Federalism – In Brief
The government of the United States is among the most unique and complicated forms of government in world history. If one looks at the tumultuous history of the United States (various wars, internal strife and discontent, periods of economic hardship) one is almost amazed that the nation survived. Such proliferation is even more surprising when other governments and superpowers collapsed under the weight of far lesser tumult. In that regard, one has to look at the history of American government with awe as well as commit oneself to a serious study of the history of the United States.
In order to understand why the government of the United States has survived so long and maintained itself, one needs to break down the components that comprise the American system of governance. Now, while such an explanation could cover several volumes if taken into great depth, one can simplify the issue by stating that the epicenter of American governance is the highly successful system of federalism, the component that has kept the American government able to preserve itself by eliminating the potential for an authoritarian system similar to the British monarchy from arising. Needless to say, the lofty goals of federalism raised some eyebrows among intellectuals at the time of its inception.
This, of course, brings up the very obvious question “What is federalism?” To which, the following answer is provided:
It is a system of government in which sovereignty is shared [between two or more levels of government] so that on some matters the national government is supreme and on others the states, regions, or provincial governments are supreme. There are three essential features that characterize a federal system of governance. First, there must be a provision for more than one level of government to act simultaneously on the same territory and on the same citizens. The American federal system is composed of a national government and the 50 states, both recognized by the Constitution. Local governments, creations of states, while not mentioned in the Constitution, are nevertheless key players in American federalism. Their power to regulate and legislate is derived from state Constitutions. (Wilson)
While federalism is a highly complex system of governance, the above definition provided a stripped bare explanation of the concept that covers the main governing points of federalism.
In order to fully understand the issue of federalism, one needs to look at the establishment of federalism within the context of the early days of American history and how federalism was framed by the founding fathers. In order to do this, one needs to examine the relationship (interrelation?) of federalism and the Articles of Confederation.
Of course, before attempting to show the correlation between federalism and the Articles of Confederation, it is important to clearly define what exactly the Articles of Confederation entailed.
By definition, the Articles of Confederation provided a league of sovereign states within what were formerly the colonies of Great Britain. In time, the Constitution was established which unified all the sovereign states under one centralized government and nation.
When it comes to the issue of states rights, states are provided with the ability and opportunity to govern themselves within their own borders provided that they do not interfere or override federal law. Since there are sovereignty issues of the states that cannot be interfered by the federal government, the states are provided with a tremendous amount of leeway in terms of being able to govern itself. Is this a positive thing or is “the national government tak[ing] on responsibilities it should best avoid [and] impos[ing] unaffordable tasks on lower levels of the system?” (Peterson)
This can be viewed within the context of criminal law, as states are allowed to make activities legal or illegal within the state provided they do not circumvent federal law. (That is to say, they can not nullify federal law although they can impose penalties on certain illegal practices within their state borders. In this regard, the federal government can not intervene and nullify state laws, although the judiciary branch can throw laws out that are deemed unconstitutional.
Much of this interconnects with problems inherent with the Articles of Confederation as there were a tremendous number of problems inherent with a series of independent states. Ultimately, the problems centered around the fact that there was a weak, de-centralized federal government that was not able to unify those various parties that comprised the sovereign states. This even further compounded itself in regard to the fact that the multitude of states needed to vote unanimously in order to make any amendment to existing laws. Because of the lack of a centralized authority, such grueling processes were making it incredibly difficult for the sovereign states to perform or function in a manner that was cohesive.
At the center of this lack of cohesion is that problem that there was no executive or judicial branch at the time designed to oversea the states. Again, this is an inherent problem with a system designed without any central authority. With Congress unable to raise taxes revenue streams were limited. With Congress unable to declare war, the ability to protect the states was jeopardized. As such, the system was loaded with a number of holes that needed to be filled and the process designed to fill the gaps in this fledging government was federalism.
This is not to say that there are no principles of federalism found within the Articles of Confederation. In fact, there is quite a bit of similarity between the two. For example, shared powers exist within the states in a matter not unlike the dual powers of federalism. On the state level, powers is shared among state and local governments exists in such ways so that taxes may be collected, laws may be enforced, property may be confiscated (under certain conditions) and charter banks and corporations.
This also carries over into the Constitution, particularly in the 10th Amendment to the Constitution where it is essentially explicitly provided that if there is no particular federal law governing a certain matter or issue, then the states have the right to pass laws that directly deal with the omission of the federal government. This is a tremendous enhancement of states rights and provides the states with a great deal of flexibility and leeway in order to independently govern their affairs.
From this, federalism was instituted as the primary rule of order for the operation and the maintenance of the newly establish nation, a nation subdivided into a series of states. So what is it that federalism seeks to establish within this framework of several states comprising the overall nation?
Federalism has a three-fold process: sovereignty is now shared by the federal government and the state, although federal law will override the laws of the state in the case of a conflict; second, the federal and local governments will each have their own authority and powers; and, most importantly, neither can nullify the other.
This does not necessarily mean that people saw the rise of federalism as a flawless system. There have always been controversies regarding the nature of federalism and possibility that federalism can yield a great deal of division and the development of various factions within the system, all of which have different needs and goals. This is why there is an inherent need to fuse the system of federalism with the realm of the Constitution.
Upon seeing the weaknesses of the Articles of Confederation and the problems of a de-centralized government authority, the Founding fathers decided to apply components of federalism to the constitution as well. In brief, the manner in which the Founding Fathers applied federalism to the Constitution involved allowing for the distribution of a common law equally among the population. In this regard, no person or territory of the United States would be without fair and equal constitutional protection.
This further add a checks and balances system to the states as the states may not conduct themselves in a manner that is outside the law of the constitution and, furthermore, the infusion of federalism into the constitution maintained a rule of law that would not be undermined by any (false) claim of supreme sovereignty.
We see this further in the ratification process of the Constitution as the Constitution was designed to make sure things happened slowly and progressively. There was no federal head of the ratification process of the constitution so the principle of federalism manifested itself in the form of state by state ratification (as opposed to a centralized authority version) and through the fact that the state conventions were representative of the people and not any central authority. Furthermore, this federalism is further expanded through enumerated powers where certain powers are given to the state and others are given to the federal government.
This is further seen in the limits of the Federal Government as it relates to the constitution:
The federal government cannot legally wield any power that is not specifically granted by the Constitution. According to the Tenth Amendment, powers not expressly delegated to the federal government are reserved “to the states respectively or to the people. (Dlouhy)
Again, there is present a dual federalism concept present that even expands itself beyond the limiting term of mere federalism. In other words, the whole of the system: executive, legislative, judiciary, state government, local government, etc exist in the form of an interrelating unified whole that allows itself to function properly.
While there will be those who will criticize federalism and, in many cases, offer valid criticism, one can not deny that the basic components of federalism have served the United States and its Constitution very well over the centuries. After all, if the system was not a sound system, the government of the United States would not have been able to survive as long as it did.
Dlouhy, Jennifer. “Judge Warns Gonzales Not to Meddle.” In the San Francisco
Chronicle. January 18, 2007: Pg A-7.
Peterson, Paul E. The Price of Federalism. New York: Twentieth Century
Urofsky, Melvin I and Finkelman, Paul, Editors. Documents of American
Constitutional and Legal History: Volume I: From the Founding Through the Age of Industrialization. New York: Oxford University Press, 2001.
Wilson, James Q. and John J. DiIulio, Jr. American Government Institutions and
Policies. Lexington, D.C. Heath and Company, 1995. p. A-49.