federalism

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Federalism: the sharing of power between local governments and the national (central) government. One could think of Federalism as the idea that local governments are able to govern themselves with some central government interference and guidance.


The Federalists and the Anti-Federalists:

Federalists:
  • Those who supported the ratification of the Constitution and the idea of a strong federal or central government were known as Federalists.
  • The Hamiltonian idea of federalism was centered around the notion that the government's powers and interpretations should be "broadly defined and liberally construed" (Wilson). A loose interpretation of the constitution.
  • James Madison, Alexander Hamilton, and John Jay are seen as the leading Federalist leaders.

Anti-Federalists:
  • When the possibility of a Federalist government was introduced with the creation of the Constitution, many states and individuals were against the idea. These people, who opposed the ratification of the Constitution, were known as Anti-Federalists.
  • The Jeffersonian idea of federalism, strict constructionism, centered around the idea that the powers of the government should be narrowly defined and strictly limited by the Constitution and there should be more state sovereignty so the government would remain small.
  • The Anti-Federalists were opposed to the ratification of the Constitution because they feared it would let the federal government gain to much power and would rule over them like the British monarch. In order to gain the Anti-Federalists approval, the Federalists promised that the Bill of Rights would be added to the Constitution once it was ratified.
  • Anti-Federalists wanted a weak, decentralized government (as opposed to a strong federal government supported by federalists)
  • This idea was much more in line with its predecessor The Articles of Confederation
  • Thomas Jefferson was an Anti-Federalist.
Federalist Papers
  • The Federalist Papers were a series of 85 anonymously published articles, originating from New York, that encouraged the public to understand and support the U.S. Constitution. These articles were an effort to get all 13 states to ratify the newly written United States Constitution.
  • The Federalist Papers were written by John Jay, Alexander Hamilton and James Madison.
  • Originally, all The Federalist Papers were published anonymously under the pseudonym Publius.
  • The Federalist Papers argued that the government should be somewhat distant from the passions of the people.
  • A strong opposition to the federalist administration was Thomas Jefferson.
  • Federalist 10: Madison argued that although factions are undesirable in a government system as they promote conflict, they inevitably develop in a democratic nation. Also, he wrote that a large, strong republic is a safeguard against the interests of factions against the rights of others.
  • Federalist 51: Here, Madison advocated for the idea of the separation of powers between the three branches of the national government; executive, legislative and judicial. He also provided methods by which checks and balances can be established between the three branches.

Anti-Federalist Papers
  • The Anti-federalist Papers were a collection of writings from different authors that were opposed to the ratification of the constitution
    • Major authors include Cato (likely George Clinton), Brutus (likely Robert Yates), Centinel (Samuel Bryan), and the Federal Farmer (either Melancton Smith, Richard Henry Lee, or Mercy Otis Warren). Speeches by Patrick Henry and Smith are often included as well. [1]
  • The Anti-federalist Papers lacked the cohesiveness present in the Federalist Papers

Types of Government Systems:

Sovereignty: the supreme and greatest political authority; a government that is legally and politically independent from another government.
  • Unitary System: a governmental system "in which sovereignty is wholly in the hands of the national government, so that the states and localities are dependent on its will." Unitary system also deals with local governments
    • Example: United Kingdom
  • Confederation or Confederal System: "one in which the states are sovereign and the national government is allowed to do only that which the states permit."
    • Example: The Confederate States of America
  • Federal System: Power is divided between central and state or local governments. Both the central and state governments act directly on the citizens. In some matters, the national government is superior, and in other matters the states are superior.
    • Example: The United States of America

Examples of these Types of Government Systems:
  • Unitary System: United Kingdom, France and several other European nations.
  • Federal System: Canada, United States (after the adoption of the Constitution), Australia, India, Germany, Switzerland
  • Confederacy System: Confederate States of America, United States (under the Articles of Confederation)
Federalism: Good or Bad?
  • The Bad: Some state believe that federalism allows states to block action, prevent progress, and upset national plans, protect powerful local interests, and cater to the self-interest of hack politicians.
  • The Good: This arrangement enables people to attack segregation, regulate harmful economic practices, and purify politics since all people draw power in different places and allows voices to be heard. In a unitary system, it is difficult to make such changes.
Why we have a federal system instead of another system
  • A federal system brings the nation together by making decisions that will have an effect on the entire country. The federal government and the state governments have their separate powers but work together when needed.
  • Federalism allows citizens the opportunity to have greater impact on the government, or to realize larger political efficacy, since they have more influences on their independent, locally elected representatives than on centralized, national officials. This decentralization creates many political activities (Wilson).
Controversies Surrounding Federalism:
  • Some argue that because of federalism, states can prevent progress and can satisfy their own self interests.
  • Some critics view American states as "parasitic and poisonous" -- Harold Laski, a British observer.

The Founding:
  • The Founders' goal was to protect personal liberty through federalism; they feared that if they were to give all the political authority to one group, even if the group was popularly elected, it would cause a concentration of power that ultimately would lead to tyranny. Factions were strongly discouraged by the Framers,however, the forming of many factions had to occur in order to form a balance that kept one faction from gaining too much power.
  • The Framers needed to be extremely careful in the language they chose, because if they upset one type of state (large or small) nothing would be passed through. The elastic language allowed The Framers to be more efficient in passing legislature, as illustrated during the Philadelphia Convention, where Congress was given the power to regulate commerce "among the several states." (Wilson)
  • Hamilton explained how he thought the system would work: the people would shift support from the state and federal levels in order to keep a balance between the two. (Wilson).
  • Thomas Jefferson was not at the constitutional convention (Wilson)
Value of the federal system:
  • Provides some limitations on both levels of government
  • Ensures that the policies enacted address local, state, and national interests
  • Political power is divided between different institutions (i.e Interest groups), reducing the facilitation of corruption by small groups. There is more power in small groups in a federal system than any other. A small group of motivated legislators can stop anything that affects their locality in a harmful way.
  • Aids in increased political activity- if people believe that they can have an impact on the system they are more likely to get involved( Wilson)
  • The higher levels of involvement of citizens are likelier in a smaller constituency, but they can draw in more voters and activists (Wilson)

Division of Power: The national government does not largely govern the individuals, but the states have the ability to do so in keeping with The Constitution
  • Power is divided by both the central government and state governments, then both the government and local governments govern the individual citizens directly.

National government:
  • Delegated (enumerated) powers - specific powers given to the national government by Articles I-V of the Constitution
    • These include printing money, declaring war, and regulating trade.
  • Concurrent powers - powers held by both national and state governments.
    • These include the power to collect taxes, build roads, and borrow money.
  • Implied powers - powers not explicitly stated but granted by the "necessary and proper" clause of the Constitution
  • Does not have the power to: impose export taxes, borrow money from the treasury without approval of an appropriations bill, suspend the writ of habeas corpus, pass ex post facto laws, or grant titles of nobility. (Meltzer)
  • The power of the government to regulate the economy has been mainly interstate, but because of the Supreme Court, the power of the Federal Government has increased to the point that some regulation of intrastate commerce is allowed.

State governments:
  • Reserved powers - As defined in the 10th Amendment, powers that only the states (or "the people") have because the powers were not given to the national government and, moreover, were not denied to the states.
  • One recognized state power is the police power which gives states rights to regulate and promote health, safety, and morals (Wilson).
    • Example: States can pass law concerning the regulation of education and schools.
Local Governments:
  • Special district governments or authorities: they are responsible for some single governmental function (Wilson).
    • Examples: handling sewage treatment, managing airports, and getting rid of mosquitoes (Wilson)
  • A special-act charter lists the do's and don't's of what a specific city is allowed to do. This allows the city to solely do what is expressed within the charter.
  • More than one city can fall under the general-act charter as long as they all follow a general classification laid out in the charter such as population size.
  • Under the home-rule charter, the city's government can do whatever as long as the charter itself does contain any laws prohibiting the action.
  • Federal regime: local units of government have a specifically protected existence and can make some final decisions over some governmental activities

State and Local Governments
  • The most important activities of the local and state governments include law enforcement, criminal justice, public education, health and hospitals, roads and highways, public welfare, and control over the use of public land and water supplies. (Wilson)
Guarantees by the Federal Government to the States:
  • According to Article IV, section 4 of the Constitution, the federal government must protect states from attacks by a foreign invaders.
Interpretation of National and State Powers by the Courts
  • McCulloch v. Maryland (1819)
    • Does Congress have the right to set up bank or any other corporation?
      • Yes; even though the power to charter a bank is not explicitly stated in the Constitution, Congress is given the power of the purse, and by virtue of the "necessary and proper" clause Congress can decide that establishing a national bank is "necessary and proper."
    • Can states tax national banks?
      • No, because as said by Chief Justice Marshall, "The power to tax is the power to destroy", and went against national powers supreme.
  • Fletcher v. Peck (1810)
    • This was the first case in which the Supreme Court struck down a state law and deemed it unconstitutional. The question that arose here was whether or not the state of Georgia had the authority to repeal the sale of land that was found to be corrupt, after the contract was made, thus seemingly violating Article I, Section 10 of the Constitution. In a 4-1 decision, the Court ruled that Georgia had violated Article I, Section 10 of the Constitution, and struck the law repealing the corrupt contracts, down (Braden).
  • Gibbon v. Ogden(1824)
    • Supreme Court Rules that Congress has the power to regulate interstate and international commerce.
    • Gave "commerce" a broad definition, allowing the expansion of federal authority.
  • Necessary and Proper Clause:A section in the Constitution which allows for Congress to pass laws that were "necessary and proper" to its duties, giving Congress the ability to exercise powers not specified in the Constitution (not enumerated).
    • This principle was first introduced in the McCulloch v. Maryland court case, in which the Supreme Court, under John Marshall, asserted that even though the creation of a bank was not explicitly mentioned in the Constitution, Congress could deem a bank as "necessary" to the United States as a whole.
  • Supremacy Clause:
    • A Provision of Article VI that declares the Constitution and federal laws based off the Constitution are the "supreme law of the land," meaning that when a federal and state law conflict, the federal law is validated over the state law. This was principle was upheld in the supreme court case McCulloh v. Maryland in which the state of Maryland could not levy a tax toward a federally owned bank.
  • Nullification:
    • A doctrine that allows a state to declare null and void, invalidate, a federal law if the state believes it is unconstitutional (Wilson).
    • In 1798 Congress passed laws to punish newspaper editors who published stories critical of federal government. Madison & Jefferson opposed the law in their statements known as the Virginia and Kentucky Resolutions. In favor of states' rights, Madison and Jefferson used these resolutions to gain support further the cause for nullification of the Alien and Sedition Acts of 1798.
    • The Nullification Crisis, a dispute between the North and South prior to the Civil War, brought the issue of nullification to the national forefront. Southern states attempted to declare federal tariffs null and void, though this defiance was promptly subdued by the federal passage of the Force Bill.
    • In the Supreme Court case McCulloch v. Maryland, the Supreme Court ruled that states could not tax federal institutions. This was considered a form of nullification. Chief Justice John Marshall stated that "the power to tax involves the power to destroy."
    • Nullification has repeatedly been rejected as a valid theory on both a state and federal level. The Supremacy Clause supports that federal laws are supreme over state's laws.
  • Dual Federalism: This is the doctrine holding that the national government is supreme in its sphere while the states are supreme in theirs. The two spheres should be kept separate.
    • Congress can regulate interstate commerce and the States' can regulate intrastate commerce, the identity of the commerce is determined by The Court.
    • Printz V. United States (1997): Declared that the Federal Government has no right to force states to act upon any problems.
      • Court held the decision that the national government could not require state law enforcement officers to perform background checks under the authority of the Brady firearms legislation.
  • Interstate Commerce: The issue of who would control interstate commerce (trade and its related operations) between states was brought to the attention of the Supreme Court in the case Gibbons v. Ogden, decided in 1824.

Cooperative Federalism:
  • First introduced in the United States in the 1933 during Roosevelt's New Deal era.
  • Started because of the great depression which revealed many weaknesses of having a highly unregulated economy
  • Dual Federalism was almost completely replaced with Cooperative Federalism.
  • The modern view of the government where powers and policy is shared as well as the responsibilities of costs an administration.
  • In cooperative federalism, national and state governments work together in solving legislative problems instead of applying their own respective policies to the same problem.
  • Both the states and the national government share costs, blame and leadership when it comes to policy making.

Interstate Relations
  • Interstate Compacts- agreements between states about solving shared problems.
  • In the full faith and credit clause, states are entrusted the responsibility and credibility of their actions. The clause requires states to accept decisions made by other state courts, civil acts, and other. One application shall be that concluded civil cases in a state's court cannot be held again in another state's court.
  • Privileges and Immunities- states may not discriminate against people who are residents of another state (this protection does not include the right to participate in political affairs or hold some regulated jobs).
  • Extradition- the legal process which one state requests and obtains from another state the surrender of a suspected or convicted criminal.
  • The Supreme Court is the court of original jurisdiction for any case involving issues between states.

State Sovereignty:
  • Supreme Court strengthen states' rights through cases such as United States v. Lopez (1995): Congress can not establish a law prohibiting guns in a school zone as part of the commerce clause (Wilson), United States v. Morrison (2000): the Violence Against Women Act of 1994, said that attacks against women do not affect interstate commerce, and thus was unconstitutional (Wilson), and Printz v. United States (1997): the federal government can not force a federal law for police officers to conduct background checks on gun purchasers onto the states as state law under the 10th amendment (Wilson). In Federal Maritime Commission v. South Carolina Ports Authority (2002), the court increased states' sovereign immunity from private lawsuits. The Chief Justice in the trial declared that dual sovereignty is a defining feature of the nation (Wilson).
    However, not all recent Court decisions supports greater state sovereignty.
  • The Court has also aided the protection of states by shielding them from being sued by people of other states or foreign nations. In Alden v. Maine (1999) "the Court held that state employees could not sue to force state compliance with federal fair-labor laws." (Wilson)
  • States existence is guaranteed but the states decided whether or not they want to have local governments.
Many states constitution open one or more of three doors to direct democracy such as:
  • Initiative- Process that permits voters to put legislative measures directly on the ballot by getting signatures on a petition. Recently, this has been abused by the wealthy in order to have more political power in government.
  • Referendum- Procedure enabling voters to reject a measure passed by the legislature, such as tax increases depending whether the legislature wishes to increment as a referendum.
  • Recall- Procedure whereby voters can remove an elected official from office through signatures gathered in a petition.

Inter-Governmental Lobby:
  • Formed by state and local officials, both elected and appointed, and is made up of mayors, governors, superintendents of schools, state directors of public health, county highway commissioners, local police chiefs, and others who had come to count on federal funds.
  • Big 7- Make reports and publications in magazines that are read by federal officials to keep a handle on issues and trends in both levels of government. The Big 7 is made up of and represents state governments, governors, state legislatures, local government managers, mayors, cities, and counties.
  • The main job of inter-governmental lobby is to attempt to gain more money with less strings attached, in order to benefit and represent the interests of their constituents.
  • Though now, their success since the early 1980s has been more checkered.


Fiscal Federalism
  • The study of how spending/consumption and revenue are dispersed throughout the levels of government
  • Entails studying which expenditures/earnings are best allocated to the central government, or to local governments
  • A key component of Fiscal Federalism is the sharing of revenues from the central government to local governments through the usage of grants.


Federal Grants
  • Grants-in-aid (the first Grants-in-Aid were categorical grants these "are for one specific purpose defined by federal law" (Wilson 63))
    : Money given by the national government to the states; how political realities modify legal authority. The federal government wanted to test the "superior taxing power" but ultimately couldn't reap the direct benefits due to the Constitution not allowing the federal government to spend money that it was not authorized to, so the solution was that they would place the money into the states as mentioned above. Grants-in-aid grew quickly in the United States because it helped both state and local officials resolve a dilemma.
    • Pros: Federal budget surpluses (during the 19th century), Federal income tax became a flexible tool, federal control of money supply meant national government could print more money, and "free" money for state officials (Wilson).
    • Cons: Required broad congressional coalitions with wide dispersion of funds (Wilson).
    • Some grants were far too specific leading to the actual implications of the grant impractical.
    • Grants were very attractive to states for various reasons and so every state has an incentive to seek grant money.
  • Initial programs involved federal land grants to states for public facilities. State universities were built with the earnings from land grants so they have been nicknamed land grant colleges. Also other grants from the federal government were initially used to support the building of wagon roads, canals, railroads, and flood control projects. (Wilson)
  • The amount of money given to the states has increased substantially over the years. In 1808, the total was $200,000, in 1925, over $114 million, and in 2003, $400 billion. This has been used to pay for services such as the military and Medicaid.
  • In the eyes of state officials, federal money was attractive for four reasons:
    • The money was there because of Republicans' high-tariff policies, which led to Washington having huge budget surpluses in the 1880s.
    • Washington inaugurated the federal income tax as the surpluses dwindled, bringing in more money with the growth of the economy.
    • The federal government could manage the currency and could print more when it could (although this was technically borrowing).
    • Politics (most important reason): Governors did not have to propose, collect, or take responsibility for federal taxes.

Revenue Sharing: (or General Revenue Sharing, GRS) Federal sharing of a fixed percentage of its revenue with the states (Wilson)
  • This was created in response to dissatisfaction with categorical grants
  • This is federal aid with no requirement to match funds and it gives states the freedom to spend the money on almost any governmental purpose.
  • This occurs when there is a surplus in the budget
  • However, since these programs can be used on almost anything the money is widely dispersed and no single entity receives very much money; as such there is little incentive for agencies to propose an increase in the amount of money allotted.
  • This type of aid was popular from 1972-1987, but lost popularity during the Reagan administration.
  • Revenue sharing was soon replaced by block grants which carry a smaller amount of money to reduce the federal budget deficit
  • Revenue sharing is commonly the most liberal form of aid as opposed to block and categorical grants which have a specific spectrum to which they can be applied.

Block grants: (Special Revenue Sharing / Broad-based Aid)
  • Block grants are money from the national government for programs in certain general areas that the states can use at their discretion within broad guidelines set by Congress or responsible federal agencies.
  • Categorical grants, on the other hand, are grants for specific purposes defined by federal law such as educational funding and highway funding
  • Consolidate multiple categorical grants of aid into one larger aid package with a broader purpose and fewer restrictions on its use.
  • States prefer block grants to categorical grants as block grants enables states to have a greater range of spending options than categorical grants since guidelines in block grants are more vague than the categorical grants issued.

Devolution:
  • The effort to transfer responsibility for many public programs and services from the federal government to the states
  • Led by House Republican Newt Gingrich
  • 3 reasons behind devolution; "Devolution Revolution"
    • The beliefs of devolution's proponents
    • Deficit Politics; Republicans at the time hoped to move entitlement grants (and limit entitlement spending) to block grants.
    • Many Americans favor Devolution, however the extent of American favor is questionable.
  • Republican majorities in the House and Senate of the 104th Congress made proposals for the acceleration of the devolution of national power; some of these proposals became laws(Wilson).
  • Devolution has been supported successfully through the idea that state governments can respond better to local needs and can eliminate the waste of Federal programs applying to all states when only a few need it, such as money for ports.
  • An example of devolution is when Clinton decided to cut federal funding for the AFDC (Aid to Families with Dependent Children) which effectively transferred most of the power to make decisions for funding this program to the states who could use their block grants to help fund this welfare program (Wilson).
  • The greatest potential problem, from the perception of the nation, posed by devolution is that there will be large differences or shortcomings in the programs offered by each individual state, with varying sizes of the gaps. Some are draw concerns that if states are given the responsibility for some programs without any requirements, there will be a competitive free-for-all to cut those specific items on the budget while increasing spending on other items that are looked upon more favorably.
  • During the Reagan administration, revenue sharing was replaced with smaller block grants to decrease state dependency on the federal government.

Reasons States like Federal Aid:
  • An abundant supply of money existed in the federal budget
  • More money has been raised because of the federal power to levy income tax
  • The federal government can create money at will and borrow without paying back, which the states cannot do
  • By using federal money, states do not have to collect as much themselves and states have more freedom to neglect responsibility in its application
  • Because of federal money, states can initiate a lot more projects to help better themselves.

State Competition for Federal Money [2]
  • States compete for federal money, especially if the grants are especially important to that state
  • Well-documented conflict for federal money between the "Sunbelt" states and the "Frostbelt" states
  • Grants of aid are greatly affected by demographic shifts.

Problems with block grants and revenue sharing:
  • States realize that the money for block grants and revenue sharing do not increase as rapidly as expected nor as fast as the money supplied in categorical grants
  • The federal government constantly increases restrictions on grants
  • These grants are intended to fulfill such a broad a range of interests that no individual interest group wants to support them
  • They provide little money to state agencies because of the many restrictions

Federal Control:
  • Conditions of Aid: Terms and policies that must be met by the states in order to receive federal funds
  • The national government uses conditions of aid as a tool to pressure the states to change their policies to what the national government wants
  • It is voluntary for states to receive aid from the federal government. States can receive this aid only if they follow certain requirements.
  • Mandates: Terms and policies that must be met whether or not states accept federal funds.
    • According David G. Benson, most mandates are about civil rights and protecting the environment. States have no choice but to "comply with federal standards" regarding environmental protection. (pg 63 "Fast Track to a 5") In civil rights and environmental laws, states cannot pick and choose what they follow.
    • Controversial mandates arise more from court decisions rather than congressional action. The Supreme Court did not interpret the Tenth Amendment to provide protection to states from mandates. An example of this can be seen as federal judges have set specific requirements for state prison systems to meet (Wilson).
  • States may not discriminate in the operation of their programs (Wilson).
  • Some mandates create financial and administrative problems due to the vague language in which they are written which gives the federal administrative agencies the power to decide what the local and state governments are supposed to do (Wilson).
  • Not all mandates are created equally some are based or expand form previous legislation.
  • Federal courts have aided in the rise and expansion on mandates, for example prison systems.
Advantages and Disadvantages of Federalism:

Advantages
  • Everyone has the opportunity be involved in politics by voting locally and nationally
  • Federalism allows for stability as giving certain powers to the states creates a system where neither the federal government nor the state governments have the ability to overwhelmingly control how the other one operates.
  • Since the local or state governments are closer to the people that they govern they know what are some of the problems they experience and can make policy's keeping in mind the people.
  • One of the best aspects of Federalism is that it it allows for easier mobilization of political activity. People tend to participate more in these political activities if they believe that their actions have a potential and practical effect. With federalism there is multiple elected officials and independent governmental bodies each with a relatives small constituency ( American Government P. 52). Even though the founders were not completely aware of this effect of federalism it has created better opportunities for political participation.
  • States act as an experiment or pioneer for new policies. In turn, the federal government enact the successful policies that the States has created, allowing stability when certain laws and programs are changed or created.

Disadvantages
  • Federalism may protect powerful local interests; for example, local politics enabled segregationist policies in the Deep South that may not have succeeded on a national scale. In fact, when segregation became a national issue, it ended segregationist hegemony in the South.
  • The sharing of power sometimes results in confusion of who is responsible between the national and local levels in a situation. This confusion leads to a lack of accountability as it is often hard to assign blame.
  • Federalism also allows different states to allow different policies, which can be a problem because the nation is not unified on a certain issue (examples include same-sex marriage, legalizing marijuana, and response to natural disasters).
    • The allowance of different policies could also lead states to leave the US over policy issues like in the civil war.
The National Government and States:
  • Up until the 1900s, the states had more power than the government, but in the twentieth century, the federal government gained a considerable amount of power.
  • However there is some prediction that the government will start to lose a degree of power and the states will gain some power back because of "Supreme Court decisions and legislative efforts to devolve certain federal programs to the states." (pg. 73, "American Government")
Congress and Federalism :
  • Congressmen and women tend to identify as representatives of their localities, rather than representatives of Washington. This is one reason why the United States government will likely not become entirely centralized.
  • Members of Congress often represent a certain subgroup from their locality, and therefore may vote differently from Congressmen from their same locality if he/she represents a different subgroup.

  1. ^ http://en.wikipedia.org/wiki/Anti-Federalist_Papers
  2. ^ Wilson and Dilulio, American Government Institutions and Policies (tenth edition) pg.65