Constitution and federalism

The Constitutional Convention

The Constitutional Convention of 1787: Conflict and Compromise

The Virginia Plan

Principle author: James Madison

National government would be supreme over the states

Favored by populous states

The New Jersey Plan

Principle author: William Patterson of New Jersey

“Confederation model”

Favored by smaller states

2 competing plans


The Conflict

State-based approach versus an individual-

based approach

The Compromise

House of Representatives: proportional; Senate: equal number of representatives

from each state

The Conflict

Northerners were increasingly abolitionist

The Compromise

The Constitution was to protect the Atlantic Slave Trade for at least twenty

years


The Conflict

If representation is proportional in the House of Representatives, how

should slaves be counted?

The Compromise

Three-Fifths of the slaves in each state would be

counted

The U.S. Constitution

The U.S. Constitution

Seven Articles of the Constitution

1.The Legislative Branch2.The Executive Branch3.The Judicial Branch

4.Guidelines for Relations between States5.The Amendment Process

6.Federal-State Relations; Oath for Officers7.How the Constitution Can be Ratified

Commerce Clause (Art. 1)

• The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes

Commerce Clause (Art. 1)

• The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes

– U.S. v. E.C. Knight Company (1895)– Hammer v. Dagenhart (1918)

Denied Powers

• No abolition until 1808• Habeas Corpus• No ex post facto laws• No capitation/direct tax*• No taxes on interstate trade• No titles of nobility

Article IV: Interstate Relations

• Full Faith and Credit Clause:“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”

- Marriage, for example

Article IV: Interstate Relations

• Full Faith and Credit Clause:“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”

• Privileges and immunities clause:“the citizens of each state shall be entitled to all

privileges and immunities of citizens in the several states”

Privileges

• According to California law, a “citizen” is a person that has taken up permanent residence in the state. A family moves from Arizona to California and is denied welfare benefits. The state requires them to be residents for at least 1 year.

– Is this constitutional?

Privileges

Saenz v. Roe (1999)-California violated the U.S. Constitution

Privileges

• What should this mean for out-of-state tuition?

Article VI: Supremacy

• Supremacy Clause– The national government is above all sub-national

governments– All federal and state officials swear an oath to the

federal government

• Counter to the Doctrine of Nullification and Doctrine of Secession

Article VII: Ratification

The Federalist Papers– James Madison, Alexander

Hamilton, and John Jay

The “Brutus” Essays

Federalists versus Anti-Federalists

Federalist Papers

• Op-Ed pieces• Written anonymously by James Madison,

Alexander Hamilton, and John Jay• Intended to cultivate a pro-Constitution

culture• Modern judges use the papers to determine

original intent

Alexander HamiltonFederalist 27

• Federal government may act “odious or contemptible” toward the people, but a strong central government is needed

• Citizens would have “less occasion to recur to force”

James MadisonFederalist 10

• Factions – citizens united by “common impulses of passion”

• Tyranny of the Majority could result• 2 Ways to rid of Factions– Rid of liberty– Check the inducements to sacrifice the weaker

party

Republican government is the solution

James MadisonFederalist 39

• A hybrid regime - Federalism– The power to govern must be derived from the

consent of the people. – Representatives elected from the people are the

administrators of the government. – The terms of service of the Representatives must

be limited by time or good behavior. – Powers to be divided between national and state

governments

Anti-Federalists

• Need for states to have more power because only at smaller levels can public be accurately represented

• Brutus essays (Anti-Federalist)i. Fear of presidential powerii. No Bill of Rights

Anti-Federalist #84

• Called for stronger guarantees of individuals liberties

• Federalists were uneasy about a Bill of Rights– Feared it would be interpreted as the ONLY rights

individuals had– Ultimately included in order to gain more support

for the Constitution

Constitutional Ambiguity

“Its nature, therefore, requires, that only its greatest outlines should be market, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.”

-Marbury v. Madison

Constitutional Ambiguity

• The Constitution lays out the basic framework for the U.S. government in about 4 pages and has been amended only 27 times.

• The Alabama Constitution contains over 300,000 words and has been amended more than 700 times.

Important Principles

• Separation of Powers• Checks and Balances


• Separation of Powers• Checks and Balances• Federal System– A system of government in which power and

authority are divided between a central government and regional sub-units


• Separation of Powers• Checks and Balances• Federal System• Representative Republicanism– Limit the influence of the masses– Senators were originally chosen by state

legislatures


• Separation of Powers• Checks and Balances• Federal System• Representative Republicanism• Reciprocity– Full faith and credit– Equal rights to out of state citizens


• Separation of Powers• Checks and Balances• Federal System• Representative Republicanism• Reciprocity• Fixed system open to change

Relevance of the Constitution

• Does meaning change over time?• Living constitution vs. Original intent

Defining Federalism

Federalism

Constitutional arrangement

whereby power is distributed between

a central government and

subnational governments called states in the United

States.

“Look, the American people don’t want to be bossed around by federal

bureaucrats. They want to be bossed around by state bureaucrats”

Governing Levels

• 1 National Government• 50 State Governments• Thousands of local governments

Governing Levels

• Is there some kind of ‘federalism’ between state and local governments?

Governing Levels

• Is there some kind of ‘federalism’ between state and local governments?

– Dillon’s Rule (1868)– Home Rule

Types of Government

• Federalism– Powers divided between central government and

smaller governmental units

Types of Government

• Federalism• Confederation– Definition?

Types of Government

• Federalism• Confederation– States retain ultimate authority

Types of Government

Types of Government

• Federalism• Confederation• Unitary– Central government exercises all governmental

powers and can change or abolish its constituent units (states)

Advantages of Federalism

• Diversity of Needs• Closeness to the people• Innovation and Experimentation– Sub-national units are “laboratories”

• Check on Federal Power

Federalism

• Sometimes used to address ethnic divisions– South Africa– Iraq

Disadvantages

• Lack of National Standards• Low visibility and lack of popular control• Lack of uniformity in rules and programs

Disadvantages

• Lack of National Standards• Low visibility and lack of popular control• Lack of uniformity in rules and programs

– Yugoslavia was a disaster• A collection of “ethno-nationalist republics”

Federalism in the Constitution

• States have independent powers• Supremacy Clause• Congressional powers are enumerated (Article

I, Section 8)• Tenth Amendment– 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”

State Roles

• Amendments– ¾ of all state legislatures must ratify an

amendment– States must approve the creation of new states

The Great Debate: Centralists versus Decentralists

Centralism

Supporters: Chief Justice John Marshall, Presidents Abraham Lincoln, Theodore Roosevelt, and Franklin Roosevelt, and the Supreme Court for most of its history

Position: The central government should be denied authority only when the Constitution clearly prohibits it from acting

Decentralism

Supporters: Antifederalists, Thomas Jefferson, Supreme Court from 1920s to 1937, and Presidents Ronald Reagan and G. W. Bush

Position: Views the Constitution as a compact among states that gives the central government very little authority

Historical Markers in the Development of American Federalism

• McCulloch V. Maryland and the Necessary and Proper Clause

• Secession and the Civil War

• National Guarantees of Civil Rights

• The Expansion of Interstate Commerce

• The Income Tax and Federal Grants

The Evolution of American Federalism

“State-Centered Federalism”

1787 to 1868

• From the adoption of the Constitution to the end of the Civil War, the states were the most important units of the American Federal System

• McCulloch v. Maryland decided during this phase

McCulloch v. Maryland (1819)“The power to tax involves the power to destroy…If the

right of the States to tax the means employed by the general government be conceded, the declaration that

the Constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty

and unmeaning declamation.”

Question

I thought the Civil War was about slavery. What does federalism have to do with the Civil War?


“Dual Federalism”

1868 to 1913

In this phase, the national government narrowly interpreted its delegated powers and the states

continued to decide most domestic policy issues

Evolution of American Federalism

After the Civil War, industrialization and urbanization created new challenges for the federal system


The system was likened to a marble cake in that “as the

colors are mixed in a marble cake, so functions are mixed in the American federal system.”

“Cooperative Federalism”

1913 to 1964

Cooperative Federalism

• 1932-1936: Supreme Court invoked doctrine of Dual Federalism to challenge FDR’s New Deal– Court packing scheme– Court has since sided with national government

Doctrine of Incorporation

• The Supreme Court has “incorporated” new rights into the due process clause of the 14th Amendment– Expands civil liberties on the national level


• The presidency of Lyndon B. Johnson (1963-1969) marked a critical point in the evolution of federalism

• Federal government clearly had its own national goals

“Centralized” or “Creative” Federalism1964-1980

The Great Society and Creative Federalism

• Johnson’s “Great Society”– War on Poverty

• Federal funds were directed to states, local government, and a wide variety of social programs

The Great Society and Creative Federalism

The Changing Nature of Federal Grants

Grants-in-AidFederal funds given to state and local governments on the condition that the money be spent for specified purposes,

defined by officials in Washington

Types of Grants

• Categorical– For a specific

purpose

• Block Grants– For a general area

New Federalism

• Ronald Reagan sought to return more power and responsibility to the states

• “Government is not the solution; it’s the problem”- Ronald Reagan

Devolution

The Republican “Contract with America” called for devolution-- the transfer of political and economic power to the states

Copyright 2006 Prentice Hall

The Supreme Court and the Role of Congress

Beginning in 1995, justices interested in granting more deference to state authority gained a slim five-to-four majority in the

Supreme Court

Our Federal System

Is the federal government getting too big to provide an effective response to local

problems?

Constitution and federalism

Documents

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