Political Theories for Students. Editor: Matthew Miskelly & Jaime Noce. Volume 1. Detroit: Gale, 2002.
Federalism divides sovereignty between a centralized state and regional or local states. This authority might be equal or hierarchical, shared or separate. Different republics, confederations, and unions have experimented with federalism across the years. The United States remains the most striking and enduring example of federalism; its system has changed radically as the relationship between state and national authority seeks to gain or regain balance.
The term federalism can be difficult to pin down. People discuss the federal government, but also talk the national, state, and local government. Which one is federal? At one point in the history of the United States, Federalists were those who supported the ratification of the U.S. Constitution. At another time, Federalists were members of a political party that advocated strong, centralized governmental authority. Some who were Federalists in the first case were not Federalists in the second. Add Anti-Federalists and definitions become more confusing.
The Earliest Years
Federalism dates to approximately 1200-1400 A.D., when the Senecas, Onondagas, Oneidas, Mohawks, and Cayugas ended their war and formed a federal union known as the Iroquois Confederacy. The constitution uniting these North Americans was called Kaianerekowa, the Great Law of Peace. Recorded and preserved in wampum, a beaded “text,” this document codified laws for each nation, rules for the confederacy, and consistent rights protection for all citizens. National membership remained open, and other peoples joined the confederacy. The northeastern body became known as the Six Nations after adding the Tuscaroras in approximately 1714.
In the West, the concept of federalism dates to the German political theorist Johannes Althusius and his 1603 work, Politica: Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples.
“Althusius’Politica was the first book to present a comprehensive theory of federal republicanism rooted in a covenantal view of human society derived from, but not dependant on, a theological system,” wrote Daniel J. Elazar, a professor at Temple and BarIlan universities. “It presented a theory of polity-building based on the polity as a compound political association established by its citizens through their primary associations on the basis of content rather than a reified state imposed by a ruler or an elite.” Elazar added, “The first grand federalist design, as Althusius himself was careful to acknowledge, was that of the Bible, most particularly the Hebrew Scriptures or Old Testament. For him, it was also the best— the ideal policy based on the right principles.”
Seventeenth-century Puritans, in the earliest known use of the word “federalism,” referred to the covenant between God and the American settlers as “federal theology.” The term was probably borrowed from Latin via French. In Latin,foederatus means “bound by treaty,” derived from foedus, or treaty, and fidere, meaning “to trust.” Although governments developed various divisions of power across the years since then, some by default rather than design, the first conscious, systematic, and extended experiment with federalism took place in the United States. Five periods highlight the evolution of American federalism: the founding through the Civil War (1776-1865); post-bellum expansion and the Progressive Era (1866-1920s); the New Deal, World War II, and postwar prosperity (1930s-1960); the Great Society and war in Vietnam (1860s-1970s); and the age of new federalism (1970s onward).
Founding of American Federalism
The Articles of Confederation
In 1754, Benjamin Franklin offered a sketch of a federal government for the colonies, known as the Albany Plan of Union, to organize common defense and achieve other collective goals. Though the colonial leaders and the crown both felt little interest, the plan anticipated the later Articles of Confederation. In 1776, the British colonies in North America declared their independence from Great Britain. After winning the War of Independence, the former colonies debated how they should arrange their new government. Their experience with Great Britain had soured colonists on the idea of monarchy, thanks to the king, and distant representational government, thanks to parliament. Many of their frustrations with Great Britain stemmed from decisions and enforcement coming from people who treated the colonists’ situation as low priority.
Leaders of the former colonies decided to organize the new states as a loose confederation. Under the Articles of Confederation, ratified in 1781, the individual states maintained most of the government’s power, including the all-important power to tax. The national leadership consisted of a committee, and its important decisions required state representatives to agree unanimously. The government began at a dis advantage thanks to the tremendous governmental and private debts accrued during the War of Independence; with no power to tax, a bad economic situation grew worse. By 1787, a Constitutional Convention formed to try to alter the Articles so that the government might stay afloat. The men who gathered to adjust the Articles threw them out altogether and creating a new system. The U.S. Constitution was born.
The U.S. Constitution
Founders such as James Madison—the chief architect of the U.S. Constitution—Alexander Hamilton and John Jay believed that the new system required more centralized authority than the Articles of Confederation had offered. A strong national government could cope with the economic challenges of debt and international trade, they argued, and provide the necessary political and social cohesion to maintain independence. The U.S. Constitution, therefore, offered a system of dual federalism, with clear divisions between the responsibilities of state and national governments. Madison called this system a combination of a national government, in which the national branches make decisions, and a federal government, in which the people of the states make decisions through the state apparatus.
These proponents of the new Constitution, called Federalists, received opposition from the Anti- Federalists. Leaders such as Patrick Henry and George Mason worried that if the states adopted the new Constitution, they would have been trading one tyranny, Great Britain, for another. The doubted that an extended republic could exist with a heterogeneous population; republics, they argued, needed to be small and include people of similar background, faith, lifestyle, and economic interest. Otherwise, they believed, the states would quickly lose power to the national government, with its consolidated authority and decision-making from a distance. They feared the lack of term limits would spawn an aristocracy, that the vagueness of the Constitution in phrases such as “necessary and proper” and “general welfare” would invite abuses of power, and that the absence of a Bill of Rights left individual liberties unprotected.
“Given such deep-seated devotion to local self-[government], it would be wrong to assume that the Founders were satisfied to exchange the kernel for the husk,” wrote author Raoul Berger. “What they sought was to preserve an independent, ‘inviolable’ sphere of action, underscored by repeated assurances that the federal government sphere was limited.”
Eventually, some Anti-Federalists agreed to support the U.S. Constitution provided a Bill of Rights be included. In 1789, the United States left behind the confederacy of the Articles in favor of the federalism of the U.S. Constitution.
The first parties
After the U.S. Constitution was ratified, the new nation elected its first president, George Washington. Political parties began to form almost instantly around the issue of federalism; the likes of Alexander Hamilton and John Adams, who favored the natural balance of power to shift in favor of the nation were called Federalists, while those who favored more power in the hands of the states were called Democratic-Republicans. The first two presidents, Washington and John Adams, were Federalists.
The first change of parties in the White House came when Thomas Jefferson, a Democratic-Republican, won the presidency in the so-called Revolution of 1800. This “revolution” occurred in part as a reaction to the concentration of power in the national government during Adams’ administration. Adams had used the Alien and Sedition Acts, intended as rare wartime options, to quiet his political opposition. The Virginia and Kentucky legislatures, in turn, passed resolutions nullifying what they believed to be unconstitutional acts. Jefferson succeeding Adams signaled the young nation’s first transition between competing theories of federalism.
Decisions of the Supreme Court
The decentralist position advocated by the Democratic Republicanism faced new obstacles thanks to Supreme Court decisions in the 1810s. Led by Chief Justice John Marshall, a Federalist, the Supreme Court made decisions that defined its own position as equal to the executive and legislative branches. The Court then went on to read the supremacy, commerce, and contract clauses of the U.S. Constitution to give broad economic authority to the national government. In 1814, the Court held that U.S. powers extended beyond those expressly written in the Constitution, thus opening the door for a dramatic expansion of governmental authority. In the 1819 McCulloch vs. Maryland case, the Court upheld the creation of a national bank by reading the Constitution’s “necessary and proper” clause liberally. Marshall viewed the Constitution as a compact among the people of the nation, and not the states. Through the Court’s decisions, Marshall drew more power to the national government and away from the states.
“Marshall’s opinions continue to have real influence, in part because he had the great good fortune to set precedents rather than follow them,” wrote Marshall biographer R. Kent Newmyer, a University of Connecticut law professor. “But his opinions carry weight because of his reputation as a republican statesman.” Newmyer added, “Marshall persuaded his colleagues to abandon the old way in favor of a majority opinion written by one justice, most often Marshall himself. This was perhaps Marshall’s greatest accomplishment, because it’s the institutional foundation of judicial review.” Because of a resurgent states’ rights movement, Marshall, ironically, considered himself a failure when he died in 1935, according to Newmyer.
Civil War and Reform
After Andrew Jackson became president in 1829, Northern and Southern states battled over tariffs and slavery. When Northern interests passed increasingly high tariffs that injured the Southern economy, former vice-president-turned-senator John C. Calhoun argued that the U.S. Constitution gave each state the power to nullify federal legislation that was dangerous to its interest. He returned to his native South Carolina, called a state convention, and directed the passage of an ordinance of nullification.
Like the Anti-Federalists before him, Vice President John C. Calhoun found his interpretation of the United States’ federalism to be in the minority in 1831, when he delivered his “Fort Hill Address on the Relations of the States and Federal Government.” In this speech, Calhoun explained his theory of nullification, based on the idea that the Constitution was a compact among the states instead of citizens, using James Madison’s language from the Virginia Resolution. A year later, Calhoun’s message convinced South Carolina to adopt an Ordinance of Nullification and threaten to secede from the union; the state reversed its position after President Andrew Jackson threatened to use troops against it, and the issue of nullification was postponed for a few more decades. Calhoun continued to argue for nullification for the rest of his political career. The “Fort Hill Address” remains one of his most famous speeches:
The question of the relation which the States and General Government bear to each other is not one of recent origin. From the commencement of our system, it has divided public sentiment. Even in the Convention, when the Constitution was struggling into existence, there were two parties as to what this relation should be, whose different sentiments constituted no small impediment in forming that instrument. After the General Government went into operation, experience soon proved that the question had not terminated with the labors of the Convention….
The great and leading principle is, that the General Government emanated from the people of the several States, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political community; that the Constitution of the United States is, in fact, a compact, to which each State is a party, in the character already described; and that the several States, or parties, have a right to judge of its infractions; and in the case of a deliberate, palpable, and dangerous exercise of power not delegated, they have the right, in the last resort, to use the language of the Virginia Resolutions, ‘to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.’ This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may—State-right, veto, nullification, or by any other name—I conceive to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political, or moral truth whatever; and I firmly believe that on its recognition depend the stability and safety of our political institutions.
I am not ignorant, that those opposed to the doctrine have always, now and formerly, regarded it in a very different light, as anarchic and revolutionary. Could I believe such, in fact, to be its tendency, to me it would be no recommendation. I yield to none, I trust, in a deep and sincere attachment to our political institutions and the union of these States. I never breathed an opposite sentiment; but, on the contrary, I have ever considered them the great instruments of preserving our liberty, and promoting the happiness of ourselves and our posterity; and next to these I have ever held them most dear.
President Jackson, though he ran on a states’ rights platform, offered a strong proclamation against nullification and threatened to use armed force if necessary against South Carolina. A compromise tariff rushed through Congress did not end the problem. The stop-gap measure simply postponed the question of the relationship between the states and national government in the federal system. The national government, by winning the Civil War, finally settled the doctrine of nullification.
In the post-bellum and Progressive Era after the Civil War, the national government took on a broader economic more, while states concentrated on issues of police power and services such as sanitation and health. Reform engulfed both levels of government with the goal of making processes more democratic; secret ballots, initiatives, and antitrust legislation all came from this pro-democracy impulse. Progressivists began at the local and state levels to try to initiate reforms that addressed the new realities of industrialization, urbanization, and immigration, but the most successful of these agendas ended up at the national government level for application and implementation. States, for example, attempted to regulate railroads but the Supreme Court struck them down in 1886, and this led to the Interstate Commerce Act of 1887.
What the state governments could not do, the national government could. The first cash grants to states from the national government appeared during this time, as did the Sherman Antitrust Act of 1890, which, along with the Interstate Commerce Act, expanded national authority over commerce. Perhaps the greatest expansion of national power came in 1913 with the Sixteenth Amendment, which established the income tax. This created the foundation for the federalism of the twentieth and twenty-first century by emphasizing intergovernmental transfers and the use of the power to tax and spend to further national policies.
“Over the past two centuries, the American system of federalism—one in which the states have always played a significant role—has contributed to the Nation’s growth and health in different ways at different times, often advancing and sometimes hindering that growth and prosperity,” author David L. Shapiro wrote. “But the overall balance is a favorable one, and on the economic front in particular, that balance continues to hold.”
“The case for federalism from the perspective of economic and related policy issues is more complex and harder to summarize,” Shapiro added.
It rests on three related premises: first, that a well- conceived and smoothly operating federal system is one in which policy emerges as part of a process and from the interplay of a multiplicity of sources; second, that competition among states is bound to enhance the production of capital and labor in the long run; and third, that the states not only can serve, but have served, as experimental laboratories for the development of a wide range of social and economic programs.
The New Deal, World War II, and postwar prosperity period essentially brought an end to federalism as the founders had intended, meaning dual federalism. A new federalism merged the responsibilities of the nation and states; the nation, however, always came out on top. Two world wars mobilized the nation, and the Great Depression between them led to President Franklin Delano Roosevelt’s New Deal. The Supreme Court rejected the policies of the New Deal at first, but then reversed and agreed to the unprecedented centralization when Roosevelt threatened to add judges to the court until he had a majority. The New Deal established a national welfare state and allowed the national government to control economic development and regulation of labor relations and agriculture, previously within the states’ authority.
During this time the Court ceased to define the nation’s role in overseeing commerce, effectively issuing a blank check for the national government to expand its own power. Although some social service programs existed under state control, the national government set the guidelines. With new grant-in-aid programs and national spending, especially on highways, the 1950s became another decade of centralization. Although President Dwight Eisenhower established the Commission on Intergovernmental Relations to identify and return programs to the states, no changes ever came. States’ rights advocates launched one more unsuccessful campaign called “interposition,” the twentieth-century version of nullification, temporarily defying federal orders to desegregate state schools.
The Great Society and Vietnam Era brought yet another period of growth in national authority over state governments. As states challenged the likes of crosscutting grants that tied aid for one policy to the performance of another, coercive taxes, and federal mandates, the Court upheld their constitutionality. “Creative federalism” included dramatically more federal money to localities, sometimes bypassing the states. These actions forged intergovernmental links. The practice of partial preemption also developed, allowing the federal government to take over in any state that did not meet the requirements of a given act.
Although the federal government’s role increased, this sometimes meant more power for local leaders. As programs overlapped and even opposed each other, the national apparatus became increasingly mired in its own red tape; this gave the opportunity for state administrators to control programs in the absence of clear lines of hierarchy and communication. When oversight did exist, however, conflict often followed. The war in Vietnam and the oil crisis of the 1970s shattered confidence in the national government.
This backlash spawned a movement to reduce national control over grants-in-aid programs and revise the federal role in general welfare spending. Beginning with Richard Nixon in the early 1970s and increasing steadily, especially in the years of Ronald Reagan’s administration (1981-1989), the national government attempted to streamline its services, decentralize programs, and redirect funds to the states. Under this “new federalism,” however, new restrictions plus other strings came attached to funds earmarked for states. The Supreme Court effectively overturned the Tenth Amendment and admitted that no barriers existed to the federal regulation of state functions in its 1985 Garcia v. San Antonio Metropolitan Authority ruling, which was another blow to those who wanted to help balance the federalist structure. The small loss of power the national government endured did not create an equal rise in the authority of the states.
One exception marked a possible reversal in the trend of nationalism. The Supreme Court, in its 1995 United States v. Lopez case, said the national government had usurped state police powers regarding guns near schools. This move to define and separate spheres of authority marked a change in the Court mindset and perhaps a return to an older federalism rather than the creation of yet another one.
“At the threshold we are met by the question, why should we, at a remove of 200 years, look to the Founders for guidance; why should a nation of 220 million souls spread from ocean to ocean feel found by an instrument fashioned for the governance of three million people sparsely scattered along the East Coast,” wrote constitutional author Raoul Berger. “Why, an instrumentalist has asked, should the Founders rule us from their graves? We are not, of course, ‘bound’ by the Founders; rather the issue is who may revise the Constitution—the people by amendment or the judges, who are unelected, unaccountable, and virtually irremovable.”
Theory in Depth
Federalism in theory merely means dividing governmental authority between a centralized whole and a decentralized region. All forms of federalism share certain characteristics. First, the independent states subsumed into a union recognize a rule of law as supported and reinforced by common institutions. Often a constitution defines this law and the relationship between national and state laws. Second, law enforcement bodies with independent powers and responsibilities ensure the rule of law. Executives and judiciaries are examples of law enforcers. Third, the law of the union applies to all member states and citizens. Fourth, the union has some form of independent legislative or policy institution that remains separate from those of member states. Fifth, the institutions of the union and its member states have democratic characteristics. Last, a formal mechanism exists to establish the powers and responsibilities of each member and the union as a whole; constitutions usually fill this role.
Despite these similarities, different forms of federalism divide this authority in different ways. In some cases, as in the example of the United States, the form of federalism changes over time. Just as there are different forms of federalism, there are also different ways to explain them.
In the first theory, three basic organizational structures of intergovernmental relations illustrate federalism. The first is a dual or coordinate system of federalism. In this model, the different levels of government have separate, autonomous spheres of authority. In other words, issues are either of national or state concern, but are mutually exclusive. This model reflects the system the U.S. Constitution originated. The articles established national powers and the Tenth Amendment reserved the rest for the states. The division was clear and, perhaps more important, equal; this was one of the “balances” of the “checks and balances” system Madison, Hamilton, Jay, and their fellow founders designed.
Chief Justice Harlan Fiske Stone wrote of the Tenth Amendment in the 1941 United States v. Darby ruling:
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that is was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the Amendment or that its purpose was other than to allay the fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved power.
Compound systems of federalism occur when interdependent governments overlap in authority. Neither is superior, so both sides must bargain. Governments can handle the bargaining in different ways. These usually lead to either acooperative relationship among levels of government or a competitive one.
Both dual and compound systems assume the different levels of government converge on a fairly level playing ground. That is not always so, however. Unitary systems of federalism, also called centralized or national systems, support the national government’s primacy. The relationship is hierarchical. At times in the history of the United States, the balance of dual federalism appeared to tip in favor of centralized federalism.
The dual/compound/unitary model is one way for scholars to understand the different faces of federalism. Another frequent model is confederal, federal, and unitary federalism. In this model, unitary federalism is the same as in the first model: the national government retains power and states remain inferior. In a federal system, the states and the nation each possess certain powers, and the two remain distinct, much like in the dual system. In the confederal system, the states are sovereign. This was illustrated in the Articles of Confederation, the first constitution to unite the states after the American War of Independence.
These two models offer broad categories of federalism to explain the theory behind how the state, with its multiple levels of government, is organized. These are ideal forms, however. Real-world federalism rarely runs as smoothly as the simple models. More descriptive terms help explain federalism in practice. David B. Walker, in his 1995 work The Rebirth of Federalism, labeled the different ages of U.S. federalism.
From the birth of the United States to the Civil War (1789-1861), Walker says the United States practiced dual federalism of the rural republic. This dual federalism rested on the foundation of enumerated powers—the responsibilities of both layers of government were spelled out in the U.S. Constitution—and sovereign and equal spheres of power.
From the Civil War to Roosevelt’s New Deal (1861-1933), the United States had dual federalism serving commerce. In this model, government grew at both levels. The state government grew to provide police power and services, while the national government grew to regulate commerce. Both strived to “to perfect the free economy.”
The New Deal brought a tremendous shift in federalism. Walker calls the federalism that existed roughly from the New Deal to Lyndon Johnson’s Great Society (1930-1960) cooperative federalism. No longer did each governmental layer possess authority in its own sphere. The two shared roles and provided services together.
According to Walker, this was followed by creative federalism, which lasted until Ronald Reagan took the White House in 1981. Creative federalism meant the advent of intergovernmental money transfers, sometimes from the national government to the local government, bypassing the states entirely. It also meant the states oversaw the implementation of federal mandates. The national government ruled and the state governments followed directives in order to receive funding or avoid federal intrusion.
Walker calls the era beginning with Reagan’s administration cooptive federalism and the reaction. As government tried to downsize and deregulate itself, to devolve, federalism got lost in the mix. Although the national government tried to offer some powers back to the states, it attached new strings. Walker leaves U.S. federalism in a muddle, imbalanced with weight to the national government, unsure of how to proceed in the future.
Several theorists and teachers have described dual federalism as layer-cake federalism. Each “ingredient”—state and national government—has its own job to do. Compound federalism is marble-cake federalism, where the flavors compete with and complement each other, mixing in the same bite, much as the layers of government work together to achieve a goal. Considering the “plums” the national government gives states through grants and funds, complete with regulatory strings attached, some call the fiscal system of centralized federalism fruitcake or even birthday-cake federalism.
Any way it is sliced, federalism seeks a balance, either equal or unequal, that allows the national and the regional government to contribute to the lives of citizens. As the scales tip one way or another, new varieties of federalism evolve. Political theory in this case follows reality, as the nations who adopt federalism become the laboratory.
Theory in Action
Elements of Federalism
Although different examples of federalism in action exist in various nations and times, all of them seem to share certain characteristics. First, these governments are established and maintained through some formal process, usually a written constitution. This provides a kind of stability and permanence to the system, but it also promotes longevity by allowing for means of altering the government as new challenges and decisions arise. For instance, this procedure often includes an opportunity to add amendments to the constitution; a process that, although feasible, is extraordinary, complicated and involved enough to make certain the document is not changed constantly or lightly. Not only do these compacts include the people, the intermediary bodies such as states, and the national government, but they also usually provide that the intermediary bodies reserve their own constitution-making powers as well.
A second element to federalism in practice is noncentralization; power is diffused among several essentially self-contained and self-sustaining centers so that it cannot be centralized without the consent of the many. This noncentralization taken to the extreme loses the idea of a national government altogether and becomes another system known as a confederation. The United States under the Articles of Confederation, which ordered the nation after the War of Independence and before the U.S. Constitution, is an example of this system.
The third common element is known as territorial democracy, and is also called the areal division of power. This means that divisions within the nation ensure a degree of neutrality and equality of groups at the national and local levels. This allows for changing demographics within nations, for example, by giving new and emerging interests the opportunity to vote in relatively equal territorial units and enjoy representation according to their numbers. This also preserves stability of federalism by allowing different interests their own bases of power; they can coexist rather than compete for survival. Canada offers a good example of this through Quebec, a province built on citizens of French descent who maintain their French tongue.
The Canadian example of federalism, in fact, illumines many interesting aspects of the system. The nation’s constitution began as the British North American Act of 1867, which was penned by Canadian leaders in Canada as they witnessed a tragic Civil War to their south in the United States. The Constitution Act of 1982 formally transferred the constitution-making power from its official seat, the United Kingdom, to Canada, thus making Canada an independent and sovereign polity and added a Charter of Rights listing the rights retained by all citizens.
The Canadian system attempted to prevent the perceived problems in the U.S. form of federalism— problems that allowed the U.S. Civil War to erupt— by inverting the U.S. Tenth Amendment. Whereas the U.S. reserved all unenumerated powers for the states, the Canadian system established that all powers not assigned exclusively to the provinces belonged to the federal government. Despite this provision, Canadian provinces managed to retain a significant amount of power across the years, making it a relatively decentralized system in practice. Several of its machinations have enhanced its stability.
For example, by promoting direct lines of communication between citizens and all levels of government, Canada has managed to evolve a sense of community and nation in order to hold divergent populations together over time; Canadians have exploited the common experience of bordering the United States as one particular means of creating an identity as a people. Another aspect of Canadian federalism has contributed to the system’s success by allowing for the cultural survival of multiple traditions. The constitution allows for a decentralized mixture of judicial systems; common-law and civil-law mechanisms exist side-by-side in a complimentary, competitive relationship. This legal duality in part has enabled the survival of French-Canadian customs.
As in the United States, Canada enjoys a noncentralized party system. Unlike the U.S. two-party system, which allows for a number of different interests to cooperate loosely for common purposes in order to elect presidents, the Canadian parliamentary system requires that a given party must be much more cohesive and unified in order to win and maintain power. This means that leaders must transcend provincial, factional differences and find areas of consensus to push forward through policy. This push for truly national issues, then, enhances the stability of the federal structure and assists in the creation of unity across the provinces.
Other systems have not been as successful as Canada or the United States in maintaining a federal structure. Many of the destructive problems faced by these governments appeared when one region or section of the nation gained too much power over the others and, in effect, could enforce its citizens will against the citizens of other states. The experience of nineteenth-century Prussia illustrates this point well; in that case, Prussia became so dominant that no other states could gain the chance to offer national leadership or even contribute an alternative voice to public policy. The king and his decisions reflected the values and views of Prussia. Similarly, the Soviet Union faced the same concerns during the twentieth century. Despite the question of communism, the overwhelming power of Russia dominated the nation. The Russian Soviet Federated Socialist Republic represented three-fourths of the country’s territory and three-fifths of the country’s population. No other group—linguistic, ethnic, or geographic, not to mention political—could possibly compete with it for dominance in policy, and the federal system had little chance of survival.
The Canadian illustration of success and the Prussian and Soviet examples of failure are not the only windows into federalism in practice, however. The theory continues to evolve and develop across the globe from Brazil to Switzerland, from Nigeria to Malaysia.
Federalism not only has different manifestations in different places, but it also has different manifestations in the same place over time. The United States is a prime example of a nation that has experienced dual federalism, cooperative federalism, creative federalism, and several new federalisms in its history. The relationship between the states and the national government involves a healthy amount of gray area. Take, for example, the issue of medical marijuana in the United States.
According to the federal Controlled Substances Act, marijuana is an illegal substance regardless of the conditions under which it is used; in other words, marijuana use for medical reasons and for personal pleasure are equally against the law. Between 1978 and 1996, however, legislatures in thirty-four states passed laws recognizing marijuana’s medicinal value. California, Arizona, Alaska, Oregon, Nevada, and Washington went a step further. Their state legislatures adopted initiatives that exempted patients who used marijuana under a physician’s care from facing criminal penalties relating to the possession and cultivation of marijuana for medicinal use. A tug-of-war developed between the states and the national government. The national government would not legalize the drug, but states said they would not prosecute certain offenders. The states pressured the national government to change its policy and vice-versa. There was no resolution.
Other controversial subjects offer similar examples. Some states recognize gay marriages while others do not, yet the U.S. Constitution seems to require a national standardization so that all states give “full faith and credit” to practices in other states; in short, a legally recognized marriage in Vermont, according to the Constitution, must also be so in Kansas. What is the role of the state? The nation? The changing relationship among government levels in the federalist system makes answers challenging.
Nations other than the United States also have explored the balance of federalism in their own systems. The Swiss Confederation, for example, united twenty-six cantons, the equivalent of states, and about three thousand communes together into a nation. The Federal Constitution of the Swiss Confederation was adopted in 1848 and revised in 1874 and 1999 with amendments in the interim. It established the federal government’s responsibilities as those dealing with external and internal security, transportation and communication affairs, forestry, water, money, and social insurance programs. Each canton, however, had its own constitution, justice system, and infrastructure. Although the national law trumped canton law, much variation remained among laws in different cantons. Managing this balance, and also administering the army of this neutral country, remains a dynamic experiment in federalism.
Supreme Court rulings in the United States
More than a century after Calhoun explained his vision of states’ rights federalism, the U.S. Supreme Court offered an opinion 180 degrees in the opposite direction, effectively overturning the Tenth Amendment. In the 1985 Garcia vs. San Antonio Metro Transit Authority, in which the top court reversed a district court ruling and favored a federal agency’s ruling that a state mass transit authority was not immune from federal minimum wage and overtime requirements, Justice Harry Blackmun delivered the court opinion that no constitutional barriers limited federal regulation of state matters; if the national government were constrained, he said, it was by the political process, not by the letter of the law:
“…As a result, to say that the Constitution assumes the continued role of the States is to say little about the nature of that role. Only recently, this Court recognized that the purpose of the constitutional immunity recognized in National League of Cities is not to preserve ‘a sacred province of state autonomy.'” EEOC v. Wyoming, 460 U.S., at 236. With rare exceptions, like the guarantee, in Article IV, 3, of state territorial integrity, the Constitution does not carve out express elements of state sovereignty that Congress may not employ its delegated powers to displace. James Wilson reminded the Pennsylvania ratifying convention in 1787: “It is true, indeed, sir, although it presupposes the existence of state governments, yet this Constitution does not suppose them to be the sole power to be respected.” Debates in the Several State Conventions on the Adoption of the Federal Constitution 439 (J. Elliot 2nd ed. 1876). According to Elliot:
The power of the Federal Government is a “power to be respected” as well, and the fact that the States remain sovereign as to all powers not vested in Congress or denied them by the Constitution offers no guidance about where the frontier between state and federal power lies. In short, we have no license to employ freestanding conceptions of state sovereignty when measuring congressional authority under the Commerce Clause…. In short, the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.
The effectiveness of the federal political process in preserving the States’ interests is apparent even today in the course of federal legislation….
We realize that changes in the structure of the Federal Government have taken place since 1789, not the least of which has been the substitution of popular election of Senators by the adoption of the Seventeenth Amendment in 1913, and that these changes may work to alter the influence of the States in the federal political process. Nonetheless, against this background, we are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the “States as States” is one of process rather than one of result. Any substantive restraint on the exercise of Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process rather than to dictate a “sacred province of state autonomy.” EEOC v. Wyoming, 460 U.S., at 236.
U.S. federalism is not stagnant, however. Only 10 years after the Garcia decision, the U.S. Supreme Court set a limit on the reach of the Commerce Clause for the first time in 60 years, carving out a constitutional space for states’ rights. Chief Justice William Rhenquist delivered the 1995 opinion on United States vs. Alfonso Lopez, Jr.:
We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U. S. Const., Art. I, 8. As James Madison wrote, “[t]he 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 Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Ibid….
These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.
To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones and Laughlin Steel, supra, at 30. This we are unwilling to do.
Author David L. Shapiro points to Garcia in asserting that even on a national level, state considerations will be recognized.
When the Supreme Court held in Garcia that state employees were, after all, subject to federal minimum wage requirements, Congress was quick to respond with at least some relief—including permission to the states to afford compensatory time off instead of paying costly overtime rates that would otherwise be required by federal law. And the complaints voiced by many states that they are being forced to pay too large a share of the cost of many programs are clearly being heard in the halls of Congress.
The European Union
One of the most interesting federalist experiments is the European Union, an organization of western European nations that oversees the states’ economic and political integration and provides a framework for unified action in security and foreign policy matters. The European Union (EU) is the grandchild of the European Economic Community (EEC), which formed in 1957 in order to organize and integrate the economies of the western European nations. In 1967 the EEC merged with the European Coal and Steel Community and the European Atomic Energy Community to form the European Communities (EC). The financial success of the trade policies adopted by the EEC and then the EC persuaded member nations to consider further integration. In 1991, the Treaty on European Union created the EU out of the EC. Member states include Belgium, France, West Germany, Italy, Luxembourg, the Netherlands, Denmark, Ireland, the United Kingdom, Greece, Portugal, Spain, Austria, Finland, and Sweden.
The Commission of the European Communities, led by twenty commissioners with at least one representing each nation in the Union, initiates and implements the Union’s legislation. The European Parliament (EP) acts as the EU’s legislative branch, and the European Court of Justice (ECJ) serves as the EU’s judicial branch. The EU, then, serves as the highest level of government in this form of federalism, and the nations’ governments serve as the second level; in other words, the EU, were it compared to the U.S. system, would mirror the national government and the nations’ governments would parallel the states’ governments.
The EU’s judicial branch has been innovative in its federalism. As Nathan Griffith pointed out in his article “Between A Rock and A Hard Place: Political Safeguards, The Federal Majority, and Judicial Nullification” in the fall 2001 Humane Studies Review, the relationship between the ECJ and the national courts has opened the door for what John C. Calhoun would have loved: nullification. Whereas Calhoun imagined legislative nullification—a state’s legislature might declare the law the nation’s legislature made was unconstitutional—in the case of the EU, a national court such as Germany’s Bundesverfassungsgericht (BVG) might exercise judicial nullification. The BVG’s own judgments have opened the door.
Also, according to the BVG’s past judgments, as Griffith pointed out, Germany is bound by the EU’s laws because Germany binds itself. The opportunity for secession, the same withdrawal the Southern U.S. states attempted in the nineteenth century, remains open for EU members. Interestingly enough, the BVG recognized the older EC as a supranational government; it recognizes the EU as a federation of states. The growth of the nations’ power, then, contrasts with the opposite experience in the United States. The possibilities for judicial nullification and secession on the part of the member states further suggests that the balance of power would not soon shift away from the member nations to the EU itself.
Asked about the expected state of European Unity in the future, Oxford University historian Timothy Garton Ash said,
I think we will not have a clearly defined federal United States of Europe. We will muddle through as we are at the moment with a European law covering a single market, competition policy—broadly speaking economic Europe—and a strange mixture of intergovernmental and supranatural authority in other areas. It will be extremely mess. No schoolchild will be able to understand it in ten pages, but I think it will still be done.
Urgency, however, hastens many an agenda. The terrorist attacks on the United States on September 11, 2001 may force EU officials to more quickly address common criminal justice concerns.
The attacks on America, wrote F. T. McCarthy in The Economist magazine, “have utterly changed the atmosphere.” He added:
National sensitivities about protecting old ways of doing things suddenly seem self-indulgent. Spurred on by this new mood, integrationists eager to set up a European police force and a European prosecutor and keen to agree on shared definitions of Euro-crimes suddenly sound more plausible.
Shortly after the attacks, Antonio Vitorino, the EU’s new justice commissioner and former deputy prime minister of Portugal, received the blessing of the EU governments to make provisions for a single European arrest warrant. The 15 member governments must ratify the changes.
“It does not burn my lips,” Vitorino says of the word federalism, though he quickly asserts his interest lies in criminal justice, not theory. While terrorism poses an immediate concern, Vitorino is said to be targeting cyber-crime, environmental infractions and financial-services fraud.
The experiences of the United States, the Swiss Confederation, and the European Union show how the dynamism and adaptability of federalism make its precious balance unstable; it also, however, ensures its longevity in some form.
Analysis and Critical Response
Like many political theories, federalism is prettier in the abstract. Ideal forms do not encounter sectional divide, war, or depression. Federalism is delicate, history messy.
The theory of federalism has much to recommend it. Federalist theorists asked a number of important questions that some other theories do not take into account. How can unity be created out of many different groups? How can disparate people work together peacefully? How can a distant state know the needs of a local community? How can local communities provide large-scale services such as defense? How can individual rights be assured? How can citizens be protected from those who rule? How can the opportunity to abuse power be limited?
The theory’s Achilles’ heel lies in keeping the system once it is devised. Madison realized that striking the perfect balance between the state and national governments was only half the trick; the other half came in maintaining it. If a constitution divides sovereignty between nation and states, who ensures that neither side oversteps its boundary? Who watches over the federal balance? Neither side could be trusted to do so, because either might take the opportunity to claim more power. Both sides require watching, but if both are suspect, who plays judge? The so-called “who watches the watchers?” dilemma lies at the heart of the federalist model.
Aspects of federalism, practically speaking, make sense. The division of sovereignty allows different levels of government to specialize, which creates efficiency. The national government can exploit economies of scale to provide services such as defense without being sidetracked by regional issues a distant government would not understand, and vice-versa.
Two practical problems affect federalism. If balance is delicate, how can a people be sure they haven’t tipped the scale too far one way or another? Even if the balance is workable, how can it be righted once the scales have tipped? Consider the Articles of Confederation. After their colonial experience with Great Britain, the former colonists understandably did not want to face the same problems with their new government. They tipped the balance of federalism toward the states’ authority. At the time, each of the provisions of the compact seemed reasonable.
The Articles provided for a loose confederation united by one house of Congress. Since the British authorities had been too distant, then this government, by focusing power in the states, would remain close to home, able to interact with the people and see their needs. Only one house was needed because, frankly, there was not going to be much for it to do. One state received one vote in Congress because the Articles was a compact between states, not individuals, and no state wanted to be represented less than the others just because fewer people happened to live there.
Congress could request funds from states, but states maintained the power of the purse. After being taxed without representation, and for reasons unrelated to the colonies, the people believed granting the taxation power to a national government would lead to a repeat of the same grievances. Virginians did not want New Yorkers spending their money. By keeping taxation a state matter, Congress would have to prove the worth of its need beyond a shadow of a doubt before any state agreed to give funds, and in the meantime those who kept the coffers were the ones who had the locals’ best interest at heart.
“The taming of the continent’s vast distances by modern technology makes it difficult today to appreciate how the primeval wilderness appeared to the colonists,” constitutional author Raoul Berger wrote. “When William Houston was sent from Georgia to the Constitutional Congress in 1785, he thought of himself as leaving his ‘country’ to go to ‘a strange land amongst Strangers’.”
“There are several responses available to a defender of a strong federal system—a system based on the states as presently constituted as at least an appropriate starting point for a diffusion of governmental authority that increases democratic participation and that recognizes individual and small group preferences,” wrote David L. Shapiro of federalism today.
First, California is, of course, the most populous and thus a highly atypical state. At the other end of the scale, such states as Wyoming and New Hampshire are sufficiently small that electors are likely to know their representative personally—at least their representative in the larger chamber of the state legislature—and are likely to have met and discussed issues with that representative on a number of occasions.
Under the Articles of Confederation, amendments required unanimous agreement of representatives from all states. Again, this is understandable; the colonists had rebelled against a system in which they did not feel represented. In the new system, everyone’s voice would be heard, and nothing would be done that would impact one group adversely. The Articles provided for no single leader; the Committee of States was the de-facto executive. In a society wary of monarchs, this solved the problem. Term limits, too, lessened fears that representatives would become an aristocracy. The decisions made in creating the Articles of Confederation followed from the experiences and concerns of the people.
The federalist model, however, did not work. Many circumstances conspired against it, not the least of which was the terrible public and personal debt the War of Independence brought. The government began bankrupt; it never had a chance. Some historians and political scientists claim the Articles would have failed anyway, however, because the system tipped the balance too far in the direction of the states. Instead of unifying the states in post-victory camaraderie, the Articles allowed sectional conflict and petty jealousy swell while key problems affecting all the states remained unresolved. By the time it was obvious that change was imperative, leaders had given up on the government. The former colonists tried to strike the proper federalist balance, but it proved too delicate to find on the first try, and so difficult to repair that the entire compact was abandoned. The Articles of Confederation illustrate the practical difficulty of a system that requires a careful balance in order to succeed.
United States history offers other illustrations of the failure of federalist experiments. The Civil War came about when the balance of sectional interests at the national level destabilized and tore apart the nation. The “devolution revolution” of the 1980s proved that, even when the national government sought to limit its own power and return authority to the states, the old balance, once lost, could not be regained. The schizophrenia of the Garcia and Lopez decisions reflects an underlying uncertainty about what federalism really means when applied to the real world.