Federalism
How come, without driving any faster, your car can be pulled over just because it crossed an invisible line
between states? How come you can carry a concealed weapon in Texas, but in California you're required to
wear a flashing neon sign that reads "FYI, I'M PACKING HEAT"? How come you can marry your first cousin in
Mississippi, but only your second cousin in Kentucky?
One word: federalism.
Splitting the Difference
Federalism is another crucial check on governmental power laid down in the Constitution. It is a system of
government in which power was distributed between a central national government and outlying state
governments.
America's unique system of federalism emerged from a practical dilemma—how to build a stronger national
government within a nation that still clung to the belief that power was dangerous, and therefore was most
safely entrusted to local or, at most, state officials. For the framers of the Constitution, the options lay along
a spectrum.
At one end, the most ardent nationalists like Alexander Hamilton would have all but abolished the state
governments, leaving all power in the national government. Slightly more moderate nationalists would have
turned the state governments into administrative appendages of the national government—for example,
state governors would be appointed like judges by the president and confirmed by the Senate. A little more
toward the center, thinkers like James Madison would have retained the state governments as a matter of
political pragmatism, but would have given them no voice in national affairs and would have given the
national Congress the authority to veto any state law it found disagreeable.
At the other end of the spectrum were those who would have retained the Articles of Confederation with its
confederate system of government based on state sovereignty. A little toward the center were those who
had come to realize that the Articles needed some minor changes—for example, the power to tax and
regulate trade.
Federalism was therefore yet another of the compromises struck at the Constitutional Convention. Virtually
every delegate realized that some sort of balance had to be struck. The question was just exactly where.
The Constitution's framers made several concessions to those wishing to preserve the political power of the
states. The states, so that they didn't take losing out on the Articles of Confederation too hard, were
rewarded with some really thoughtful consolation prizes.
What the States Got
The Constitution's framers made several concessions to those wishing to preserve the political power of the states.
The states, so that they didn't take losing out on the Articles of Confederation too hard, were rewarded with some
really thoughtful consolation prizes.
The Constitution's framers made several concessions to those wishing to preserve the political power of the states.
The states, so that they didn't take losing out on the Articles of Confederation too hard, were rewarded with some
really thoughtful consolation prizes.

Each state was directly represented in the Senate; originally (until the 17th Amendment in 1913), senators
were chosen by state legislatures.

Congress was denied a legislative veto over state laws.

The Tenth Amendment, ratified in 1791, expressly reserved powers not granted to the federal
government to the states or the people.

Congress was granted the authority to regulate interstate but not intrastate commerce. (The Supreme
Court's decision in Gibbons v. Ogden in 1824, however, broadly defined interstate commerce.)

State legislatures were granted the power to ratify future amendments to the Constitution.

States were allowed to determine how presidential electors would be selected.

States were allowed to set their own voting requirements. (Later, however, the 15th, 19th, 24th, and 26th
Amendments framed the states' options.)
What the Federal Government Got
At the same time, the nationalists at the Convention wanted to make sure that everyone knew who was boss.
Here's what they got:

The federal government held the exclusive power to regulate interstate and international trade, conduct
foreign policy, declare and make war, form an army, and coin money.

The Supremacy Clause made the Constitution and federal laws and treaties superior to state constitutions
and laws.
The Supreme Court's power of judicial review would also extend to state laws. As we'll talk about in the next
section, federal oversight of state laws was dramatically strengthened by the 14th Amendment.
Shared or Concurrent Powers
In some instances, both nationalists and advocates of state sovereignty were forced to share political power. These
shared or concurrent powers are held by both the federal and state governments:

The power to tax and borrow money.

The power to maintain courts of law.

The power to charter corporations and banks.

The power to construct roads.
Federalism's Shifting Balance
So everyone went home happy, and no one ever got mad about states' rights again, right?
Actually, this is one argument we've managed to keep going for two centuries, and then some. The balance struck
at the Constitutional Convention lasted for about five minutes before both sides started calling it into question.
The Tenth Amendment, ratified in 1791, expressly reserving powers to the states not delegated to the federal
government, shifted the balance toward state power. In addition, the doctrine of states' rights played a huge role
in American politics, especially in the half-century before the Civil War.
New Englanders threatened to secede from the Union during the War of 1812. Southerners unsuccessfully claimed
the ability to nullify, or ignore within their borders, national laws during a political crisis in the 1830s. And, of
course, the doctrine of states' rights was used to justify Southern secession during the Civil War.
But during these same years, Supreme Court decisions like McCulloch v. Maryland (which expanded the federal
government's ability to pass laws even when the power to do so wasn't explicitly stated in the Constitution)
andGibbons v. Ogden (which expanded the definition of "interstate commerce") shifted the balance toward
national power.
And in the years after the Civil War, the balance shifted unequivocally toward a stronger federal government.
Landmarks in this shift include the 14th Amendment (which applied the Bill of Rights directly to the states), the
several amendments that reduced states' power to determine voting rights (like the amendments gave the vote to
men of any race, then to women, then to 18-year-olds), and the expansion of federal power as part of FDR's New
Deal in the 1930s.
Federalism Today
Constitutional law professors must have loved them some cake, because they kept trying to explain federalism
with cake metaphors. In fact, their failure to use fruit and vegetable metaphors is regarded by many scholars as a
direct cause of today's obesity epidemic.
By 1960, the old version of federalism—often called "dual federalism," or layer cake federalism—in which national
and state governments occupied separate turfs and exercised distinct responsibilities, no longer seemed to fit.
Instead, cooperation between the national and state governments was more typical.
This "cooperative federalism," or marble cake federalism, was introduced in the New Deal programs of the Great
Depression and was strengthened by the anti-poverty programs of Lyndon Johnson's Great Society. Most welfare
programs, for example, are largely funded by federal dollars, but they are administered by the states under federal
guidelines.
During the 1970s, however, national policymakers sought to restore more local control over many social programs.
The "new federalism" or program of "devolution" reduced the amount of national oversight attached to the
federal funds distributed to the states. "Block grants," for example, in many instances replaced "categorical
grants"—the former allow for more local control, the latter carry more national guidelines. Even more attractive to
the states was revenue sharing—the distribution of federal funds with virtually no strings attached.
This disagreement over the sort of strings attached to federal money distributed to the states has led to the use of
a different label for national-state relations: fiscal federalism. While in many instances, fiscal federalism involves
national dollars being administered by state agencies, in others it involves federal mandates that must be
implemented and funded by the states, at times without any national financial assistance. These "unfunded
mandates" include federal demands that the states meet certain requirements pertaining to affordable housing
and disability access.
(Here's a hint, Congress: come up with "triple chocolate meltdown ice cream cake federalism," and your approval
rating is guaranteed to soar into the double digits.)
Federalism: Still Kinda a Big Deal Around Here
Arguments over the proper scope of national and state power date back to the country's earliest days, and they're
still going strong. Here are some examples:

Republican presidential candidate Mitt Romney enacted a Massachusetts health care bill very similar to
the national health care reform passed by President Obama. But Romney has pledged to repeal
"Obamacare" if elected, arguing that what works for his state doesn't work for every state.

President Bush's No Child Left Behind law dramatically expanded federal power to set education
standards. But some states complain that the law is an unfunded mandate that sets expensive high
standards without helping states meet them.

Should state legislatures get back the power to choose their own senators? Some Tea Party members
argue that repealing the direct election of senators would give a stronger voice to the states.