city and county. In areas lacking a county government, services are provided either by lower level townships or municipalities or the state. Town or township governments are organized local governments authorized in the state constitutions and statutes of states, established to provide general government for a defined area, generally based on the geographic subdivision of a county. Depending on state law and local circumstance, a township may or may not be incorporated, and the degree of authority over local government services may vary greatly. In particular, towns in New England have considerably more power than most townships elsewhere and often function as independent cities in all but name, typically exercising the full range of powers that are divided between counties, townships and cities in other states. Municipal governments are organized local governments authorized in state constitutions and statutes, established to provide general government for a defined area, generally corresponding to a population center rather than one of a set of areas into which a county is divided. The category includes those governments designated as cities, boroughs, towns, and villages. This concept corresponds roughly to the incorporated places that are recognized in Census Bureau reporting of population and housing statistics. Municipalities range in size from the very small to the very large, reflected in the range of types of municipal governments that exist in different areas.
New York City – City Hall: NYC City Hall is home to the government of the largest city in the US, and the municipality with the largest budget. In most states, county and municipal governments exist side-by-side. In some states, a city can become independent of any separately functioning county government and function both as a county and as a city. Depending on the state, such a city is known as either an independent city or a consolidated city-county. Municipal governments are usually administratively divided into several departments, depending on the size of the city.
Article Four of the United States Constitution outlines the relationship between the states, with Congress having power to admit new states.
Summarize the relations between the States envisioned in the Constitution Key TakeawaysKey Points
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In the United States, states are guaranteed military and civil defense by the federal government. The federal government is also required to ensure that the government of each state remains a republic. Four states use the official name of Commonwealth, rather than State. However, this is merely a paper distinction. The United States Constitution uniformly refers to all of these sub-national jurisdictions as States.
The United States: Americans live in a federal system of 50 states that, together, make up the United Sates of America. Under Article Four of the United States Constitution, which outlines the relationship between the states, the United States Congress has the power to admit new states to the Union. The Article imposes prohibitions on interstate discrimination that are central to our status as a single nation. The states are required to give full faith and credit to the acts of each other’s legislatures and courts, which is generally held to include the recognition of legal contracts, marriages, criminal judgments, and before 1865, slavery status. States are prohibited from discriminating against citizens of other states with respect to their basic rights, under the Privileges and Immunities Clause. Under the Extradition Clause, a state must extradite people located there who have fled charges of treason, felony, or other crimes in another state if the other state requests extradition. The Article contends that the Constitution grants Congress expansive authority to structure interstate relations and that in wielding this interstate authority Congress is not limited by judicial interpretations of Article 4. The provisions are judicially enforceable against the states. However, the ability to enforce the provisions is dependent on the absence of congressionally authorized discrimination.
Concurrent powers are the powers that are shared by both the State and the federal government, exercised simultaneously.
Describe concurrent powers and how they are exercised in the federal system Key TakeawaysKey Points
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The United States Constitution affords some powers to the national government without barring them from the states. Concurrent powers are powers that are shared by both the State and the federal government. These powers may be exercised simultaneously within the same territory and in relation to the same body of citizens. These concurrent powers including regulating elections, taxing, borrowing money and establishing courts. National and state governments both regulate commercial activity.
Congress of Confederation and the Constitution: The signing of the Constitution of the United States. As Alexander Hamilton explained in The Federalist #32, “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. ” Hamilton goes on to explain that this alienation would exist in three cases only: where there is in express terms an exclusive delegation of authority to the federal government, as in the case of the seat of government; where authority is granted in one place to the federal government and prohibited to the states in another, as in the case of imposts; and where a power is granted to the federal government “to which a similar authority in the States would be absolutely and totally contradictory and repugnant, as in the case of prescribing naturalization rules. ” In the Commerce Clause, the Constitution gives the national government broad power to regulate Commerce with foreign Nations, among several of the States and with the Indian tribes. This clause allowed the federal government to establish a national highway system that connected the states. A state may regulate any and all commerce that is entirely within its borders. National and state governments make and enforce laws themselves and choose their own leaders. They have their own constitutions and court systems. A state’s Supreme Court decision may be appealed to the U.S. Supreme Court provided that it raises a federal question, such as an interpretation of the U.S. Constitution or of national law.
The Supremacy Clause established the U.S. Constitution, Federal Statutes and U.S. Treaties as “the supreme law of the land”.
Discuss how the Supremacy Clause shapes the relationship between federal and state law. Key TakeawaysKey Points
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Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, Federal Statutes, and U.S. Treaties as “the supreme law of the land. ” The text decrees these to be the highest form of law in the U.S. legal system and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law from any state. The Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase “in pursuance thereof” in the actual text of the Supremacy Clause itself. The Federalist Papers and RatificationThe Federalist Papers: The Federalist Papers, which advocate the ratification of the Constitution.The Federalist Papers are a series of 85 essays advocating the ratification of the Constitution. Two sections of the essays deal with the Supremacy Clause, in which Alexander Hamilton argues that the Supremacy Clause is simply an assurance that the government’s powers can be properly executed. James Madison similarly defends the Supremacy Clause as vital to the functioning of the nation, noting that state legislatures were invested with all powers not specifically defined in the constitution, but also having the federal government subservient to various state constitutions would be an inversion of the principles of government. In Ware v. Hylton (1796), the Supreme Court relied on the Supremacy Clause for the first time to strike down a state statute. The state of Virginia passed a statute during the Revolutionary War allowing the state to confiscate debt payments to British creditors. The Court found this Virginia statute inconsistent with the Treaty of Paris with Britain, which protected the rights of British creditors. The Court held that the Treaty superseded the Virginia statute and it was the duty of the courts to declare the Virginia statute “null and void. “Case Law Helps Define Ratification In McCulloch v. Maryland (1819), the Supreme Court reviewed a tax levied by the state of Maryland on the federally incorporated Bank of the United States. The Court found that if a state had the power to tax a federally incorporated institution, then the state effectively had the power to destroy the federal institution, thereby thwarting the intent and purpose of Congress. The Court found that this would be inconsistent with the Supremacy Clause, which makes federal law superior to state law. In Martin v. Hunter’s Lessee (1816) and Cohens v. Virginia (1821), the Supreme Court held that the Supremacy Clause and the judicial power granted in Article III give the Supreme Court power to review state court decisions involving issues arising under the Constitution and laws of the United States. In Ableman v. Booth (1859), the Supreme Court held that state courts cannot issue rulings contradictory to decisions of federal courts, citing the Supremacy Clause, and overturning a decision by the Supreme Court of Wisconsin. In Pennsylvania v. Nelson (1956) the Supreme Court struck down the Pennsylvania Sedition Act, which made advocating the forceful overthrow of the federal government a crime under Pennsylvania state law. The Supreme Court held that when federal interest in an area of law is sufficiently dominant, federal law must be assumed to preclude enforcement of state laws on the same subject; and a state law is not to be declared a help when state law goes farther than Congress has seen fit to go. In Cooper v. Aaron (1958), the Supreme Court rejected attempts by the state of Arkansas to nullify the Court’s school desegregation decision, Brown v. Board of Education. The state of Arkansas had adopted several statutes designed to nullify the desegregation ruling. The Court relied on the Supremacy Clause to hold that the federal law controlled and could not be nullified by state statutes or officials. In Edgar v. Mite Corporation (1982), the Supreme Court ruled that a state statute is void to the extent that it actually conflicts with a valid Federal statute. There has been some debate as to whether or not some of the basic principles of the United States Constitution could be affected by a treaty. In the 1950s, a Constitutional Amendment known as the Bricker Amendment was proposed in response, which would have mandated that all American treaties shall not conflict with the manifest powers granted to the Federal Government.
Congress has numerous prohibited powers dealing with habeas corpus, regulation of commerce, titles of nobility, ex post facto and taxes.
Recall the limits placed on Congressional power by Article 1, Section 9 of the Constitution Key TakeawaysKey Points
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Section 9 of Article 1 of the U.S. Constitution provided limits on Congressional powers. These limits are as follows:
Checks and balances is a governmental structure that gives each of the branches a degree of control over the actions of the other.
Differentiate among the powers allotted the three branches of government Key TakeawaysKey Points
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To prevent one branch of government from becoming supreme, to protect the minority from the majority, and to induce the branches to cooperate, government systems employ a separation of powers in order to balance each of the branches. This is accomplished through a system of checks and balances which allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts. The Constitution and its amendments outline distinct powers and tasks for national and state governments. Some of these constitutional provisions enhance the power of the national government; others boost the power of the states.
The U.S. Constitution: The Constitution originally established that, in most states, all white men with property were permitted to vote. White working men, almost all women, and other people of color were denied the franchise until later years. The legislative branch (Congress) passes bills, has broad taxing and spending power, controls the federal budget and has power to borrow money on the credit of the United States. It has sole power to declare, as well as to raise, support, and regulate the military. Congress oversees, investigates, and makes the rules for the government and its officers. It defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution. Congress is in charge of ratifying treaties signed by the President and gives advice and consent to presidential appointments to the federal, judiciary, and executive departments. The branch has sole power of impeachment (House of Representatives) and trial of impeachments ( Senate ), meaning it can remove federal executive and judicial officers from office for high crimes and misdemeanors. The executive branch (President) is the commander-in-chief of the armed forces. He executes the instructions of Congress, may veto bills passed by Congress, and executes the spending authorized by Congress. The president declares states of emergency, publishes regulations and executive orders, makes executive agreements, and signs treaties (ratification of these treaties requires the vote of two-thirds of the Senate). He makes appointments to the federal judiciary, executive departments, and other posts with the advice and consent of the Senate, and has power to make temporary appointments during the recess of the Senate. This branch has the power to grant “reprieves and pardons for offenses against the United States, except in cases of impeachment. ” The judicial branch ( Supreme Court ) determines which laws Congress intended to apply to any given case, exercises judicial review, reviewing the constitutionality of laws and determines how Congress meant the law to apply to disputes. The Supreme Court arbitrates how a law acts to determine the disposition of prisoners, determines how a law acts to compel testimony and the production of evidence. The Supreme Court also determines how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. The amount of discretion depends upon the standard of review, determined by the type of case in question. Federal judges serve for life. |
What are two powers that the federal and state governments share?
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