OQ
1. Give a strong definition of federalism
(must discuss more than “sharing power”).
2. Is Federalism good or bad? Explain.
Chapter 3
Federalism
Governmental structure
A. Introduction
1. Definition of Federalism:
a) a political system in which there are local units of
government, as well as a national government,
that can make final decisions with respect to
at least some governmental activities and
whose existence is specially protected.
2. Federal, Unitary and Confederal?
Examples?
National Powers
A.
B.
Delegated (expressed, enumerated powers):
actually stated in Constitution
Implied: not stated explicitly, but suggested implicitly.
1.
2.
C.
Elastic clause: Article 1, Section 8 To make all Laws which
shall be necessary and proper…
Commerce Clause is another example of elastic language (to
regulate commerce… among the several states…)
Inherent: not stated, but held by virtue of being a
national government.
1.
Powers such as diplomatic recognition, acquiring territory,
defending itself.
Powers Reserved to the States
A. Amendment 10
B. Examples: est. voting requirements,
running elections, licensing
professionals, community health, vehicle
licensing and much more.
Ron Paul a strong
advocate for states’
rights would like to see
the 10th Amendment
made much stronger.
Concurrent powers
A. Powers granted to Congress, but not
denied by the Constitution( or denied by
the Courts) to the states. Examples?
1. taxing, borrowing, establishing courts and
law enforcement
B. Questions of state/federal authority
decided by the courts.
National Supremacy
A. (Article VI Supremacy Clause): National
govt. supreme in case of conflict w/ states
“the supreme law of the land,”
Ex: Use of medicinal marijuana in California
Gonzales v. Raich
 1970 Federal Drug laws versus California state
law that allowed for the use of Medicinal marijuana
Obligations
A.
Obligations of national govt.
1.
2.
3.
B.
guarantee each state a republican form of govt.
protect each state against invasion and/or domestic
violence (if the state asks)
grant new states same rights as existing ones
Obligations of state govt.
1.
2.
3.
Full faith and credit clause (Art.IV, Sec. 1): each state
must honor the laws and legal proceedings of other
states
Privileges and immunities clause (Art IV, Sec 2):
Uhh…??? Hey, if the courts can’t figure this one out…
Extradition: delivery of a person, suspected or
convicted of a crime, by the state where he has taken
refuge to the state that asserts jurisdiction over him
American Federalism: States' Rights vs.
National Government
A. States' Rights view
1.
2.
3.
4.
Constitution limits national authority
10th Amendment
when in doubt power goes to states
National govt. has gotten too big + related
problems
5. state govt. are closer to people more
democratic
American Federalism: States' Rights vs.
National Government
A. Nationalist's view
1. elastic, commerce, and taxing/spending
clauses gives great power to national govt.
2. Powers go to states only if they have been
surrendered by national govt.
3. when in doubt, matter should be resolved in
favor of national govt.
4. states have historically violated citizens'
basic rights (South until the 1970s)-national govt. has protected it.
McCulloch v. Maryland, 1819
A.
National bank first est. in 1791 and then re-established
a)
b)
B.
C.
D.
supported by Federalist
opposed by Democratic-Republicans: seen as an
instrument of the wealthy elites
1818 Maryland challenges "Monster Bank"--$15,000
tax
Baltimore branch refuses to pay, is sued (McCulloch);
state court rules for Maryland.
Chief Justice John Marshall and the Supreme Court
1.
The Arguments:
a) Maryland: Luther MartinCongress had overstepped its
authority in creating national bank
b) National bank: Daniel Webster"necessary and proper"
clause (Art. I) gave Congress the right to establish bank
McCulloch v. Maryland, 1819 cont’d
1. The Decision of the Court:
a) it is necessary and proper for the national
government to have a bank because, even
though the term “bank” is not in the
Constitution, the government does have the
power to manage money (taxes, issue
currency, borrow funds etc.)
b) Federal government is supreme in the
exercise of those powers conferred upon it
by the people, therefore it is
unconstitutional for the states to tax an
extension of the federal government
McCulloch v. Maryland, 1819 cont’d
1.
2.
What does this mean?
Precedents:
a)
Supremacy of national government over the states
i. as long as it abides by Constitutional law
ii. federal laws preempt state/local laws (water quality,
waste, + more)
iii. great and clear impact example will be civil rights
b) National gov. has implied powers that go beyond the
enumerated powers
i. right to coin money, regulate its value, to borrow
money, etc. Art. I Sec. 8
c) Elastic Clause: to carry out these rights Art. I Sec. 8"necessary and proper"
Federalism and Federal Grants
$$$
A.
Grants show how political realities modify legal
authority
1.
2.
3.
4.
began before Constitution with land and cash grants to states
dramatically increased with 20th C.
attractive to state officials--free money + no guilt or blame.
meets national needs
a) shift in grant-in-aid from what the states wanted to federal
priorities ex: Welfare, EPA, Civil Rights, etc.
b) state, local governments became dependent on funds
5. reduces growth of federal bureaucracy as money goes to states
to run programs (under federal guidelines)
6. equalizes resources among rich and poor states
7. Intergovernmental lobby