1 CH 3 ---AMERICAN FEDERALISM,DEFINING FEDERALISM, The Constitutional Structure of American

Federalism The Role of the Federal Courts: Umpires of

Federalism. Regulatory Federalism, Federal Grants, and

Federal Mandates. The Politics of federalism The future of Federalism

2 CH--3--DEFINING FEDERALISM-----POWER IS DISTRIBUTED

BETWEEN A CENTRAL GOVERNMENT AND A SUB DIVISIONAL GOVERNMENTS, CALLED STATES, THE UNITED STATES.

Federal nations are diverse and include Australia, Canada, Germany, Russia, and Switzerland.

Unitary System----Constitutional arrangement in which power is concentrated in a central government.

Confederation-------Constitutional in which sovereign nations or states, by compact create a central government and does not give the central government direct authority over individuals.

Why Federalism?---- Federalism Checks the Growth of Tyranny, Federalism Allows Unity Without Uniformity., Federalism Keeps Government closer To The People,

3 CONT CHP--3, THE CONSTITUTIONAL STRUCTURE OF AMERICAN F4DERALISM,-----THE NATIONAL GOVERNMENT HAS ONLY THOSE POWERS DELEGATED TO IT BY THE CONSTITUTION.POWERS OF THE NATIONAL THEGOVERNMENT-------

The National Supremacy Article----The Laws of the United States which shall be made in pursuance thereof and all Treaties made…..under the Authority of the United States, shall be the supreme Law of the Land.

4 CHP--2 CASE--- MARBURY V. MADISON 1803-- UNUSUAL SITUATION, FEDERALIST PARTY WAS DEFEATED IN 1800 ELECTION. THEY WERE EAGER TO MAINTAIN THEIR INFLUENCE OF THE FEDERALIST CONTROLLED CONGRESS. THEY ENACTED LEGISLATION TO CREATE NEW JUDICIAL POSITIONS.

Out going president John Adams appointed loyal members of the Federalist Party to fill these position (offices). William Marbury -- one of the new appointees, was to become a justice of the peace for the District of Columbia. His appointment had been approved and his commission to hold office had been prepared and approved and signed. But the commission had not yet been delivered to him, when Adams term expired and the new Republican president Thomas Jefferson took office. The new secretary of State, James Madison acting on instructions from Jefferson, refused to deliver the commission to Marbury. Marbury began legal action in the Supreme Court, to have the Court compel the delivery of the document by issuing a “Writ of Mandamus”. A court order to a public official to perform an act that is legally required.

5 CHP-2-CASE,CONT. MARBURY V. MADISON--- CHIEF JUSTICE MARSHALL AGREED WITH MARBURY, HIS RIGHT TO THE COMMISSION, AND THAT THE “MANDAMUS” WAS PROPER REMEDY FOR WRONG.-- BUT SUPREME COURT COULD NOT ISSUE A “WRIT

of Mandamus”. He ruled unconstitutional a provision of the Judiciary Act if 1789..- that permitted cases

involving “mandamus” to be heard by the Federal Courts. It violated Article III, Section 2, which restricts

the original jurisdictions of the Supreme Court to several specific types of cases, not including disputes involving “Writ of Mandamus’. This case defends the

right of Supreme Court ( Judicial Review)1st, to declare acts of Congress unconstitutional.

The Constitution an Instrument of Government-- The Unwritten Constitution, Congressional

Elaboration…..Framers gave congress authority of structural details of the national government.

Congress can create legislation to meet needs., also as Impeachment of President and other Gov Officials

6 CHP-3 PRESIDENTIAL PRACTICES--EXECUTIVE ORDER - DIRECTIVE ISSUED BY PRESIDENT OR GOVERNOR THAT HAS THE FORCE OF LAW.

Executive Privilege-- The power to keep executive communications confidential, especially if they relate to national security.

Impoundment-- Presidential refusal to allow an agency to spend funds authorized and appropriated by congress.

Judicial Interpretation-- Comparing questions of conflict with the U S Constitution.

Changing the Letter of the Constitution, Amending the Constitution.

Amend Constitution:-difficult to Amend, the first 10 amendments were for protection of oppression from the national government. Amendment must be approved by 2/3 of each house of congress, & ratified by 3/4 of states.

7 CHP -3 NATURAL LAW, ALL PERSONS CREATED TO LIVE, BREATH, EAT, SLEEP, REST, KEEP THEIR CONTAINERS FOR EXISTENCE.

Respect for Others, a common Understanding for Existence. Called Social Order, or A Social Contract or Respect. John Locke Influenced Framers of the Constitution.

Natural Rights -- Are Derived from Natural Law. Natural Rights as Natural Law are above and separate from any Government or Society to obstruct these Natural Rights, LIFE, LIBERTY, PROPERTY.

These Rights are protected within the U S Constitution, as with the Bill of Rights.

8 CHP - THE CONSTITUTION OF THE UNITED STATESTHE BILL OF RIGHTS-- FIRST TEN AMENDMENTS OF THE CONSTITUTION PG 54.

Amendment 1 --Freedom of Religion, speech, Assembly

Amendment 2-- The right to Bear Arms. Amendment 3 -- Quartering of soldiers. Amendment 4-- Searches and Seizures Amendment 5 -- Grand Juries, Self-

Incrimination. Double Jeopardy, due Process . Amendment 6 Confront Witness Amendment 7- Trial by jury in Common Law

Cases Amendment 8 --Bail,.Cruel and Unusual

Punishment. Amendment 9-- Rights Retained by the People. Amendment 10-- Reserved Powers of the

States.

THE DECLARATION OF INDEPENDENCE--- WITH THE AMERICAN REVOLUTION UNDER WAY, SOME COLONISTS, CONTINUED TO HOPE THAT PEACEFUL RELATIONS WITH ENGLAND COULD BE RESTORED. THOMAS PAINE’S PAMPHLET “COMMON SENSE”

Which called the king a “royal brute” and claimed that ‘Of more worth is ONE HONEST MAN…THAN ALL THE CROWNED RUFFIANS THAT EVER LIVED”.. Is credited with turning the tide of public opinion in favor of a formal break with England. By the summer of 1776 the idea of independence had become popular throughout the colonies. The Declaration of Independence, was adopted on

July 4 1776.

-------- CH 3----- THE FEDERAL SYSTEM

Main Features, Federal form of Government

Differ, Federal Government, Confederacy, Unitary

? Powers given, National Gov by Constitution

? Powers given, States by Constitution Federal Grants-in-Aid Important, Grant-in-Aid,Operation

Federal System.

CONT-CHP-3 POWERS OF STATES GIVEN BY CONSTITUTION? THE CONSTITUTION DOES NOT ASSIGN SPECIFIC POWERS TO THE STATES, BUT BY THE 10TH AMEND MAKES CLEAR ALL POWERS NOT DELEGATED TO NATIONAL GOVERNMENT OR DENIED TO THE STATES ARE RESERVED FOR THE STATES OR THE PEOPLE. POWER OF STATES IN CONSTITUTION ARE REFERRED TO AS RESERVED POWERS. STATES CAN PASS LAW FOR HEALTH, WELFARE, SAFETY AND MORALS OF CITIZEN

States have no power in national assigned areas, as Foreign Policy.

LIMITS : ART I Sect 9 denies National Gov specific powers, as passing BILLs of Attainder(Legislative acts that single out certain people for punishment without trial) and ES POST FACTO laws( laws that make an act criminal that was legal when it was performed, or increase the penalty for a crime after it has been committed). The government is limited to suspend the WRIT OF HABEAS CORPUS, a court order protects people from arbitrary imprisonment by requiring officials of the government to bring them before a court and state the reasons for detaining them.

Limits: Art I, Sec 10 states may not pass bills of ATTAINDER or EX_POST FACTO laws, nor enter into any Treaty, Alliance or Confederation with a foreign nation. no tax on import/export without approval of Congress. Several amendments 13th,14th,15th,24th, and 26th impose a variety of limitations on the states.DUE PROCESS, EQUAL PROTECTION CLAUSES of 14th amendment guaranteed freedom against infringement by state and Federal gov. equal protection.

CASCHP-3-- MCCULLOCH V. MARYLAND 1819 --- CONGRESS CREATED SYSTEM OF BANKS, UNPOPULAR IN SOME PARTS OF THE NATION. MARYLAND HAD IMPOSED A TAX ON THE OPERATION OF THE SYSTEM’S OF BALTIMORE BRANCH, WHICH THE BANK REFUSED TO PAY.

The issue whether Congress had the power to create a National Banking System. The Constitution does not expressly grant that power to them. But Government argued that Congress had the (Implied) power to do so, in order to carry out it’s delegated Authority to borrow and Coin Money,

CH-3 MAIN FEATURES FEDERAL GOVERNMENT. CONSTITUTION CREATED A FEDERAL FORM OF GOVERNMENT ONE IN WHICH POWER IS DIVIDED BETWEEN THE STATES AND THE NATIONAL GOVERNMENT. THE TENTH AMENDMENT PROVIDES GENERAL DEFINITION OF FEDERALISM

10th Amend-- (Reservation of Powers to the States or People) The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.

The federal form of government is between Unitary, or Centralized, government and a confederation. UNITARY- Like France, UK, or Israel, the central gov has ultimate legal authority over citizens. Grants power to local government but can reclaim those powers any time. CONFEDERATION--Powers of Central government are granted by the stated or provincial governments. Can make laws for the nation as a whole, but cannot regulate actions of citizens. May request financial support from the states, but cannot impose a tax on individuals. Power over people in the hands of the state gov.

The National Powers given by our Constitution? Two basic types, DELegated Powers(also EXpressed Powers) -- IMPLIED Powers,--delegated powers are stated at various points in the Constitution: implied powers are derived from the ‘Necessary and Proper Clause’ Article I, section 8, ( Art I-general Legislative Powers) Sec 8--Lay/Collect Taxes, borrow money, regulate Commerce foreign& states,rule of Naturalization, Law on Bankruptcies,coin money.

RECAP1------THE FIRST AMENDMENT GUARANTEES FREEDOM OF SPEECHCONSTITUTIONALISM IS LIMITED GOVERNMENT MINORITY RIGHTS, MINORITIES ARE GRANTED CERTAIN BASIC FREEDOMS THE BILL OF RIGHTS PROTECT INDIVIDUALS AGAINST ABUSES OF THE POWER OF GOVERNMENT.

The Connecticut Compromise is mainly concerned with Representation in the Congress.

Federal Judges are appointed for life, to keep them free from political pressures.

The nineteenth Amendment gave the women the right to vote.

Unitary Government , France, England, Israel, Give and repeal local.

Confederacy Government, Switzerland, no Central Power, Local Cont

US government, somewhere in between, Federalism, Small strong local gov. and a weak, limited, National Central Gov. two gov’s

A bill of attainder is a legislative act that inflicts a penalty without trial

Presidents are prohibited from three year terms, by the Twenty-second amendment.

Delegated Power allows National Gov. to in local matters to tax, regulate interstate commerce,and power to Spend the Tax.

CONT CHP-3 FEDERAL GRANTS-IN-AID IS A SUM OF MONEY GIVEN BY A HIGHER LEVEL OF GOVERNMENT TO A LOWER LEVEL TO BE USED TO PAY FOR A SPECIFIC PROGRAM--EXAMPLE- HIGHWAY CONST. IN THIS APPROACH TO FEDERALISM, THE EMPHASIS IS ON COOPERATION BETWEEN THE STATE, LOCAL GOVERNMENT AND THE NATIONAL GOVERNMENT IN ACHIEVING GOALS DETERMINED BY THE NATIONAL GOVERNMENT.

Importance of Grant-in-Aid,-- Although Congress does not have direct powers to regulate public health, safety, or welfare, it can employ its power to tax and spend for the general welfare to establish a system that will reward the states for performing these functions. --Grant-in-aid system is the primary means by which governmental power has gradually become centered in Washington.

New Federalism-- 1960’s state and local officials became critical of the federal grant system. it became complicated and fragmented. It forced them to operate programs favored by the federal government at the expense of programs that their own citizens would have preferred.-- General Revenue Sharing-- was to restore balance of power of federal government and the states. Caused a larger use of the --Block Grant-- money given by federal government to a state or local gov. to be used for a broad, general purpose. Regan made it more flexible to reduce federal involvement in the states’ domestic affairs. More work and less federal aid in this flexibility.