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American Government
Federalism
Government Systems
THREE TYPES OF GOVERNMENT
• Unitary
• Federal
• Confederal
Unitary System
• A unitary state is a state or country that is
governed constitutionally as one single unit, with
one constitutionally created legislature.
• The unitary system gives the main powers of
state as well as absolute authority to the central
government.
• State, providential, and local governments are
all created by the central government.
• The non-central governments have only the
powers that are appointed by the central
government and exist only so long as the central
government consents.
Federal System
• the federal system is where a number of states or
providences federate: create a single unified
governmental structure for their joint territories.
• In a government using the federal system, the powers of
the governments are jointly shared between the central
government and the regional governments.
• Regional governments retain some spheres of
autonomy.
• Regional governments retain constitutional sovereignty.
– In federal systems, assemblies in those states composing the
federation have a constitutional existence and a set of
constitutional functions which cannot be unilaterally changed by
the central government.
Confederal
• A confederation is an association of sovereign states,
usually created by treaty but often later adopting a
common constitution.
• Confederations tend to be established for dealing with
critical issues, such as defense, foreign affairs, foreign
trade, and a common currency.
• Confederation, in modern political terms, is usually
limited to a permanent union of sovereign states for
common action in relation to other states
• The central government in a confederation is weak, the
true power lies with the sub-national units.
Why Federalism?
• Collective Action Problem Applied
– Under the Articles of Confederation, states were
beset by a structure that prevented them from sharing
the transaction costs inherent to a large country.
• Transaction costs are the time, effort, and
resources required to make collective decisions
• Conformity costs are what one party prefers and
the collective required
U.S. Federal System
• Thesis: . Federalism is enshrined in the
Constitution, but political conditions have
dictated how the doctrine of federalism
has evolved.
Mechanics of Federalism
• Constitution divides power among:
– federal government
– state governments
– the people
• The federal government has three types of
power:
– Inherent
– Delegated (Enumerated, Express)
– Implied
Delegated Powers
• Enumerated powers are found in Article 1 Section 8 of
the United States Constitution, which lists the specific
powers of government granted to the United States
Congress.
– Chief Justice John Marshall: “This government is acknowledged
by all, to be one of enumerated powers. The principle, that it can
exercise only the powers granted to it, would seem too apparent,
to have required to be enforced by all those arguments, which its
enlightened friends, while it was depending before the people,
found it necessary to urge; that principle is now universally
admitted.”
• Enumerated powers include:
– Regulate interstate commerce
– Coin money
– Raise armies
Inherent Powers
• Inherent powers are those powers not specifically stated
in the Constitution, but considered necessary for any
government to carry out its functions.
– Cannot logically be held by both nation and state.
• Derived, in many cases, from the Royal Prerogative
Powers.
– The Royal Prerogative is a body of customary authority,
privilege, and immunity, recognized in common law jurisdictions
possessing a monarchy as belonging to the Crown alone. It is
the means by which some of the executive powers of
government are possessed by and vested in a monarch with
regard to the process of governance of their state are carried out
• Examples include the inherent power to
– Wage war
– Conduct foreign affairs
– Right to exist as a nation-state
Implied Powers
• Implied powers are derived from an enumerated power and
the “Necessary and Proper” clause, a.k.a. the “elastic” clause.
These powers are not stated specifically but are considered to
be reasonably implied through the exercise of delegated
powers.
• This clause became the center of controversy from the early
days of the nation when Alexander Hamilton and Thomas
Jefferson tangled over the constitutionality of a national bank.
Their arguments, in one form or another, persist to today:
• The “loose constructionists” (the Hamiltonians or Federalists)
viewed Clause 18 as an opportunity to increase federal power
• The “strict constructionists” (the Jeffersonians or AntiFederalists) believed that Clause 18 limited federal power. In
their opinion, Congress could legitimately exercise only
specified functions (Clauses 1-17); to do otherwise would be a
violation of Amendment X.
Implied Powers 2
• President George Washington sided with
Hamilton and supported the establishment of the
First Bank of the United States. The Federalist
position regarding “implied powers” became part
of the national fabric largely through the
decisions of the U.S. Supreme Court under John
Marshall.
• Examples of implied powers are vast:
– EPA
– Interstate highway system
– NASA
State vs. Federal Powers
• There are two types of state powers in relation to the
federal government:
– Concurrent
– Reserved
• Concurrent powers are those exercised jointly with the
federal government
– Taxes
– Environmental protection
• Reserved powers are those reserved to the states under
the 10th Amendment
– “the powers not delegated to the U.S. by the Constitution nor
prohibited by it to the states, are reserved to the states
respectively, or to the people”
– Tension with the elastic clause
The Evolution of Federalism
• Constitution left exact nature of balance
between states and national government
vague by necessity --- states had to be
given some power
– Constitution had to be ratified by states
– At same time, founders clearly wanted a
more powerful, more flexible national
government than what they had experienced
under the Article of Confederation
Two Theories of Federalism
• There were two competing theories of how
federalism should operate in the early
days of the republic:
– Dual Federalism
– Cooperative Federalism
Dual Federalism
• Constitution was a compact among the states—
not the people
– Declaration of Independence: ““That these United
Colonies are, and of Right ougt to be Free and
Independent States”
• states are not subordinate to the national
government, but rather exist dually on the same
level with it.
• Implications
– States are supreme in some spheres
– States are free to leave the Union at their own volition
Cooperative Federalism
• Constitution is a social contract among the
people (see preamble)
• As such the national government enjoys
the people’s loyalty directly
• Implications
– States are subservient to the federal order
– States are not free to secede
The March of History
• Historical developments resolved the issue in
favor of cooperative federalism
• Five crucial historical factors played a role in
cooperative federalism becoming the dominant
view of federal power
–
–
–
–
–
Chief Justice John Marshall
Civil War
Era of the Robber Barons
New Deal
Civil Rights Era
John Marshall
• Marshall was Chief Justice of the Supreme
Court (1801- 1835) and is widely viewed as the
most influential justice of the Supreme Court in
history.
• Marshall was a Federalist with a strong belief in
the Union and in the supremacy of the national
government.
• Marshall authored several important court
opinions that consolidated the power of the
federal government.
– McCulloch v. Maryland (1819)
– Cohens v. Virginia (1821)
– Gibbons v. Ogden (1824)
Civil War
• Several factors played a part in leading to the
civil war, but among them were
– The march of slavery to the West
– An unintended consequence of the Hamiltonian tariff
structure
• . based on their reading of Constitution,
Southerners believed they had right to nullify
acts of Congress, and to interpose themselves
between national government and state citizens
– see Jefferson and Madison’s Virginia Resolution and
Kentucky Resolution in reaction to Alien and Sedition
Act
Civil War Continued
• When this escalated to secession, it began
to interfere with nation’s inherent powers
• The Union victory ended the strong form of
‘dual federalism’ as a viable view on
federal/state power.
• The Civil War was the first modern war
– Clauswitzian ‘all out’ war
– Increased federal involvement in economy
Robber Barons
• With the end of the Civil War, business boomed and, as
civilization pushed West and the frontier closed, more
and more commerce was across state lines.
• Set up difficulties for individual states in terms of
regulating their economies
• Various problems such as child labor, unsafe
workplaces, monopolies, and pollution led to increasing
demand for federal involvement.
• As a result we get federal legislation aimed at providing
solutions:
–
–
–
–
anti-trust laws (TR)
-labor/union support
-child labor laws
-laws regarding sanitary food preparation
Great Depression / New Deal
• Along the same lines of the problems of the Robber
Baron era--but to an even greater degree--were the
demands on government precipitated by the Great
Depression.
–
–
–
–
Millions of unemployed workers
Banks failed
unemployment soared from 3% to as high as 25%
profits plunged, prices for commodities (like farm crops) fell
sharply, new construction almost stopped, and few new
businesses were opened.
– there were drastic drops in Gross Domestic Product (GDP),
industrial production, and stock market share prices.
• The Wall Street Crash of 1929 brought matters to a
head.
New Deal (con’t)
• Hoover’s government was seen as largely ineffectual
• FDR nationalized the problem – set up the government
as the principle source of relief
• Substantially based on the economic theories of John
Maynard Keynes advocating demand-side government
stimulus.
– 1936: General Theory of Employment, Interest, and Money
• This marked the birth of the welfare state in America
– Minimum wage
– Maximum hours
– Social Security
• By end of WWII, the federal government was the
manager of the national economy.
– Employment Act of 1946
Civil Rights Era
• The problems sown in the aftermath of the Civil War, in
the 1868 14th amendment, were inherent to the struggle
for civil rights in the 20th century.
– No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.”
• Strauder v. West Virginia
– First case under the equal protection clause
– Held that black men could not be barred from juries
– However Virgina v. Rives permitted exclusionary systems
Going Backward
• Plessy v. Ferguson
– Created the “separate but equal” standard
• Southern states treated Blacks as secondclass citizens
• Becomes politically problematic:
– FDR needs Black swing votes in New
England and Midwest
• Also became philosophically problematic
– Cold War rationale
The Road to Redemption
• Southern states were reluctant to change, so
progress required federal involvement.
• Four key federal actions:
– Smith v. Allwright (1944)
– Brown v. Board of Education of Topeka, Kansas
(1954)
– Civil Rights Act of 1964
– Voting Rights Act of 1965
• The result of these crises was a consolidation of
power in the federal government and increasing
role for that government in the economy and
society.