3.1: Introduction

Figure \(\PageIndex{1}\): The American and Californian Flags (public domain; via pxhere)

Learning Objectives

• To analyze the critical constitutional issues regarding federalism.
• To describe the historical development of federalism.
• To develop our own opinions regarding three case studies about federalism.
• To develop our own political philosophies about federalism.

Introduction

Federalism matters. Walk down the street and arrive at a crosswalk. The ramp at the end of the sidewalk allows a disabled person to make their way across the intersection more easily due to the 1990 Americans with Disabilities Act enforced by the federal government. Go to a bar anywhere in the United States; you better be twenty-one. Congress could not mandate a national drinking age without running afoul of states’ reserved powers, but they made it a prerequisite for states to receive federal highway funds in 1984. Are you gay or lesbian and want to get married? For a time, states could decide for themselves if they wanted to have same-sex marriages or accept them from other states. Then, in 2015, the US Supreme Court (Obergefell v. Hodges) directed that all states license marriage as a union between two people. These examples show the impact of federal laws on the states.

Yet, there are many areas where state laws dominate. Want to smoke marijuana legally? It is legal in many states for medicinal purposes, with a smaller number allowing recreational smoking. How about firearms? Where can you walk down the street carrying a loaded handgun in a holster? Open carry is permitted in many states but not in California, except in a few rural counties that only allow it with a permit. Then, there are all the laws governing abortion. In the more liberal states, there is no required waiting period, no need for parental notification if the mother is underage, and the state government will pay for the abortion if the mother cannot afford to do so. However, go to a conservative state, especially in the South, where there are few abortion clinics, waiting periods, and counseling are required, and no state aid is available. The point is that where we live matters. Laws vary by state because states have their own political cultures and traditions. The question is, to what extent should there be uniformity across the country? How “united” should the United States be?

In short, the concept of federalism may initially seem like a dry legalistic topic. However, federalism is fascinating because it is an intrinsically political topic regarding who should rule over what aspects of our lives: the states or the federal government. Let us review the critical constitutional issues and the history of federalism. Then, three case studies will help you develop your own points of view.