“The James Madison Problem”
• Madison left the Constitutional Convention
dejected and disappointed that the federal
government does not have more power and
authority over the states.
• He soon discovers that federalism is a secret
weapon in the Ratification Debates.
Federalism Defined
Federalism is a political system in
which power is divided and shared
between the national/central
government and the states
(regional units) in order to limit the
power of government.
Figure 3.1- Governments in the U.S.
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Constitutional Provisions dealing
with Federalism
Article IV: Full Faith &
Credit Clause
• “"Full faith and credit shall
be given in each of these
States to the records, acts,
and judicial proceedings of
the courts and magistrates of
every other State.“
• Current Issues:
1) DOMA & Gay Marriage
Amendments
• 10th Amendment: States
rights.
• 9th Amendment:
Unenumerated powers.
• 14thAmenment: “No State
shall make or enforce any
law which shall abridge the
privileges or immunities of
citizens of the United
States.”
McCulloch v. Maryland (1819)
• McCulloch was the first major decision by the
Supreme Court under Chief Justice John Marshall
about the relationship between the states and the
national government.
• The Court upheld the power of the national
government to establish a national bank and denied the
right of a state to tax the bank. “The power to tax is
the power to destroy.”
• The Court’s use of the Supremacy Clause justified the
decision.
• See Also Gibbons v. Ogden
Marijuana, Federalism, & The
Supremacy Clause
"There's one problem with legalizing, taxing and
regulating cannabis at the state level: It can't
be done. The federal Controlled Substances Act
makes it a felony to grow or sell cannabis.
California can repeal its own marijuana laws,
leaving enforcement to the feds. But it can't
legalize a federal felony. Therefore, any grower
or seller paying California taxes on marijuana
sales or filing pot-related California regulatory
paperwork would be confessing, in writing, to
multiple federal crimes. And that won't happen.”
-- LA Times, July 19, 2010
Traditional State Powers
1.
2.
3.
4.
5.
6.
Education
Law Enforcement
Elections
Marriage
Infrastructure
Prisons
Traditional National Powers
1.
2.
3.
4.
5.
Raising an army
Regulating immigration
Treatises
Coining Money
Regulating Commerce
Figure 3.3- Distribution of Power
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James Buchanan & Federalism
** Opposed the Morrill Act which would have given
money to states for public universities: “Law will set
bad precedent because once states get into the habit
of receiving Federal aid, they would continually
ask for it.”
Was Buchanan Right?
• http://www.npr.org/blogs/money/2010/01/c
alifornia_seeking_federal_bailout_.html
Layer Cake/Marble Cake
Federalism
2 Events Changed Dual Federalism
1) New Deal: Supreme Court took the broad
view of congressional power to regulate
“interstate commerce.”→ After New Deal
states were no longer separate & sovereign.
2) The Great Society: Warren Court began
re-writing state laws:
a) School prayer
b) Re-Districting
c) De-segregation
d) Due Process
** States became subordinate and inferior **
Tools of Federalism
Categorical Grants: A federal grant of money to states for a
specific activity. These grants usually require states to
provide matching funds and to adhere to federal guidelines
in spending the money. (90% of grants – Medicaid, Head
Start, Food Stamps Program)
Block Grants: broad grants given by the federal government
to state governments for specific areas (health; education),
but leaving it to the states to determine how it is spent.
(Unfunded) Mandates: laws passed by the federal
government dictating that state or local governments must
comply with federal regulations. (e.g., air/water standards)
under threat of civil/criminal penalties or loss of federal
funds.) Best example is Americans with Disabilities Act.
NCLB is partially funded.
Federal/ State Employees
State Dependency on Fed
Government
Who pays the Taxes??????
New Federalism: Reagan Revolution
1980’s-90’s
1) Drastic cuts in federal domestic programs
and income taxes in an attempt to
reestablish the primacy of the states.
2) Devolution
3) Block Grants