2.2: What Is Federalism?

Federalism in the United States is a division of the powers and function of government into three layers: the national (or federal), state, and local. Each layer of government has defined responsibilities, though many overlap. The national government, as originally established and expressed in the Constitution, focused on the development of interstate and international commerce, and internal and external security. States were responsible for everything else, primarily what are called the police powers, meaning the protection of the health, safety, welfare, and morals of the community.

In order to assist with the implementation of these laws states have created a large number of local governments. This results in a highly complex governing system. It includes a national government, fifty state governments, and over 90,000 local governments. With this many governments, it is important for the relationship to be established between each. That is the purpose of the U.S. Constitution, the state constitutions, and the city charters, to clarify their relative authority, responsibilities, and functions. The relationship between these levels of government—the national, state, and local—vary depending upon their relationship to the people.

Under the current constitutional structure, the governments of the nation and state are based on the authority of the people. In governments based on the authority of the people— called popular sovereignty and discussed earlier in the chapter—the power rests directly with people. These governments are "ordained and established” by the people.\(^{11}\) Those that are created by another government, meaning that they are created by that government and not the people, are subservient to that government. For example, local governments are either created by the states, or in the case of cities, allowed to govern themselves by the states. The precise nature of the relationship can take three forms: unitary, confederacy, and federal. There are aspects of each in American government.

Unitary Systems

In a unitary system, a central government has sovereign power and creates component governments for various purposes, mostly to actually enforce the law. For example, the relationship that existed between the British monarch and the American colonies was unitary. The colonies were each established under the authority of charters—documents that allowed the colonies the legal right to exist as granted by the monarch. The charters determined how they would be governed and the nature of their powers. Encroachments by the crown over the colonies in the late eighteenth century ultimately led to the revolutionary war and independence. The charters then provided the basis for the new state constitutions. Given the experiences the new states had as colonies under the British crown, they had little interest in reestablishing a unitary system. They were independent from each other, and they wished to maintain that. The Declaration of Independence concludes with the following statement:

These United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved.\(^{12}\) (emphasis added)

They had little interest in creating an independent national government at all. Instead they created a confederate government.

Confederal Systems

In a confederal system, the relationship between a central government and its component parts is reversed. The component parts of a governing system create, and have control over, a central government that is charged with coordinating their mutual relations. This was the de facto relationship once the colonies declared themselves independent states in the Declaration of Independence (Figure 2.2.2). Each state was independent, including in its ability to coin money, conduct international treaties, and create a military. Agreements among the states were voluntary. While the First Continental Congress met to cooperatively organize resistance to Britain, the Second Continental Congress drafted the Articles of Confederation that became the legal relationship that existed under the Articles of Confederation until the U.S. Constitution in 1789 replaced the Articles of Confederation. The Articles only established a Congress with no independent power. It was composed of teams of delegates, sent by the legislatures of each state for yearly terms. These teams could be recalled and replaced by those legislatures at any time, meaning the delegates had no independent voice. They spoke for the legislatures and could be punished if they misspoke.

Figure \(\PageIndex{2}\): Benjamin Franklin created this woodcut of a segmented snake with the initials of the original thirteen colonies to exhort them to join together to fight for independence. SOURCE: Library of Congress

In addition, there was no executive or judiciary on the national level. Any law passed by the national congress could only be implemented by the states, any disputes between the states could not be resolved by a neutral judicial institution, because none had been created. States had to work out disputes between them, and since the framework of the Articles did not facilitate resolution, an ad hoc meeting had to be called when necessary to find a solution. This unsatisfactory situation led to the request that state legislatures send delegates to Philadelphia in the summer of 1787 to revise the Articles at what became the Constitutional Convention.

At that meeting—held in secret—Virginia’s Edmund Randolph began by outlining the deficiencies of the confederated form of government, and in turn what a national government should do:

• provide security against foreign invasion;
• settle quarrels between the states;
• promote commerce;
• pushback on encroachments from the state;
• wield power over the states.

The Convention would scrap the Articles and build a new constitution from scratch premised on the claim that the power of the national government was equal to that of the states. This federal system that emerged from the Constitutional Convention is the system in operation today.

Federal Systems

Advocates for a federal system began with what was then the controversial claim that the national government rested on the authority of the people of the United States, just as each of the state governments rested on the authority of their respective people. The relevant language is contained in the preambles to both the U.S. and Texas constitutions:

• U.S. Constitution: “We the people …. ordain and establish this Constitution of the United States of America.”\(^{13}\)
• Texas Constitution: “We the people of Texas do ordain and establish this constitution.”\(^{14}\)

This language creates tension however. How would disputes be resolved between the national and state governments? To help address this tension, the United States Constitution contains a Supremacy Clause, which establishes that federal laws supersede state laws when they come into conflict. The Supremacy Clause is found in Article 6, Section 2:

This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.\(^{15}\)

In addition, Article 6, Section 3, of the U.S. Constitution requires state legislatures, executives, and judicial officers to swear an oath to support the national constitution:

The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution.\(^{16}\)

Neither the Supremacy Clause nor the loyalty oath confers absolute authority to the national government, however. They simple state that the allocation of power in the U.S. Constitution is authoritative.

Defining and Limiting Power

Despite the fact that the delegates met to establish a stronger national government, they did not intend to make the states powerless. The states were concerned that without specific limits on the national government, its powers would grow. James Madison and others who drafted the U.S. Constitution argued that this concern was unfounded given that the U.S. Constitution already limited national power:

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 former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. . . . The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.\(^{17}\)

But concerns were such that ten amendments were added to the original constitution, at the request of a number of states. the Tenth Amendment defined the allocation of powers within the federal system, and also included significant restrictions on the powers of the national government: “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.”\(^{18}\) While the states and the federal government share certain powers (called concurrent powers), the most common of which is the power to tax, the Tenth Amendment divides the powers between the states and the federal government, limiting the powers of the federal government to those that are either expressly delegated or implied in the U.S. Constitution itself. All else, according to the Tenth Amendment, is reserved to the states, not accounting for those powers that are expressly prohibited.

Delegated Powers

Delegated powers give specific powers to the branches of the national government and limit what the branches can do. If there is no constitutional grant of authority for the national government to engage in a specific enterprise, they cannot do it. The United States Constitution states what laws can be passed by Congress, clarifies the responsibilities of the president, and lists the types of cases that can be heard by the national courts. These include court cases brought by, or against, the states. Texas often brings lawsuits against the national government.

Implied Powers

Several of the clauses that delegate powers to Congress are highly specific, such as those relating to bankruptcy, post offices, pirates, and raising a navy. Some are not, and can be the subject of debate. These are the elastic clauses, and the powers that are based on them are called the implied powers. The three that stand out are the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause. The Necessary and Proper Clause allows the U.S. Congress to make laws that are “necessary and proper” to the national government carrying out its responsibilities.\(^{19}\) The Commerce Clause has been interpreted to allow for the national government to regulate interstate economic activity. The General Welfare Clause covers some of the largest federal programs in the United States: Social Security; Medicare; and Medicaid.

Reserved Powers

The reserved powers comprise anything a state chooses to do, as long as it is not prohibited to it by the U.S. Constitution. Proponents of an expanded view of the Tenth Amendment argue that there are benefits to allowing the states free reign to experiment with public policy. They can act as “laboratories of democracy”\(^{20}\) and allow policy options to be tested out. Texas was one of the first states to experiment with placing limits on non-economic (pain and suffering) damages as a result of lawsuits. Other states have experimented with legalizing marijuana.

Prohibited Powers

Federalism is based on the theory that different levels of government are best at doing different things. The U.S. Constitution includes explicitly prohibited powers that restrict the federal government from interfering in a state’s management of its responsibilities in protecting the health, welfare, and safety of its citizens. For example, it is a state’s responsibility to protect the safety of its citizens so policing falls to the states and the federal government cannot suspend habeas corpus (protection from unlawful imprisonment). By the same principle, the states cannot interfere with the affairs of the nation. In the United States, the national government was established to promote interstate and international commerce, and to provide internal and external security. Therefore, states are prohibited from interfering with those powers by coining money, entering into international treaties, or keeping troops in times of peace. But states were given the power to do most anything else.

Over the country’s history, twenty-seven amendments have been added to the United States Constitution that have placed further limits on the states.

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11. U.S. Const prmble.
12. Thomas Jefferson, et al,. Declaration of Independence, July 4, 1776, https://www.loc.gov/item/mtjbib000159/.
13. U.S. Const. pmbl
14. Tex. Const. pmbl.
15. U.S. Const. art VI, § 2.
16. U.S. Const. art VI, § 3
17. James Madison, Federalist Paper No. 45 ("The Alleged Danger From the Powers of the Union to the State Governments Considered"), 1788, https://guides.loc.gov/federalistpap...apper-25493409.
18. U.S. Const. amend X.
19. U.S. Const, art I, § 8.
20. New State Ice Co. v. Liebmann, 285 U.S. 262, Justice Louis Brandeis, dissent, 1932