State & Local GovernmentState & Local Government

FederalismFederalism

Government SystemsGovernment Systems

THREE TYPES OF GOVERNMENT• Unitary

• Federal

• Confederal

Unitary SystemUnitary System• A unitary state is a state or country that is

governed constitutionally as one single unit, with one constitutionally created legislature.

• The unitary system gives the main powers of state as well as absolute authority to the central government.

• State, providential, and local governments are all created by the central government.

• The non-central governments have only the powers that are appointed by the central government and exist only so long as the central government consents.

Federal SystemFederal System• the federal system is where a number of states or

providences federate: create a single unified governmental structure for their joint territories.

• In a government using the federal system, the powers of the governments are jointly shared between the central government and the regional governments.

• Regional governments retain some spheres of autonomy.

• Regional governments retain constitutional sovereignty.– In federal systems, assemblies in those states composing the

federation have a constitutional existence and a set of constitutional functions which cannot be unilaterally changed by the central government.

ConfederalConfederal• A confederation is an association of sovereign states,

usually created by treaty but often later adopting a common constitution.

• Confederations tend to be established for dealing with critical issues, such as defense, foreign affairs, foreign trade, and a common currency.

• Confederation, in modern political terms, is usually limited to a permanent union of sovereign states for common action in relation to other states

• The central government in a confederation is weak, the true power lies with the sub-national units.

Why Federalism?Why Federalism?

• Collective Action Problem Applied – Under the Articles of Confederation, states were

beset by a structure that prevented them from sharing the transaction costs inherent to a large country.

• Transaction costs are the time, effort, and resources required to make collective decisions

• Conformity costs are what one party prefers and the collective required

U.S. Federal SystemU.S. Federal System

• Thesis: . Federalism is enshrined in the Constitution, but political conditions have dictated how the doctrine of federalism has evolved.

Mechanics of FederalismMechanics of Federalism

• Constitution divides power among: – federal government – state governments– the people

• The federal government has three types of power: – Inherent– Delegated (Enumerated, Express)– Implied

Delegated PowersDelegated Powers• Enumerated powers are found in Article 1 Section 8 of

the United States Constitution, which lists the specific powers of government granted to the United States Congress.– Chief Justice John Marshall: “This government is acknowledged

by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”

• Enumerated powers include:– Regulate interstate commerce– Coin money– Raise armies

Inherent PowersInherent Powers• Inherent powers are those powers not specifically stated

in the Constitution, but considered necessary for any government to carry out its functions. – Cannot logically be held by both nation and state.

• Derived, in many cases, from the Royal Prerogative Powers. – The Royal Prerogative is a body of customary authority,

privilege, and immunity, recognized in common law jurisdictions possessing a monarchy as belonging to the Crown alone. It is the means by which some of the executive powers of government are possessed by and vested in a monarch with regard to the process of governance of their state are carried out

• Examples include the inherent power to– Wage war– Conduct foreign affairs– Right to exist as a nation-state

Implied PowersImplied Powers• Implied powers are derived from an enumerated power and the

“Necessary and Proper” clause, a.k.a. the “elastic” clause. These powers are not stated specifically but are considered to be reasonably implied through the exercise of delegated powers.

• This clause became the center of controversy from the early days of the nation when Alexander Hamilton and Thomas Jefferson tangled over the constitutionality of a national bank. Their arguments, in one form or another, persist to today:

• The “loose constructionists” (the Hamiltonians or Federalists) viewed Clause 18 as an opportunity to increase federal power

• The “strict constructionists” (the Jeffersonians or Anti-Federalists) believed that Clause 18 limited federal power. In their opinion, Congress could legitimately exercise only specified functions (Clauses 1-17); to do otherwise would be a violation of Amendment X.

Implied Powers 2Implied Powers 2

• President George Washington sided with Hamilton and supported the establishment of the First Bank of the United States. The Federalist position regarding “implied powers” became part of the national fabric largely through the decisions of the U.S. Supreme Court under John Marshall.

• Examples of implied powers are vast:– EPA– Interstate highway system– NASA

State vs. Federal PowersState vs. Federal Powers• There are two types of state powers in relation to the

federal government:– Concurrent– Reserved

• Concurrent powers are those exercised jointly with the federal government– Taxes– Environmental protection

• Reserved powers are those reserved to the states under the 10th Amendment – “the powers not delegated to the U.S. by the Constitution nor

prohibited by it to the states, are reserved to the states respectively, or to the people”

– Tension with the elastic clause

The Evolution of FederalismThe Evolution of Federalism

• Constitution left exact nature of balance between states and national government vague by necessity --- states had to be given some power– Constitution had to be ratified by states– At same time, founders clearly wanted a

more powerful, more flexible national government than what they had experienced under the Article of Confederation

Two Theories of FederalismTwo Theories of Federalism

• There were two competing theories of how federalism should operate in the early days of the republic:– Dual Federalism– Cooperative Federalism

Dual FederalismDual Federalism

• Constitution was a compact among the states—not the people– Declaration of Independence: ““That these United

Colonies are, and of Right ougt to be Free and Independent States”

• states are not subordinate to the national government, but rather exist dually on the same level with it.

• Implications– States are supreme in some spheres– States are free to leave the Union at their own volition

Cooperative FederalismCooperative Federalism

• Constitution is a social contract among the people (see preamble)

• As such the national government enjoys the people’s loyalty directly

• Implications– States are subservient to the federal order– States are not free to secede

The March of HistoryThe March of History

• Historical developments resolved the issue in favor of cooperative federalism

• Five crucial historical factors played a role in cooperative federalism becoming the dominant view of federal power– Chief Justice John Marshall– Civil War– Era of the Robber Barons– New Deal– Civil Rights Era

John MarshallJohn Marshall• Marshall was Chief Justice of the Supreme

Court (1801- 1835) and is widely viewed as the most influential justice of the Supreme Court in history.

• Marshall was a Federalist with a strong belief in the Union and in the supremacy of the national government.

• Marshall authored several important court opinions that consolidated the power of the federal government.– McCulloch v. Maryland (1819) – Cohens v. Virginia (1821) – Gibbons v. Ogden (1824)

Civil WarCivil War• Several factors played a part in leading to the

civil war, but among them were– The march of slavery to the West– An unintended consequence of the Hamiltonian tariff

structure• . based on their reading of Constitution,

Southerners believed they had right to nullify acts of Congress, and to interpose themselves between national government and state citizens – see Jefferson and Madison’s Virginia Resolution and

Kentucky Resolution in reaction to Alien and Sedition Act

Civil War ContinuedCivil War Continued

• When this escalated to secession, it began to interfere with nation’s inherent powers

• The Union victory ended the strong form of ‘dual federalism’ as a viable view on federal/state power.

• The Civil War was the first modern war– Clauswitzian ‘all out’ war– Increased federal involvement in economy

Robber BaronsRobber Barons• With the end of the Civil War, business boomed and, as

civilization pushed West and the frontier closed, more and more commerce was across state lines.

• Set up difficulties for individual states in terms of regulating their economies

• Various problems such as child labor, unsafe workplaces, monopolies, and pollution led to increasing demand for federal involvement.

• As a result we get federal legislation aimed at providing solutions:– anti-trust laws (TR)– -labor/union support– -child labor laws– -laws regarding sanitary food preparation

Great Depression / New DealGreat Depression / New Deal• Along the same lines of the problems of the Robber

Baron era--but to an even greater degree--were the demands on government precipitated by the Great Depression.– Millions of unemployed workers– Banks failed– unemployment soared from 3% to as high as 25%– profits plunged, prices for commodities (like farm crops) fell

sharply, new construction almost stopped, and few new businesses were opened.

– there were drastic drops in Gross Domestic Product (GDP), industrial production, and stock market share prices.

• The Wall Street Crash of 1929 brought matters to a head.

New Deal (con’t)New Deal (con’t)• Hoover’s government was seen as largely ineffectual• FDR nationalized the problem – set up the government

as the principle source of relief• Substantially based on the economic theories of John

Maynard Keynes advocating demand-side government stimulus.– 1936: General Theory of Employment, Interest, and Money

• This marked the birth of the welfare state in America– Minimum wage– Maximum hours– Social Security

• By end of WWII, the federal government was the manager of the national economy. – Employment Act of 1946

Civil Rights EraCivil Rights Era• The problems sown in the aftermath of the Civil War, in

the 1868 14th amendment, were inherent to the struggle for civil rights in the 20th century.– No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

• Strauder v. West Virginia– First case under the equal protection clause– Held that black men could not be barred from juries– However Virgina v. Rives permitted exclusionary systems

Going BackwardGoing Backward

• Plessy v. Ferguson– Created the “separate but equal” standard

• Southern states treated Blacks as second-class citizens

• Becomes politically problematic:– FDR needs Black swing votes in New

England and Midwest• Also became philosophically problematic

– Cold War rationale

The Road to RedemptionThe Road to Redemption• Southern states were reluctant to change, so

progress required federal involvement.• Four key federal actions:

– Smith v. Allwright (1944)– Brown v. Board of Education of Topeka, Kansas

(1954)– Civil Rights Act of 1964– Voting Rights Act of 1965

• The result of these crises was a consolidation of power in the federal government and increasing role for that government in the economy and society.