2.3: The Role of the States in the American Federal System
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In keeping with the spirit of federalism, and the idea that certain things are best done at the state and local levels, the United States Constitution allocates certain responsibilities to the states. These primarily concern the right to vote and the running of elections to the U.S. Congress and the presidency. The implementation of these are then handed down to the local levels, primarily the counties, that are then responsible for registering voters, conducting elections, and tabulating results (Figure 2.3.3).
This should not be surprising since the constitution was written by delegates sent from the states. Retaining power over those who are elected to national office, in addition to who was able to vote, were two principle ways states could retain power overt the national government. These and other roles the states are given in the United States Constitution have been modified by later amendments.
Legislative Power and the States
The number of representatives in the U.S. House of Representatives is apportioned to each state according to their population as determined in a census held every ten years. Two senators are elected from each state to the U.S. Senate.
House of Representatives
The U.S. Constitution grants significant power over Congress to the state legislatures. Until the ratification of the Fifteenth Amendment following the Civil War, the state controlled who could vote and guaranteed that if you could vote for representatives to the state legislature, you could vote for representatives to the U.S. House of Representatives. The Fifteenth Amendment was passed to prevent states from denying the right to vote based on “race, color, or previous condition of servitude.”\(^{21}\) These amendments also delegated to Congress the power to enforce these amendments. States can still place limits on voting beyond these specific categories. Texas continues to limit voting for those with felony convictions who have yet to complete their sentences.
The number of representatives in the U.S. House of Representatives is apportioned to each state according to their population as determined in a census held every ten years. Based on the most recent 2020 census, Texas will add two seats to its congressional delegation. Once the census has been counted, it is then the responsibility of each state legislature to draw the districts each representative will be elected from and then represent. Legislators long ago discovered that districts can be drawn in ways that can influence the elections results. This process has since been called gerrymandering, and it can be used to minimize the power of groups based on Party membership. The Equal Protection Clause of the Fourteenth Amendment, added to the Constitution after the Civil War, establishes “equal protection” for all citizens:
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. \(^{22}\)
The Equal Protection Clause has been interpreted to prevent the states from drawing districts in a manner that is discriminatory in regards to race. Claims continue that redistricting has been used to abridge rights based on race, however, and controversy continues regarding the redistricting practice overall.
The Senate
As originally designed, the United States Senate was to represent the interests of the governments of the states. The people of the states were represented in the House, which is why they were directly elected. This is why U.S. senators were initially selected by the legislatures of each of the states. Two per state, each in one of three classes elected for overlapping six year terms. Political disputes within some states led to some positions remaining vacant for long periods of time. This, along with efforts to enhance the connection between the general population and elected officials led to the passage of the Seventeenth Amendment and the direct election of senators.
The direct influence of the states remains in the process for filling vacancies. The governor of the state can make a temporary replacement, but then must call a special election to fill out the rest of the term. The governor has no power to make a similar replacement for the House of Representatives. All they can do is make call a special election which allows the people of the district to make the replacement.
Elections
Section 4 of Article 1 of the U.S. Constitution expressly delegates the power to run congressional elections to the states. They have the power to pass and enforce all laws related to elections, these can be found in the Texas Elections Code. This makes an important point clear: There is no such things as a national election. There are indeed elections to national office, but these are conducted by the states, though they must abide by rules passed by the national government. In addition, both chambers of Congress can review the qualifications of those elected by the states, as well as the circumstances surrounding their elections, to determine whether they should be allowed to hold office. Congress can refuse to sit those they find illegible.
Executive Power: Presidential Electors and State Militias
As with congressional elections, the selection of the presidents is up to the states. They do so by selecting presidential electors every four years, in whatever manner they deem appropriate. Their votes are sent to the Senate to be counted in early January following the convening of a newly elected Senate. States are also responsible for creating militias that are subject to be called forth by the national government under the authority of the president acting as commander in chief.
Jurisdiction of the National Courts
Even those concerned that the United States Constitution gave too much power to the national government agreed with the need for a national judiciary. This allowed for the reconciliation of disputes involving states. The court’s jurisdiction included cases involving lawsuits between states, and those between the national and state governments. Texas habitually sues the national government for what it sees as infractions of its rights, and the national government often sues Texas for non-compliance with national laws and regulations.
More controversially, the U.S. Constitution allows citizens in one state to sue their state in the federal courts. In the original constitution, citizens of one state could sue other state governments in federal courts. After an unsuccessful attempt by a citizen of North Carolina to collect after filing suit against the state of Georgia for payment of revolutionary war debt, the Eleventh Amendment was ratified, which disallowed the practice.
Citizens can still sue their own states, however, for the violation of federal laws and constitutional rights. Many of the landmark cases involving civil rights violations were initiated in Texas by African-American, Latino, and LGBTQ citizens alleging state violations of nationally defined rights, primarily the denial of the equal protection of the laws under the Fourteenth Amendment. Over its history, the government of Texas has been sued for not upholding the Fourteenth Amendment. Some examples include: Smith v. Allwright (1944), which made racial discrimination illegal for political parties; Sweatt v. Painter (1950), which forced the University of Texas to admit African Americans to its law school; Roe v. Wade (1973), which protected a woman’s right to choose an abortion; and Lawrence v. Texas (2003), which legalized consensual sexual intimacy by those of the same sex.
In recent years some states, including Texas, have pushed a doctrine called state sovereign immunity. State sovereign immunity holds that as sovereign entities only the state itself can allow lawsuits against it as remedies for violations of rights. The national government cannot. This legal tactic has had limited success. The state of Maine was able to push back against a lawsuit filed against it in federal court by prison guards alleging violations of overtime pay as required by the Fair Labor Standards Act of 1938. However, the state of Tennessee was unable to do so when sued for violations of the Americans with Disabilities Act by individuals with disabilities who had to crawl up several flights of stairs because the courthouse where their cases were being heard lacked elevators.
What Do States Owe Each Other?
An entire article in the U.S. Constitution—Article 4—is dedicated to the responsibilities each state has to each other, responsibilities that are enforceable by the national government. It outlines the responsibilities states have to each other and the guarantees they have from the national government.
Full Faith and Credit
The public acts, records, and judicial proceedings entered into in any one state have to be respected by all other states. This is to ensure consistency with all the legal decisions made across the nation. One person cannot receive an unsatisfactory decision on one state, and then move to another to have it overturned. It can also lead to controversy, as it did when Texas refused to recognize same sex marriages performed in other states until required to do so by the United State Supreme Court.
Privileges and Immunities
The American federal system begins with the premise that people have fundamental rights and the purpose of a government is to secure them. The phrase “privileges and immunities”\(^{23}\) loosely refers to the fundamental rights possessed by Americans, which means states cannot interfere with travel from state to state, or discriminate between citizens and noncitizens of the state in employment, taxation, or the acquisition of property. This can also include the right to access governing institutions. Those that are generally available across the nation cannot be restricted to individuals by any state.
Delivering Up Fugitives
No state can set itself up as a safe space for criminals fleeing from any other state. If requested by the governor of the state where the crime was committed, the state where the criminal resides much be extradited. Until the ratification of the Thirteenth Amendment, this also applied to people escaping enslavement and indentured servitude.
Furthermore, the national constitution allows for the addition of new states, ensures the preservation of existing state boundaries, and guarantees to every state a republican form of government, and security from insurrections and invasions. It is also made clear that the federal government can pass all laws necessary to rule in federal territories. the occasional readjustment of the relationship between the national and state governments.
- U.S. Const. amend XV, § 1.
- U.S. Const amend XIV, § 2
- U.S. Const art IV, § 2