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Federalism

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A principle of government that defines the relationship between the central government at the national level and its constituent units at the regional, state, or local levels. Under this principle of government, power and authority is allocated between the national and local governmental units, such that each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared.

The term federalism is derived from the Latin root foedus, which means "formal agreement or covenant." It includes the interrelationships between the states as well as between the states and the federal government. Governance in the United States takes place at various levels and branches of government, which all take part in the decision-making process. From the U.S. Supreme Court to the smallest local government, a distribution of power allows all the entities of the system to work separately while still working together as a nation. Supreme Court justice Hugo L. Black wrote that federalism meant

a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. (Younger v. Harris, 401 U.S. 37, 91S. Ct. 746, 27 L. Ed. 2d 669 [1971])

The Constitution lists the legislative powers of the federal government. The Tenth Amendment protects the residual powers of the states: "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."

Contents

Checks and Balances

In Texas v. White 74 U.S. (7 Wall.) 700, 19L. Ed. 227 (1868), Justice salmon chase explained the necessity for the constitutional limitations that prevent concentration of power on either the state or national level: "[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union…. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

The Federalist Papers: The History of Federalism

The strongest arguments for federalism were written during the ratification of the U.S. Constitution. The federalist papers, a set of 85 essays written by Alexander Hamilton, James Madison, and John Jay, were originally published in 1787 in New York under the pen name Publius. They were meant to explain the advantages of the Constitution and to persuade New York citizens to ratify it. The essays pointed out that the Constitution would allow the principle of popular sovereignty to continue and would help prevent internal dissolution and uneven distribution of power—problems that contributed to the failure of the articles of confederation.

The key to the endurance of the Constitution, according to Madison, was that even in a democracy, the majority must not be allowed too much power; it needs to be held in check so that individual and state freedoms will be preserved. Indeed, English writer Edmund Burke said that in a "democracy, the majority of citizens is capable of exercising the most cruel oppression on the minority."

One check in the political process supported by the Constitution is provided by the Supreme Court, which is politically insulated. This check, as explained by Madison,"guarantee[s] the right of individuals, even the most obnoxious, to vote, speak and to be treated fairly and with respect and dignity." The function of the judicial branch, then, was to preserve the liberty of the citizens and the states. The principle of federalism states that the greatest danger to liberty is the majority. These rights were decided "according to the rules of justice and the rights of the minor party, [not] by the superior force of an interested and overbearing majority" (The Federalist no. 10, p. 77). Although the Supreme Court is part of the federal government, it is separate from the legislative and executive branches, and it functions as a check on the federal and state governments.

The Constitution was influenced by two major philosophies: federalism and nationalism. The federalists believed in a noncentralized government. They supported the idea of a strong national government that shared authority and power with strong state and local governments. The nationalists, or neofederalists, believed there should be a strong central government with absolute authority over the states.

When the founders were developing the Constitution, they had four goals. First, they wanted the government to be responsive to the citizens. Second, they wanted the political system to enhance, not discourage, interaction between the government and the governed. Third, they wanted the system to allow for the coexistence of political order and liberty. And finally, they wanted the system to provide a fair way of ensuring that civil justice and morality would flourish.

The Constitution as eventually ratified was labeled a bundle of compromises because it allowed for a strong central government but still conceded powers to the individual states. In The Federalist, no. 45, Madison said, "The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

The constitutional role of the states in the federal government is determined by four factors: (1) the provisions in the federal and state constitutions that either limit or guarantee the powers of the states in relation to the federal government; (2) the provisions in the Constitution that give the states a role in the makeup of the government; (3) the subsequent interpretation of both sets of provisions by the courts, especially the Supreme Court; and (4) the unwritten constitutional traditions that have informally evolved and have only recently been recognized by the federal or state constitutions or the courts.

Judicial Review

In the early 1990s and early 2000s, the U. S. Supreme Court continued to revisit and reshape the concept of federalism in cases pitting the powers and prerogatives of the state and federal government against each other. Perhaps the biggest changes had occurred in the judicial branch, with its power of judicial review. Judicial review allows the courts to invalidate acts of the legislative or executive branches if the courts determine that the acts are unconstitutional. The Supreme Court first exercised judicial review of national legislation in the landmark case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). The decision, written by Chief Justice John Marshall, followed the principles of Publius in The Federalist, no. 78. The Federalist Papers were based on the principle that the Articles of Confederation were inadequate. The ideas set forth in The Federalist Papers challenged those articles and proposed a new governmental style for the Union.

Judges have five sources of guidance for interpreting the Constitution: the original intention of the founders; arguments based on the theory of the Constitution; arguments based on the Constitution's structure; arguments based on judicial precedent; and arguments based on moral, social, and political values. Across the centuries, several justices have attempted to interpret the original, often vague intention of a document written in the late 1700s. Justice Benjamin N. Cardozo said, "The great generalities of the constitution have a content and a significance that vary from age to age." Justice joseph mckenna wrote, "Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions" (Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 [1910]).

Although it may seem unlikely that a federal body would favor states' rights over federal, it is not uncommon. For example, in the 1991 case of Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640, the Supreme Court chose not to interfere with a state's jurisdiction. Roger Keith Coleman had received a death sentence, which he challenged in the Virginia state and federal courts on the basis that he was an innocent man being executed for a crime he did not commit. The case reached the U.S. Supreme Court, where the majority said,"This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus." The Court ruled that because the state court's decision against Coleman was based on independent and adequate state grounds, it would not review the determination. This deference to state laws is based on the idea that states are separate sovereigns with autonomy that must be taken into consideration.

Separation of Powers and The Plain Statement Rule

Another key element of federalism is the principle of separation of powers. The Constitution's definition of separation of powers is not specific, and the Supreme Court has struggled to interpret it. Separation of powers is based on the premise that there are three branches of federal government, each with its own enumerated powers. For example, the executive branch, which includes the president, has veto power; the Senate and Congress make up the legislative branch and have the power of advice and consent over the appointment of executive and judicial officers; and the courts make up the judicial branch and have the power of judicial review.

The separation-of-powers principle has had two interpretations. The first, formalism, is rooted in the idea that the Constitution's goal was to divide the new federal government into three defined categories, each with its own set of powers. The second interpretation, functionalism, is based on the belief that the three branches of government are not clearly delineated. Functionalists believe that the goal of separation of powers is to ensure that each branch retains only as much power as is necessary for it to act as a check on the other branches.

Although the interpretations appear similar, they differ in terms of what constitutes a breach of the separation of powers. A breach under formalism would be a breach under functionalism only if the power in question either infringed on the core function of another branch or increased another branch's power.

In Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991), Justice sandra day o'connor wrote that the Constitution establishes a system of dual sovereignty that balances the power between the states and the federal government. At the same time, however, the Supremacy Clause (U.S. Const. art. VI, § 2) gives the federal government "a decided advantage in this delicate balance" by guaranteeing that Congress can make the states do what it wants if it acts within its constitutional delegation of power. O'Connor also said that the Court must assume that Congress does not "exercise lightly" this "extraordinary power" to legislate, even in areas traditionally regulated by the states. The people of a state establish the structure of their government and the qualifications of those who exercise governmental authority. Such decisions are of the most "fundamental sort for a sovereign entity."

The Court in Gregory also applied the plain statement rule, requiring Congress to state clearly its intent when creating laws that may interfere with state government functions. The plain statement rule, under Gregory, serves as a check against federal regulation of the states. This rule has two tiers of inquiry: (1) Congress must clearly intend to extend a law to the states as states, and (2) Congress must outline which state activities and functions it is targeting within the sweep of federal law.

Conclusion

Federalism is the oldest form of government in the United States. The timelessness of the Constitution and the strength of the arguments presented by The Federalist Papers offer a clue to its endurance: the Founders wrote the Constitution so that it would always remain open to interpretation. Federalism's ambiguity has contributed to its longevity.

Further Readings

Boyer, Paul S. 2001. Oxford Companion to United States History. New York: Oxford Univ. Press.

Burke, Edmund. 1989. Reflections on the Revolution in France. Garden City, N.Y.: Doubleday.

Cardozo, Benjamin N. 1921. The Nation of the Judicial Process. New Haven, Conn.: Yale Univ. Press.

Corpus Juris Secundum. 2002. St. Paul, Minn.: West.

Dorsen, Norman. 1994."How American Judges Interpret the Bill of Rights." Constitutional Commentary 11 (fall).

"Federalism—Clear Congressional Mandate Required to Preempt State Law: Gregory v. Ashcroft." 1991. Harvard Law Review 105 (November).

McManamon, Mary Brigid. 1993. "Felix Frankfurter: The Architect of 'Our Federalism.'" Georgia Law Review 27 (spring).

Oxford Companion to American Law. 2002. New York: Oxford Univ. Press.

Savage, David G. 1995. "The Supreme Court Goes Back to Work." American Bar Association Journal 81 (October).

Tanielian, Matthew J. 1995. "Separation of Powers and the Supreme Court: One Doctrine, Two Visions." Administrative Law Journal of the American University. 8 (winter).

Vause, W. Gary. 1995."The Subsidiarity Principle in European Union Law—American Federalism Compared." Case Western Reserve Journal of International Law 27 (winter).

Wiessner, Siegfried. 1993. "Federalism: An Architecture for Freedom." New Europe Law Review 1 (spring).

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