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2.5: A Federal Republic

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    “Over time, federalism forces politicians on both sides of the aisle to do what they are supposed to do— politick, find common ground, and negotiate a compromise that no one likes but everyone can tolerate.”

    –Heather K. Gerkin (1)

    A Federal Republic is Fairly Uncommon

    The American political system is a federal republic. A republic is a political system in which supreme authority rests with the people, who elect representatives to make decisions. Thus, a republic differs from a monarchy in which authority rests with a king or queen. Most of the world’s political systems are republics, at least in name. Those in which a single party or very small group of people are actually in charge might still call themselves republics, but only those that vest sovereignty with the people are true republics.

    Federalism is not a common governing system. Of the nearly 200 countries in the world, only about two dozen divide power and sovereignty between a central government and subordinate governments. In addition to the United States, other federal systems include Canada, Mexico, Brazil, Nigeria, India, and Germany. A rule of thumb is that large geographically and culturally diverse countries are more likely to have federal systems, but most countries do not. The vast majority of countries rely on a unitary system of governance.

    Struggles Over Federalism at the Constitutional Convention

    The U.S. Constitution created the first modern federal system. Up until 1787, the political philosophy of shared sovereignty—states and the central government would share authority over the same territory—hadn’t really been considered. It wasn’t practical or politically feasible for the Constitution’s writers to make the move from the Articles of Confederation all the way to a unitary system with the central government as the sole sovereign. For one thing, the transportation and communication systems were simply inadequate to support a unitary political system that stretched from Maine to Georgia. Regional differences were too great for one set of laws to fit all matters affecting so large a territory. Moreover, there was no support among the delegates or the population to drastically reduce state power and create a unitary government.

    Almost all the delegates to the convention ended up being federalists—that is, they supported the Constitution—but they differed on how much power to give to the central government. Political scientist David Brian Robertson distinguishes between the narrow nationalists and the broad nationalists. Narrow nationalists included people like Roger Sherman, Oliver Ellsworth and most of the delegates from the small states, who wanted to give the national government limited and well-defined powers. Broad nationalists like James Madison, Alexander Hamilton, James Wilson, and Gouverneur Morris, wanted to give the national government more expansive powers. (2) For example, Madison and the broad nationalists proposed that the national government have a legislative veto over state laws. This would mean that majority votes in Congress would allow the national government to nullify state public policies—not because they were unconstitutional, per se, but because the national legislators thought them unwise. That proposal was defeated. In the end, the broad and the narrow nationalists compromised on modern federalism: shared sovereignty between the central government and the states, central government’s enumerated powers, powers reserved to the states, limits on state power, and the Supremacy Clause combined with the Supreme Court, which implied that state laws could be struck down on constitutional rather than policy grounds.

    Balancing Federal and State Power

    The Anti-Federalists may have lost the debate over ratification, but echoes of the Federalist/Anti-Federalist argument can be heard all the time in contemporary American politics as clashes over power continue. And what is even more interesting, the arguments often defy ideological categories. One would think that conservatives would consistently oppose central government’s power while progressives—aka liberals—would consistently support it. For example, in response to the 1950s and 60s civil rights movement, both Democrat and Republican conservatives opposed the central government exerting authority, while liberals embraced it. On the other hand, conservatives have moved to increase the central government’s power to tap phone calls and internet activity, to dictate educational policy, and to define the terms of marriage, a power that had always been a state responsibility. Of course, the Supreme Court struck down the conservative-inspired federal definition of marriage that discriminated against gay couples. Moreover, conservatives have wanted to empower states to control environmental regulations, knowing that large multi-national corporations can more easily sway most state legislatures into setting lower standards. Sometimes that backfires, such as when California led several states to evade the Trump administration’s attempt to weaken automobile emission standards. (3)

    The Supreme Court case McCulloch v. Maryland (1819) set the stage for central government to expand power. Much of what the central government does is tied to its ability to use the Necessary and Proper Clause to extend the reach of one of its enumerated powers. This action is especially true in government regulation, justified under Congress’ power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

    Thanks to McCulloch v. Maryland (1819), Congress has often used the Commerce Clause in conjunction with the Necessary and Proper Clause to expand central government power. Recently, however, the Supreme Court has been unwilling to extend federal power tied to the Commerce Clause. For instance, the Court struck down the Violence Against Women Act in 2000 because the majority felt that the central government was unjustifiably intruding into the states’ prerogatives and that the Commerce Clause did not entitle the federal government to allow women to sue in federal court for gender-related violence. (4) Similar future rulings are possible because the Court’s conservative majority is more likely to endorse limiting central government’s authority regarding social welfare or environmental regulation.

    How States Interact under the Constitution

    The Constitution manages how states interact with each other. Four provisions of the Constitution are important, although one became irrelevant when slavery was abolished.

    Article IV, section 1 contains the Full Faith and Credit Clause: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” This statement opens the door to all sorts of interesting possibilities. Consider the days before the Supreme Court struck down the Defense of Marriage Act, which allowed states to refuse to acknowledge gay marriages performed in other states. Gay couples who married in permissive states and who moved to states that banned gay marriage were suddenly no longer married, despite what the full faith and credit clause said.

    Privileges and Immunities—Article IV, section 2 reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” As free men and women traveled out of their state, other states were obligated not to discriminate against them with respect to civil rights. But the nondiscrimination terms were set by the state being visited. As Ahkil Amar has put it, “If a free black man from Massachusetts went to Virginia, he could be held to whatever rules Virginia applied to its own free black adult males. Out-of-state women would get the civil rights of in-state women; so, too, with children.” (5) When determining whether to protect citizenship privileges across state lines, the Supreme Court looks at whether the privilege is “sufficiently basic to the livelihood of the Nation,” and then at whether a limitation of that privilege is related to a substantial interest the state is asserting. For example, the Court has held that states may restrict Freedom of Information requests to its own citizens. (6)

    Extradition—Article IV, section 2 goes on to say that “A person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the Crime.” This article prevents people from fleeing justice across state lines. It allows interstate extradition.

    Runaway Slaves—Finally, Article IV, section 2 says that “No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to who such Service or Labour may be due.” This section is one of three places in the Constitution that refers to slaves and slavery without using those exact words. This clause forbade Northern states from freeing a slave who had fled from the South, and pledged to give the slave back to his/her master if the master came to claim the slave.

    The Advantages of Federalism

    Federalism has several advantages.

    • serves as laboratories of democracy, an idea put forth by Supreme Court Justice Louis Brandeis in 1932. He wrote that “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.”(7) States have experimented with welfare policies, pollution control policies, laws against child labor, laws allowing doctor-assisted euthanasia, legalizing marijuana, capital punishment, and so forth. Some state experiments have been translated into national policy, such as Wisconsin’s 1932 initiative on unemployment compensation. The COVID-19 pandemic illustrated how different states responded to the public health challenge and the possibilities for re-opening their economies following the quarantines.
    COVID Cases Map of United States
    • allows for regional differences in a country as large and diverse as the United States. Without federalism, policies in Connecticut, Louisiana, and Kansas would essentially be the same. Large, diverse nation-states tend to find federalism attractive precisely because it allows regional political subcultures to develop that reflect the local population’s desires. One state may want to execute murderers, while another may not. One state might want to make access to abortion very difficult, while another might not.
    • states often serve as training grounds for national-level politicians. Many representatives, senators, and presidents develop expertise and networks at the state level before moving on to federal government positions. Because the states have dual sovereignty with the central government, state and local politicians don’t just implement policies decided by Washington. Thus, they often bring a wealth of experience with respect to how central government policies impact states.
    • brings government closer to the people and gives them ample opportunities to participate. Important decisions get made at the state and local levels, which are often more accessible and responsive to local pressure groups. New parties have an easier time starting at the local level. Reformers who want to take existing parties in new directions can also begin that process at the local level.

    The Disadvantages of Federalism

    Despite the above advantages, federalism is also problematic. Politics are fragmented in a federal system. When you count the total number of discrete governments in this country—including the central government, states, cities and towns, counties, school districts, and a myriad of special districts—there are nearly 88,000 of them! Who is responsible for what? How can any citizen keep up with issues at multiple levels? Can they cast informed votes in presidential, congressional, gubernatorial, state legislative, city, county, school district, and water district elections? What about places where the judges are elected?

    In federal systems, state and local governments’ purported closeness and accessibility is often a mirage. For one thing, turnout rates in state and local elections are often considerably lower than in national races. State and local governments also tend to listen intently to local economic interests that may or may not have local people’s interests in mind. And because state and local politics gets very little media attention, policies are more likely to be passed there without being properly scrutinized and considered.

    The federal nature of the U.S. system also allows large economic interests to play states off against each other. Very often, corporations will announce that they plan to build a new factory somewhere in the United States. They invite states to compete against each other, then states offer the company incentive packages that may include reduced taxes, free land, or developed infrastructure. The company chooses the best offer, which means that the “winning” state pays dearly for whatever new jobs are created. It’s often a fool’s bargain because taxes are increased or services are cut on ordinary people to keep the corporations happy. (8)

    Finally, federalism has sometimes allowed a few states to block initiatives that had majority support. Take the case of education equality. In 1954, the Supreme Court ruled that segregated schools were unconstitutional, but because education is primarily a local responsibility, Southern school districts defied the Court’s ruling in Brown v. Board of Education. Even ten years after the case was decided, most school districts in the South were still racially segregated.

    Federal Grants and Mandates

    The federal government** provides a tremendous amount of money to state and local governments. According to 2018 official records, this amount totaled over $696 billion. (10) Federal money comes to states in two basic forms.

    1. Categorical grants provide money to states and local governments to spend on specific delineated categories or purposes. Categorical grants come with certain strings. For instance, states or local governments receiving the grants must abide by federal nondiscrimination laws, and they may have to pay wages at certain levels. There are two types of categorical grants.
      1. Project grants are open on a competitive basis and require an often elaborate application process. Indeed, many entities such as state governments, city governments, and colleges employ people to draft grant applications.
      2. Formula grants are pots of money that get distributed to state and local governments based on some pre-established formula, which might entail giving money based on population, per capita income, chance of being hit by terrorists, or some other such reasonable criteria.
    2. Block grants are the second form of federal money that state and local governments receive. Block grants are looser than categorical grants. They grant states money to use for a broad public policy area, such as the welfare block grants that replaced existing federal welfare programs in the mid-1990s. State governors and legislators tend to like block grants because they prefer the accompanying freedom to design their own solutions to social problems.

    By giving money to states and local governments, the federal government gains leverage over some aspects of state policies. For example, in the 1980s, the federal government made it clear that highway construction and repair money would be contingent on states raising their minimum drinking age to twenty-one. Needless to say, the minimum age for purchasing alcohol is twenty-one across the land.

    The federal government issues federal mandates, which command that states undertake certain public policies or enforce certain restrictions. Very often, states cry that these requirements are unfunded mandates, meaning that states must pick up the bill for what is essentially a decision made in Washington, D.C. A great example is the No Child Left Behind Act of 2001, which enforced new performance standards on individual schools and school districts. States complained that the federal government did not provide nearly enough money to restructure curricula, target struggling students, administer tests, and hire qualified teachers. Unfunded mandates also affect private companies. For example, the Clean Air Act requires energy companies to buy expensive equipment to mitigate pollution.

    References and Notes

    1. Quoted in Conor Friedersdorf, “Federalism is Dead. Long Live Federalism,” The Atlantic. June 28, 2017.
    2. David Brian Robertson, The Original Compromise. What the Constitution’s Framers Were Really Thinking. New York: Oxford University Press, 2013. Pages 15-17 and Chapter 13.
    3. Lysette Voytko, “Here’s How California Derailed Trump’s Auto Emissions Rollbacks,” Forbes. August 20, 2019.
    4. United States v. Morrison (2000).
    5. Akhil Reed Amar, America’s Constitution: A Biography. New York: Random House, 2005. Page 253.
    6. McBurney v. Young (2013) discussed in Harvard Law Review. November 2013. Volume 127, Issue 1. Pages 208-217.
    7. Justice Louis Brandeis in New State Ice Company v. Liebmann (1932).
    8. Bryce Covert, “The Enduring Scam of Corporate Tax Breaks,” The New Republic. September 28, 2018. Here.
    9. **Normally, when someone says “the federal government,” they mean the central government based in Washington, D. C. That is how the phrase is used in this text.
    10. Office of Management and Budget. Historical Tables. Here.

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