FEDERALISM
A principle of government that defines the rela-
tionship between the central government at the
national level and its constituent units at the
regional, state, or local levels. Under this principle
of government, power and authority is allocated
between the national and local governmental
units, such that each unit is delegated a sphere of
power and authority only it can exercise, while
other powers must be shared.
The term federalism is derived from the
Latin root foedus, which means “formal agree-
ment or covenant.” It includes the interrelation-
ships between the states as well as between the
states and the federal government. Governance
in the United States takes place at various levels
and branches of government, which all take part
in the decision-making process. From the U.S.
Supreme Court to the smallest local govern-
ment, a distribution of power allows all the enti-
ties of the system to work separately while still
working together as a nation. Supreme Court
justice HUGO L. BLACK wrote that federalism
meant
a proper respect for state functions, a recog-
nition of the fact that the entire country is
made up of a Union of separate State govern-
ments, and a continuance of the belief that
the National Government will fare best if the
States and their institutions are left free to
perform their separate functions in their sep-
arate ways. (Younger v. Harris, 401 U.S. 37, 91
S. Ct. 746, 27 L. Ed. 2d 669 [1971])
The Constitution lists the legislative powers
of the federal government. The TENTH AMEND-
MENT protects the residual powers of the states:
“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.”
Checks and Balances
In TEXAS V. WHITE, 74 U.S. (7 Wall.) 700, 19
L. Ed. 227 (1868), Justice SALMON CHASE
explained the necessity for the constitutional
limitations that prevent concentration of power
on either the state or national level: “[T]he preservation of the States, and the maintenance of their governments, are as much within the
design and care of the Constitution, as the
preservation of the Union. . . . The Constitution,
in all its provisions, looks to an indestructible
Union, composed of indestructible States.”
The Federalist Papers: The History
of Federalism
The strongest arguments for federalism were
written during the ratification of the U.S. Constitution.
THE FEDERALIST PAPERS, a set of 85
essays written by ALEXANDER HAMILTON, JAMES
MADISON, and JOHN JAY, were originally published
in 1787 in New York under the pen name
Publius. They were meant to explain the advantages
of the Constitution and to persuade New
York citizens to ratify it. The essays pointed out
that the Constitution would allow the principle of
popular sovereignty to continue and would help
prevent internal dissolution and uneven distribution
of power—problems that contributed to the
failure of the ARTICLES OF CONFEDERATION.
The key to the endurance of the Constitution,
according to Madison, was that even in a
democracy, the majority must not be allowed
too much power; it needs to be held in check so
that individual and state freedoms will be preserved.
Indeed, English writer EDMUND BURKE said that in a “democracy, the majority of citizens
is capable of exercising the most cruel
oppression on the minority.”
One check in the political process supported
by the Constitution is provided by the Supreme
Court, which is politically insulated. This check,
as explained by Madison, “guarantee[s] the right
of individuals, even the most obnoxious, to vote,
speak and to be treated fairly and with respect
and dignity.” The function of the judicial
branch, then, was to preserve the liberty of the
citizens and the states. The principle of federalism
states that the greatest danger to liberty is
the majority. These rights were decided “according
to the rules of justice and the rights of the
minor party, [not] by the superior force of an
interested and overbearing majority” (The Federalist
no. 10, p. 77). Although the Supreme
Court is part of the federal government, it is separate
from the legislative and executive
branches, and it functions as a check on the federal
and state governments.
The Constitution was influenced by two
major philosophies: federalism and nationalism.
The federalists believed in a noncentralized government.
They supported the idea of a strong
national government that shared authority and
power with strong state and local governments.
The nationalists, or neofederalists, believed
there should be a strong central government
with absolute authority over the states.
When the founders were developing the
Constitution, they had four goals. First, they
wanted the government to be responsive to the
citizens. Second, they wanted the political system
to enhance, not discourage, interaction
between the government and the governed.
Third, they wanted the system to allow for the
coexistence of political order and liberty. And
finally, they wanted the system to provide a fair
way of ensuring that civil justice and morality
would flourish.
The Constitution as eventually ratified was
labeled a bundle of compromises because it
allowed for a strong central government but still
conceded powers to the individual states. In The
Federalist, no. 45, Madison said, “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 constitutional role of the states in the
federal government is determined by four factors:
(1) the provisions in the federal and state
constitutions that either limit or guarantee the
powers of the states in relation to the federal government; (2) the provisions in the Constitution
that give the states a role in the makeup of
the government; (3) the subsequent interpretation
of both sets of provisions by the courts,
especially the Supreme Court; and (4) the
unwritten constitutional traditions that have
informally evolved and have only recently been
recognized by the federal or state constitutions
or the courts.
Judicial Review
In the early 1990s and early 2000s, the U. S.
Supreme Court continued to revisit and reshape
the concept of federalism in cases pitting the
powers and prerogatives of the state and federal
government against each other. Perhaps the
biggest changes had occurred in the judicial
branch, with its power of JUDICIAL REVIEW.
Judicial review allows the courts to invalidate
acts of the legislative or executive branches if the
courts determine that the acts are unconstitutional.
The Supreme Court first exercised judicial
review of national legislation in the
landmark case of MARBURY V. MADISON, 5 U.S.
(1 Cranch) 137, 2 L. Ed. 60 (1803). The decision,
written by Chief Justice JOHN MARSHALL, followed
the principles of Publius in The Federalist,
no. 78. The Federalist Papers were based on the
principle that the Articles of Confederation were
inadequate. The ideas set forth in The Federalist
Papers challenged those articles and proposed a
new governmental style for the Union.
Judges have five sources of guidance for interpreting
the Constitution: the original intention of
the founders; arguments based on the theory of
the Constitution; arguments based on the Constitution’s
structure; arguments based on judicial
precedent; and arguments based on moral,
social, and political values. Across the centuries,
several justices have attempted to interpret the
original, often vague intention of a document
written in the late 1700s. Justice BENJAMIN N.
CARDOZO said, “The great generalities of the
constitution have a content and a significance
that vary from age to age.” Justice JOSEPH
MCKENNA wrote, “Time works changes, brings
into existence new conditions and purposes.
Therefore a principle, to be vital,must be capable
of wider application than the mischief which
gave it birth. This is peculiarly true of constitutions”
(Weems v. United States, 217 U.S. 349, 30 S.
Ct. 544, 54 L. Ed. 793 [1910]).
Although it may seem unlikely that a federal
body would favor states’ rights over federal, it is
not uncommon. For example, in the 1991 case of
Coleman v. Thompson, 501 U.S. 722, 111 S. Ct.
2546, 115 L. Ed. 2d 640, the Supreme Court chose
not to interfere with a state’s jurisdiction. Roger
Keith Coleman had received a death sentence,
which he challenged in the Virginia state and federal
courts on the basis that he was an innocent
man being executed for a crime he did not commit.
The case reached the U.S. Supreme Court,
where the majority said, “This is a case about federalism.
It concerns the respect that federal courts
owe the States and the States’ procedural rules
when reviewing the claims of state prisoners in
federal habeas corpus.” The Court ruled that
because the state court’s decision against Coleman
was based on independent and adequate
state grounds, it would not review the determination.
This deference to state laws is based on the
idea that states are separate sovereigns with
autonomy that must be taken into consideration.
Separation of Powers and The Plain
Statement Rule
Another key element of federalism is the
principle of SEPARATION OF POWERS. The Constitution’s
definition of separation of powers is
not specific, and the Supreme Court has struggled
to interpret it. Separation of powers is
based on the premise that there are three
branches of federal government, each with its
own enumerated powers. For example, the
EXECUTIVE BRANCH, which includes the president,
has VETO power; the Senate and Congress
make up the legislative branch and have the
power of advice and consent over the appointment
of executive and judicial officers; and the
courts make up the judicial branch and have the
power of judicial review.
The SEPARATION-OF-POWERS principle has
had two interpretations. The first, formalism, is
rooted in the idea that the Constitution’s goal
was to divide the new federal government into
three defined categories, each with its own set of
powers. The second interpretation, functionalism,
is based on the belief that the three
branches of government are not clearly delineated.
Functionalists believe that the goal of separation
of powers is to ensure that each branch
retains only as much power as is necessary for it
to act as a check on the other branches.
Although the interpretations appear similar,
they differ in terms of what constitutes a breach
of the separation of powers. A breach under formalism
would be a breach under functionalism only if the power in question either infringed on
the core function of another branch or increased
another branch’s power.
In Gregory v. Ashcroft, 501 U.S. 452, 111 S.
Ct. 2395, 115 L. Ed. 2d 410 (1991), Justice SANDRA
DAY O’CONNOR wrote that the Constitution
establishes a system of dual sovereignty that balances
the power between the states and the federal
government. At the same time, however, the
Supremacy Clause (U.S. Const. art. VI, § 2) gives
the federal government “a decided advantage in
this delicate balance” by guaranteeing that Congress
can make the states do what it wants if it
acts within its constitutional delegation of
power. O’Connor also said that the Court must
assume that Congress does not “exercise lightly”
this “extraordinary power” to legislate, even in
areas traditionally regulated by the states. The
people of a state establish the structure of their
government and the qualifications of those who
exercise governmental authority. Such decisions
are of the most “fundamental sort for a sovereign
entity.”
The Court in Gregory also applied the plain
statement rule, requiring Congress to state
clearly its intent when creating laws that may
interfere with state government functions. The
plain statement rule, under Gregory, serves as a
check against federal regulation of the states.
This rule has two tiers of inquiry: (1) Congress
must clearly intend to extend a law to the states
as states, and (2) Congress must outline which
state activities and functions it is targeting
within the sweep of federal law.
Conclusion
Federalism is the oldest form of government
in the United States. The timelessness of the
Constitution and the strength of the arguments
presented by The Federalist Papers offer a clue to
its endurance: the Founders wrote the Constitution
so that it would always remain open to
interpretation. Federalism’s AMBIGUITY has
contributed to its longevity.
FURTHER READINGS
Boyer, Paul S. 2001. Oxford Companion to United States History.
New York: Oxford Univ. Press.
Burke, Edmund. 1989. Reflections on the Revolution in
France. Garden City, N.Y.: Doubleday.
Cardozo, Benjamin N. 1921. The Nation of the Judicial
Process. New Haven, Conn.: Yale Univ. Press.
Corpus Juris Secundum. 2002. St. Paul,Minn.:West.
Dorsen,Norman. 1994.“How American Judges Interpret the
Bill of Rights.” Constitutional Commentary 11 (fall).
“Federalism—Clear Congressional Mandate Required to
Preempt State Law: Gregory v. Ashcroft.” 1991. Harvard
Law Review 105 (November).
McManamon, Mary Brigid. 1993. “Felix Frankfurter: The
Architect of ‘Our Federalism.’” Georgia Law Review 27
(spring).
Oxford Companion to American Law. 2002. New York:
Oxford Univ. Press.
Savage, David G. 1995. “The Supreme Court Goes Back to
Work.” American Bar Association Journal 81 (October).
Tanielian, Matthew J. 1995. “Separation of Powers and the
Supreme Court: One Doctrine, Two Visions.” Administrative
Law Journal of the American University. 8 (winter).
Vause,W. Gary. 1995. “The Subsidiarity Principle in European
Union Law—American Federalism Compared.” Case
Western Reserve Journal of International Law 27 (winter).
Wiessner, Siegfried. 1993. “Federalism: An Architecture for
Freedom.” New Europe Law Review 1 (spring).
CROSS-REFERENCES
Constitution of the United States; Original Intent.
Supreme Court Tilting Toward States’ Rights?
Introduction The U.S. Constitution
establishes a system of federalism that
allocates power, authority, and sovereignty
between the federal government at
the national level and its constituent
units at the state and local levels. However,
nowhere in the Constitution does
the word federalism appear, so the term
remained undefined. Nonetheless, Articles
I through III expressly delegate certain
powers to the three branches of the
federal government, while the TENTH
AMENDMENT expressly reserves to the
states those powers not delegated to the
federal government. The EQUAL PROTECTION
and DUE PROCESS Clauses of
the FOURTEENTH AMENDMENT have
been interpreted to make most
of the BILL OF RIGHTS applicable
to the states, while the
NINTH AMENDMENT preserves
for “the people” those
rights not enumerated in the
Constitution.
So while the term federalism
is nowhere to be found in
the text of the U.S. Constitution, the
principles underlying this theory of government
are deeply embedded throughout
the national charter. The Framers left
it for subsequent generations of Americans
to work out the details, allowing
them, in effect, to provide their own definition
of federalism in what best can be
described as an ongoing national dialogue.
Over the last 200 plus years, Americans
have carried out this dialogue by
speaking to each other through their state
and federal institutions and by amending
the Constitution as a last resort.
The most visible federal institutions
participating in this national dialogue
have been the U.S. Supreme Court and
Congress. Typically, cases involving federalism-
related issues have come before
the Supreme Court after Congress has
enacted a law that a state believes
encroaches on its sovereignty. Until the
late twentieth century, the Supreme
Court leaned heavily in favor of allocating
power to Congress at the
expense of state sovereignty,
and not surprisingly the states
often took issue. But from 1993
to 2003, the jurisprudential
pendulum of the Supreme
Court took a very noticeable
swing back in favor of STATES’
RIGHTS. To understand just
how pronounced this swing has been, it is
important to place a spate of Supreme
Court cases in historical context.
The First 200 Years of Federalism
in the United States In
CHISHOLM V. GEORGIA, 2 U.S. 419, 2
Dall. 419, 1 L.Ed. 440 (U.S. 1793), the
Supreme Court ruled that Article III of
the federal Constitution gives the Court
original jurisdiction over lawsuits
between a state government and the citizens
of another state, even if the state
being sued does not consent. The decision
generated immediate opposition
from 12 states, and led to the ratification
of the ELEVENTH AMENDMENT, which
gives states SOVEREIGN IMMUNITY
from being sued in federal court by citizens
of other states without the consent
of the state being sued. Thirty-eight years
later the Court again overstepped its
bounds when it invalidated a Georgia
state law regulating Cherokee Indian
lands on the grounds that the law violated
several U.S. treaties. Georgia
ignored the Supreme Court’s decision,
and President ANDREW JACKSON, an
ardent states’ rights proponent, refused to
deploy federal troops to enforce the
Court’s order.Cherokee Nation v. Georgia,
30 U.S. 1, 5 Pet. 1, 8 L.Ed. 25 (U.S. 1831).
Allocation of power to the federal
government probably reached its zenith
under the Supreme Court’s expansive
interpretation of congressional lawmaking
power exercised pursuant to the
COMMERCE CLAUSE, which gives Congress
authority to regulate matters affecting
interstate commerce. In GIBBONS V. OGDEN, 22 U.S. 1, 6 L.Ed. 23, 9 Wheat. 1
(U.S. 1824), the Supreme Court ruled
that the Commerce Clause power of
Congress is “supreme, unlimited, and
plenary,” acknowledging “no limitations,
other than those prescribed in the Constitution.”
More than a hundred years
later Congress applied this plenary power
to regulate a farmer’s personal consumption
of his own privately grown wheat
because Congress had found that the
effects of such use, when aggregated with
that of other farmers, would have a substantial
effect on prices in the national
wheat market. The Supreme Court ruled
that Congress had not exceeded the
bounds of its authority under the Commerce
Clause. Wickard v. Filburn, 317
U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122
(U.S. 1942).
The Supreme Court deviated from its
pattern of enlarging the powers of the
federal government in decisions involving
race relations. In DRED SCOTT V.
SANDFORD, 60 U.S. 393, 19 How. 393, 15
L.Ed. 691 (U.S. 1856), the Court invalidated
the Missouri Compromise, a federal
law that outlawed SLAVERY in the
northern Louisiana Territory, on the
grounds that under the Constitution
Congress was intended “to be carefully
limited in its powers, and to exercise no
authority beyond those expressly granted
by the Constitution, or necessarily to be
implied from [it].” This decision exacerbated
the antagonism between the slaveholding
states, the free states, and the
territories, antagonism that eventually
culminated in the U.S. CIVIL WAR. Similarly,
the Supreme Court deferred to local
lawmakers in PLESSY V. FERGUSON,
163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256
(U.S. 1896), which upheld the constitutionality
of JIM CROW LAWS that had
created a legal regime of racial SEGREGATION
in the South.
Federalism Since 1990 Beginning
in the 1990s, however, the Supreme
Court began revisiting the relationship
between the state and federal governments
on issues other than race-relations.
In New York v. United States, 505 U.S. 144,
112 S.Ct. 2408, 120 L.Ed.2d 120 (U.S.
1992), the state of New York brought a
suit challenging parts of the Low-Level
Radioactive Waste Policy Amendments
Act. 42 U.S.C.A. § 2021e(d)(2)(C). The
Supreme Court held that the act’s “take
title” provision, which required states
either to regulate low-level radioactive
waste according to congressional regulations
or to take ownership of the waste,
was unconstitutional. The Court reasoned
that the “take title” provision was
outside the authority delegated to Congress
under the Constitution and that the
regulation was an attempt to “compel the
States to enact or administer a federal
regulatory program.” Such attempts to
compel state behavior, the Court said,
violate the federal structure of the government
as embodied in the Tenth
Amendment.
Three years later the Supreme Court
invalidated the Gun-Free School Zones
Act in United States v. Lopez, 514 U.S. 549,
115 S.Ct. 1624, 131 L.Ed.2d 626 (U.S.
1995). The act had made it a federal
offense for any individual to knowingly
possess a firearm in a place that the individual
knows or has reasonable cause to
believe is a school zone. 18 U.S.C. §
922(q). Without explicitly overruling
Wickard v. Filburn, the Court ruled that
Congress exceeded its authority under
the Commerce Clause, since possession
of gun in a local school zone was not economic
activity that might, through repetition
elsewhere, substantially affect any
sort of interstate commerce, and the
statute contained no jurisdictional element
to ensure, through a case-by-case
inquiry, that possession of firearm had
any concrete tie to interstate commerce.
In Printz v. United States, 521 U.S.
898, 117 S.Ct. 2365, 138 L.Ed.2d 914
(U.S. 1997), a sheriff sought to enjoin
provisions of the Brady Handgun Violence
Prevention Act. Pub.L. 103-159,
107 Stat. 1536. The act established a system
of national instant background
checks. Local authorities were required to
participate in the system by performing
background checks on behalf of the federal
government. The Supreme Court
ruled that Congress had no authority
under the Commerce Clause to enlist
local authorities to enforce the provisions
of a federal law.
That same year the Supreme Court
continued chipping away at Congressional
power in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134
L.Ed.2d 252 (U.S. 1997), a case in which
an Indian tribe filed suit against Florida
to compel the state to negotiate under the
federal Indian Gambling Regulatory Act.
25 U.S.C. § 2710(d)(7). The act required
states to negotiate in GOOD FAITH
towards the creation of a compact
between the tribe and the state allowing
for certain gambling activities. States
could be sued in federal court for violating
the act and compelled by federal
courts to comply with its mandates. The
Supreme Court found that, while Congress
intended to abrogate the states’ sovereign
immunity in the statute, the
“Eleventh Amendment prohibits Congress
from making the states capable of
being sued in federal court.”
Scholars, historians, and other commentators
disagree over the long-term
impact of the Court’s recent decisions
that revisit the concept of federalism. New
York Times Supreme Court reporter Linda
Greenhouse responded to several of the
federalism-related decisions by opining
that “it is only a slight exaggeration to say
that . . . the Court [is] a single vote shy of
reinstalling the Articles of Confederation.”
Joseph Biden (D-Del.) took to the
Senate floor to proclaim that “the imperialist
course upon which the Court has
embarked constitutes a danger to our
established system of government.”
Other commentators contend that
these decisions are likely to have minimal
lasting effect. Congress has at its disposal,
these commentators argue, a variety of
mechanisms by which it can blunt the
effects of these rulings. For example,
Congress can fund studies that will offer
proof that the subject matter of proposed
federal laws intimately touch upon interstate
commerce, thereby defeating in
advance any arguments to the contrary.
In the wake of the September 11, 2001,
terrorist attacks in New York City and
Washington, D.C., other commentators
have predicted that the pendulum of federalism
would swing in the other direction
to allow the federal government to
more adequately address concerns over
homeland security.
Amid these competing views over the
Court’s direction, one thing remains certain:
each year the court is asked to review
an increasing number of decisions relating
in one way or another to federalism.
Sometimes the Court can influence the
balance of power between the state and
federal governments even by declining to
grant certiorari. For example, in December
2002 the Court refused to intervene
after the New Jersey Supreme Court
allowed Democrat Frank Lautenberg to
replace U.S. Senator Robert Torricelli on
the fall ballot, even though the state’s legal
deadline had passed. Forrester v. New Jersey
Democratic Party, Inc., ___ U.S. ___,
123 S.Ct. 673 , 154 L. Ed. 2d 582 (2002).
By declining review, the Court allowed
the state leeway in interpreting its own
laws. Such “federalism” issues are bound
to resurface in other cases, including one
that had not yet reached the court: Attorney
General JOHN ASHCROFT’s bid to
prosecute doctors assisting in suicides
under Oregon law. Oregon v. Ashcroft, 192
F.Supp.2d 1077 (D.Or. 2002).
FURTHER READINGS
“Commerce Clause: Past, Present, and Future.”
2003. Arkansas Law Review 55 (winter).
“Congressional Power in the Shadow of the
Rehnquist Court: Strategies for the
Future.” 2003. Indiana Law Journal 78
(winter-spring).
“Conservative Judicial Activism.” 2002. University
of Colorado Law Review 73 (fall).
“Federalism and Rights.” 2002. Human Rights.
29 (fall).
“Perspectives: Federal Jurisprudence, State
Autonomy.” 2003. Albany Law Review 66
(spring).
CROSS-REFERENCES
States’ Rights.
