American Politics and Foreign Policy

Federalism and Separation of Power

Prof. Jaechun Kim

Distinct Characteristics of American Political System

Division of power -- territorial and functional divisions

entrenched tradition of “(classical) lib-eralism”

Why Federalism? – Historical Backdrop

* Declaration of Independence – 1776. 7. 4.

* Article of Confederation – 1781

The US under the Article of Confederation

Confederation of 13 independent states There was the central government, but the Congress was the

only governmental institution. No executive and judicial branches!

No power to levy taxes and to regulate intrastate commerce Similar to UN? The US was not a unified country… so to speak…

Federalism

Limits of Confederation

This system, effective enough?

Foreign Relations – Defense; Intl Trade Internal Relations – Intrastate Commerce; Local Dissi-

dents (Shay’s Rebellion); Border dispute between Mary-land and Virginia…

We need a stronger central government!!

The Annapolis Convention

Virginia Plan A two-chamber legislature, elected by the people, with

wide-ranging power

A strong executive, chosen by the legislature

A national judiciary, appointed by the legislature

New Jersey Plan A single-chamber legislature, with one vote for each state

and limited powers

A weak executive

A limited national judiciary

Connecticut Compromise The legislative branch would consist of two

chamber, the lower based on population and the upper having two members from each state bicameral system

Writing of Constitution 1787

Debate as to whether to ratify the Constitu-tion…

Federalists vs. Anti-Federalists Anti-federalists and Thomas Jefferson (3rd president

of the US) opposed the Constitution The Constitution is creating a national government

that is too powerful and oppressive…

* Case of Federalists Federalist Papers - 85 newspa-per articles written by John Jay, James Madison, Alexander Hamilton

Alexander Hamilton first United States Secretary of the Treasury and the Federalists

The new nation would not survive w/o a national government with sufficient power

Federalist paper 15, 16, 17 It is necessary to create a national government

that can act directly upon the citizens of states to regulate the common concerns of the nation

James Madison (4th president of the US) and the Federalists

The national government should have enough power to be effective but face restrictions that stop it from becoming tyrannical

These mechanisms are: Federalism Separation of Power; Checks and Balances

Federalist paper 47, 48, 51

Key to the ratification of constitu-tion and creation of a new, stronger government?

We will have means to limit the new cen-tral government… to persuade the skep-tics…

System of Checks and Balances (or Sepa-ration of Powers) and Federalism.

What is Federalism?

A system of government in which power is divided by a constitution between a central government and re-gional governments

What is the opposite concept of Federalism?

Unitary system - all the governing power is vested in the central government

Why did the US adopt Federalism?

States already existed as former colonies and, for nearly thirteen years, as autonomous units of confederacy. No states wanted to lose their autonomy…

The new central government could not rule the entire ter-ritory w/o delegating power and authority to the local governments.

It was a practical solutions!

By creating a second layer of state government, they wanted to limit the power of the central government! – a compromise between unitary system and confederacy…

cf. Europe – strong central government!!

Evolution of American Federalism

Two Views in Regard to the Federalism : Statists vs. Nationalists (Federalists)

Statists : Federal government was granted with power ex-

pressed only in the Constitution. The rights which are not specified in the Constitution are reserved to the states. Constitution is a contract by the states! Thomas Jefferson and John Calhoun.

Nationalists (Federalists) : Constitution was created for the people! Federal gov-

ernment does not speak for the local governments. It speaks for the people. John Marshall, A Lincoln, T & F Roosevelt.

Different Phases of American Federalism

* McCulloch v. Maryland (1819) Visit : http://en.wikipedia.org/wiki/McCulloch_v._Maryland State-Centered Federalism ( -- before the Civil War 1861) Before the Civil War, the state governments had upper hands…

* American Civil War

: We usually think of the Civil War simply as the fight to free the slaves, but also at the heart of the controversy that led to the Civil War was the issue of national government supremacy ver-sus the rights of the separate states

: The ultimate defeat of the South (Confederate States of Amer-ica) in 1865 permanently ended any idea that a state within the Union can successfully claim the right to secede, or withdraw, from the Union

: The Civil War resulted in an increase in the political power of the national government.

Dual Federalism (Civil War – New Deal) : The power of federal and local governments was about

equal…

: Emphasized a distinction between federal and state spheres of government authority.

: Layer Cake!

Cooperative Federalism (1930s and 1940s) : Great Depression and FDR's "New Deal" : States and the national government cooperate in solving

complex common problems. : Strengthened the Federal government : Marble Cake!

Creative Federalism or Regulated Federalism (1960s and early 1970s)

: Greater expansion of the national government's role in domestic policy. Why?

: Civil Rights Movement and Great Society.

New Federalism (Nixon, Reagan, Clinton? Bush) : Efforts to reverse the trend of regulated federalism -

give back usurped authority to the states!

• Devolution Revolution in 1994, 1995 - N. Gingrich’s ‘Contract with Amer-ica’

• The nature of A Federalism has changed and the power of Federal Gov-ernment has increased. But from the comparative perspective, the Ameri-can central government is a weak government.

• One of the salient features of President Bush's conservatism is his belief that the states, and not the federal government, should manage large so-cial programs, such as welfare. Mitt Romney is also running on this plat-form…

• A Return to Creative Federalism? (Obama)• Health care reform bill (2010. 3. 23) • Quantitative easing (QE 1, 2)

• It will depend on who will be the next president of the US…

• The essay questions!

• It may appear that the federal gov. predominates in the US. But that might be an exaggeration, for there are 87,900 separate governmental units in the US. See the following Table 3-1.

Why did the Americans adopt such insti-tutions?

To persuade the skeptics, territorial division of power was not enough… !

*The primary concern was how to limit the power of the central government! (Think about it! They were building new central government!!)

*FF Popular, electoral control over the power was not enough… Why?

“ tyranny of majority ” ; majoritarian will should not overwhelm

minority opinions!

Separation of Powers and Checks and Balances

Auxiliary mechanism… SoP

What are the tenets of American system of separation of power?

Division of the state (fed gov) power into legislative power, administrative power, and judicial power

What are the mechanisms by which these sep-arate branches check and balance each other?

Separate institutions having separate powers – is this enough?

What if these branches collaborate with each other?

each separated institution will be accountable to different constituencies!

selection methods of each branch is different! President – electoral college Senators – state legislature Members of House – popular election Supreme Court Justices –

Different terms for different offices!President – 4 yearsSenators – 6 yearsMembers of House – 2 years S.C. Justices –

Bicameral system

“Ambitions must be made to counter-act ambition” – James Madison

“If human nature is good…”

American Separation of Power govern-ment of separated institutions sharing pow-ers instead of government of separated powers

Executive branch has some legislative power and legislative has executive power as well…veto

Judiciary branch decides whether the bills are in contradiction with the constitution…

Many auxiliary devices to prevent tyranny of majority!!!

Efficiency vs. Limitation of Power

Restraining devices and Checks and Balances ineffi-ciency and incoherence!! Multiple veto points…

But American political system is meant to be inefficient !!

cf. efficiency vs. limitation of power

Parliamentary system of the Great Britain

Rule of the majority (Great Britain) vs. Rule based on consensus shared by various constituencies (the US) Lower changer of the Parliament has all the constitu-

tional power

British governments, working within an unmodified constitution, have been more flexible and effec-tive…

US governments, with the codified Constitution, are more inflexible…

Of course, the American political system has transformed over years, but the spirit of limited government is still there… this is very important!!! Origin of the nation; strong tradition of classical liberalism