FEDERALISM: one of the 6 principles of the Constitution
-popular sovereignty
-
separation of powers
checks and balances
limited government
judicial review
3 Systems of Government:
1. Unitary
2. Confederal
3. Federal
Framers create a federal republic (based on the other principles as well) as a balance of the two
other systems.
If there are to be two distinct levels of government, how is power to be distributed? And limited?
- “Expressed Powers”
Article I.8:1-17
Article II
Article III
27 powers to Congress
powers to Presidency
“The judicial power of the United States, shall be vested
in one Supreme Court …”
and several powers are given via the Amendments
- “Implied Powers” via Article I.8:18 = “necessary and proper” clause
- “Inherent Powers: by nature of being a government
** - “Reserved Powers” via 10th Amendment
“police powers”
- “Concurrent Powers”
- “Prohibited Powers”
Article I.9
and the Bill of Rights
MILESTONES IN ESTABLISHING NATIONAL SUPREMACY
(Article VI: the Supremacy Clause)
A. “The Cardinal Question”
The relationship between the national government and the states “is the cardinal
question of our constitutional system.”
Woodrow Wilson
And furthermore, “… it cannot be settled by one generation because it is a question of growth, and
every successive stage of our political and economic development gives it a new aspect, makes it a
new question.”
B. McCulloch v. Maryland (1819)
John Marshall and Nationalism: establishing the legitimacy of the federal government
C. Nullification and the Civil War
Kentucky and Virginia Resolutions
John C. Calhoun and States’ Rights Theory
D. Gibbons v. Ogden (1824)
Commerce Clause (I.8.3)
subsequent courts mull over DUAL FEDEDERALISM and Laissez faire
E. National Labor Relations Board v. Jones-Laughlin Steel (1937)
beginnings of co-operative federalism
F. Heart of Atlanta Hotel v. US (1964)
civil rights and the commerce clause
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G. United States v. Lopez (1995)
check on the (ab)use(?) of the Necessary and Proper clause
Two Types of Federalism
LAYER CAKE
until the 1930s: dual federalism
since the 1930s: cooperative federalism
NLRB v J&L Steel opens the door for federal
government to begin to assert authority in most
aspects of society – in the name of the public interest
• civil rights
• consumer protection
• environmental protection
All via the commerce clause
… but at the price of state sovereignty?
CO-OPERATIVE FEDERALISM
The STATES
MARBLE CAKE
FEDERAL GOVERNMENT
Basic structure of federalism has not changed, just the politics!!!
historic-political eras: laissez faire of the Industrial Age = dual federalism
“liberal mindset”: 1930s-1970s = co-operative fed’ism
devolutionary times 1990 = New Federalism
Modern federalism is “ FISCAL FEDERALISM “
the use of federal funding to either cajole or compel
state and local governments to comply to a national policy
Grant-in-Aid: keeps it constitutional
categorical grants
block grants
a. project grant funding
competitive/services
b. formula grant funding
meet some criteria
revenue sharing
no longer practiced; not politically viable
Mandates and conditions of aid
More ways to understand the history of FEDERALISM (fiscal)
Co-operative Federalism: New Deal programs of FDR: addressing economic
recovery from the Great Depression of 1930s.
Washington and the states working together.
Creative Federalism:
Great Society of Lyndon B. Johnson in 1960s.
Dominance of DC directing, mandating, and
funding programs
Competitive Federalism: Introduction of more competition grants and
block grants in the 1970s and 1980s. Called New
Federalism by the Nixon and Reagan administrations.
Devolutionary philosophy introduced. Shrink govt.
“Contract with America”: the supposed GOP Conservative Revolution led by
Newt Gingrich in 1994. The defeat of
“big government” anticipated ?!?
1. Term limits
2. Balanced Budget
3. Welfare reform: workfare
SLICK WILLY pulls out
another win?
Pros and Cons of Federalism
1. ease of “mobilization”,
if participating = lower “cost”
2. safeguards against the reach
of influential interests’ (#10)
3. diversity and ingenuity
4. local policy can be more effective.
1. confusion for political activity
2. powerful minority can block
the needs of a majority.
3. inequality and duplication
4. inability and/or lack of will
on part of local government to
respond to needs
Big question about the politics of federalism: what is more valuable –
equity or legality?
remember the “strongest” need government least
Trend toward national supremacy on going from the beginning: Marshall cases…
Yet since the growth of national government under “co-operative” federalism,
there has been powerful resistance to - “rule from Washington, DC”
DEVOLUTION REVOLUTION:
Nixon and Regan’s “New Federalism”
policy making power needs to “devolve”
back to the states.
classic example for this : “welfare to work” - “workfare” programs established by states
• un funded mandates
• higher and higher taxes
•excessive regulations ( environmental and civil rights)
These complaints = standard promotion of the Republican Party, but it may have
created the Frankenstein that is the Tea Party!