Theory in Depth
Theory in Action
Analysis and Critical Response
Topics for Further Study
who controls government? Elected officials, majority of power in national leaders
how is government put into power? Popular vote of the majority
what roles do the people have? Vote for representatives
who controls production of goods? The market
who controls distribution of goods? The market
major figures James Madison; Alexander Hamilton
historical example United States
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 Bar–Ilan 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."
1603: Johannes Althusius, the father of modern federalism, publishes Politica: Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples.
1776: British colonies in North America declare independence.
1781: Articles of Confederation are ratified as the new government of the American states.
1787: Constitutional Convention meets to discuss alterations to the Articles of Confederation. The first of The Federalist Papers appears in newspapers to support ratification of the U.S. Constitution.
1789: U.S. Constitution is enacted.
1819: U.S. Supreme Court, in McCulloch vs. Maryland, establishes that the powers of the United States were not limited to those expressly in the Constitution, thus expanding the power of the national government.
1831: In the Fort Hill Address, John C. Calhoun advocates the theory of nullification by citing Madison's language from the Virginia Resolution.
1848: Federal Constitution of the Swiss Confederation is adopted.
1933–1939: President Franklin Delano Roosevelt creates the New Deal.
1963–1969: President Lyndon Johnson begins the Great Society.
1991: The Treaty on European Union creates the European Union.
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.
Hiawatha, Ojibwe for "he makes rivers," was a member of the Onondaga Nation. His legend is far better known than his true history. According to myth, Hiawatha was not only a great chief, but also the living incarnation of progress and civilization. His magical abilities allowed him to manipulate for good the natural forces that threatened humanity; thus, he taught his people medicine, agriculture, navigation, and art. Henry Wadsworth Longfellow's popular epic poem Song of Hiawatha (1855) created an even greater chasm between the man and the myth.
An historical Hiawatha did exist. According to oral history and other sources, Hiawatha collaborated with a Huron named Deganwidah to help end a bloody war among the five nations of the Finger Lakes region of what became New York State. With Deganwidah's plan and Hiawatha's diplomacy, leaders of the nations came together for a summit. The result was Kaianerekowa, the Great Law of Peace, the document ending war and creating a confederal alliance among the Onondagas, Senecas, Mohawks, Cayugas, and Oneidas, allowing free entry and exit for those nations and others. The resulting League of Five Nations, later Six, practiced dual federalism, with a League Council and Great Law applying to all—including a Bill of Rights—on one level, and national constitutions among each member group on another.
The Iroquois Confederation survived intact well into colonial times; vestiges remain in the twenty–first century. The league of nations remained at peace after the compact took effect. The Great Law of Peace eventually was translated into other languages. The example of the stable and long–lived federalist system inspired many, including Benjamin Franklin, who discussed the league in his writings on the 1754 Albany Plan of Union, the precursor to the Articles of Confederation.
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.
James Madison served the United States in many ways; he was a U.S. representative, secretary of state under Thomas Jefferson for eight years and president for eight more. He remains important to federalism for three specific reasons. First, he helped coordinate the Constitutional Convention that produced the U.S. Constitution. Second, he served as the primary architect for the Constitution. Third, he penned part of The Federalist Papers supporting ratification of the Constitution, including the key Federalist #39 regarding the federal and national nature of the U.S. system.
When the Articles of Confederation were clearly in trouble, Madison convinced states' rights advocate John Tyler to call the Annapolis Convention of 1786. He knew the message would seem less threatening from someone of Tyler's persuasion. Madison then guided the Annapolis Convention to produce the Constitutional Convention of 1787. When it began, Madison already had a plan for a new government sketched out. Presented as the Virginia Plan, Madison's ideas became the blueprint for the U.S. Constitution. In particular, Madison believed in controlling a strong government through checks and balances; he chose federalism to balance the government.
After the Constitution was drafted, Madison and his fellow founders had to convince the people to ratify it. Madison joined with Alexander Hamilton and John Jay to write a series of articles in favor of ratification called The Federalist Papers. Madison wrote 29 of the 85 articles, including a detailed discussion of federalism in Federalist #39. Their efforts helped form a new government. One of Madison's first actions as a member of the new House of Representatives was to keep a promise made to Anti–Federalists and sponsor the first ten amendments to the Constitution, the Bill of Rights. The Tenth Amendment further illuminated the federalist structure of the government by reserving all unenumerated powers for the states. Madison's fingerprints appear all over the U.S. system.
"Despite the Marshall Court's interpretation of the Constitution as authorizing the exercise of significant federal power, Madison's predictions that (as a matter of public preference) the states would remain predominant proved accurate at least until the Civil War," wrote David L. Shapiro.
The growth of national power and its exercise since then, especially in this century, have been primarily the product of the post–Civil War Amendments and their implementation, and the expansive reading that the federal courts have been willing to give to congressional authority over commerce and over the purse, including the authority to condition grants to state and local governments.
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.
Franklin Delano Roosevelt
Franklin Delano Roosevelt was the only U.S. president elected to office four times (1932, 1936, 1940, and 1944), leading the United States through the Great Depression and World War II, and connecting with the U.S. citizenry in an unprecedented personal way, thanks to his "fireside chats" that American families listened to on radio. In relation to federalism, however, he is best remembered as the father of the New Deal.
The New Deal attempted to remedy some of the problems caused by the Great Depression, but also aimed to balance conflicting economic interests through government regulation. Roosevelt's program included reforms in industry, agriculture, finance, waterpower, labor, and housing. The national government oversaw the reforms in these areas; this new responsibility tipped the scales of dual federalism in the United States. State governments did not possess their own sphere of authority after the New Deal spanned 1933–1939; instead, states shared functions with the national government, usually in a subservient role. By shifting the balance from dual federalism to cooperative federalism in a centralized welfare state, Roosevelt altered the workings of the United States' system. When the Supreme Court argued the unconstitutionality of some of his programs, he threatened to add justices until he had a supportive majority. After the crisis passed, the nation never regained the original balance of dual federalism. Roosevelt's presidency was a watershed era for federalism.
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 a cooperative 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.
Lyndon B. Johnson
Lyndon Johnson was vice president under John F. Kennedy and became the thirty–sixth president in 1963, after Kennedy's assassination. Although celebrated for signing into law the Civil Rights Act of 1964, the most comprehensive civil rights legislation since the Reconstruction era, Johnson was also criticized for greatly expanding the United States' military involvement in Vietnam. After completing Kennedy's term and one of his own, Johnson did not seek reelection to the White House. He died four years later.
Johnson's impact on federalism was noteworthy. His Great Society, second only to Roosevelt's New Deal in scope, unleashed many social welfare programs designed to combat poverty and racism. Much of the campaign appeared in the form of grants, some of which extended from the national government to local governments. Other grants came with restrictions and regulations attached, furthering the national–state power imbalance. Overlapping a conflicting programs begot friction between state and national officials, although some state employees exploited the confusion to wrest back some control. The result moved traditional federalism another step away from its original dual form and left the new creative federalism in its place. This creative federalism remained until the Reagan administration took the White House in 1981.
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 Federalist Papers
James Madison describes the U.S. system as part national and federal; this complements the theory of dual federalism that balances national and state authority without giving either the upper hand. Madison's explanation comes from his work with Alexander Hamilton and John Jay in support of the ratification of the U.S. Constitution, The Federalist Papers, from 1787–1788. In Federalist #39, Madison writes:
First.—In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced….
If we try the constitution by its last relation to that authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.
The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
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.
Johannes Althusius is remembered as the father of federalism and a champion of popular sovereignty. The German political theorist studied philosophy and law in Switzerland before becoming a professor at the University of Herborn in Nassau. He wrote several works on law including an analysis of Roman legal thought, but his chief work was the 1603 Politica: Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples, which explored forms of human association. He determined there were five primary building blocks to human interaction: the family, the voluntary corporation, the local community, the province, and the state.
Althusius noted that each level existed independently. He described different arrangements of associations, and in the process articulated the first real theory of federalism. He believed federalism, with people sovereign through their associations, would best achieve national stability and unity. Associations, he continued, would only add to the happiness and quality of life of each member. The people, not the institutions, were his first concern.
Althusius rose to public office in Emden, East Friesland, later known as Germany, and died there in 1638. For some years his work disappeared from the minds of the academy, but his work was rediscovered and reprinted in the early twentieth century. His articulation of the theories of federalism and popular sovereignty remain milestones.
And, some of today's more modern political systems bear the fingerprints of Althusius. "The revival of interest in Althusius in our time has accompanied the revival of possibilities in confederation," professor Daniel J. Elazar writes.
The European Union is the leading example of postmodern confederation; there are now three or four others as well. Although Althusius himself does not develop a theory of confederation per se, his particular kind of federal thinking in which he sees his universal association as constituted by comprehensive organic communities has clearly had something to contribute to an emerging postmodern theory of confederation.
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.
TOPICS FOR FURTHER STUDY
- How did the "interposition" of the 1950s resemble "nullification" of the 1830s?
- In what ways did the Great Society differ from the New Deal?
- How is the European Union like the states under the Articles of Confederation?
- Look at the Federal Constitution of the Swiss Confederation, especially the section on the army. What federalism label best describes the Federal Constitution of the Swiss Confederation?
Althusius, Johannes. Politica. Frederick S. Carney. Trans. and Ed. Indianapolis: Liberty Fund, 1995.
Anti–Federalist Papers. Available at http://www.constitution.org/afp/afp.htm.
Berger, Raoul. Federalism: The Founders' Design. Norman: University of Oklahoma Press, 1987.
Calhoun, John C. Union and Liberty: The Political Philosophy of John C. Calhoun. Ross M. Lence, ed. Indianapolis, Liberty Fund: 1992.
Cayton, Andrew, Elisabeth Israels Perry, and Allan M. Winkler. America: Pathways to the Present. Needham, Massachusetts: Prentice Hall, 1995.
Diamond, Martin. "What the Framers Meant by Federalism." From A Nation of States (Chicago: Rand McNally, 1974). In O'Toole, Lawrence J. Jr., ed. American Intergovernmental Relations. Washington: CQ Press, 1993.
Elazar, Daniel J. "Althusius' Grand Design for a Federal Commonwealth." In Althusius, Johannes. Politica. Frederick S. Carney. Trans. and Ed. Indianapolis: Liberty Fund, 1995.
Griffith, Nathan. "Between a Rock and a Hard Place: Political Safeguards, The Federal Majority, and Judicial Nullification," Humane Studies Review. 14:1 (Fall 2001). Available at http://www.humanestudiesreview.org.
Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Clinton Rossiter, ed. New York: Mentor, 1961.
Hamilton, Christopher and Donald T. Wells. Federalism, Power, and Political Economy. Englewood Cliffs, NJ: Prentice Hall, 1990.
Johansen, Bruce E. Forgotten Founders: How the American Indian Helped Shape Democracy. Cambridge: The Harvard Common Press, 1982.
Kazin, Michael. The Populist Persuasion: An American History. New York: HarperCollins, 1995.
McCarthy, F.T. "Europe: Antonio Vitorino." The Economist, September 29, 2001.
Miller, David, ed. The Blackwell Encyclopedia of Political Thought. Cambridge, Blackwell, 1991.
Nagorski, Andrew. "Towards a Europe of 27: Timothy Garton Ash on Enlarging the EU." Newsweek, January 1, 2001.
Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press, 2001.
Shapiro, David L. Federalism: A Dialogue. Evanston, Illinois: Northwestern University Press, 1995.
Storing, Herbert, ed. The Anti–Federalist. Chicago: University of Chicago Press, 1985.
Sturgis, Amy H. "'Liberty in Perfection': Freedom in Native American Thought," The Freeman (September 1999): 42–45.
Walker, David B. The Rebirth of Federalism: Slouching Toward Washington. Chatham, NJ: Chatham House Publishers, Inc., 1995.
Althusius, Johannes. Politica. Frederick S. Carney. Trans. and Ed. Indianapolis: Liberty Fund, 1995.
Buchanan, James M. "Federalism and Individual Sovereignty," The Cato Journal. 15:2–3 (Fall/Winter 1996). Available at http://www.constitution.org/afp/afp.htm. This work illustrates the ties between the idea of personal freedom and the political theory of federalism.
Drake, Frederick D. and Lynn R. Nelson, eds. States' Rights and American Federalism: A Documentary History. Westport, Connecticut: Greenwood Press, 1999. This book looks at the history of federalism in the United States and the contested nature of the relationship between the state and national governments.
Durland, William R. William Penn, James Madison, and the Historical Crisis in American Federalism. Lewiston, New York: E. Mellen Press, 2000. This work explores the Madisonian model of federalism and the theory's crucial early years.
Ostrom, Vincent. The Meaning of America Federalism: Constituting A Self–Governing Society. San Francisco: ICS Press, 1991. This book weighs the U.S. experience with federalism as an illustration of the theory in action.
Racheter, Donald P. and Richard E. Wagner, eds. Federalist Government in Principle and Practice. Boston: Kluwer Academic Publishers, 2001. This book contrasts the ideal of federalism with the way it has evolved in actual institutions.
Characteristics and operational principles
Empirical and theoretical development
Federalism and its kindred terms—e.g., “federal” —are used, most broadly, to describe the mode of political organization which unites separate polities within an overarching political system so as to allow each to maintain its fundamental political integrity. Federal systems do this by distributing power among general and constituent governments in a manner designed to protect the existence and authority of all the governments. By requiring that basic policies be made and implemented through negotiation in some form, it enables all to share in the system’s decision-making and decision-executing processes.
No single definition of federalism has proved satisfactory to all students, primarily because of the difficulties in relating theoretical formulations to the evidence gathered from observing the actual operation of federal systems. Attempts at definition have also foundered on the problems of distinguishing between (1) the federal principle as a broad social concept and federalism as a narrower political device; (2) two classic but different conceptions of federalism; (3) authentically federal systems and political systems which utilize elements of the federal principle;(4) mature and emergent federal systems; and (5) federalism and “intergovernmental relations” as distinct political phenomena.
Social and political principle . Federalism, conceived in the broadest social sense, looks to the linkage of people and institutions by mutual consent, without the sacrifice of their individual identities as the ideal form of social organization. First formulated in the covenant theories of the Bible (Kaufman 1937-1948), this conception of federalism was revived by the Bible-centered “federal” theologians of seventeenth-century Britain and New England (Miller 1939), who coined the term “federal”-derived from the Latin foedus(covenant)—in 1645 to describe the system of holy and enduring covenants between God and man which lay at the foundation of their world view. This conception of federalism was given new theoretical form by nineteenth-century French and German social theorists. Closely related to the various theories of social contract, it is characterized by the desire to build society on the basis of coordina-tive rather than subordinative relationships and by the emphasis on partnership among parties with equal claims to legitimacy who seek to cultivate their diverse integrities within a common social order (Boehm 1931). [See SOCIAL CONTRACT.]
As a political device, federalism can be viewed more narrowly as a kind of political order animated by political principles that emphasize the primacy of bargaining and negotiated coordination among several power centers as a prelude to the exercise of power within a single political system, and stress the value of dispersed power centers as a means for safeguarding individual and local liberties. This means, in effect, that political institutions common to different political systems, when combined within a federal system and animated by federal principles, are effectively endowed with a distinctive character. For example, while political parties are common in modern political systems, parties animated by the federal principle show unique characteristics of fragmentation and lack of central discipline that increase the power of local groups within the system as a whole (Grodzins 1960a).
Federation and confederation . Federal ideas have been systematically conceptualized in two different ways. On the one hand, federalism has been conceived as a means to unite a people already linked by bonds of nationality through distribution of political power among the nation’s constituent units. In such cases, the polities that constitute the federal system are unalterably parts of the national whole, and federalism invariably leads to the development of a strong national government operating in direct contact with the people it serves, just as the constituent governments do. On the other hand, federalism has also been conceived as a means to unify diverse peoples for important but limited purposes, without disrupting their primary ties to the individual polities that constitute the federal system. In such cases the federal government is generally limited in its scope and powers, functioning through constituent governments which retain their plenary autonomy, and, to a substantial degree, is dependent upon them.
Both conceptions of federalism have evolved from early federal experiments. The principles of strong national federalism were first applied by the ancient Israelites, beginning in the thirteenth century B.C., to maintain their national unity through linking their several tribes under a single national constitution and at least quasi-federal political institutions (Bright 1959). Several centuries later, the Greek city-states experimented with federal-style institutions as means for the promotion of intra-national harmony and cooperation, primarily for defensive purposes, through associations (e.g., the Achaean League) that came close to what were later defined as confederations (Freeman 1863). A modified form of the Greek view was developed by the sixteenth-century theorists (Gierke 1913). They held that federalism meant a permanent league of states united through a perpetual covenant, binding under international law, in which the constituent states delegated enumerated powers to a general government while retaining full rights of internal sovereignty.
However, when the American system—the prototype of modern federal systems—emerged in the late eighteenth century, its architects developed a conception of federalism much like that of ancient Israel. From the first, American federalism functioned to serve a people with a single national identity and was constituted with a strong national government to serve that people on a national basis, though, as late as 1789, The Federalist could, describe the new American constitution as “partly national and partly federal” in deference to the then-accepted views. The successful efforts of the supporters of that constitution to appropriate the term “federalist” for their own use (Main 1961, pp. ix-xi) restored to common usage the older conception of federalism as a noncentralized national union bound by municipal law, with a general government superior to the governments of the constituent states (Diamond 1963).
Just as the American system became the prototype for other modern federal systems, so the American conception of federalism became the generally accepted one. The other conception was ultimately subsumed under the word “confederation” and its kindred terms. The two systems described by these different conceptions reflect, in part, the distinctions implied in the German Staatenbund(confederation) and Bundesstaat(federation), terms developed in the mid-nineteenth century (Mogi 1931). A certain degree of confusion remains because the terms invented to describe both systems were used indiscriminately for many years.
Though the American conception of federalism is today almost universally accepted as the most accurate usage, the confederal conception remains a living and legitimate aspect of the federal idea in its largest political sense. Today, the latter is most prominent among certain advocates of limited European union (the Common Market exemplifies a confederal form) and among many so-called world federalists. [See INTERNATIONAL INTEGRATION.]
Federalism and related systems . Federal systems are often confused with four other forms of political order which make use of specific federal principles. The use of some federal principles in multiple monarchies, legislative unions, empires, and decentralized unitary systems can have important consequences similar to those in authentically federal systems. But the fact that such principles do not permeate the four systems makes the distinctions between them and true federations extremely important.
Federal systems differ from multiple(or dual) monarchies in two essential ways. The central constitutional characteristic of the multiple monarchy is that union exists only in the person of the sovereign and is maintained only through the exercise of executive power in his name. No significant common institutions exist to unite the constituent polities—no common legislatures, no common legal system, and little in the way of a common political substructure. On the contrary, each constituent polity maintains its own political system, which the monarch guarantees to support under the terms of his compact with the realm. Multiple monarchies have historically been less than democratic regimes. Even where there have been tendencies toward democratization, the very fact that union exists only by virtue of the common sovereign has tended to elevate the position of the monarch to one of real power. Attempts to transfer sovereignty or the attributes of sovereignty elsewhere by their very nature stimulate the division of this kind of association of civil societies into separate polities. Thus, the Austro-Hungarian Empire was held together by the Hapsburg emperors and disintegrated when that family ceased to rule (Sharma 1953, chapter 7). The dual monarchy of Sweden and Norway ceased to function when democratic government was introduced, transferring the attributes of sovereignty from the monarch to the nation(s). In Spain, on the other hand, the inability of the Spaniards to transform a multiple monarchy into a federal system, in a locale which by nature demanded peninsular union of some sort, led to the consolidation of the constituent polities into something approximating a unitary state which remained highly unstable because of the local barriers to consolidation that could neither be accommodated nor eradicated (Elliott 1964). [See MONARCHY.]
Multiple monarchies have been transformed into stable and unified polities through legislative union. The United Kingdom is a case in point. The centrifugal tendencies of the seventeenth-century dual monarchy linking England and Scotland were finally eliminated through a legislative union of the two nations in 1707. Legislative union bears very close resemblance to federal union at several crucial points. Though designed to direct public allegiance to a single national authority, the terms of the union encourage the political system to retain certain noncentralizing elements. The government of the nation remains national rather than central in character, since it is created by a perpetual covenant which guarantees the constituent parties their boundaries, representation in the national legislature, and certain local autonomies, such as their own systems of municipal law. Legislative unions usually unite unequal polities. The centralizing tendencies induced by this are somewhat counterbalanced by the residual desire for local self-government in the constituent states. Thus, in the United Kingdom the cabinet has acquired a supremacy not foreseen in 1707, but within the framework of cabinet government Scotland has acquired a national ministry of its own with a separate administrative structure, based in Scotland, for most of its governmental programs (Milne 1957).
Federal systems also differ from empires allowing cultural home rule. Such empires have often been termed federal—in some cases because they claim to be. The Roman Empire was the classic example of this kind of political system in the ancient world, and the Soviet Union may well be its classic modern counterpart. In both cases, highly centralized political authorities possessing a virtual monopoly of power decide, for reasons of policy, to allow local populations with different ethnic or cultural backgrounds to maintain a degree of cultural home rule, provided that they remain politically subservient to the imperial regime. While this often appears to offer a substantial degree of local autonomy, its political effects are purposely kept minimal. Any local efforts to transform cultural home rule into political power are invariably met with suppressive force from the central government, even to the point of revoking cultural rights, as examples from the history of both empires reveal.
Federal systems are clearly different from decentralized unitary states, even though such states may allow local governments considerable autonomy in some ways. In such states local powers are invariably restricted to local matters, as determined by the central authorities, and are subject to national supervision, restriction, and even with drawal, though tradition may mitigate against precipitous action by the central government in areas where local privileges have been established. Still, as the English experience has shown, even powerful traditions supporting local autonomy have not stood in the way of great reconcentration of power by democratically elected parliaments when such action has been deemed necessary by a national majority.
Mature and emergent federal systems . Several recent studies (Macmahon 1955; Wheare 1946) have attempted to draw distinctions between mature and emergent federal systems. The thrust of their argument is that federalism, when used to unify separate political systems to form a new nation, and federalism, as a form of decentralized government in an established nation, encourage markedly different kinds of political behavior. In the former case, federalism serves as a means to bring tenuous unity to nations composed of highly autonomous polities, with the locus of power remaining among the constituent units. As federal systems mature, so the argument goes, power is increasingly concentrated at the center, and federalism remains only to promote a certain amount of decentralization within an otherwise highly unified political system. Wheare goes so far as to argue that federalism is a transitional phenomenon useful in promoting progressively larger polities which are then gradually discarded (in fact, if not in form) as an unnecessary encumbrance. This argument may have some validity in describing the history of nonfederal political systems which have utilized federal principles to promote national unity. For example, it can be used to describe the evolution of the United Kingdom into its present constitutional state. It cannot be applied, however, to any of the three exemplary federal systems—Canada, Switzerland, and the United States. Their national ties existed from the first, and their national governments were granted broad powers at the outset. Nor has federalism declined in importance as those nations have matured.
There are undoubtedly differences between mature and emergent federal systems, but those differences are more likely to relate to the character of conflict and negotiation between the general and constituent governments than to their relative strengths.
Federalism and intergovernmental relations . Because the study of federalism at its most immediately empirical level heavily stresses the study of intergovernmental relations, the two are often considered to be synonymous. Federalism, however, is something much more than the relationships between governmental units, involving as it does principles which are designed to establish the proper character of those relationships and which must also affect the character of other political institutions within federal systems. As already indicated, federalism concerns the way in which federal principles influence party and electoral systems in federal polities just as much as it concerns the way in which local governments relate to their regional or national ones, or to each other. Moreover, the study of intergovernmental relations exists apart from the study of federalism, since such relationships are to be found in all political systems, federal or otherwise, where there is more than one government extant within a given polity.
Characteristics and operational principles
The most useful way to attempt to understand federalism as a political phenomenon is to undertake a survey of the basic characteristics of federal systems, principles, and processes in order to understand both the manner and the direction of their development.
As a first step it seems necessary to identify the various federal systems that exist today or have existed in the past; only then can we analyze them as operating political systems. However, identifying federal systems is no simple matter, as we have just seen. The difficulties are heightened by the wide functional differences easily observed in the various political systems which call themselves federal and by the often greater operational similarities between self-styled “federal” and “unitary” systems. Contrast, for example, the political systems of Australia and the Soviet Union, Canada and Mexico, Switzerland and Yugoslavia, or compare the United States and Great Britain.
Moreover, federal systems have historically been marked by great internal distinctions between theory and practice, perhaps more so than other political systems. In the United States, the measure of the maintenance of federalism was long considered to be the degree of separation of government activities by level, because it was generally believed that such separation actually existed. In fact, American federalism from the first had been characterized by extensive intergovernmental functional collaboration within the framework of separate governmental structures (Elazar 1962). Similarly, the Canadian federal system has always been described as one in which the federal government is clearly dominant—the repository of all powers not explicitly granted to the provinces. Yet since the brief period of federal supremacy in the years immediately following confederation, the provinces have consistently gained power at federal expense (Smiley 1965). The Russian federal constitution goes so far as to grant each Soviet republic the right of secession—a patent impossibility under the realities of the Russian political system.
Nevertheless, some basic characteristics and operational principles common to all truly federal systems can be identified, and help us to define such systems. These may be divided into three essential elements and a number of supplementary ones.
Written constitution . First, the federal relationship must be established or confirmed through a perpetual covenant of union, inevitably embodied in a written constitution that outlines, among other things, the terms by which power is divided or shared in the political system and which can be altered only by extraordinary procedures [see CONSTITUTIONS AND CONSTITUTIONALISM]. Every existing federal nation possesses a written constitution, as do most of the other nations incorporating elements of the federal principle. Juridically, federal constitutions are distinctive in that they are not simply compacts between the rulers and the ruled but involve the people, the general government, and the polities constituting the federal union. Moreover, the constituent polities retain local constitution-making rights of their own.
Noncentralization . The political system must reinforce the terms of the constitution through an actual diffusion of power among a number of substantially self-sustaining centers that are generally coincident with the constituent polities established by the federal compact. Such a diffusion of power may be termed noncentralization. It differs from decentralization—the conditional diffusion of specific powers to subordinate local governments by a central government, subject to recall by unilateral decision. It is also more than devolution—the special grant of powers to a subnational unit by a central government, not normally rescindable. Non-centralization ensures that no matter how certain powers may be shared by the general and constituent government at any point in time, the authority to participate in exercising them cannot be taken away from either without mutual consent. Constituent polities in federal systems are able to participate as partners in national governmental activities and to act unilaterally with a high degree of autonomy in areas constitutionally open to them —even on crucial questions and, to a degree, in opposition to national policies, because they possess effectively irrevocable powers.
Areal division of power . A third element that appears to be essential in any federal system is the internal division of authority and power on an areal basis (Maass 1959), what in the United States has been called territorial democracy. It is theoretically possible to create a federal system whose constituent units are fixed but not territorially based. There were premodern protofedera-tions of nomadic tribes, and some observers have seen federal elements in nations constitutionally structured to accommodate social and political divisions along ethnic, religious, or even ideological lines. Nevertheless, no authentic federal system has existed without an areal basis for the federal division. Historically, when areal divisions of power have given way to divisions on the basis of functional interest, federalism has been replaced by pluralism. In modern democratic theory the argument between federalists and antifederalists has frequently revolved around the respective values of areal and functional diffusions of power. Theorists who have argued the obsolescence of federalism while endorsing the values used to justify its existence have generally based their case on the superior utility of pluralism (Mogi 1931, pp. 1059-1115). Proponents of the federal-areal division argue that the deficiencies of territorial democracy are greatly overshadowed by the neutrality of areal representation of functional interests, and they argue further that any other system devised for giving power to these interests has proved unable to cope with the complexities and changes of interest endemic in a dynamic age while certainly limiting the advantages for local differentiation inherent in the areal system.
Studies of federal systems indicate the existence of other elements that supplement the three basic ones. While all of them are not always present in every federal system, their near universality leads to the conclusion that they serve important functions in the maintenance of federalism in each. Similarly, while many of them are found individually in various kinds of political systems, it is their combination within a single system structured around the basic elements that is characteristic of federalism.
Maintaining union . Generally characteristic of modern federal systems are direct lines of communication between the public and both the general and the constituent governments, which allow the public to exert direct influence on both governments and permit them to exercise direct authority over a common citizenry. The people may (and usually do) elect representatives to all governments which serve them. All of the governments may (and usually do) administer programs so as to serve the individual citizen directly. The courts may serve both levels of government, applying the relevant laws directly.
The existence of those direct lines of communication—one of the major features distinguishing federations from leagues—is usually predicated on the existence of a sense of common nationality binding the constituent polities and peoples of federal nations together, another element requisite for the maintenance of a successful federal system. In some countries this sense has been inherited, but in most it has had to be invented. Federalism in Germany has been based on a common sense of an inherited German nationhood. In the United States, Argentina, and Australia a sense of nationhood had to be at least partly invented. National consciousness soon became second nature in those countries, since none of their constituent states ever had much more than a partially developed national consciousness of its own. Canada, Switzerland, and Yugoslavia have had to invent a sense of common nationality strong enough to embrace “nationality groups” whose intense national feelings are rooted in the constituent polities. In such newly formed federal systems as India, Malaysia, and Nigeria, the future of federalism is endangered by the absence of a common sense of nationality. Contrary to some theories, federalism has not proved to be a particularly good device for integrating diverse nationalities into a single political system unless it has been accompanied by other factors compelling integration.
Geographic necessity has been a major factor promoting the maintenance of union within federal systems, even in the face of strong pressures toward disunion. The Mississippi Valley in the United States, the Alps in Switzerland, the island character of the Australian continent, and the mountains and jungles surrounding Brazil have served as direct geographic influences promoting unity. More political than “natural,” but no less compelling geographically, have been the pressures for Canadian union generated by that country’s neighbor to the south or for the federation of the German states generated by their neighbors to the east and west.
Maintaining noncentralization . It has been well demonstrated that the constituent polities in a federal system must be fairly equal in population and wealth or at least balanced geographically or numerically in their inequalities, if noncentralization is to be maintained. The United States has been able to overcome its internal inequities because each geographic section has included both great and small states. In Canada, the ethnic differences between the two largest provinces have served to inject balance into the system. The existence of groups of cantons in different size categories has helped maintain Swiss federalism. Similar distributions exist in every other system whose federal character is not in question.
The existence of a large polity dominating smaller states with which it is nominally federated on equal terms has often been one of the major reasons for the failure of federalism. In the German federal empire of the late nineteenth century, Prussia was so obviously dominant that the other states had little opportunity to provide national leadership or even a reasonably strong hedge against the desires of its king and government. Similarly, even without the problem of the Communist party, the existence of the Russian Soviet Federal Socialist Republic, which occupies three-fourths of the area and contains three-fifths of the population of the Soviet Union, would have severely crippled the possibilities of maintaining authentic federal relationships in that country.
Successful federal systems have also been characterized by the permanence of the boundaries of their constituent units. This does not mean that boundary changes cannot occur, but it does mean that as a matter of constitutional law such changes can be made only with the consent of the polities involved and that, as a matter of political policy, they are avoided except in the most extreme situations. Boundary changes have occurred in the “classic” federal systems—the United States divided Virginia during the Civil War, Canada has enlarged the boundaries of its provinces, and Switzerland has divided cantons—but they have been the exception rather than the rule, and in every case at least the formal consent of the constituent polities was given. Even in weaker federal systems, such as those of Latin America, state boundaries have tended to remain relatively secure. When boundary changes have been made, as in the postwar redrawing of Lander boundaries in West Germany to account for the diminished territory of the Federal Republic and the alteration of state lines to recognize linguistic unities in India, the essential heartlands of the polities involved have been preserved.
In a few very important cases, noncentralization is both reflected and supported through the constitutionally guaranteed existence of different systems of law in the constituent polities. Though the differences in those systems are likely to be somewhat eroded over time—the extent of their preservation varying from system to system—their continued existence as separate systems and the national mixture of laws which their existence promotes act as great bulwarks against centralization [See LEGAL SYSTEMS]. In the United States, each state’s legal system stems directly and to a certain extent uniquely from English law, while federal law occupies only an interstitial position binding the systems of the fifty states together insofar as necessary. The resulting mixture of laws keeps the administration of justice, even in federal courts, substantially noncentralized (Macmahon 1955, chapter 11). In Canada, the existence of common law and civil law systems side by side is one constitutional guarantee of French-Canadian cultural survival. Noncentralized legal systems, a particularly Anglo-American device, are often used in legislative as well as federal unions. They are rare in other political cultures and have become less common in all federal systems established since 1900. More common is the provision for modification of national legal codes by the subnational governments to meet special local needs, as in Switzerland.
The point is generally well taken that unless the constituent polities have substantial influence over the formal or informal amending process the federal character of the system is open to question. Since many constitutional changes are made without recourse to formal constitutional amendment, the position of the constituent polities must be additionally protected by a constitution designed so that any serious changes in the political order can be made only by the decision of dispersed majorities which reflect the areal division of powers. This protection, which federal theorists have argued is important for popular government as well as for federalism (Diamond 1963), is a feature of the most truly federal systems.
Noncentralization is strengthened in all federal systems by giving the constituent polities guaranteed representation in the national legislature and, often, by giving them a guaranteed role in the national political process. In some federal systems, notably those of the United States and Switzerland, the latter is guaranteed in the written constitution. In others, such as Canada and those in Latin America, certain powers of participation have been acquired and have become part of the traditional constitution.
Recent studies have shown that the existence of a noncentralized party system is perhaps the most important single element in the maintenance of federal noncentralization (Macmahon 1955). Non-centralized parties initially develop because of the constitutional arrangements of the federal compact, but once they have come into existence, they tend to be self-perpetuating and to function as decentralizing forces in their own right.
The United States and Canada provide two examples of the different forms which can be assumed by a noncentralized party system. In the United States, where party responsibility is minimal and virtually nonexistent on the national level, a two-party system has developed, with the parties actually coalitions of the several state or, in some cases, local party organizations functioning as national units only for the quadrennial presidential elections or for purposes of organizing the national Congress. Party financing and decision making are functions which are dispersed either among the state organizations or among widely divergent factions operating nationwide. In Canada, on the other hand, the parliamentary form of government, with its concomitant requirement of party responsibility, means that at the national level considerably more party cohesiveness must be maintained simply in order to gain and hold power.
The noncentralized party system in Canada has developed through a fragmentation of the parties along regional or provincial lines. The parties with nationwide bases are still divided internally along provincial lines, with each provincial organization autonomous. Individual provinces are frequently dominated by regional parties that send only a few representatives to the national legislature, adding to the fragmentation of the system. Very often, the party victorious in national elections is the one which is briefly able to expand its base to most nearly national proportions.
European-style federal systems where parliamentary government is the norm follow the Canadian model. Australia and Switzerland come closest to paralleling it, and traces of it can be found in the German Federal Republic. A more centralized variation of the same pattern exists in countries like India, in which the national government is dominated by one very large and diffuse national party which is held together nationally by personal leadership but is quite factionalized in the states where it must share the governing power with other parties.
Federal nations with less developed party systems frequently gain some of the same decentralizing effects through what the Latins call caudillismo—noncentralized personal leadership systems which diffuse power through strong local leaders operating in the constituent polities. Caudillistic noncentralization is most characteristic of Latin American federal systems but apparently exists in such new federations as Nigeria and Malaysia as well [see CAUDILLISMO].
The importance to federalism of a noncentralized party system is well illustrated by contrast with those formally federal nations dominated by one highly centralized party, such as the Soviet Union, Yugoslavia, and Mexico. In all three cases, the dominant party has operated to limit the power of the constituent polities in direct proportion to the extent of its dominance.
Ultimately, however, noncentralization is maintained to the extent that there is respect for the federal principle within each federal system. Such respect is necessarily reflected in the immediate recognition by the decision-making publics that the preservation of the constituent polities is as important as the preservation of the nation as a whole. In the words of the American Chief Justice Salmon P. Chase, federalism looks to “an indestructible Union, composed of indestructible States” (Texas v. White, 7 Wallace ). This recognition may be based on loyalty to particular constituent polities or on an understanding of the role played by federalism in animating the political system along certain unique lines. Thus, those who value government by conciliation and partnership, with emphasis on local control, are likely to have respect for the federal principle.
Citizens of a federal nation must show that respect in two ways, by showing self-restraint and by cultivating the political art of negotiation. Federalism can exist only where there is considerable tolerance of diversity and willingness to take political action through conciliation even when the power to act unilaterally is available. The usual prerequisite to action in federal systems is the ability to build consensus rather than the power to threaten coercion. Western federal nations can furnish many examples of the exercise of national self-restraint in dealing with difficult federal problems. Even in a federal system as centralized as that of India, the constitutional right of the national government to assume control of the state governments is exercised as little as possible— notably when the communists win local elections— and is then clearly a temporary action.
The historical record indicates that the dual purpose implied in Chase’s dictum has been at least as responsible for the creation of federal systems as has the single interest in political unification. The Canadian confederation came into being not only to create a new nation out of the British North American colonies but also to give Ontario and Quebec autonomous political systems of their own. Similarly, every move toward greater union in the Swiss confederation has been made in order to preserve the independence of the cantons from both outside encroachment and revolutionary centralism (Sharma 1953, pp. 269-275). A good case can be made that similar motivations were important in the creation of Australia, Malaysia, Nigeria, and the United States.
Maintaining the federal principle . Several of the devices commonly found in federal systems serve to maintain the federal principle per se and are consequently supportive of both the national government and the constituent polities. Two of these are particularly common and important.
The maintenance of federalism requires that the nation and its constituent polities each have a substantially complete set of governing institutions of their own with the right—within limits set by the compact—to modify those institutions unilaterally. Separate legislative and administrative institutions are both necessary. This does not necessarily mean that all governmental activities must be carried out by separate institutions at each level. It is possible for the agencies of one government to serve as agents of the other by mutual agreement. But each government must have the needed institutions to function independently in the areas of its authority and the structural resources to cooperate freely with the other government’s counterpart agencies.
In this regard, the contractual sharing of public responsibilities by all governments in the system appears to be a central characteristic of federalism. Sharing, broadly conceived, includes common involvement in policy making, financing, and administration of government activities. In contemporary federal systems, it is characterized by extensive intergovernmental collaboration. Sharing can be based on highly formal arrangements or informal agreements. In federal systems, it is usually contractual in nature. The contract—politically a limited expression of the compact principle—is used in formal arrangements as a legal device to enable governments responsible to separate polities to engage in joint action while remaining independent entities. Even where government agencies cooperate without formally contracting to do so, the spirit of federalism that pervades ongoing federal systems tends to infuse the participating parties with a sense of contractual obligation.
In any federal system, it is likely that there will be continued tension between the federal government and the constituent polities over the years and that different “balances” between them will develop at different times. The existence of this tension is an integral part of the federal relationship, and its character does much to determine the future of federalism in each system. The question of federal-state relations which it produces is perennially a matter of public concern because virtually all other political issues arising in a federal system are phrased in terms of their implications for federalism. In this way federalism imposes a way of looking at problems that stands apart from the substantive issues raised by the problems themselves. This is particularly true of those issues which affect the very fabric of society. In the United States, for example, the race question is a problem of federal-state as well as Negro-white relations, and the same is true of the cultural question in Canada and the linguistic question in India.
The end product . The very terminology of federalism is characterized by a revealing ambiguity that is indicative of the end product of federal systems. The word “federalize” is used to describe the unification of “sovereign” states into a federal polity and also the permanent devolution of authority and power within a nation to subnational governments. In this ambiguity lies the essence of the federal principle—the perpetuation of both union and noncentralization.
Viewed from the top, the combination of the elements discussed above results in a federal rather than a central government—i.e., a government composed of a nationwide coalition of political institutions, some with predominantly local power bases (such as the national legislature), others with predominantly national power bases (such as the national bureaucracy). This government, whose power is thus diffused vertically and laterally, functions in cooperation with the constituent polities which it must conciliate in order to act. Decision making is characterized by heavy reliance upon negotiation and bargaining and by minimal reliance upon the exercise of force. Operations are characterized by a measure of disorder, since non-centralization breeds multiple power centers located at or cutting across all levels of government. Each of these centers seeks to keep open routes of access to the others, usually succeeding because it is in the best interests of all to maintain this kind of disorder as part of the “rules of the game.”
Viewed locally, a federal system consists of governmental inputs from different sources whose local connections normally serve to fragment local authority. However, because such a system rewards those who actively seek to reconcile the diffuse elements and bind them together for a larger purpose, local political leaders can control these inputs to a great extent. While this may not prevent the national government from exercising great power at any given time or from increasing its total power over time, it does mean that as long as the federal principle remains operative, the public can and almost invariably does limit certain kinds of national government actions or guides such actions into particular channels (often directed toward strengthening the constituent governments) by invoking the terms of the compact.
Viewed theoretically, these patterns of behavior and the arguments advanced to justify them serve to reaffirm the fundamental principles that (1) the strength of a federal polity does not stem from the power of the national government but from the authority vested in the nation as a whole; (2) both the national government and the governments of the constituent polities are possessed of delegated powers only; and (3) all governments are limited by the common national constitution.
All this should make it apparent that federalism is a form of popular government embodying elements of both republicanism and democracy. The federal structures occasionally adopted by nondem-ocratic systems must generally be’considered “window dressing” except insofar as the injection of the federal principle may serve as a democratizing force in itself. In Yugoslavia, for example, the existence of a federal superstructure has proved useful in fostering such decentralization as the Communist party leadership wished to allow and may even have played a role in stimulating decentralizing tendencies.
Empirical and theoretical development
Ancient protofederal systems . Long before the term “federal” was invented, there were political systems that embodied elements of the federal principle. The Israelite political system was probably the first example in recorded history of a union of constituent polities based on a sense of common nationality, with national and tribal political institutions and some division of functions between the two partly formalized by a written constitution. As a republic it was never able to overcome the problems of national executive leadership and succession and, after some two hundred years, revised its constitution to superimpose a limited monarchy on its federal institutions. Still, as many of the seventeenth-century federalists noted, it came closer to resembling a modern federal system than any comparable premodern nation. Its classic intellectual product, the Bible, was the first book to discuss the problems of a federal polity.
Permanent leagues of independent states united by a sense of common need but without any sense of common nationhood were found in various parts of the Greek world. They were entrusted with certain matters in the realm of foreign affairs and defense but were in every respect accountable to their member states. The classic example of this system was the Achaean League (251-146 B.C.), a protofederal system often erroneously considered to be the first federal polity (Freeman 1863). The Greeks left some descriptions of their leagues but no theoretical discussions of the league as a political system. Except for Aristotle’s criticisms, the great Greek political theorists ignored federalism as a political principle because the very idea contradicted their conception of the small, unified polis as the only basis upon which to build the good regime.
Several of the great ancient empires, notably the Persian, Hellenic, and Roman, structured their political systems around the principle of cultural home rule. Since political life was virtually inseparable from the religious and cultural aspects of society in the ancient world, imperial recognition of local constitutions offered a measure of contractual devolution of political power; however, as in more recent examples of this form of imperialism, such home rule was not a matter of local right but represented a conditional grant subject to unilateral revocation by the imperial rulers.
Medieval experiments . Elements of the federal principle are foreshadowed in medieval feudalism through its emphasis on essentially immutable contractual relationships that permanently link the contracting parties while guaranteeing their rights. However, the hierarchical character of these relationships, coupled with the lack of practical mechanisms to maintain the terms of the contracts, led to the degeneration of those elements in most feudal societies. Another movement in the direction of federalism grew out of the development of medieval commercial towns in central Europe which formed leagues for mutual defense and assistance following the Greek model. The most important development in this period was the first confederation of Swiss cantons in 1291 for mutual aid in defense of their independence. The success of this effort was in no small measure due to its connection, from the beginning, with quasi-popular government. These embryonic federal experiments all proceeded pragmatically while federal theory was confined to juridical discussions of the corporate relationships between polities in the Holy Roman Empire.
Ultimately a fusion of contractual elements from feudalism with political mechanisms from the commercial confederacies gave rise to the immediate antecedents of modern federalism. The Christian states on the Iberian Peninsula created a political system which in its most advanced stages came very close to authentic federalism. During the years of the reconquest, most of the peninsula was reorganized under the fuero system, which established local governments with relatively liberal political institutions in order to encourage resettlement. New states were formed through feudal-style contractual relationships designed to protect local rights. Three of these states joined in a quasi-federal arrangement under the crown of Aragon, each of them (plus several in Italy added later) retaining its own constitution and governing institutions as well as acquiring representation in the over-all Aragonese government. Unification of Spain under a multiple monarchy in 1469 left most of these federal elements intact for the next two and a half centuries, but the demands of the monarchy ultimately subverted them, transforming Spain into a precariously centralized state.
In the sixteenth century, certain emergent civil societies, influenced by the Reformation to return to Scripture as a political source and by the Spanish system of political organization, as well as by local necessity, began to apply federal principles for state-building purposes. The Hapsburg heirs to the Spanish crown had applied Iberian principles to the organization of their other European possessions. Their governmental reforms in the Netherlands provided an organizational basis for the federation of the United Provinces in the late sixteenth century. When that country gained its independence, it established a political system which, while unable to solve the most crucial technical problems of federalism, maintained itself in federal style for two hundred years, until Napoleon put an end to its existence, leaving a residue of noncentralization that marks the Netherlands today.
The Swiss, in the meantime, were developing their own techniques for combining feudal and commercial elements to create a loose confederation of cantons, which was also influenced by Biblical ideas and, perhaps negatively, by contacts with Hapsburg Spain. Achieving full independence in 1648, the Swiss confederation remained loosely leagued for two centuries (except for the Napoleonic interlude), until it adopted a federal constitution in 1848.
First modern formulations . The protofederalism of the United Provinces and the Swiss cantons, coming at the outset of the age of nationalism, also stimulated the first serious efforts to formulate federal theories based on modern political ideas. Jean Bodin analyzed the possibilities of federation in light of the problem of sovereignty. Hugo Grotius and Samuel Pufendorf examined federal arrangements as aspects of international law. These theorists all treated federalism as an aspect of international law. Johannes Althusius (1603), analyzing the Dutch and Swiss constitutions, was the first to perceive that federalism was really concerned with problems of national unity. The real father of modern federal theory, he was also the first to connect federalism with popular sovereignty and to distinguish between leagues, multiple monarchies, and confederations. His retention of hierarchical principles and his emphasis on the corporate organization of society both flawed the federal character of his work and reflected the empirical roots of his analysis.
Thus the rise of the nation-state in the sixteenth and seventeenth centuries stimulated federal solutions to the problems of national unification. In all but a few countries on the periphery of western Europe, the application of federal principles foundered on three problems: (1) the conciliation of feudally rooted hierarchies with a system demanding fundamental social equality in order to facilitate the sharing of power; (2) the reconciliation of local autonomy with national energy in an era of political upheaval that required most nations to maintain a state of constant mobilization basically incompatible with the toleration of local differences; and (3) the problem of executive leadership and succession, which is particularly complex in federal systems and was not solved until the United States invented the elected presidency.
Modern federalism . The rise of modern imperialism also contributed to the emergence of federalism, as indicated by the works of the important prerevolutionary political theorists of the eighteenth century, e.g., Montesquieu and Adam Smith. Here, too, the Spanish experience was influential, but it remained for the British to create the requisite popular institutions in their colonization of North America and for the Biblically influenced colonists to create the theoretical justification for these institutions. The theoretical ambiguity of those quasifederal institutions led Americans to assume that their relationship to the British government was federal, while London entertained no such notion (Becker 1922). The Americans’ response to their view of the imperial system helped them develop the federal ideas they were later to use so creatively.
The founders of the United States of America can be said to have transformed and organized the principles of federalism into a practical system of government. They were able to do so partly because their nation developed without the disadvantages that plagued earlier federal systems. As a postfeudal society, the United States had no serious problem of coping with hierarchies. As a relatively isolated nation, external pressures for centralization were not present for nearly 150 years. American political inventiveness took care of the internal problems of applying the federal principle, though not without having to fight a major civil war to resolve some of them. Though the specific forms of American federalism were not widely imitated with success, its basic principles of organization were emulated by almost every other nation attempting the federal solution to the problems of popular government in a pluralistic civil society. The creation of the theoretical framework for those principles was part and parcel of the invention of federalism. Set forth in its basics in the debate over ratification of the constitution, that framework had at its core The Federalist(1787-1788), the classic formulation of the principles of modern federalism. Equally important to the evolution of federal systems, however, were the arguments of those who wished to preserve even greater state autonomy; many of these arguments were transformed into tools to promote extraconstitutional decentralization during the nineteenth century.
From the first, American contributions to federal theory—even those of the few theorists not actively involved in politics—have been rooted in the practical concerns of maintaining a federal system. Most of these contributions have, accordingly, been formulated as discussions of constitutional law. The courts, particularly the federal Supreme Court, have conducted continuing debate on the meaning and character of federalism through the medium of case law. Leading political figures, such as Gallatin, Calhoun, Lincoln, Wilson, and the Roosevelts, have made real contributions through their state papers. The pragmatic orientation of those contributions, however, has tended to obscure their more lasting theoretical importance (Anderson 1955).
The French Revolution, while stimulating the development of popular government, was essentially hostile to the spirit and institutions of federalism. Its immediate heirs tried to destroy federal institutions in western Europe in the name of democracy, and the subsequent bearers of its tradition have proved equally hostile to federal ideas— except insofar as some of them have equated federalism with decentralized government.
In the nineteenth century, several of the new Latin American nations, following the United States example and also influenced by the federal elements in the Hispanic imperial tradition, experimented with federalism, with distinctly mixed results. Even where federalism survived in theory, the instability of Latin American governments and the frequent recourse to dictatorial regimes hampered its effective operation. Even so, the three largest Latin American nations—Argentina, Brazil, and Mexico—retain federal systems of varying political significance; federal principles are also included in the political systems of Colombia and Venezuela.
In the mid-nineteenth century European politicians and political theorists, stimulated by necessity, the American example, and the very influential studies of Tocqueville (1835), turned to consider federalism as a form of democratic political organization. Though practical applications remained few, numerous works were produced, primarily in the German-speaking countries, where doctrinaire and metaphysical analyses of federalism in relation to the problems of nationalism, sovereignty, and popular consent were in vogue. The most important of these works were the theoretical formulations of Bluntschli (1849-1852), based on his observations of federal reorganization in Switzerland, and the historical studies of Gierke. In the end, federal principles were used in the unification of Germany, and Switzerland adopted a modern federal constitution. Fully federal solutions were rejected in other nations, but several adopted quasi-federal institutions to meet particular problems of unification and decentralization.
During the late nineteenth century, British interest in imperial federalism was manifested in several ways. Canada and Australia were given federal constitutions and dominion status in 1867 and 1901, respectively, and the foundations were laid for the federal unification of India. British political theorists interested in imperial unity and internal devolution explored contemporary (Bryce 1888) and historical (Freeman 1863) federal experiments and presented arguments of their own as to the utility and proper organization of federal systems (Labillière 1894).
Whereas in the nineteenth century federalism was used to abet ethnic nationalism, in the twentieth it has been used as a means to unify multiethnic nations. Several of the ethnically heterogeneous nations created or reconstructed after World War I, including the Soviet Union and Yugoslavia, formally embraced federalism as a nominal solution to their nationality problems. The United Kingdom added a federal dimension at the same time to accommodate the Irish. Extension of nation-building activities to Asia and Africa, where ethnic diversity is even greater than in Europe, has led to new efforts in the same vein. In nations outside of the totalitarian orbit, such as India and Malaysia, federalism has been used to secure political and cultural rights for the larger ethnolinguistic groups. In Africa, where the survival of separate ethnic groups has been called into question by the native nationalists, federalism has been applied in several nations, including Nigeria and Cameroon, as a device for sharing political power rather than a way to maintain cultural autonomy.
The contemporary study of federalism . The emergence of political science as a discipline in the late nineteenth century stimulated a shift from an explicitly normative to a predominantly empirical interest in federalism. Such noted British scholars as Bryce (1901) and Dicey (1885) were the first to study federalism as part of their general interest in political systems. American scholars began their work in the 1870s, as the Civil War generation was passing into history, but their first works still reflected the issues of the war. Thus Burgess (1886) concluded that the utility of the states was dissipated by modern technology, just as their power was destroyed by the war, while Wilson (1885) accepted the view that the war had wrought great changes but still saw federalism as alive and vital.
Though these men and their colleagues laid the foundations for the empirical study of federal systems with the tools of contemporary political science, federalism as a field of study was neglected for many years. The rise of other problems to attract the attention of scholars, the negation of earlier legalistic and metaphysical approaches, and the decline of normative interest in the federal principle combined to dissuade younger political scientists from examining questions of federal government, except incidentally, until the twentieth century was well advanced.
Renewed interest in the field first developed when American students of public administration found themselves confronted with problems of intergovernmental relations at nearly every turn. The study of intergovernmental relations in the administrative realm brought about significant gains in the understanding of the process of federal government, not the least of which was a growing recognition that the assumptions about federalism underlying their work, borrowed whole from nineteenth-century theorists, needed serious re-examination. Beginning in the 1930s and 1940s, American and British political scientists began to raise fundamental questions about the nature of federal systems and the interrelationships of their governmental components (Anderson 1946). In the 1950s these questions were expanded to include, among others, problems of political influence, the role of political parties, the historical development of federal systems, and the meaning of earlier federal theories (Bachelder&Shaw 1964). By the early 1960s, students of existing federal governments were rediscovering the need to clarify the principles of federalism in order to understand the operation of those governments. Students of comparative government were also becoming increasingly interested in problems of political integration, centralization, and decentralization—all of which stimulated new interest in the systematic study of federalism.
While many attempts to establish federal systems have ended in failure, such systems, once established, have proved to be most durable. No authentic federal system that has lasted for even 15 years has ever been abandoned except through revolutionary disruption (as in the case of Germany), and in every such case federalism—showing remarkable resilience—has ultimately been restored. Certain theories to the contrary, there is no evidence that federalism represents a transitional stage on the road to unitary government. No federal system in history has ever “evolved” into a unitary one, nor has any established system been structurally consolidated by internal decision. On the contrary, federal devices to conciliate minority populations have been used in place of force to maintain unity even in consolidated systems. Moreover, federal systems or systems strongly influenced by the federal principle have been among the most stable and long-lasting of polities.
At the same time, relatively few cultures have been able to utilize federal principles in government. Anglo-American civil societies have done so most successfully. Even those not fully committed to federalism have, without exception, included elements of the federal principle in whatever systems they have chosen, no doubt because both constitutionalism and noncentralization rate high on the scale of Anglo-American political values.
Of the 16 formally federal nations that exist in the world today, Australia, Cameroon, Canada, India, Malaysia, Nigeria, and the United States were created under British colonial tutelage. These seven include all the nations established since World War II that have been able to maintain federal systems, and they provide most of the successful examples of federalism in operation. Of the nine remaining federal nations, Argentina, Brazil, and Mexico fall directly within the Hispanic political tradition and Austria, Germany, and Switzerland, though they follow the Germanic political tradition, were also influenced by Hispanic ideas at some point in their development. Both political traditions have been influential in stimulating federal inclinations in many of the nonfederal nations, but they have been notably less successful in fostering lasting federal institutions; the Hispanic tradition has failed to combine federalism and stability, while the Germanic has tended toward authoritarian centralization. (The three remaining nations, Libya, the Soviet Union, and Yugoslavia, are federal in name and formal structure but hardly in any meaningful sense of the term.)
The successful operation of federal systems requires a particular kind of political environment, one which is conducive to popular government and has the strong traditions of political cooperation and self-restraint that are needed to maintain a system which minimizes the use of coercion. Beyond the level of tradition, federal systems operate best in societies with sufficient homogeneity of fundamental interests—or consensus—to allow a great deal of latitude in political operations and to place primary reliance upon voluntary collaboration. The existence of severe strains on the body politic which lead to the use of force to maintain domestic order is even more inimical to the successful maintenance of federal patterns of government than of other forms of popular government. Moreover, federal systems are most successful in civil societies with the human resources to fill many public offices competently and with material resources plentiful enough to allow a measure of economic waste in payment for the luxury of liberty.
Daniel J. Elazar
[See alsoCENTRALIZATION AND DECENTRALIZATION; CONSTITUTIONAL LAW, article onDISTRIBUTION OF POWERS; PRESIDENTIAL GOVERNMENT. Other relevant material may be found inGOVERNMENT; INTERNATIONAL INTEGRATION; NATION; STATE.]
Althusius, Johannes (1603) 1932 Politica methodice digesta. Edited by Carl J. Friedrich. Cambridge, Mass.: Harvard Univ. Press. → The first European book directed entirely to the discussion of federalism. Text in Latin with a comprehensive English introduction.
AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 1965 Intergovernmental Relations in the United States. Edited by Harry W. Reynolds, Jr. Annals, Vol. 359. Philadelphia: The Academy.
Anderson, William 1946 Federalism and Intergovernmental Relations: A Budget of Suggestions for Research. Chicago: Public Administration Service.
Anderson, William 1955 The Nation and the States: Rivals or Partners? Minneapolis: Univ. of Minnesota Press. → One of the best descriptions of the American federal system.
Aspaturian, Vernon V. 1950 The Theory and Practice of Soviet Federalism. Journal of Politics12 : 20–51.
Bacheldek, Glen L.; and SHAW, PAUL C. 1964 Federalism: A Selected Bibliography. Unpublished manuscript, Michigan State Univ., Institute for Community Development and Services.
Becker, Carl L. (1922)1958 The Declaration of Independence: A Study in the History of Political Ideas. New York: Vintage. → An important study of the origins of American federal ideas.
Birch, Anthony H. 1955 Federalism, Finance and Social Legislation in Canada, Australia, and the United States. Oxford: Clarendon.
Bluntschli, Johann K. 1849-1852 Geschichte des schweizerischen Bundesrechtes.2 vols. Zurich: Meyer & Zeller. → A theory of federal organization based on the reconstruction of the Swiss Confederation in 1848.
Boehm, Max H. 1931 Federalism. Volume 6, pages 169-172 in Encyclopaedia of the Social Sciences. New York: Macmillan. → Devoted primarily to a discussion of federalism as a social theory.
Bonduhant, Joan 1958 Regionalism vs. Provincialism: A Study in Problems of Indian National Unity. India Press Digests, Monograph Series, No. 4. Berkeley: Univ. of California Press.
Brett, Lionel (editor) 1961 Constitutional Problems of Federalism in Nigeria. Lagos (Nigeria): Times Press.
Bright, John 1959 A History of Israel. Philadelphia: Westminster Press. → The best description of federal institutions in ancient Israel.
Bryce, James (1888) 1909 The American Commonwealth.3d ed., 2 vols. New York and London: Macmillan. → An abridged edition was published in 1959 by Putnam. A classic work whose descriptions of federal-state relations follow conventional American opinions of the period.
Bryce, James 1901 Studies in History and Jurisprudence. New York: Oxford Univ. Press. → Includes Bryce’s theoretical considerations of federalism.
Burgess, John W. 1886 The American Commonwealth. Political Science Quarterly1 : 9–35. → One of the earliest pronouncements on the “demise of the states” in the United States.
Canada, Royal Commission ON DOMINION-PROVINCIAL RELATIONS 1940 Report.3 vols. Ottawa: Patenaud. → Volume 1: Canada: 1867–1939. Volume 2: Recommendations. Volume 3: Documentation. The most comprehensive survey of the Canadian federal system.
CLAREMONT MEN’S COLLEGE, CLAREMONT, CALIF., INSTITUTE FOR STUDIES IN FEDERALISM 1961 Essays in Federalism, by George C. S. Benson et al. Claremont, Calif.: The College.
Codding, George A. 1961 The Federal Government of Switzerland. Boston: Houghton Mifflin.
Cowen, Zehman 1959 Federal Jurisdiction in Australia. New York: Oxford Univ. Press.
Diamond, Martin 1963 The Federalist. Pages 573-593 in Leo Strauss and Joseph Cropsey (editors), History of Political Philosophy. Chicago: Rand McNally. → An important discussion of The Federalist as a major contribution to democratic political theory.
Dicey, Albert V. (1885) 1961 Introduction to the Study of the Law of the Constitution.10th ed. With an introduction by E. C. S. Wade. London: Macmillan; New York: St. Martins. → First published as Lectures Introductory to the Study of the Law of the Constitution. The classic liberal work on the British constitution that considers the questions of federalism in comparison with legislative union.
Elazar, Daniel J. 1962 The American Partnership: Intergovernmental Co-operation in the Nineteenth-century United States. Univ. of Chicago Press. → A study of the evolution of intergovernmental relations in the United States.
Elazar, Daniel J. 1966 American Federalism: A View From the States. New York: Crowell.
Elliott, John H. 1964 Imperial Spain: 1469–1716. New York: St. Martins. → Historical description of Spanish protofederal systems and their decline.
Federalism and Economic Growth in Underdeveloped Countries: A Symposium, by Ursula K. Hicks et al. 1961 New York: Oxford Univ. Press.
Freeman, Edward A. (1863)1893 The History of Federal Government in Greece and Italy.2d ed. London and New York: Macmillan. → A classic attempt to trace the origins of federalism.
Gierke, Otto Von (1913) 1934 Natural Law and the Theory of Society: 1500 to 1800. Translated with an introduction by Ernst Barker. Cambridge Univ. Press. → A study of the early modern origins of federal ideas. A translation of five subsections of Volume 4 of Das deutsche Genossenschaftsrecht. A paperback edition was published in 1957 by Beacon.
Goldwin, Robert A. (editor) 1963 A Nation of States: Essays on the American Federal System. Chicago: Rand McNally.
GRAVES, W. BROOKE 1964 American Intergovernmental Relations: Their Origins, Historical Development, and Current Status. New York: Scribner.
Grodzins, Morton 1960a American Political Parties and the American System. Western Political Quarterly13 : 974–998. → A very important descriptive analysis of the role of a noncentralized party system in the maintenance of federalism.
Ghodzins, Morton 1960b The Federal System. Pages 265-282 in U.S. President’s Commission on National Goals, Goals for Americans. Englewood Cliffs, N.J.: Prentice-Hall. → A comprehensive description of the American federal system.
Grodzins, Morton 1966 The American System: A New View of Government in the United States. Chicago: Rand McNally.
HAMILTON, ALEXANDER; MADISON, JAMES; and JAY, JOHN (1787-1788) 1961 The Federalist. Edited with introduction and notes by Jacob E. Cooke. Middletown, Conn.: Wesleyan Univ. Press. → The classic foundation of federal theory.
Kaufmann, Yehezkel (1937-1948) 1960 The Religion of Israel: From Its Beginnings to the Babylonian Exile. Univ. of Chicago Press. → An abridgment and translation of Toldot Hā-emūnah Hā-yisraelit. An important discussion of the origins of covenant theory in the Bible.
LabilliÈre, Francis P. DE 1894 Federal Britain: Or, Unity and Federation of the Empire. London: Low, Marston. → A compendium of studies relating to the idea of British imperial federalism.
Livingston, William S. (editor) 1963 Federalism in the Commonwealth: A Bibliographical Commentary. London: Cassell.
Maass, Arthur (editor) 1959 Area and Power: A Theory of Local Government. Glencoe, Ill.: Free Press. → Pioneering effort to formulate theories about the areal distribution of power and its consequences.
Macmahon, Arthur W. (editor) (1955) 1962 Federalism: Mature and Emergent. New York: Russell. → An excellent collection of articles on federalism in theory and practice, with emphasis on the United States and Europe.
Main, Jackson T. 1961 The Anti-Federalists: Critics of the Constitution, 1781–1788. Chapel Hill: Univ. of North Carolina Press. → A study of the movement opposed to the ratification of the American constitution.
Miller, Perry (1939) 1961 The New England Mind: The Seventeenth Century. Boston: Beacon. → An important discussion of seventeenth-century “federal theology” and its application in the New World.
Milne, David 1957 The Scottish Office and Other Scottish Government Departments. New York: Oxford Univ. Press. → A survey of the history and functions of the separate ministries for Scotland.
Mogi, Sobei 1931 The Problem of Federalism: A Study in the History of Political Theory.2 vols. London: Allen & Unwin. → Compendious historical survey of the various theories of federalism.
Riker, William A. 1964 Federalism: Origin, Operation, Significance. Boston: Little.
Schmidhauser, John R. 1958 The Supreme Court as Final Arbiter in Federal-State Relations: 1789–1957. Chapel Hill: Univ. of North Carolina Press.
Sharma, Brij M. 1953 Federalism in Theory and Practice.2 vols. Chandausi (India): Bhargava. → One of the few comprehensive studies of federal systems throughout the world; gives special emphasis to the Indian situation.
Smiley, Donald V. 1962 The Rowell-Sirois Report, Provincial Autonomy, and Post-war Canadian Federalism. Canadian Journal of Economics and Political Science28 : 54–69.
Smiley, Donald V. 1965 The Two Themes of Canadian Federalism. Canadian Journal of Economics and Political Science31 : 80–97.
Tocqueville, Alexis De (1835) 1945 Democracy in America.2 vols. New York: Knopf. → First published in French. Paperback editions were published in 1961 by Vintage and by Schocken.
U.S. COMMISSION ON INTERGOVERNMENTAL RELATIONS 1955 A Report to the President for Transmittal to the Congress. Washington: Government Printing Office.
U.S. CONGRESS, HOUSE, COMMITTEE ON GOVERNMENT OPERATIONS (1955) 1956 Intergovernmental Relations in the United States: A Selected Bibliography. Washington: Government Printing Office.
Wells, Roger H. 1961 The States in West German Federalism: A Study of Federal-State Relations, 1949–1960. New York: Bookman.
Wheare, Kenneth C. (1946) 1964 Federal Government.4th ed. New York: Oxford Univ. Press.
Wilson, Woodrow (1885) 1961 Congressional Government: A Study in American Politics. New York: Meridian. → The classic study of a legislature-centered federal government.
A principle of government that defines the relationship between the central government at the national level and its constituent units at the regional, state, or local levels. Under this principle of government, power and authority is allocated between the national and local governmental units, such that each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared.
The term federalism is derived from the Latin root foedus, which means "formal agreement or covenant." It includes the interrelationships between the states as well as between the states and the federal government. Governance in the United States takes place at various levels and branches of government, which all take part in the decision-making process. From the U.S. Supreme Court to the smallest local government, a distribution of power allows all the entities of the system to work separately while still working together as a nation. Supreme Court justice hugo l. black wrote that federalism meant
a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. (Younger v. Harris, 401 U.S. 37, 91S. Ct. 746, 27 L. Ed. 2d 669 )
The Constitution lists the legislative powers of the federal government. The tenth amendment protects the residual powers of the states: "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."
Checks and Balances
In texas v. white, 74 U.S. (7 Wall.) 700, 19L. Ed. 227 (1868), Justice salmon chase explained the necessity for the constitutional limitations that prevent concentration of power on either the state or national level: "[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union…. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."
The Federalist Papers: The History of Federalism
The strongest arguments for federalism were written during the ratification of the U.S. Constitution. the federalist papers, a set of 85 essays written by alexander hamilton, james madison, and john jay, were originally published in 1787 in New York under the pen name Publius. They were meant to explain the advantages of the Constitution and to persuade New York citizens to ratify it. The essays pointed out that the Constitution would allow the principle of popular sovereignty to continue and would help prevent internal dissolution and uneven distribution of power—problems that contributed to the failure of the articles of confederation.
Supreme Court Tilting Toward States' Rights?
Introduction The U.S. Constitution establishes a system of federalism that allocates power, authority, and sovereignty between the federal government at the national level and its constituent units at the state and local levels. However, nowhere in the Constitution does the word federalism appear, so the term remained undefined. Nonetheless, Articles I through III expressly delegate certain powers to the three branches of the federal government, while the tenth amendment expressly reserves to the states those powers not delegated to the federal government. The equal protection and due process Clauses of the fourteenth amendment have been interpreted to make most of the bill of rights applicable to the states, while the ninth amendment preserves for "the people" those rights not enumerated in the Constitution.
So while the term federalism is nowhere to be found in the text of the U.S. Constitution, the principles underlying this theory of government are deeply embedded throughout the national charter. The Framers left it for subsequent generations of Americans to work out the details, allowing them, in effect, to provide their own definition of federalism in what best can be described as an ongoing national dialogue. Over the last 200 plus years, Americans have carried out this dialogue by speaking to each other through their state and federal institutions and by amending the Constitution as a last resort.
The most visible federal institutions participating in this national dialogue have been the U.S. Supreme Court and Congress. Typically, cases involving federalism-related issues have come before the Supreme Court after Congress has enacted a law that a state believes encroaches on its sovereignty. Until the late twentieth century, the Supreme Court leaned heavily in favor of allocating power to Congress at the expense of state sovereignty, and not surprisingly the states often took issue. But from 1993 to 2003, the jurisprudential pendulum of the Supreme Court took a very noticeable swing back in favor of states' rights. To understand just how pronounced this swing has been, it is important to place a spate of Supreme Court cases in historical context.
The First 200 Years of Federalism in the United States In chisholm v. georgia, 2 U.S. 419, 2 Dall. 419, 1 L.Ed. 440 (U.S. 1793), the Supreme Court ruled that Article III of the federal Constitution gives the Court original jurisdiction over lawsuits between a state government and the citizens of another state, even if the state being sued does not consent. The decision generated immediate opposition from 12 states, and led to the ratification of the eleventh amendment, which gives states sovereign immunity from being sued in federal court by citizens of other states without the consent of the state being sued. Thirty-eight years later the Court again overstepped its bounds when it invalidated a Georgia state law regulating Cherokee Indian lands on the grounds that the law violated several U.S. treaties. Georgia ignored the Supreme Court's decision, and President andrew jackson, an ardent states' rights proponent, refused to deploy federal troops to enforce the Court's order. Cherokee Nation v. Georgia, 30 U.S. 1, 5 Pet. 1, 8 L.Ed. 25 (U.S. 1831).
Allocation of power to the federal government probably reached its zenith under the Supreme Court's expansive interpretation of congressional lawmaking power exercised pursuant to the commerce clause, which gives Congress authority to regulate matters affecting interstate commerce. In gibbons v. ogden, 22 U.S. 1, 6 L.Ed. 23, 9 Wheat. 1(U.S. 1824), the Supreme Court ruled that the Commerce Clause power of Congress is "supreme, unlimited, and plenary," acknowledging "no limitations, other than those prescribed in the Constitution." More than a hundred years later Congress applied this plenary power to regulate a farmer's personal consumption of his own privately grown wheat because Congress had found that the effects of such use, when aggregated with that of other farmers, would have a substantial effect on prices in the national wheat market. The Supreme Court ruled that Congress had not exceeded the bounds of its authority under the Commerce Clause. Wickard v. Filburn, 317U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (U.S. 1942).
The Supreme Court deviated from its pattern of enlarging the powers of the federal government in decisions involving race relations. In dred scott v. sandford, 60 U.S. 393, 19 How. 393, 15L.Ed. 691 (U.S. 1856), the Court invalidated the Missouri Compromise, a federal law that outlawed slavery in the northern Louisiana Territory, on the grounds that under the Constitution Congress was intended "to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from [it]." This decision exacerbated the antagonism between the slave-holding states, the free states, and the territories, antagonism that eventually culminated in the u.s. civil war. Similarly, the Supreme Court deferred to local lawmakers in plessy v. ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256(U.S. 1896), which upheld the constitutionality of jim crow laws that had created a legal regime of racial segregation in the South.
Federalism Since 1990 Beginning in the 1990s, however, the Supreme Court began revisiting the relationship between the state and federal governments on issues other than race-relations. In New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (U.S.1992), the state of New York brought a suit challenging parts of the Low-Level Radioactive Waste Policy Amendments Act. 42 U.S.C.A. § 2021e(d)(2)(C). The Supreme Court held that the act's "take title" provision, which required states either to regulate low-level radioactive waste according to congressional regulations or to take ownership of the waste, was unconstitutional. The Court reasoned that the "take title" provision was outside the authority delegated to Congress under the Constitution and that the regulation was an attempt to "compel the States to enact or administer a federal regulatory program." Such attempts to compel state behavior, the Court said, violate the federal structure of the government as embodied in the Tenth Amendment.
Three years later the Supreme Court invalidated the Gun-Free School Zones Act in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (U.S.1995). The act had made it a federal offense for any individual to knowingly possess a firearm in a place that the individual knows or has reasonable cause to believe is a school zone. 18 U.S.C. § 922(q). Without explicitly overruling Wickard v. Filburn, the Court ruled that Congress exceeded its authority under the Commerce Clause, since possession of gun in a local school zone was not economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce, and the statute contained no jurisdictional element to ensure, through a case-by-case inquiry, that possession of firearm had any concrete tie to interstate commerce.
In Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914(U.S. 1997), a sheriff sought to enjoin provisions of the Brady Handgun Violence Prevention Act. Pub.L. 103-159, 107 Stat. 1536. The act established a system of national instant background checks. Local authorities were required to participate in the system by performing background checks on behalf of the federal government. The Supreme Court ruled that Congress had no authority under the Commerce Clause to enlist local authorities to enforce the provisions of a federal law.
That same year the Supreme Court continued chipping away at Congressional power in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134L.Ed.2d 252 (U.S. 1997), a case in which an Indian tribe filed suit against Florida to compel the state to negotiate under the federal Indian Gambling Regulatory Act. 25 U.S.C. § 2710(d)(7). The act required states to negotiate in good faith towards the creation of a compact between the tribe and the state allowing for certain gambling activities. States could be sued in federal court for violating the act and compelled by federal courts to comply with its mandates. The Supreme Court found that, while Congress intended to abrogate the states' sovereign immunity in the statute, the "Eleventh Amendment prohibits Congress from making the states capable of being sued in federal court."
Scholars, historians, and other commentators disagree over the long-term impact of the Court's recent decisions that revisit the concept of federalism. New York Times Supreme Court reporter Linda Greenhouse responded to several of the federalism-related decisions by opining that "it is only a slight exaggeration to say that … the Court [is] a single vote shy of reinstalling the Articles of Confederation." Joseph Biden (D-Del.) took to the Senate floor to proclaim that "the imperialist course upon which the Court has embarked constitutes a danger to our established system of government."
Other commentators contend that these decisions are likely to have minimal lasting effect. Congress has at its disposal, these commentators argue, a variety of mechanisms by which it can blunt the effects of these rulings. For example, Congress can fund studies that will offer proof that the subject matter of proposed federal laws intimately touch upon interstate commerce, thereby defeating in advance any arguments to the contrary. In the wake of the September 11, 2001, terrorist attacks in New York City and Washington, D.C., other commentators have predicted that the pendulum of federalism would swing in the other direction to allow the federal government to more adequately address concerns over homeland security.
Amid these competing views over the Court's direction, one thing remains certain: each year the court is asked to review an increasing number of decisions relating in one way or another to federalism. Sometimes the Court can influence the balance of power between the state and federal governments even by declining to grant certiorari. For example, in December 2002 the Court refused to intervene after the New Jersey Supreme Court allowed Democrat Frank Lautenberg to replace U.S. Senator Robert Torricelli on the fall ballot, even though the state's legal deadline had passed. Forrester v. New Jersey Democratic Party, Inc., ___ U.S. ___, 123 S.Ct. 673, 154 L. Ed. 2d 582 (2002). By declining review, the Court allowed the state leeway in interpreting its own laws. Such "federalism" issues are bound to resurface in other cases, including one that had not yet reached the court: Attorney General john ashcroft's bid to prosecute doctors assisting in suicides under Oregon law. Oregon v. Ashcroft, 192F.Supp.2d 1077 (D.Or. 2002).
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The key to the endurance of the Constitution, according to Madison, was that even in a democracy, the majority must not be allowed too much power; it needs to be held in check so that individual and state freedoms will be preserved. Indeed, English writer edmund burke said that in a "democracy, the majority of citizens is capable of exercising the most cruel oppression on the minority."
One check in the political process supported by the Constitution is provided by the Supreme Court, which is politically insulated. This check, as explained by Madison,"guarantee[s] the right of individuals, even the most obnoxious, to vote, speak and to be treated fairly and with respect and dignity." The function of the judicial branch, then, was to preserve the liberty of the citizens and the states. The principle of federalism states that the greatest danger to liberty is the majority. These rights were decided "according to the rules of justice and the rights of the minor party, [not] by the superior force of an interested and overbearing majority" (The Federalist no. 10, p. 77). Although the Supreme Court is part of the federal government, it is separate from the legislative and executive branches, and it functions as a check on the federal and state governments.
The Constitution was influenced by two major philosophies: federalism and nationalism. The federalists believed in a noncentralized government. They supported the idea of a strong national government that shared authority and power with strong state and local governments. The nationalists, or neofederalists, believed there should be a strong central government with absolute authority over the states.
When the founders were developing the Constitution, they had four goals. First, they wanted the government to be responsive to the citizens. Second, they wanted the political system to enhance, not discourage, interaction between the government and the governed. Third, they wanted the system to allow for the coexistence of political order and liberty. And finally, they wanted the system to provide a fair way of ensuring that civil justice and morality would flourish.
The Constitution as eventually ratified was labeled a bundle of compromises because it allowed for a strong central government but still conceded powers to the individual states. In The Federalist, no. 45, Madison said, "The 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 constitutional role of the states in the federal government is determined by four factors: (1) the provisions in the federal and state constitutions that either limit or guarantee the powers of the states in relation to the federal government; (2) the provisions in the Constitution that give the states a role in the makeup of the government; (3) the subsequent interpretation of both sets of provisions by the courts, especially the Supreme Court; and (4) the unwritten constitutional traditions that have informally evolved and have only recently been recognized by the federal or state constitutions or the courts.
In the early 1990s and early 2000s, the U. S. Supreme Court continued to revisit and reshape the concept of federalism in cases pitting the powers and prerogatives of the state and federal government against each other. Perhaps the biggest changes had occurred in the judicial branch, with its power of judicial review. Judicial review allows the courts to invalidate acts of the legislative or executive branches if the courts determine that the acts are unconstitutional. The Supreme Court first exercised judicial review of national legislation in the landmark case of marbury v. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). The decision, written by Chief Justice john marshall, followed the principles of Publius in The Federalist, no. 78. The Federalist Papers were based on the principle that the Articles of Confederation were inadequate. The ideas set forth in The Federalist Papers challenged those articles and proposed a new governmental style for the Union.
Judges have five sources of guidance for interpreting the Constitution: the original intention of the founders; arguments based on the theory of the Constitution; arguments based on the Constitution's structure; arguments based on judicial precedent; and arguments based on moral, social, and political values. Across the centuries, several justices have attempted to interpret the original, often vague intention of a document written in the late 1700s. Justice benjamin n. cardozo said, "The great generalities of the constitution have a content and a significance that vary from age to age." Justice joseph mckenna wrote, "Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions" (Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 ).
Although it may seem unlikely that a federal body would favor states' rights over federal, it is not uncommon. For example, in the 1991 case of Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640, the Supreme Court chose not to interfere with a state's jurisdiction. Roger Keith Coleman had received a death sentence, which he challenged in the Virginia state and federal courts on the basis that he was an innocent man being executed for a crime he did not commit. The case reached the U.S. Supreme Court, where the majority said,"This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus." The Court ruled that because the state court's decision against Coleman was based on independent and adequate state grounds, it would not review the determination. This deference to state laws is based on the idea that states are separate sovereigns with autonomy that must be taken into consideration.
Separation of Powers and The Plain Statement Rule
Another key element of federalism is the principle of separation of powers. The Constitution's definition of separation of powers is not specific, and the Supreme Court has struggled to interpret it. Separation of powers is based on the premise that there are three branches of federal government, each with its own enumerated powers. For example, the executive branch, which includes the president, has veto power; the Senate and Congress make up the legislative branch and have the power of advice and consent over the appointment of executive and judicial officers; and the courts make up the judicial branch and have the power of judicial review.
The separation-of-powers principle has had two interpretations. The first, formalism, is rooted in the idea that the Constitution's goal was to divide the new federal government into three defined categories, each with its own set of powers. The second interpretation, functionalism, is based on the belief that the three branches of government are not clearly delineated. Functionalists believe that the goal of separation of powers is to ensure that each branch retains only as much power as is necessary for it to act as a check on the other branches.
Although the interpretations appear similar, they differ in terms of what constitutes a breach of the separation of powers. A breach under formalism would be a breach under functionalism only if the power in question either infringed on the core function of another branch or increased another branch's power.
In Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991), Justice sandra day o'connor wrote that the Constitution establishes a system of dual sovereignty that balances the power between the states and the federal government. At the same time, however, the Supremacy Clause (U.S. Const. art. VI, § 2) gives the federal government "a decided advantage in this delicate balance" by guaranteeing that Congress can make the states do what it wants if it acts within its constitutional delegation of power. O'Connor also said that the Court must assume that Congress does not "exercise lightly" this "extraordinary power" to legislate, even in areas traditionally regulated by the states. The people of a state establish the structure of their government and the qualifications of those who exercise governmental authority. Such decisions are of the most "fundamental sort for a sovereign entity."
The Court in Gregory also applied the plain statement rule, requiring Congress to state clearly its intent when creating laws that may interfere with state government functions. The plain statement rule, under Gregory, serves as a check against federal regulation of the states. This rule has two tiers of inquiry: (1) Congress must clearly intend to extend a law to the states as states, and (2) Congress must outline which state activities and functions it is targeting within the sweep of federal law.
Federalism is the oldest form of government in the United States. The timelessness of the Constitution and the strength of the arguments presented by The Federalist Papers offer a clue to its endurance: the Founders wrote the Constitution so that it would always remain open to interpretation. Federalism's ambiguity has contributed to its longevity.
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Federalism is a political system in which different levels of government agree to share power in governing the same territory. Constitutional federalism in the United States refers both to the constitutional provisions for the national and the state governments to exist and to perform particular functions in the federal system of governance, and to the sets of relationships—among states, and between states and the federal government—for which the Constitution provides a framework. judicial review of federalism refers to the limits on federal and state action that courts will enforce on behalf of the federal structure of the Constitution.
Constitutional Federalism. Constitutional federalism in the United States emerged out of practical experiences under the articles of confederation and political exigencies. Experience showed that greater centralization was essential, but the political leadership of the states would not have been prepared to give up their states' self-governing powers to a separate and entirely national government. This pragmatic reality is reflected in the assumption, in many parts of the Constitution, that the states will continue as separate governments, each having a legislature, an executive authority, and courts. The provisions for selecting members of Congress presuppose that state legislatures exist; the provisions for calling forth the militia presuppose an executive authority in each state; and the supremacy clause presupposes a state judiciary. Even the fourteenth amendment, which substantially changed the balance of powers between the national and the state governments, contemplates the continued existence of the states as self-governing entities. Section 2 of the Fourteenth Amendment, which penalizes states for voting rights discrimination in elections of members of the state legislature or for state executive or judicial officers, contemplates not only the states' existence but also the continued operation of the three branches of state government.
U.S. federalism has been the subject of theoretical debate from its beginnings. federalist No. 39 described the provisions of the Constitution as partly national and partly confederated. Federalist No. 59 offered a political theory of the value of federalism: it would serve as a "double security" for the preservation of liberty, with each level of government presumably having motives to check abuses by the other. In United States Term Limits v. Thornton (1995), the influential concurrence of Justice anthony m. kennedy linked U.S. federalism to coexisting citizenships (state and federal) and political accountability, emphasizing that both state and national government representatives are selected by the people and that each level of government is accountable to the people.
Among the values claimed for federalism as a constraint on national power are (1) its liberty-preserving, tyranny-preventing possibilities, (2) the potential for decentralized government to maximize the satisfaction of individual preferences by allowing citizens to choose among diverse regimes by moving from one to another, (3) the opportunities for more active political participation at lower levels of government whose units are smaller, (4) the possibilities for developing cross-cutting allegiances among different groups in society, given that state boundaries for the most part do not correspond to such deeply divisive characteristics as race, religion, or language, and (5) the greater prospects offered by decentralization for useful innovation in government design and policy. But whether constitutional constraints on national power actually serve these goals remains contested. National power in the last half-century has been an important force for liberty and equality as against tyrannical policies of state-sponsored racial segregation, though in recent years some state or local jurisdictions have moved ahead of federal policies in advancing civil rights for gays and lesbians. Vigorous federal action, especially in economic or environmental spheres, can sometimes avoid "races to the bottom" that would constrain rather than enhance state choices, though whether states would race to the bottom, or to the top, in some important areas of regulation remains in contest. If the only significant politics is at the national level, participation in state or local politics may be less meaningful. Cross-cutting allegiances may be temporary products of contingent demographic distributions rather than a value of federalism itself. And, some would say, experimentation can be achieved through nationally directed but decentralized programs.
Debate over the "value" of federalism in the United States continues. Edward Rubin and Malcolm Feeley, for example, argue that federalism, as a constraint on national power, is a "national neurosis," grounded in history but serving no current constitutional value, and thus should never be the basis for invalidating or interpreting a federal statute. At another pole, scholars such as Steven Calabresi argue that judicial enforcement of federalism-based limits on national power is as important as judicial enforcement of individual rights–based limits. Still others, such as Larry Kramer, explore the federal structure's empirical effects on national politics and governance.
A related controversy has developed over the basis, and scope, of judicial enforcement of federalism-based limits on state regulation under the dormant commerce clause doctrine. Values of diversity and efficiency have been invoked in favor of more relaxed review of state programs; public choice analysis, on the other hand, has been invoked to support judicial enforcement of "bargains" among the states that will be economically advantageous in the long run to all if cheating can be avoided. There is disagreement both about the source of the limits (e.g., whether from the grant of power to Congress over interstate commerce or from the privileges and immunities of citizenship clause in Article IV) and over the value of some of the more recent manifestations of federalism-based invalidations of state regulatory action (especially those in the area of environmental regulation). Justices antonin scalia and clarence thomas have sought, from originalist or textualist perspectives, to unravel the commerce clause as a source of judicially imposed restraints on the states, while upholding judicially enforced bans on state discrimination against out-of-staters or interstate commerce under the privileges and immunities clause, or the import–export clause.
Judicial Review of National Action. The debate over the values of federalism is only loosely linked to debate over the role of judicial review. While those who see no value in the maintenance of federal structures may be opposed to judicial enforcement of purported federalism-based limits on national or state power, those who see value in federalism are nonetheless of very different minds on the proper role of judicial review. Building on Herbert Wechsler's work, some argue that federalism values are adequately protected by the structural role of the states in the national political process, or even that federalism challenges to national action should be regarded as lacking justiciability. Others, including Barry Friedman and Vicki Jackson, argue that the historical embeddedness of federalism, rule of law concerns, or the constitutionally prescribed functions of the states, contemplate some judicially enforceable federalism-based limits on national power. And still others, including Roderick Hills, Jr., argue for judicial enforcement of federalism-based limits to promote accountability and efficiency in national decision-making.
Despite proclamations of the death of federalism in the 1970s, the 1990s have seen a renewed willingness by the Supreme Court to invalidate federal laws based on federalism concerns. Two somewhat distinct lines of cases can be identified, one dealing with federal regulations that apply to the states as such, and the other dealing with federal regulation of the activity of private entities.
(i) Federal Regulation of State Governments. In Maryland v. Wirtz (1966), the Court held that the commerce clause authorized federal regulation of the employment practices of state governments, and upheld an extension of the federal minimum wage law to a limited group of state and local government public employees. But in national league of cities v. usery (1974), the Court found merit in tenth amendment objections to Congress's further extension of the federal minimum wage law to municipal transit workers. Under National League of Cities, the Tenth Amendment barred federal action if it regulated states as such, affecting attributes of state sovereignty in areas of traditional government function, without compelling federal need. Seeking to apply this standard, the lower courts reached conflicting decisions on a range of questions and for several years the Court declined to invalidate other extensions of federal law to the states. Then, in garcÍav. san antonio metropolitantransit authority (1985), the Court, by a 5–4 vote, over-ruledNational League of Cities. It concluded that the effort to identify traditional government functions protected by the Tenth Amendment was inconsistent with federalism's dynamic potential, and that the national political process would generally be sufficient to protect the interests of the states. García was widely read as an abandonment by the Court of federalism-based judicial review of national action.
Instead, in the 1990s, the Court began to abandon the premise of García. In gregory v. ashcroft (1991), a statutory interpretation decision holding the federal age discrimination law inapplicable to state judges, the Court wrote at length about the values of federalism and the need for a constrained national government. In new york v. united states (1992), the Court held unconstitutional a federal statute that required a state by a certain date either to designate a site for disposal of radioactive waste or to assume liabilities of private generators and holders of radioactive waste in the state, a choice that the Court found to be an effort to coerce or "commandeer" the state legislature. According to the opinion of the court by Justice sandra day o'connor, the 1787 Constitution abandoned federal power to regulate the states as such, substituting for it federal power to regulate private persons. Moreover, the Court suggested, to permit Congress to require states to legislate would confuse the lines of political accountability. García 's basic rationale was ignored, and its holding distinguished and narrowed. The statute upheld in García, the Court said, was one generally applicable to private as well as state entities. In Printz v. United States (1997), the Court extended the anticommandeering rule of New York to invalidate a federal law requiring local law enforcement authorities to perform background checks on gun purchasers. Distinguishing this case from the well-settled obligation of state courts to entertain federal claims, the Court held that the federal government cannot require state executive or legislative bodies to enforce or administer federal law. As of this writing, the Court has granted certiorari in a case challenging Congress's power to require states to limit their own disclosures of drivers' records and raising the question whether Congress, under Article I, can enact laws that regulate but do not "commandeer" the states.
City of Boerne v. Flores (1997) suggests that the Court's reinvigoration of federalism as a limit on national action will also apply to Congress's power under the Fourteenth Amendment. Flores held that Congress exceeded its powers under the fourteenth amendment, section 5 in enacting the religious freedom restoration act (RFRA), which prohibited state and local governments from applying generally applicable laws in ways that substantially burdened religious practice, unless the laws met the "compelling interest" test of strict scrutiny. First, the Court held that Congress lacked power to treat conduct that, under the Court's caselaw, did not violate the free exercise clause as if it did violate that clause. Moreover, the Court held, although Congress does have some power to impose prophylactic measures prohibiting conduct that does not itself violate section 1 of the Fourteenth Amendment in order to prevent other conduct that does, such a remedial or preventive use of the section 1 power must be proportional and congruent to actual violations. It concluded that the sweep of RFRA was broader than any record of such violations would warrant and thus found RFRA unconstitutional, while also suggesting that Congress had violated separation of powers principles in acting on a theory different from the theory previously approved by the Court in enforcing rights under the Fourteenth Amendment. (Flores carried to its logical extreme might suggest that, had Congress sought to outlaw racial segregation by the states after plessy v. ferguson (1896) was decided but before Plessy was in substance overruled by brown v. board of education (1954), Congress's action could have been challenged as violating the separation of powers.) Two 1999 decisions by the Court expanded on Flores, holding unconstitutional, as not supported by the due process clause of the Fourteenth Amendment, Congress's abrogation of eleventh amendment immunity on claims for patent infringement and Lanham Act violations.
(ii) Federal Regulation of Private Activity. In the years following the new deal, the Court upheld federal power under the commerce clause to regulate a wide range of private activities, in areas ranging from civil rights to crimes such as loansharking. The Court's reasoning appeared to allow little room either for consideration of the interests of states or the effect of federal legislation on the balance of powers between national and state governments. Nor did the Court engage in rigorous judicial scrutiny of congressional motives or reasons for acting. But in united states v. lÓpez (1995), for the first time since the New Deal, the Court struck down a federal law regulating private behavior as beyond Congress's enumerated powers. The statute prohibited possession of a firearm within 1,000 feet of a school, but included no explicit findings supporting a connection to interstate commerce or otherwise linking the prohibited action to an enumerated source of federal power. Invoking the notion of dual sovereignty, in which the states needed to have a sphere of regulation that the federal government was not involved in, the Court held that the connection to interstate commerce was too obscure, the rationales for upholding the law too sweeping, and the subject matter too closely connected to areas traditionally regulated by the states to pass constitutional muster.
(iii) Related Cases. In addition to these lines of cases involving substantive powers of Congress, the Court has also restricted Congress's power to give federal courts jurisdiction over certain cases against states. Overruling a prior decision, the Court in Seminole Tribe v. Florida (1996) held that under the eleventh amendment, Congress lacked power to subject states to unconsented-to suits in federal courts to enforce legislation enacted pursuant to Article I of the Constitution, and in several later cases restricted the availability of judicial remedies, in federal and state courts, against states for violations of substantively applicable federal law.
Unanswered Questions. These developments leave many questions unanswered. Recent federalism decisions, including Printz and Seminole Tribe, require the courts to determine the source of power for various congressional enactments because, under current doctrine, Congress has more power to impose substantive obligations and judicial remedies on state governments when Congress acts pursuant to the Fourteenth Amendment than pursuant to the commerce clause. Thus, whether Congress can subject states to private remedies under, for example, the federal minimum wage law, will depend on whether such a statute is a valid exercise of Congress's power to enforce the Fourteenth Amendment. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), the Court recognized a patent as property protected by the due process clause of the Fourteenth Amendment, but nonetheless held the patent law's abrogation of the states' sovereign immunity from suit to be unconstitutional under Flores because state remedies might provide all relief to which patentholders were constitutionally entitled for infringements, and thus abrogation of immunity was not proportional to constitutional injuries Congress could properly seek to remedy or forestall. Flores and its progeny thus clearly demonstrate that the Court cannot be expected simply to defer to whatever Congress does in claimed exercises of its Fourteenth Amendment powers.
Likewise subject to challenge under Flores are a range of federal laws prohibiting state and local governments from engaging in conduct that would not, of itself, violate the Fourteenth Amendment equal protection clause as interpreted by the Court. In washington v. davis (1976), the Court held that only intentional discrimination violates the Fourteenth Amendment. Yet federal statutes (such as Title VII) that apply to state and local governments prohibit "disparate impact" actions, or prohibit discrimination based on categories (age, disability) that the Court has held are not suspect classifications for purposes of equal protection analysis. Whether this and other statutes will meet Flores 's "proportionality" test for congressional power under the Fourteenth Amendment, section 5, remains for future decisions.
The Court's 1999 Eleventh Amendment and state sovereign immunity decisions did not question Congress's substantive authority to extend patent laws, or minimum wage laws, to the states. While the reasoning behind the anticommandeering rule of New York and Printz might be thought to raise questions about Congress's power under Article I to regulate the states pursuant to laws such as the fair labor standards act, New York distinguished García as involving a generally applicable statute. On this basis, the Fair Labor Standards Act, other federal laws that apply to employment decisions by public and private employers (including antidiscrimination laws), or laws like the patent and copyright laws, would remain constitutional as applied to the states (even if the available judicial remedies were more limited). New York 's distinction between laws directed at state governments because of their governmental capacities and more generally applicable laws that incidentally apply to states may be justified by the added constraints on imprudent national legislation that enactment of generally applicable legislation entails. Printz, moreover, noted the distinction as being of potential relevance. Unless the Court were prepared to completely overrule García, Congress's substantive authority to extend otherwise valid, generally applicable laws to state and local governments seems likely to survive at least in part.
In light of the revival of federalism as a judicially enforced limit on national power, exercises of federal taxing and spending powers may well be subject to renewed challenge, in efforts to extend the more state-protective approaches of the commerce clause to these other important powers. preemption challenges may also reflect the Court's renewed sensitivity to protecting state governments from perceived federal overreaching.
Finally, international developments may apply new pressures on the Court's federalism doctrines. missouri v. holland (1920) treats the federal treaty power as unlimited by federalism-based constraints on Congress's enumerated powers that may operate in the domestic sphere. Yet as the United States increasingly becomes a party to international treaties and executive agreements, this doctrine is likely to be retested. Increased development of international law and its extension to relations between sovereign states and their own citizens is likely to be reflected in theories and cases presented to federal courts. While some scholars argue that federal courts lack power to apply international norms as part of federal common law (in part because of the adverse effects on state authority), others would embrace the internationalization of federal law. And where international obligations are assumed by the United States through means other than the procedure for U.S. senate ratification of treaties by a two-thirds vote, federalism challenges might be particularly pressing.
More vigorous enforcement of federalism-based limits on national power seems likely to continue under the current Supreme Court, which has expressed its concerns not only in adjudicated cases but in other policy statements including the Long Range Plan for the Federal Courts and in Chief Justice william h. rehnquist's Annual State of the Judiciary Addresses. A more difficult question is the relationship between this significant change in the law of judicial review of federalism issues, and the practice and structure of constitutional federalism. Some formal devolution of power to the states was a feature of legislation enacted in the 104th Congress, including welfare reform and the Unfunded Mandates Act. What role the change in judicial decisions will play in supporting or encouraging this process is unclear.
What does seem clear is that the Court will continue to treat federalism as an important and judicially enforceable constitutional principle that will on occasion constrain national power. Given the degree to which federal assumptions remain part of the constitutional structure, it is consistent with U.S. rule of law traditions for the Court to do so. What also seems clear from history is that judicial efforts substantially to limit Congress's reasoned exercise of its enumerated powers are likely to be politically destabilizing, ineffective, or both. History suggests that the fundamental organization of the United States through the states does afford mechanisms for the concerns of people in different states to make themselves felt in the national political process, and thus supports a deferential stance for judicial review of national action that is not alleged to infringe on individual rights nor to interfere with the states' ability to maintain their own legislative, executive, and judicial branches.
Postscript. In Reno v. Condon (2000), the Court, refusing to extend the anticommandeering doctrine, upheld the constitutionality of the federal Driver's Privacy Protection Act (DPPA). With some exceptions, the DPPA prohibits motor vehicle bureaus from releasing driver's license information without taking steps to assure the individual's consent to such disclosures. The Court rejected South Carolina's argument that this statute unconstitutionally commandeered state officials to enforce or administer a federal scheme. State compliance with federal law as required by this act, the Court said, differed from states being compelled to enforce federal law by regulating third parties. The Court also concluded that the law was "generally applicable" in that it regulated all "entities that participate as suppliers to the market for motor vehicle information"—both states and private resellers of that information.
Vicki C. Jackson
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Federalism and its related terms (e.g., federal and federation) refer to a type of government that is established voluntarily to achieve unity while preserving diversity by constitutionally uniting separate political communities into a single limited, but encompassing, political community, such as a nation-state like the United States of America. Power is divided and shared in a federal system between (1) a general (or national) government that has certain areawide (or nationwide) responsibilities, such as national defense and monetary policy, and (2) constituent territorial governments (e.g., states, provinces, or cantons) that have broad local responsibilities such as highways, health care, and policing.
A key feature of a federal polity is that both the national (or federal) government and the constituent governments act directly on the people by enacting laws (e.g., criminal laws, tax laws) that directly affect the individuals within their jurisdiction . Furthermore, each order (or level) of government is supreme within its constitutional sphere of authority. Thus, in the United States the U.S. Constitution is supreme with respect to all matters within its jurisdiction, whereas within each of the fifty constituent states the state constitution, when not in conflict with the federal Constitution, is supreme with respect to all matters within its jurisdiction.
Approximately twenty-five countries can be termed federal to a greater or lesser degree: Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Canada, Comoros, Ethiopia, Germany, India, Malaysia, Mexico, Micronesia, Nigeria, Pakistan, Russia, Saint Kitts and Nevis, Serbia and Montenegro, South Africa, Spain, Switzerland, the United Arab Emirates, the United States, and Venezuela. These federal countries account for 39 percent of the world's population.
Scholars disagree on a precise definition of federalism and on which countries can properly be called federal because no two federal systems are identical. In practice, federal ideas are applied in various ways, thus making it impossible for one definition to fit all cases exactly.
origins and development
The word federal comes from the Latin foedus, meaning covenant. A covenant signifies a partnership in which individuals or groups voluntarily consent to unite for common purposes without giving up their fundamental rights or identities. The covenant idea originated in the Hebrew Bible, which emphasizes the idea that all relationships—between God and humans and among humans themselves—should be established by mutual and voluntary consent and signified by a covenant or compact of mutual promise and obligation.
The covenant idea was universalized in Western civilization when Christianity adopted the Hebrew Bible as its Old Testament; however, theological and political concepts of covenant did not become prominent until the outbreak of the Protestant Reformation in 1517. With the breakdown of medieval forms of religious and political governance, Reformed Protestants developed a political theology of covenant, which held that the only legitimate way to form church congregations and larger church structures is through the consent of individual members and congregations. Similarly, in their revolts against Catholic princes, reformers combined the covenant idea with popular sovereignty in order to develop theories of revolution, equality, freedom, and the right of people to organize their own governments through mutual consent.
The first systematic political ideas articulated in North America were those of the Puritans' federal or covenant theology. The first political covenant was the Mayflower Compact of 1620. For the Puritans and other Reformed Protestants, individuals covenanted together in marriage to form families, families covenanted to form congregations and towns, and local congregations and towns covenanted to form larger structures of government.
Nonreligious reformers later secularized the covenant idea. The first full-fledged political theory of federalism is attributed to Johannes Althusius (1557–1638), who wrote Politicia Methodice Digesta (1614). The covenant idea is central to Thomas Hobbes's (1588–1679) Leviathan (1651) as well as to John Locke's (1632–1704) Two Treatises of Government (1690), in which Locke used the word compact to signify a political covenant. The notion of covenant also appears in the works of other English and Scottish political philosophers of the seventeenth century. The covenant idea also was widely applied to international relations by such thinkers as Hugo Grotius (1583–1645).
The framers of the U.S. Constitution, who invented the modern concept of federalism in 1787–1788, were strongly influenced intellectually by these secular philosophers as well as by the predominance of covenant-based religions in North America (e.g., Baptists, Calvinists, Congregationalists, Huguenots, Jews, Quakers, and Presbyterians).
reasons to form a federal polity
Essentially, a federal polity can be established in one of two ways. First, different states and political communities can come together to form a federal nation-state, as in the cases of Australia in 1901, Switzerland in 1848, and the United States in 1787–1788. Second, a unitary national government can devolve powers to regional and local governments, as occurred, for example, in Germany (after the Nazi era) in 1949, South Africa (after the apartheid era) between 1994 and 1996, and Spain (after the Franco era) in 1978. In Spain, such groups as the Basques, Catalans, and Galicians insisted on constitutional rights of autonomous self-government for themselves.
The most common historical reason to form a federal system is to establish peace and security. By uniting, small states and political communities can establish a more effective defense against foreign aggression. They also can establish domestic peace and security by creating rules and procedures that prevent war among themselves. These were important motivations for the founders of the Canadian and U.S. federal systems.
Another common reason for the formation of federal systems is economic, namely, to establish a large common market or zone for free trade that fosters economic development and prosperity by eliminating trade and tax barriers among the states that make up the federal union. This was another important motivation for the framers of the U.S. Constitution.
A common contemporary reason to form a federal polity is to unite diverse, territorially based national, racial, ethnic, religious, and/or linguistic communities into one nation-state. In these federations each constituent government (e.g., state, canton, or province) usually is dominated by a particular group. Switzerland, with its Protestant and Roman Catholic and French-, German-, and Romansch-speaking cantons, is a leading example. Other examples are Canada, India, Nigeria, and Russia.
Another major reason is to establish or preserve liberty and rights for individuals and communities. A federal system, argued James Madison (1751–1836) in The Federalist 51 (1787–1788/1961), provides "a double security" for the rights of individuals because power "is first divided between two distinct governments" (federal and state) and then, within each, subdivided among branches of government (i.e., the separation of powers) (Hamilton, Madison, and Jay, 1787–1988/1961, p. 351). A federal system also protects rights and liberties for constituent communities by guaranteeing them autonomous powers to govern themselves on many matters. As such, a key principle of federalism is to prevent a tyranny of the majority by which one group of people or coalition of groups can constitute a majority and trample on the rights of minorities by outvoting those minorities on all matters. For example, the French-speaking minority in Canada values the self-governing autonomy of Quebec within Canada's federation as a protection against unfriendly policies that otherwise could be imposed on them by the English-speaking majority.
There can, however, be conflicts between individual and communitarian liberty. In the antebellum (pre–Civil War) United States, for example, the liberty of states to govern themselves allowed southern states to maintain slavery in gross violation of the liberty and rights of African Americans. In turn, national guarantees of individual rights can reduce communitarian liberty by prohibiting states from legislating in many areas that might reflect local values. For instance, no U.S. state can outlaw abortion even if the majority of the population desires it.
Modern federalism is an invention of the framers of the U.S. Constitution of 1787–1788, who transformed the confederation established by the Articles of Confederation (1781) into a federation. Before 1787 the word federal referred to what is now called confederal.
Federal Authority to Legislate for Individuals. In The Federalist Alexander Hamilton (1755?–1804) argued that the singular innovation of the U.S. Constitution was the granting of authority to the federal government to legislate for individuals. That is, under the Articles of Confederation the confederal government could not tax, arrest, or conscript individuals into the military, nor could it regulate commerce. It could act only through the states (much as the United Nations cannot tax, arrest, or conscript individuals or regulate commerce). Under the U.S. Constitution, however, the federal government can tax, arrest, and conscript individuals and regulate commerce, among other things.
This highlights another distinction between a federation and a confederation that was created by the founders of the United States. A federal union is intended to establish a nation-state rather than a mere alliance or league. A federation thus has a national government that possesses significant independent powers.
Written Constitution. A federal form of government is almost always established by, and based on, a written constitution that is intended to serve as a perpetual covenant. The constitution can be amended to adapt to changing times, but amendments usually require extraordinary procedures, as well as the concurrent consent of the national and constituent governments. The constitution sets forth the reasons for union, the terms of union, the rights of individuals (and sometimes constituent political communities as well), the structures of government, rules governing relationships among the orders (or levels) of government, and, most important, the allocation of powers among the orders of government. Most federal constitutions recognize only two orders of government: national (or federal) and state (or provincial or cantonal). A few federal constitutions (e.g., India and Nigeria) recognize local (usually municipal) government as a third order.
Allocation of Powers. The constitution usually allocates certain powers exclusively to various governments. In the United States, for example, the power to declare war rests exclusively with the U.S. Congress. The constitution also may prohibit certain powers to certain governments. For instance, no U.S. state can enter into any treaty, alliance, or confederation without the consent of Congress. A few federal constitutions, such as that of India, also list concurrent powers; these powers can be exercised by the federal or state governments. Although the U.S. Constitution does not list concurrent powers, there are in practice many areas of concurrent federal and state action, such as taxation, criminal justice, environmental protection, and consumer protection.
Symmetry. The powers of the constituent governments (e.g., states or provinces) can by symmetrical or asymmetrical. Their powers are said to be symmetrical when all the constituent governments are on an equal footing and have the same constitutional powers of self-government and same rights vis-à-vis the federal government. This is true of all fifty states in the United States. Powers are asymmetrical when different constituent governments possess different degrees of constitutional powers of self-government and different rights vis-à-vis the federal government. This is the case in Russia and Spain, for example.
Implied Powers. Some constitutions recognize implied powers, that is, the authority of a government to exercise powers that are not expressly listed in the constitution but are deemed "necessary and proper" (U.S. Constitution, Art. I, Sec. 8: 18) to carry out a government's enumerated powers.
Reserved or Residual Powers. Most federal constitutions stipulate the location of residual powers, that is, all possible remaining powers that are not enumerated in the constitution. Through the U.S. Constitution, for example, the people of the states delegated certain limited powers to the U.S. government. The federal government can exercise only those powers enumerated in the U.S. Constitution and no others. Hence, as the Tenth Amendment to the U.S. Constitution states, all other powers not delegated to the U.S. government or prohibited by the Constitution to the states are reserved to the states or to the people. By contrast, in Canada, the residual powers rest with the federal government, not the provinces.
Multiple Governments. A federal system therefore has multiple, semi-independent governments, each of which possesses autonomous and independent constitutional authority to legislate for individuals. In the United States, for example, the federal government levies an income tax independently of the states. In turn, forty-three states levy their own separate income taxes independently of the federal government and each other.
Forum Shopping. Multiple governments also foster forum shopping, by which individuals who do not get satisfaction from one government petition another government. Unable to end racial segregation through state governments, for example, black Americans appealed to the federal government for relief in the 1950s and 1960s.
Policy Diversity. Multiple governments give rise to policy diversity. In the United States thirty-eight states permit capital punishment whereas twelve states prohibit it. Hence, another common feature of a federal system is an agreement to disagree. When agreement cannot be reached on a particular national policy, constituent states can enact different policies that reflect their citizens' preferences. Federalism also permits policy experimentation. As U.S. Supreme Court Justice Louis Brandeis (1856–1941) argued in New State Ice Co. v. Liebmann (1932), "It is one of the happy accidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country." A more contemporary example is Oregon—the only U.S. state that permits physician-assisted suicide.
"Forum shopping" is an informal term that refers to a plaintiff's attempts to have his case heard in the court most likely to give him a favorable decision. The plaintiff may be able to choose between a local and a federal court or between two different local courts. Since the 1990s, most well-known instances of forum shopping have concerned patents and inventions, child custody, antitrust cases, or trials of alleged terrorists.
In the 1950s and 1960s, however, black Americans used forum shopping as a way to advance the cause of civil rights. Blocked by state courts and legislatures, such organizations as the National Association for the Advancement of Colored People (NAACP) began to look to federal courts to overturn previous decisions at the state level that upheld segregation. The landmark case was Brown v. Board of Education, decided by the Supreme Court in 1954. Brown was actually a combination of four separate cases from different states (Kansas, South Carolina, Virginia, and Delaware). Although Brown did not order the desegregation of restaurants and other public facilities owned by private persons, it paved the way for such provisions in the Civil Rights Act of 1964.
Boynton v. Virginia (1960) is another example of forum shopping. The case concerned a law student arrested for trespassing by entering a whites-only restaurant in a bus terminal. The U. S. Supreme Court ruled that segregation in public transportation was illegal because it violated the Interstate Commerce Act (1887).
Fiscal Federalism. A common feature of federal systems is transfers of money between governments, most commonly grants-in-aid given by the federal government to state and local governments and given by states to local governments. In the United States about 23 percent of state and local budgets consists of grant-in-aid money from the federal government. For example, the federal government provides about 90 percent of the money for interstate highway construction; states provide the other approximately 10 percent. Most federal countries, although not the United States, have a fiscal equalization policy by which the federal government gives money to poor states or provinces to enable them to provide a national-average level of public services to their citizens.
Intergovernmental Relations. A key political and administrative feature of federal systems is relations among governments: intergovernmental relations between different orders of government (sometimes referred to as vertical federalism) and interjurisdictional relations among multiple governments of the same order, such as interstate and interlocal relations (sometimes called horizontal federalism). Although it is important for governments in a federal system to cooperate in order to serve citizens effectively, conflict among governments is common as well. Competition among governments also is important to serve citizens more efficiently and to reduce the possibility of one order of government gaining too much power and thus dominating the federal system. Collusion among governments also can occur when government officials in different orders of government work together to increase their budgets or power at the expense of taxpayers. In turn, one criticism of intergovernmental relations is that it is often difficult for citizens to hold public officials accountable because citizens cannot determine easily who is responsible for particular policies, especially policies that fail.
Some federal countries, such as Australia, Canada, Switzerland, and the United States, are among the world's oldest, most successful, most prosperous, and most democratic countries. India, a federation since 1950, is the world's largest democracy in terms of population. Furthermore, seven of the world's eight territorially largest countries are federal: Argentina, Australia, Brazil, Canada, India, Russia, and the United States. (Only China is not federal or democratic.) At the same time, federal countries such as Ethiopia, Nigeria, Pakistan, and Russia demonstrate that federalism is not always a highly successful government in terms of human rights, economic prosperity, and vibrant democracy. In some countries it is very difficult to achieve constitutional and political covenants that promote unity without local resistance, general violence, or centralized authoritarianism.
See also: Confederations; Democracy; Republic.
Elazar, Daniel J. American Federalism: A View from the States, 3rd ed. New York: Harper & Row, 1984.
Elazar, Daniel J. Exploring Federalism. Tuscaloosa: University of Alabama Press, 1987.
Elazar, Daniel J., and John Kincaid, eds. The Covenant Connection: From Federal Theology to Modern Federalism. Lanham, MD: Lexington Books, 2000.
Griffiths, Ann L. ed. Handbook of Federal Countries, 2002. Montreal, Canada: McGill Queen's University Press, 2002.
Hamilton, Alexander, James Madison, and John Jay. The Federalist (1787–1788), ed. Jacob E. Cooke. Middletown, CT: Wesleyan University Press, 1961.
Kenyon, Daphne A., and John Kincaid, eds. Competition among States and Local Governments: Efficiency and Equity in American Federalism. Washington, DC: Urban Institute Press, 1991.
Kincaid, John. "Values and Value Tradeoffs in Federalism." Publius: The Journal of Federalism 25, no. 2 (1995):29–44.
Kincaid, John, and G. Alan Tarr, eds. Constitutional Origins, Structure, and Change in Federal Countries. Montreal, Canada: McGill-Queen's University Press, 2005.
New State Ice Co. v. Liebmann, 285 U.S. 262, 1932.
Riker, William H. Federalism: Origin, Operation, Significance. Boston: Little, Brown, 1964.
Sutton, Robert P. Federalism. Westport, CT: Greenwood Press, 2002.
Watts, Ronald L. Comparing Federal Systems. 2nd ed. Kingston, Canada: Institute of Intergovernmental Relations, Queen's University, 1999.
FEDERALISM AS A HAPPY COMPROMISE
Federalism is one of the most fundamental principles of the American political system. Federalism can be defined as a principle of government in which political authority is divided between a national government and a collection of state (or regional) governments, acting side by side and sharing a large geographical space. The authority of the national government is exercised supremely over many areas of public policy. For example, the national government carries out the military and diplomatic functions of the country, as well as other important issues of national concern. The state or regional governments are semiautonomous and distinct entities that provide a convenient structure through which officials can administer policies of immediate and direct relevance to citizens. Some of the key services provided at the state level that most directly affect citizens are police and fire protection, criminal justice, and primary and secondary school education.
In a federal system, national and state governments are entities that operate as two mutually exclusive spheres of authority, although their functions often overlap and this can be a source of tension. One commentator on the structure of intergovernmental relations in the American system of government, James Bryce (1838–1922), noted that “the system is like a great factory wherein two sets of machinery are at work, their revolving wheels apparently intermixed, their bands crossing one another, yet each set doing its own work without touching or hampering the other” (Bryce 1916, vol. 1, p. 318). Under a system of federalism, both the federal and state governments have their own constitutions from which they derive the authority to act on behalf, and for the benefit, of the people.
In the United States, the national Constitution is the supreme law of the land. This implies, in part, that the state government must recognize and respect the national Constitution, and that state governments must set up their state constitutions and enact their own laws in such a way that they avoid conflict with the national Constitution. Where such conflict emerges, it is generally understood that the state constitution must give way to the national Constitution. Because the national Constitution as interpreted by the Supreme Court supersedes state or regional constitutions in power and authority, state governments usually operate with less independence than they might like and with less independence than states in a confederacy or a league of nations.
Writing about the meaning of federalism, noted British authority K. C. Wheare (1907–1979) defined federalism as a “method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent.” He further noted “that each government should be limited to its own sphere and, within that sphere, should be independent of the other” (McClelland 2000, p. 297). Because federalism requires that the national and state governments should each “be limited to its own sphere,” it becomes important for there to be a written constitution, which would define the boundaries of authority for each government. A written constitution is therefore one of the key characteristics of federalism. Without such a constitution, the national government can easily encroach upon or usurp the authority of the state governments, possibly leading to chaos.
FEDERALISM AS A HAPPY COMPROMISE
Federalism as practiced in the United States is what people around the world usually refer to when the word federalism is uttered or heard. It is based on one of the oldest written constitutions, the U.S. Constitution, which was ratified in 1787 after much eloquent and contentious debate over its content. The framers of the U.S. Constitution worked hard to establish a system of government they and their posterity could be proud of, a government that would “best secure the permanent liberty and happiness of their country” (Madison 1835, quoted in McClelland 2000, p. 293). The framers were not interested in setting up a central government, where political power would be concentrated in the hands of a national government, as was the case in prominent countries at that time, such as France and England. The framers were also not interested in continuing a confederate system because the Articles of Confederacy (the original governing charter of the United States) prevented the establishment of a strong and respected nation since the Articles created a natural inclination within the provinces to satisfy their own territorial interests rather than to secure the interest of the entire nation. The framers were, however, very much interested in a system that would reflect the wishes and preferences of the citizens, a system that would provide a high degree of independence and autonomy to the states while enhancing the international stature of the nation. Thus federalism as a theory of government was indeed an afterthought in that it emerged after the framers wrote and ratified the Constitution (McClelland 2000, p. 298).
Federalism is the product of a happy compromise in the formation of the nation and in its capacity to present a unified front when conducting foreign policy. That compromise was between Federalists such as George Washington (1732–1799) and John Adams (1735–1826), who wanted greater centralization of authority, and Anti-Federalists such as Thomas Jefferson (1743–1826), who favored placing power in the hands of ordinary individuals so that they can maximally manage their own affairs at the state and local levels.
The issue of individual states or regions protecting their own local territorial interests at the expense of national unity was not overcome with ratification of the Constitution, however. The Supreme Court under Chief Justice John Marshall (1755–1835) did much to establish and legitimate judicial review and to vigorously enforce the Constitution’s contract clause toward a vision of centralizing power in order to nourish economic growth through free market capitalism. Had this vision been successfully maintained into the future, prolonged federal dominance over states would have been established sooner rather than later in the course of U.S. national development. But that vision collapsed under Chief Justice Roger Brook Taney (1777–1864). The Taney Court tolerated greater decentralization of the American political system (McCloskey 1994, chap. 4). The Court also wrongly and tragically tolerated slavery as a way of life in the South, as exemplified by its deplorable decision in Dred Scott v. Sandford (1857). Conflict over slavery (the placement of people, in this case black people, in bondage as the property of white owners) led to a secessionist push by southerners, culminating in a bloody civil war between armies from northern and southern states from 1861 to 1865. Federal dominance was more clearly established during the 1930s after President Franklin Delano Roosevelt (1882–1945) threatened to “pack” the Supreme Court with loyalists who would support and defend his New Deal policies, and the Court reversed its previous rejections of these policies.
Another characteristic of federalism is that the states provide plenty of opportunities to experiment with responses to public policy. As Justice Louis Brandeis (1856–1941) stated in his dissent in the 1932 case of New State Ice Co. v. Liebmann, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country” (Ducat 2004, chap. 5). Those public policies that are chosen and implemented as a result of such experiments are afforded great legitimacy by the people who are most affected by them. But while this is a strong argument in favor of a federalist system, the crux of the argument in favor of federalism boils down to the expressed relationship between the application of governmental power and the preservation of individual freedom.
Under federalism, government power is decentralized and diffused among different levels and across different branches within the same level. Thus a third characteristic of federalism is that the diffusion of power afforded by such a system helps to preserve individual freedom and suppress tyranny, which is the systemic exploitation of the populace by a few self-serving individuals. Diffusion of power helps promote individual freedom because in smaller political units, individuals can participate more directly in a monolithic unitary government, and because individuals dissatisfied with conditions in one state can vote with their feet by moving to another state. But diffusion of power also suppresses tyranny, and it accomplishes this by minimizing the possibility that any one faction can gain enough access to government to push through any kind of policy that will exploit others without being detected. In addition, diffusion of power encourages coalition-building between individuals and groups operating at different levels of government in order to achieve public policy objectives.
But, generally speaking, there are some disadvantages to a federal system as well. Because federalism requires different institutions to approve a policy before it can be adopted, each decision point can unwittingly become a veto point that slows down the process of policymaking, or worse, prevents any action from being taken to resolve an important problem. Also, variation among states in their treatment of citizens, especially with respect to civil rights and liberties, can introduce a tension into the relationship between federalism and justice, which is thought to know no geographical boundaries.
SEE ALSO Constitution, U.S.; Democracy
Bryce, James. 1916. The American Commonwealth. Vol. 1. New York: Macmillan.
Dred Scott v. Sandford, 60 U.S. (19 How) 393 (1857).
Ducat, Craig R. 2004. Constitutional Interpretation. 8th ed. Belmont, CA: Thomson-West.
Madison, James.  2000. Notes of the Debates in the Federal Convention. In Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government, by James McClelland, 293. 3rd ed. Indianapolis, IN: Liberty Fund Press.
McClelland, James. 2000. Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government. 3rd ed. Indianapolis, IN: Liberty Fund Press.
McCloskey, Robert G. 1994. The American Supreme Court. 2nd ed. Revised by Sanford Levinson. Chicago: University of Chicago Press.
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).
As a form of government, "federalism" describes a system of divided powers, each sovereign within its limited realm but concerned with different spheres—one general, the other local. The federal system created by the United States Constitution is the first specimen of this type, though many other states have subsequently adopted federal forms.
Over time, federalism has come to convey a variety of meanings, some of them contradictory. At the beginning of the twenty-first century, the meaning of federalism—like its related terms, federative system, federal union, federal state—is difficult to disassociate from a strong central government within a single nation-state. In its eighteenth-century signification, however, a federal relationship meant compact, alliance, or treaty among independent sovereignties seeking a cooperative relationship. The federative power, as the seventeenth-century philosopher John Locke defined it, concerned those powers of war and peace, of treaty and alliance that commonwealths had need of in their transactions with other states. The formal compacts among equal parties resulting from the exercise of this power—written constitutions, treaties, alliances—were things to which the adjective "federal" might apply. European publicists could speak of the "federal constitution" of Europe as actually existing, and meant by the term the web of treaties, laws, and restraints that was to govern the relations of civilized states.
the federal principle
At the root of the federal principle was the idea of a covenant or foedus (its etymological root). This and "synonymous ideas of promise, commitment, undertaking, or obligating, vowing and plighting one's word," as S. Rufus Davis has suggested in The Federal Principle (1978), were joined together with two other things: "the idea of cooperation, reciprocity, mutuality," and "the need for some measure of predictability, expectation, constancy, and reliability in human relations" (p. 3). As important as each of these three concepts—commitment, reciprocity, predictability—is to human relations generally, when states and peoples had need of such values they made use of the term "federal."
European colonists perched on the eastern rim of North America were not in fact the first inhabitants of the continent to make use of ideas recognizably "federal." A recognition that strength lay in union and danger in discord; a pledge of perpetual peace within, and of concerted action toward enemies without; an understanding of how individuality might be preserved by common action; the vital significance attached to sworn oaths and plighted faith—all these hallmarks of the federal principle were reflected in the institutions and norms of various Indian confederacies, especially the great league of the Iroquois or Six Nations.
Such a constellation of ideas was also central to the Articles of Confederation formed among the American states in the aftermath of their 1776 Declaration of Independence from Great Britain. The experience of the Revolutionary War, however, showed how difficult it was for states to cooperate in an enterprise they all regarded as vital. When the framers of the Constitution met in Philadelphia in 1787 to address the deficiencies of the Articles of Confederation, they had to find a solution that somehow avoided the extremes of "anarchy" and "consolidation"—what the Virginian James Madison termed "a perfect separation and a perfect incorporation, of the 13 States." Neither alternative found significant support within the convention. As James Wilson noted in his important explication of the new Constitution, "consolidation" would demand "a system of the most unqualified and unremitted despotism," whereas separation into "a number of separate states, continuous in situation, unconnected and disunited in government" would make the states "at one time, the prey of foreign force, foreign influence, and foreign intrigue; at another, the victims of mutual rage, rancor, and revenge."
As an experiment in federal government, the U.S. Constitution was unique in creating a general government that could carry its laws into execution through a regular executive and judicial establishment, one that did not depend on requisitions or edicts to the states to do its legitimate business. Conscious that the states would have to give up some of their sovereignty, and conscious, too, of the impossibility of legislating for communities as opposed to individuals, the framers brought forth a new political edifice devoted to federal objects yet fashioned on the norms and institutions of constitutional government existing within the American states. Unlike the state governments, which generally claimed a plenary authority over the lives and liberties of their citizens, the federal government was one of enumerated and limited powers. The powers so granted, as James Madison emphasized during the ratification debates, were "few and defined" and would be exercised "principally on external objects, as war, peace, negotiation, and foreign commerce." Supremacy was accorded neither to the federal government nor the state governments but to the Constitution itself, though the more perfect union was justified by Federalists as being an indispensable means to the preservation of both states and nation.
What were the limits of the powers respectively given to the federal government and the states under the Constitution? And where was the authority lodged to decide this delicate question? Those questions arose immediately with the formation of the new government in 1789 and remained of key importance.
The controversy pit "nationalists" like Alexander Hamilton, the first secretary of the Treasury, against "State rights" or "compact" theorists like Thomas Jefferson, a clash that achieved its first great expression in the contrary opinions of Hamilton and Jefferson over the constitutionality of a national bank in 1791. Hamilton took an expansive view of the implied powers vested in the national government by the Constitution, a view later unfolded eloquently and authoritatively in a Supreme Court opinion of 1819, McCulloch v. Maryland. Chief Justice John Marshall acknowledged that the powers of the national government were limited and enumerated but nevertheless found that Congress enjoyed "the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble." Marshall continued, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
The contrary position of the "compact school," by contrast, held that the federal Constitution was a creature of the states, each of whom enjoyed the right to accede or not to the compact, and who, as the original parties, must ultimately retain the right to interpret the extent to which the compact was fulfilled. In cases not within the compact, wrote Thomas Jefferson in his draft of the Kentucky resolutions, the pretended legislation of Congress was "void, and of no force." Some, like John C. Calhoun, insisted that each state enjoyed a right to nullify a federal law within its jurisdiction that, in its judgment, was unconstitutional; others who subscribed to the compact theory, like John Randolph, were content with affirming a constitutional right of secession. According to this view, the national judiciary did not enjoy the ultimate authority to decide the line of partition created by the Constitution. That power instead lay with the original contracting parties, the people of the states.
In between these rival understandings of the Constitution lay a third view, one which was probably more expressive of the general consensus from 1789 to 1829 than either of the two extreme alternatives. The moderates saw a "partly national, and partly federal" system, though they were not always in agreement among themselves. Some carved out an ample dominion for federal power while also believing that it would be utterly contrary to the spirit of the constitution to preserve the Union by force, a position adopted by constitutional commentator William Rawle in 1825. Other moderates, by contrast, chastised secessionists for counseling action that was patently unconstitutional. But they also believed that the theory of implied powers was equally destructive of the constitutional order, a position taken by James Madison. Despite these differences, the moderates were united in the conviction that to push either national or state powers too far would destroy the constitutional order, which they saw as a vital barrier against powerful tendencies toward anarchy or despotism.
principle and politics
It is customary to associate the clash between national sovereignty and the compact school with North and South, but in the period from 1789 to 1829 the picture is more complicated. After Jefferson became president in 1801, his administration accepted a more expansive conception of federal power. By the same token, many northern Federalists brought against his administration the same charge of unconstitutionality that Republicans had made against the Federalists in the 1790s. The acquisition of Louisiana in 1803, they argued, went far beyond the implied powers claimed by the administrations of George Washington and John Adams from 1789 to 1801. They also claimed unconstitutional usurpation against Jefferson's Embargo of 1807–1809 and later against "Mr. Madison's War" of 1812, when several New England states refused to heed the president's call to mobilize their militia for national service. From 1815 to 1830, similar flip-flops occurred over the issues of internal improvements, the national bank, and the protective tariff, with leading political figures sometimes reversing their previous judgments of what was constitutional. The most contentious issue, temporarily put to rest by the Missouri Compromise, concerned the extension of slavery.
The elapse of three decades from the establishment of the federal government did not bring a greater consensus on the fundamentals, but rather a drift toward constitutional doctrines mutually antagonistic and irreconcilable. This lack of consensus regarding the basics of American federalism—the sense, as the statesman Henry Clay put it, "that we are as much afloat at sea as the day when the Constitution went into operation"—was felt to be profoundly threatening to the sustenance of the constitutional order. Thirteen years after Marshall's confident opinion in McCulloch he wrote despairingly to a close friend that his hopes for the Union were nearly at an end. "The union has been prolonged thus far by miracles; I fear they cannot continue."
See alsoAnti-Federalists; Articles of Confederation; Bank of the United States; Federalist Papers; Federalist Party; Federalists; Hamilton, Alexander; Jefferson, Thomas; Madison, James; McCulloch v. Maryland; Missouri Compromise; War of 1812 .
Beer, Samuel H. To Make a Nation: The Rediscovery of American Federalism. Cambridge, Mass.: Harvard University Press, 1993.
Berger, Raoul. Federalism: The Founders' Design. Norman and London: University of Oklahoma Press, 1987.
Davis, S. Rufus. The Federal Principle: A Journey through Time in Quest of a Meaning. Berkeley: University of California Press, 1978.
Hendrickson, David. Peace Pact: The Lost World of the American Founding. Lawrence: University Press of Kansas, 2003.
Onuf, Peter S., ed. The Federal Constitution. Vol. 5 of New American Nation, 1776–1820. New York: Garland, 1991.
Rakove, Jack N., ed. Interpreting the Constitution : The Debate over Original Intent. Boston: Northeastern University Press, 1990.
David C. Hendrickson
Federalism is the doctrine of government under which power is shared between numerous subnational governments and a central power. Federalism can be organized in a number of ways. The American federal system consists of state governments united under the federal government. Although the structure of government is well defined, the division of power between the governments is not clearly outlined. The balance of power between federal and state authorities therefore has been a constant source of debate within the system.
Evolution of American federalism
Four distinct phases of federalism exist in the short history of the United States. American federalism has roots extending back to the governments of the founding British colonies. Established to take care of local issues, each colonial government was responsible to the English crown. Each colony operated independently and established its own local laws and relationship to the Crown. When the Crown's rule became unbearable and ran against the wishes of colonists, they united in common interest and rebelled. The American Revolution (1775–83) marked the birth of federalism in America.
During the American Revolution, worries that a central government might become tyrannical created resistance to organizing one. It was apparent, however, that a central government would help the fight for independence by uniting and coordinating state efforts. Nevertheless, the former colonies had no interest in abandoning the independent nature of local rule. Under the Articles of Confederation , they united to form a federal government, but it was given very little power. Its Congress could not regulate commerce, raise an army, or levy taxes. As a result, it was barely able to function, and the revolutionary cause operated weakly as a result.
Lessons from the balance of power under which the central government had little influence over the independent states led to the creation of a new government. The government based on the Articles of Confederation was abandoned, and a stronger federal government was defined by the U.S. Constitution , which extended certain privileges to the federal government. Congress could now levy taxes, coin money, raise and maintain a military, declare war, and regulate commerce. Other privileges were reserved for the state governments.
The Constitution is largely vague about how governing power should be shared between the federal and state governments. As a result, much of the nation's history has included political struggles in Congress as federal lawmakers have tried to establish whether the state or federal government has overriding control of an issue. State governmental officials, too, have worked to answer this question through their political conduct.
The breaking point
The rapid growth of the United States in the early nineteenth century accentuated the issue of state versus federal power. The new Constitutional government was vague enough to allow both the state and federal governments to maintain a great deal of control. This arrangement is sometimes called dual federalism, and it worked only briefly. As the nation's territory rapidly expanded and more states joined the Union, debates escalated concerning the rights of states to govern themselves.
The institution of slavery within new territories was especially agitating. Would the federal government prevent the expansion of slavery, or would states maintain the power to choose slavery over the human rights of slaves and the abolition movement ‘s call for freedom? This issue alone brought the young Union to the breaking point several times throughout the 1800s.
State Power and the Right to Self-Government
Just as federalism creates tension between the federal and state governments, there is tension between state and local governments within each state. These tensions are illustrated by legal doctrines called Dillon's Rule and the Cooley Doctrine.
John Forrest Dillon (1831–1914) was a justice on the Supreme Court of Iowa in the late nineteenth century. Dillon wrote a book on the law of local governments. He explained that local governments are state creations that only have power given to them by state governments. According to Dillon, states can eliminate local governments completely if they want to do so. His opinion of the weak power of local governments became known as Dillon's Rule.
Thomas McIntyre Cooley (1824–1898) was a justice on the Supreme Court of Michigan in the late nineteenth century. His ideas on the power of local governments differed from Dillon's ideas. Cooley believed that people in local governments have a right of self-government that states can regulate but cannot eliminate. Cooley's ideas are sometimes called the Cooley Doctrine. In the early twenty-first century, many local governments are using the idea of an inalienable right of self-government to pass laws regulating businesses just as states are empowered to do.
As the debates raged about slavery, varied preferences for a strong federal government or for states’ rights grew. Northern commercial interests were best served by a strong central government. Southern states, hoping to preserve slavery or expand it, struggled for stronger state rule. Both regions had strong economic reasons for their positions, and compromise was difficult to achieve. The differences sparked debates among lawmakers and finally led to the secession of the southern states. The American Civil War (1861–65) stemmed in part from the nation's struggle to define the balance of governmental power in American federalism.
With a northern victory in the Civil War, a strong central government gained the upper hand. States’ rights were minimized as federal power grew. The federal government defined national citizenship and, in theory, imposed limits on the power of states to violate any civil rights that national citizenship granted.
State resistance to these policies was strong, but economic developments such as interstate business made a strong central government attractive to commercial interests. All states had to adhere to the same laws, and businesses operated across state lines with more ease. Many state governments, however, found ways to maintain their independence and to work around disagreeable policies.
A strong federal government proved to be beneficial to all states during the Great Depression (1929–41). The government established federal agencies and bureaus to set national policies in an effort to bring economic relief and stability. Under these programs, states deferred to national authorities and embraced the relief efforts. The success of the federal programs set a trend for a strong federal government that leads the policies of state governments.
The trend of growing federal power continued into the twentieth century under Republican and Democratic presidencies and Congresses. Some Americans fear that the country's federalism has become unbalanced—that the federal government has become too strong. Some speculate that a new phase of federalism is necessary and see indicators that politicians are seeking a new balance.
The Russian Federation, as its name implies, is a federated political entity. However, this concept continues to evolve and is periodically challenged by a variety of political forces. Even if using one of the simpler definitions of federalism—that of "self rule plus shared rule" within a country—the Russian case defies easy classification.
According to the Russian constitution, there are eighty-nine distinct territorial entities within the Russian Federation, with some based on ethnic groups and others on territorial foundations. How these entities fit together in the Russian political system is a result of more than a decade of negotiation and practice. After all, the initial challenge was that while the Russian Socialist Federated Soviet Republic (RSFSR) was called a federation during the Soviet period, it was a unitary system in practice. Thus, at the time of independence in 1991, each of these political units had to renegotiate its standing within the new state, which eventually developed a system referred to as "assymetrical federalism." A number of the ethnic–based republics, for example, sought greater autonomy, or outright independence.
The Federation Treaty of March 1992 was the first step in formally resolving the question of powers and rights within the federated system. By the end of that year, all but Chechnya and Tatarstan signed the agreement, and the abstention of these two republics raised questions of a possible splintering of the Russian Federation. With the adoption of the new Russian constitution in December 1993, however, the Federation Treaty was enshrined in the main legal basis of the country. Beginning in 1994, the government in Moscow worked out an agreement with Tatarstan, as well as treaties with the other republics of the Russian Federation, leaving the Chechen Republic as the sole holdout. Indeed, that part of the Russian Federation remains contested and in the early twenty-first century is mired in a bloody conflict.
There are several key issues that continue to confront the federal structure in Russia. First, there are questions concerning basic budgetary and taxation rights. Are the regions able to create their own financial bases from which to fund specific projects? From education policies to economic development plans, problems exist as to what the republics can do. Second, there remains a problem of resource management on the national level. This is particularly important in the energy and strategic mineral fields. For example, control over energy deposits in the Yamalo–Nenets okrug was contested by that entity, the Tiumen oblast within which it is located, and the government in Moscow. Third, there are questions about the actual political power of regional governors. During the late–Yeltsin era, there was a tendency for the federal government to appoint regional officials in order to better control them from the center. Since that time, however, these officials are elected, and a few of these have begun to exercise real authority in their specific regions. In addition, the Federal Council, the upper chamber of the Russian legislature (similar to the U.S. Senate), is designed to represent the interests of these various subnational entities.
Given the vast territorial expanse of the Russian Federation, as well as the ethnic diversity of the regions, political leaders in Russia at least support the idea of a federated political system. However, the history of unitary control, both during tsarist and Soviet times, has yielded a legacy within the bureaucracy and administration that is difficult to change. In addition, the specific conditions and needs of each region undoubtedly dictate the specific level of authority that may be attained throughout the country. Most analysts and experts suggest that "federalism" in the Russian Federation will remain a multi–level system that will continue to see variations from region to region.
See also: federation treaties; nationalities policies, soviet; people's commissariat of nationalities; russian soviet federated socialist republic
Kahn, Jeffrey. (2002). Federalism, Democratization, and the Rule of Law in Russia. New York: Oxford University Press.
Kempton, Daniel R., and Clark, Terry D., eds. (2002). Unity of Separation: Center–Periphery Relations in the Former Soviet Union. Westport, CT: Praeger.
Ross, Cameron. (2003). Federalism and Democratization in Post–Communist Russia. Manchester, UK: Manchester University Press.
Stoner–Weiss, Kathryn. (2002). "Soviet Solutions to Post–Soviet Problems: Has Vladimir Putin Really Strengthened the Federal Center?" PONARS [Program on New Approaches to Russian Security] Policy Memo No. 283, October.
Walker, Edward W. (1995). "Designing Center–Region Relations in the New Russia." East European Constitutional Review 4(1): 54-60.
Federalism, a constitutional system in post-Independence Latin America and, often, still a hotly debated political issue. Formally, it denoted a type of government in which power was explicitly divided between central (national) and regional (state or provincial) authorities. As such it bore resemblance to the system incorporated in the United States Constitution and, to a lesser extent, certain ancient and modern European models. It was first adopted by several Latin American countries during the independence movement, for example, in Venezuela in 1811 in the constitution of the so-called First Republic.
Critics of federalism, of whom the most prominent was Simón Bolívar, condemned it as a dangerously weak system and as a foreign construct ill suited to the historical traditions and circumstances of Latin America. In its most common guise, it took provinces that in the colonial regime had enjoyed no administrative autonomy and suddenly equipped them with their own executive, legislative, and judicial branches that shared power with organs of the national government; sometimes these provinces, improvised as "sovereign" entities, did not even have enough qualified individuals to fill the offices created. However, federalism was a response to genuine regional loyalties and interests repressed or at least denied institutional expression during the colonial period. Moreover, federalism as a technique for dividing and thus curbing the power of government was compatible with the liberal ideology of individual rights that most Latin American leaders following independence professed to one degree or another.
The identification of federalism with political liberalism was perhaps clearest in Mexico, where it became a central dogma of the Liberal Party and of its twentieth-century revolutionary heirs. Thus the three constitutions under which Mexico has been governed for most of its national history—those of 1824, 1857, and 1917—all gave the country a federalist organization. This did not prevent the eventual emergence of a national presidency stronger than that in the U.S. model of federalism; yet the states have retained a distinct role in Mexican politics and government.
Federalism has been equally characteristic of the system of government in Argentina, where initially it was associated not with liberals but with traditionalist forces, especially in the interior provinces. These provincials distrusted the reforming tendencies of the liberal Unitarios, whose greatest strength was in the national capital, Buenos Aires. In the end, however, all factions came to accept the federalist Constitution of 1853. It was the country's first truly effective constitution and, though briefly replaced by the Peronista Constitution of 1949, is today the oldest Latin American constitution anywhere in force. Brazil, too, has been formally a federation most of the time since the adoption in 1891 of its first republican constitution, which closely followed the U.S. model even in the use of the name Estados Unidos do Brasil (United States of Brazil).
The countries mentioned, Latin America's three largest, are the only ones that still have a strictly federal constitution. The smaller countries, such as the individual Central American republics, Paraguay in South America, and the Dominican Republic in the West Indies, have never adopted anything other than a unitary organization. The other Latin American nations commonly experimented with federal or quasi-federal forms of government at different times in the nineteenth century. Colombia, under its Constitution of 1863, adopted the most extreme version of federalism ever known in Latin America, whereby the various states even had their own armies and postage stamps. Colombia turned to strict centralism with its Constitution of 1886, but in its current charter (that of 1991) included such measures of partial decentralization as the popular election of departmental governors. Still other countries that have opted for constitutional centralism have likewise retained particular features typical of federalism, and in the same way federalist charters (among them the Argentine constitution) commonly have included centrist provisions allowing the national president or congress to "intervene" in the government of the provinces or states when specified conditions arise.
See alsoArgentina, Constitutions; Colombia, Constitutions: Constitution of 1863; Mexico, Constitutions: Constitutions Prior to 1917; Venezuela, Constitutions.
L. S. Rowe, The Federal System of the Argentine Republic (1921).
Miron Burgin, Economic Aspects of Argentine Federalism, 1820–1852 (1946).
Charles A. Hale, Mexican Liberalism in the Age of Mora, 1821–1853 (1968).
Jorge Carpizo, Federalismo en Latinoamérica (1973).
Helen Delpar, Red Against Blue: The Liberal Party in Colombian Politics, 1863–1899 (1981), esp. chap. 5.
Frank Safford, "Politics, Ideology, and Society in Post-Independence Spanish America," in Cambridge History of Latin America, edited by Leslie Bethell, vol. 3 (1985).
Nettie Lee Benson, The Provincial Deputation in Mexico: Harbinger of Provincial Autonomy, Independence, and Federalism (1992).
Gibson, Edward L. Federalism and Democracy in Latin America. Baltimore: Johns Hopkins University Press, 2004.
Koth, Karl B. Waking the Dictator: Veracruz, the Struggle for Federalism and the Mexican Revolution, 1870–1927. Calgary, Alta: University of Calgary Press, 2002.
Segreti, Carlos S. A. Federalismo rioplatense y federalismo argentino: (El federalismo de Córdoba en los comienzos de la época independiente, 1810–1829). Córdoba: Centro de Estudios Históricos, 1995.