Federalism

• Author: Jeffrey Lehman, Shirelle Phelps

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A principle of government that defines the relationship 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 agreement or covenant." It includes the interrelationships 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 government, a distribution of power allows all the entities 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 recognition of the fact that the entire country is made up of a Union of separate State governments, 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 separate ways. (Younger v. Harris, 401 U.S. 37, 91S. Ct. 746, 27 L. Ed. 2d 669 [1971])

The Constitution lists the legislative powers of the federal government. The TENTH AMENDMENT 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, 19L. 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

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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.

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...