We’re a Federation, Not a Nation   Leave a comment

Our Founders created a federal system of government. Federalism is the division of powers between a central government and regional governments. The United States was designed with a federal system of government where the states and national government separate powers within their own spheres of authority. This is in contrast to national governments, which have unitary systems retaining all sovereign power over state or regional governments. France has a unitary system. Canada, Germany and Switzerland have federal systems.

The Framers of the US Constitution sought to create a federal system that promotes strong national power in certain spheres, yet recognizes that the states are sovereign in other spheres. James Madison, the “father” of the Constitution, asserted in Federalist 46 that the states and national government “are in fact, but different agents and trustees of the people, constituted with different powers.” Alexander Hamilton explained in Federalist 28 that both levels of government would exercise authority to the citizens’ benefits, writing “If their (the peoples’) rights are invaded by either, they can make use of the other as the instrument of redress.”

However, it soon became clear that Hamilton and Madison had different ideas about how the national government should work in practice. Hamilton, along with other “federalists” including Washington, Adams, and Marshall, sought to implement an expansive interpretation of national powers at the states’ expense. Madison, along with other “states’ rights” advocates including Thomas Jefferson, sought to bolster state powers.

The U.S. Constitution delegates specific enumerated (or delegated) powers to the national government, while reserving other powers to the states. Article VI of the Constitution declares the laws of the national government deriving from the Constitution to be “the supreme law of the land” which the states must obey. The Tenth Amendment to the Constitution, a part of The Bill of Rights passed in 1791, attempted to limit national prerogatives over the states by declaring: “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

I don’t want to go all-Dictionary-Debbie here, but the words mean what they say and the definitions are fairly clear. There are powers “delegated” to the United States by the states. In other words, all power held by the United States is delegated by the states. There are powers “prohibited” to the United States by the states. In other words, there are things the federal government may not do because the states have said they may not. Any laws not specifically delegated or prohibited are “reserved” to the states or to the people. Pete Stark showed his lack of constitutional understanding when he declared that the Constitution allows the federal government to do pretty much anything it wants to do. The language is clear that the federal government is supposed to be dependent upon the states for its authority, which the states delegate to it.

Ours is a balanced federal system, however. While the Constitution carves out significant spheres of power for the states, it also contains several potential powers for the national government. These implied powers include Congress’s power under Article I, Section 8, to make laws that are “necessary and proper” for carrying out its enumerated powers. The president’s constitutional role as “commander in chief” has allowed presidents, including Lincoln, Franklin Roosevelt, George W. Bush, and now Barack Obama to claim emergency powers for the national government in times of national emergency. Finally, the Supreme Court’s original delegated powers in Article III were significantly enhanced by the case of Marbury v Madison (1802), where Chief Justice John Marshall first articulated the Court’s power to exercise judicial review, the power to strike down as unconstitutional acts of the national legislature and executive, as well as state actions. The power of judicial review makes the Supreme Court the arbiter of what the Constitution means on various questions, including federalism. Chief Justice Marshall defended a national-supremacy view of the Constitution in McCulloch v Maryland (1819) through a broad interpretation of its “necessary and proper” power. However, in Printz v United States (1997), the court invalidated federal law that required local police to conduct background checks on all gun purchasers, ruling that it violated the 10th Amendment. Justice Antonin Scalia wrote “The Federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a Federal regulatory program…. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

This ruling was consistent with our national history, for from the 1790s to the New Deal, the country operated under a truly federal system involving clearly enumerated powers between the national and state governments, and sovereignty in equal spheres – with the notable exception of the Civil War and Reconstruction.

Starting with passage of the federal income tax in 1916, there was a gradual growth of the national government and collaboration with the states on major national priorities through the use of revenue sharing. During the New Deal era, the national government began providing money to the states for specific purposes. In the 1960s, the national government began to encroach more heavily on state decision-making through costly permitting processes and specific requirement that don’t meet local needs, particular in the areas of environmental, education and energy regulation.

It has now reached the point where the federalism of our system is scarcely recognizable, but it is essential to understand that it is still the basis of the Constitution, because if America can be saved at all (and that is increasingly a hail-mary hope) it will be through rediscovering our federalist foundation.

Posted November 1, 2013 by aurorawatcherak in Constitutional Rights

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