Origins of American
Federalism
Federalism: Constitutional division
of power between the national
gov’t and state gov’ts. Both get
powers from Constitution
Reasons for federal system
(U.S.)

Unitary system: Constitution delegates (gives)
power; not the government (British rule)
 Confederate system undesirable: (AOC)
 Allows unity, but not uniformity
 More suitable for geographically large nation
 More suitable for heterogeneous people
Reasons (Cont’d)

More likely to check tyranny: national gov’t
has power: states have power (Check; 10
Amendment)
 Frees national gov’t to focus on national
issues (Foreign Diplomacy, Defense, Trade,
etc.)
 Frees state from excessive intrusion
(Exception: federal mandates, e.g. NCLB)
 Encourages experimentation (legalized
gambling; medicinal marijuana; recreational
marijuana; health care requirement)
Reasons (Cont’d)
 Keeps
gov’t closer to the people;
multiple points of access for ordinary
citizens
Historical Developments
 Dual
Federalism
 Prevalent
through 1937
 State gov’ts and nat’l gov’ts each remain
supreme in own sphere
Nat’l - regulating commerce (interstate
commerce)
 States- Providing services (police, sanitation,
public welfare; intrastate commerce)

Historical Developments
 Cooperative
(“marble cake”) federalism
 Prevalent
since 1937
 Mingling repsonsibilities between
state/federal
New Deal Programs such as WPA (nat’l)
 Social welfare programs (state)

 Suggests
that powers of nat’l gov’t should
be interpreted broadly
Historical Developments
 New
Federalism
 Shifting
of some authority back to states
 Association with Nixon, Reagan
(104th/105th Congress); Republican
Congress: “Devolution Revolution”
 Example:
Use block grants in welfare
reform bill of 1996 (allowed states to
determine how to best spend money)
National Powers
Expressed
(enumerated)
 Collect Taxes,
Regulate Commerce,
Coin Money, Raise
Army, Declare War,
Borrow Money
Implied (not stated;
“elastic clause” )
 Levy Income taxes
 Establish Federal
Agencies (FBI, IRS,
Federal Reserve)
 Establish National
Bank (McCulloch v.
Maryland, 1819)
National Powers (Cont’d)

Congress: “To
make laws that are
‘necessary
and proper’ for
carrying into
execution the
foregoing powers”
 (Art I, Sec. 8)
•
Implied: not stated
explicitly, but held
by the national gov’t
by virtue of it being
national gov’t
(protecting borders,
regulating
immigration)
State Powers: reserved
 10th
Amend: states any powers not
granted to the nat’l gov’t are reserved
for the states
 Examples: establish voting
requirements, running elections,
licensing professionals, protecting
community health, establish a vehicle
code
Concurrent Powers



Granted Congress, but
not denied by
Constitution to states
(given to both)
Examples: taxing,
borrowing, establishing
court system, law
enforcement
Questions of fed./state
authority are decided by
courts
National Supremacy (Art. VI)
National Gov’t supreme in cases
of Conflict
Obligations to the state
 Guarantee
each state a republican form
of gov’t
 Protect each state against invasion or
domestic violence
 Grant new states the same rights as
other states
Obligations of state gov’ts

Full Faith and Credit Clause:
Each state must honor public
acts, records, legal
proceedings of other states
(birth certificates, marriages,
and debts)
 Mass Supreme Court
legalized gay
marriage(2004)
 However, in 1990’s
Congress passed
Defense of Marriage Act,
which allowed each state
to define marriage as
union of man/woman
Obligations (cont’d)
 Privileges
and Immunities Clause
 States
can’t discriminate against other
citizens (ie taxes, contracts)
 Extradition:
Governors must return
suspects to states where crimes were
committed