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 Email address: [email protected]
 Website address: [email protected]
FEDERALISM
Assas Law School
Second-year Law – Class 2
FEDERAL AND UNITARY SYSTEMS
 Unitary system: the centralized government holds ultimate authority.
 Federal system (U.S.): the central government in Washington D.C. must share
sovereign power with the state governments in each of the 50 states.
- cooperative federalism (national and state governments work together to
provide services)
- dual federalism (national and state governments are distinct entities
providing separate services).
 Federalism is a very contentious issue (fear of federal overreach, intrusion on
state sovereignty). Recent debates include those over the Affordable Care Act and
same-sex marriage.
 The U.S. Constitution is not clear on the boundaries of sovereignty.
A HISTORICAL PERSPECTIVE
 The Articles of Confederation (1781-1788):
- a confederation of sovereign states;
- a weak central government;
- "a rope of sand" George Washington (inherent instability).
 The Constitution (1789):
- a federal system (but not very clear on boundaries);
- a robust central government.
 McCulloch v. Maryland (1819):
- first major Supreme Court case on federalism;
- vast expansion of federal powers;
- supremacy of the federal law over that of the states.
FEDERAL AND STATE POWERS
 Federal powers: foreign diplomacy and warfare; coining money.
 State powers: day-to-day matters (state taxes, budgets, educational standards, laws
on criminal violations and corporations, etc.)
 State governments closely reflect the structure of the federal government:
- the executive branch (the governor and state administrative agencies)
- the legislative branch (a bicameral body)
- the judicial branches (judges are often elected though).
 They have their own Constitutions.
Minnesota State Capitol
and
The U.S. Capitol
The New York state
Supreme Court
and
The U.S. Supreme Court
STATE LAWS
 States are free to create their own laws, provided they respect a republican form
of government and Congress’ enumerated powers.
 States are “laboratories of democracy” - they can attempt “novel social or
economic experiments” (Justice Louis Brandeis, 1932).
 Massachussets: leader in the arena of social reforms (same-sex marriage, health
insurance).
 Delaware: “market for laws” (no sales tax; NFL gambling; corporate haven -
285,000 businesses at 1209 North Orange Street.
COMPLETE THE SENTENCES
 1. Under a unitary government… the central/national government has complete
authority over all other political divisions or administrative units.
 2. “States’ rights” refers to… the doctrine that states possess important rights of
self government that cannot be transgressed by the federal government.
 3. Due to the Articles of Confederation’s… inherent instability, the early leaders
of the nation decided to follow a model based on the principles of federalism.
 4. McCulloch v. Maryland… held that Congress has implied powers derived from
those listed in Article 1, Section 8.
 5. State judges… may be selected in a variety of ways, including election,
appointment, or a combination of these methods.
 Question of states’ rights
- Constitutional issue with the 10th amendment (“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”)
- Political issue (those who oppose a strong central government – the
“nanny state” – argue that the government closest to the people knows best policywise).
 The contradictions of the Republicans
- Pro state rights (same-sex marriage, health care, Confederate flag)
- Against state rights (marijuana, D.C. laws, banking reform).
 1. Republican candidates often rail against federal intrusion in state affairs.
When it comes to marijuana, however, several candidates have vowed to override
decisions by certain states to legalize marijuana.
 2. With Americans constantly moving from one state to another, there is a need for
more uniform laws to prevent an undue burden on citizens who relocate across
the U.S.
 3. Government at the state and local level is better able to understand the needs
and concerns of its residents than the federal government in Washington D.C.
 The Chief Justice of the Alabama Supreme Court ordered the probate judges not to
issue marriage licenses to gay couples.
 Reasons:
- Inconsistent with the Alabama Constitution and state laws;
- A case of federal overreach;
- Elected judge, constituency opposed to same-sex marriage.
 Comparison with George Wallace, former governor of Alabama
- opposed the Civil Rights Movement and the resulting laws and SCOTUS
decisions.
- 1963 Inaugural Address: “segregation now, segregation tomorrow, segregation
forever”).
 1. Although a federal judge ruled Alabama’s prohibition against same-sex
marriage unconstitutional, the chief justice refused to recognize the federal court’s
decision. According to Alabama Chief Justice Roy S. Moore, Alabama state judges
are not bound by the ruling of the Federal District Court. This, however, would
appear for most to be in contradiction to Article Six’s declaration that the U.S.
Constitution, federal statutes, and treaties are “the supreme law of the land.”
 2. Chief Justice Moore ordered probate judges to disregard the ruling of the
Federal District Court and refrain from issuing marriage licenses.
 3. As an elected official, Chief Justice Moore has much to gain from appearing to
stand up to federal government as a champion of beliefs held by many
Alabamians.
 Advantages if education is left to the states:
- size
- accountability
- pragmatism
- diversity
- local control
 Advantages if education is left to the central government:
- a national bully pulpit
- “trust-busting”
 Limited government: small federal government which minimizes social spending
and is supported by conservatives as the best guarantor of protecting individual
and states’ rights
 Liberals: left-leaning American politicians who favor federal power
 Moderates: centrist American politicians who often seek a compromise between
state and federal power
 Firebrands: opposite from “pragmatic” and “practical.” A “firebrand” is
dedicated and passionate about a particular cause
 One-size-fits-all solutions: solutions which treat every case and/or problem (in
this case, a state) as similar
 Shortsighted: unable to foresee the longer-term consequences of one’s actions
 Undermines: Washington negatively impacts, weakens, or makes more vulnerable
(undermines) the benefits of state-led education reform
 Read the facts section and learn the important words by heart.
 Answer Exercises 1 and 3 in Comprehension of the facts.
 Read texts 3 and 5.
 Presentations:
- “Senate Rejects Series of Gun Measures”
- “The Senate’s Confirmation Shutdown”