Before Moving On…..

Before Moving On…

Due to the difficulty of adding a Constitutional Amendment there have been ways devised to “informally”* amend the Constitution

• Basic Legislation (Use of Elastic Clause)• Supreme Court Interpretation• Political Parties• Custom* Not really an amendment, but a change in “meaning” or

interpretation.

Federalism

Constitutional Underpinnings #3

Federalism Defined

Political system with local government units, besides

national one that can make final decisions regarding some

governmental activities and whose existence is protected

A New System

Unitary SystemStrong Central Government

Trampled on Liberty

Confederate SystemWeak Central Government

Couldn’t Protect the People

NATIONAL NATIONAL

STATE STATE STATE STATESTATESTATE

Federal SystemSplit Powers

Between State and National

NATIONAL

STATE

A New System

• The plan had no historical precedence• The idea was neither the Federal nor

State governments would ever dominate over the other since the power comes from the people, and the people would shift their support

Federalism in the Constitution

Types of PowersExpressed PowersPowers granted to the Federal Government (Article 1, Section 8)Reserved PowersPowers reserved to the States by the 10th Amendment(“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”)Concurrent PowersPowers that both the Federal and the State Governments hold to some extent (Taxation, Construction, Etc…)

Federalism in the ConstitutionFull Faith and Credit Clause (Article IV, Sec 1)States must respect the laws and decisions of

other state governments (Driver’s License, Marriage License, Divorce, Etc..)

Privileges and Immunities (Article IV, Sec 2)Can’t deny a non-state resident of the same

protections of law as a residentExtradition (Article IV, Sec 2)

Return fugitives to the state they are wanted in

Two Theories of Federalism

Dual Federalism• The national and state

governments are partners, and co-equals, sovereign in their own areas

• Belief that the federal government only can act in areas specifically stated in the Constitution

Cooperative Federalism• The national

government is supreme over the states.

• The state governments act as agents to help design programs that go along with the national interest

The Tenth Amendment 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 Supremacy ClauseThis Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Evolution of Federalism

Dual Federalism

The easiest way to picture how Dual Federalism Works is to picture this…..

Dual Federalism is referred to as LAYER CAKE federalism. In this case the layers exist

independently of the other layers. There is no interaction between them. Each is

responsible for their own flavor.

Federal Government

State Government

Local Government

Evolution of Federalism

Founding until 1930s (Dual Federalism)Although, for the most part, the federal

and the state government remained independent of each other, certain

things chipped away at the balance of power between the two.

Evolution of Federalism1819: McCulloch v. Maryland

• Ruled of the existence of “Implied Powers.” Powers not specifically given to the

government but implied by the “elastic” or “necessary and proper clause”

• Ruled that the Federal Government was supreme and immune from state challenges

such as taxes

1824: Gideon v. Ogden• Congress's right to regulate commerce

under the Commerce Clause could be "exercised to its utmost extent, and

acknowledges no limitations, other than those prescribed in the constitution...“

Nullification• The doctrine that a state can declare a

federal law null and void, if the state believes it is unconstitutional. Used by the South against efforts to limit or abolish Slavery.

The Civil War answer that question

Dual Federalism Breaks Down

• As time went on Dual Federalism erodes due to several factors– Defining “Intrastate” and “Interstate” Commerce

• As the economy grew due to advance in technology and transportation it became impossible to differentiate between the two. By 1940s almost all commerce was considered “interstate.”

– Expansion of the definition of Commerce• By far the biggest way the national government has

expanded its power is through redefinition of “commerce.” Today “pollution”, “crime”, and “education” all fit into “commerce” in some way.

Cooperative Federalism is referred to as MARBLE CAKE federalism. In this case the

layers get mixed in with each other to where it is impossible to separate them from one

another. Usually it results in one flavor being the dominant one.

Evolution of Federalism

Cooperative Federalism

The easiest way to picture how Cooperative Federalism Works is to picture this…..

FEDERAL GOVERNMENT

STATE GOVERNMENT