Consider: When should state governments be able to
make laws on their own, and when should they not?
Federalism and Speed Limits
Homework: Assignment 11 for tomorrow; Collaborize by Mon.
Federalism
The Tug-of-War Between States and the National Government
IT’S ALIVE!!!!
Homework: Assignment 10
for tomorrow
Video: The Big Picture
3
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/OConner_Ch03_Federalism_Seg1_
v2.html
Federalism
The Tug-of-War Between States and the National Government
Federalism
The Tug-of-War Between States and the National Government
Federalism
The Tug-of-War Between States and the National Government
Federalism

How/where is federalism established in the
Constitution?
◦ Why do you think this was something the Framers
developed?

How is federalism different from the concept of
the “separation of powers?”

How is this different from the principle of checks
and balances?
FIGURE 3.1: Where does governmental
authority come from?
3.1
British Colonial Rule
Unitary System – all power flows from one central
government
Powerful British
Government
Political Subunits
(Colonies) – some selfgovernment, but not
much
Articles of Confederation
1781 – 1789 – RIP
Confederate System – power concentrated in political subunits
(states) with a weak central government (typically unite for a common
goal)
The US Constitution
Federal System – powers are divided and/or shared between state and
central governments (Current gov’t designed by framers)
- Key component: states/subdivisions have the final word on some decisions
Central US government
State governments
FIGURE 3.3: How many governments exist in
the United States?
3.1
When do national and state
governments work together?
3.1
Analyzing our Federal System

What advantages does the federal system
provide our nation?

What problems exist because of our federal
system?

What is the difference between the states’
rights position and the nationalist position with
regard to government power?
Explore the Simulation: You Are a
Federal Judge
3.1
http://media.pearsoncmg.com/long/long_longman_media
_1/2013_mpsl_sim/simulation.html?simulaURL=3
Consider: How has federalism seemed to follow a “back
and forth” course over American history?
Homework: Assignment 12 for Tuesday;
Collaborize by Mon.
Madison’s Arguments in Federalist 39

The topic: Whether the nature of the republic created by the
Constitution is of a “wholly (con)federal or wholly national
character.”
◦ This was intended to answer critics who said the Constitution
consolidated the states into a unitary government, and took away
the sovereignty of the states entirely.

Madison claims that the nature of the government is indeed
not wholly federal, or wholly national, but rather a
composition of both. He cites the following four areas to
make his argument.
◦
◦
◦
◦
Foundation: States will ratify the Constitution (F)
Sources of power: House and Senate, President (F/N)
Extent: states have some control (F/N)
Amendments: process includes states and national gov. (F/N)
Consider: Do you think we are in a period where the
federal government is asserting itself, or where states seem
to be gaining in power vis-à-vis the fed?
"President Obama warned that the government could shut down in two
weeks. Obama added, 'Not because of a budget impasse but because we'll all
be watching the last episode of 'Breaking Bad.'" –Conan O'Brien
"Starbucks announced they don't want customers bringing guns into their
stores. Meanwhile, Dunkin' Donuts said there is nothing you can bring in
here that's more dangerous than what we serve." –Conan O'Brien
"Brazil's President Dilma Rousseff is apparently so mad over the NSA's
spying scandal that she has canceled her trip to the White House next
month. Of course it didn't help when Brazil called to say they weren't
coming and the White House was like, 'Yeah, we heard.'" –Jimmy Fallon
"Cher has turned down an invitation to sing at the 2014 Olympics in Russia
because of Russia's anti-gay laws. Their anti-gay laws are so strict, men can be
arrested just for showing up at a Cher concert." –Jay Leno
Homework: Assignment 12 for tomorrow; Unit 1 test Th/Fr
Federalism and the Marshall Court
 Defining National Power:
 McCulloch v. Maryland (1819)
 Affirming National Power:
 Gibbons v. Ogden (1824)
 Limiting the Bill of Rights:
 Barron v. Baltimore (1833)
3.2
Defining National Power:
McCulloch v. Maryland (1819)
3.2
 First Court decision to define national
and state government relationship
 Could Congress charter a bank?
 Could states tax it?
 Ruling:
 Congress’ power to charter a bank falls
under its power to tax, etc.
 States cannot tax because the nat’l gov
needs to remain supreme
Affirming National Power: Gibbons
v. Ogden (1824)
 Congress’s authority under commerce
clause disputed
 Power to regulate just products or
commercial activity too?
 Ruling:
 Congress can regulate commercial
activity
 New York had no authority to grant
monopoly
3.2
Limiting the Bill of Rights: Barron v.
Baltimore (1833)
 Due process clause
Guaranteed by Fifth Amendment
Action by state, not federal,
government caused damages
Federal government not at fault for
state actions
3.2
States Assert Their Powers:
Nullification
 Nullification
 States declare federal laws invalid
 Alien and Sedition Acts (1798)
 Unconstitutional
 “Tariff of Abominations” (1828)
 Southern states use nullification to resist
anti-slavery laws
3.3
States’ Rights and the Dred Scott
Decision
 Dred Scott v. Sandford (1857)
 Slaves were property, not citizens
 Congress could not ban slavery in new territories
 Enhanced states’ power
3.3
The Rehnquist Court
 Appointed by Reagan
 Committed to states’ rights
 Rolled back federal authority
 U.S. v. Lopez (1995)
3.6
United States v. Lopez
Facts
 The Gun-Free School Zones Act of 1990 (GFSZA) made it
unlawful for any individual knowingly to possess a firearm
at a place that he knew or had reasonable cause to believe
was a school zone. Alfonso Lopez, Jr., a 12th-grade student,
carried a concealed and loaded handgun into his high
school and was arrested and charged under Texas law with
firearm possession on school premises. The next day, the
state charges were dismissed after federal agents charged
Lopez with violating the Act.
Issues
 Does the GFSZA exceed Congress’ authority under the
Commerce Clause?
 What categories of activity may Congress regulate under
its commerce power?
Holding and Rule (Rehnquist)
Yes. The GFSZA exceeded Congress’ authority under the Commerce Clause.
 The three broad categories of activity that Congress may regulate under
its commerce power are:
◦ a) the use of the channels of interstate commerce;
◦ b) the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate
activities; and
◦ c) those activities having a “substantial relation” to interstate commerce, i.e.,
those activities that substantially affect interstate commerce.


The Supreme Court held that the GFSZA exceeded Congress’ Commerce
Clause authority. The possession of a gun in a local school zone is in no
sense an economic activity that might, through repetition elsewhere, have
a substantial effect on interstate commerce.
Neither the Act itself nor its legislative history expresses congressional
findings regarding the effects of gun possession in a school zone on
interstate commerce. To uphold the Government’s contention that the Act
is justified because firearms possession in a local school zone does indeed
substantially affect interstate commerce would require this Court to pile
inference upon inference in a manner that would convert congressional
Commerce Clause authority to a general police power of the sort held
only by the States.
Dissents in US vs. Lopez
Dissent (Stevens)
 Guns are articles of commerce and can be used to interfere with
commerce. The national interest justifies prohibiting their use by children in
school.
Dissent (Souter)
 The only inquiry should be whether the legislative judgment is within the
realm of reason. Congress should have plenary power to legislate under the
Commerce Clause as long as the law passes the rational basis test.
Dissent (Breyer)
 Violence in schools interferes with the quality of education and education is
inextricably tied to the economy. Congress could have rationally concluded
that the possession of guns in school zones is related to interstate
commerce. The majority contradicts well settled precedent that has
permitted Congress to regulate noncommercial activity affecting interstate
commerce.
The Roberts Court
 Has decided in favor of the federal
government more often
 Immigration
 Health care reform – Obamacare decision
3.6
The ACA case(s)
Does Congress have power under Article I, Section
8 of the Constitution, specifically under the
Commerce Clause or the Taxing and Spending
Clause, to require most Americans to purchase
health insurance?
 Is the individual mandate severable from the ACA?
 Did Congress exceed its enumerated powers and
violate principles of federalism when it pressured
States into accepting conditions that Congress could
not impose directly by threatening to withhold all
federal funding under Medicaid, the single largest
grant-in-aid program?

Can you have your cake and eat it too?

Dual federalism, also known as "layer cake federalism" involves
clearly enumerated powers between the national and state
governments, and sovereignty in equal spheres. This relationship
predominated from the 1790s to 1930.

Cooperative federalism, also known as "marble cake
federalism," involved the national and state governments sharing
functions and collaborating on major national priorities. This
relationship predominated between 1930 and 1960.

Creative federalism, also known as "picket fence federalism,"
predominated during the period of 1960 to 1980. This relationship
was characterized by overloaded cooperation and crosscutting
regulations.

Finally, progressive federalism, is characterized by both a
cooperative and coercive relationship. Sometimes referred to as
"on your own federalism," is characterized by further devolution of
power from national to state governments (deregulation), but also
increased use of mandates to implement national standards.
Video: In the Real World
3.6
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Seg5_Federalism_v2.html