legalizing marijuana? We will return to this question at the end of the chapter, when we have a better grasp of the complex relationships generated by American federalism.
THE Federalists and the Anti-Federalists fought intensely over the balance between national and state powers in our federal system. Debates over the Articles of Confederation and the Constitution show that the founders were well aware that the rules dividing power between the states and the federal government were crucial to determining who would be the winners and the losers in the new country. Where decisions are made—in Washington, D.C., or in the state capitals—would make a big difference in “who gets what, and how.” Today the same battles are being fought between defenders of state and national powers. The balance of power has swung back and forth several times since the founders came to their own hard-won compromise, but over the past quarter-century there has been a movement, led largely by Republicans, to give more power and responsibility back to the state governments, a process known as devolution.
devolution the transfer of powers and responsibilities from the federal government to the states
More recently, however, as Republicans became more accustomed to holding the reins of power in Washington with their various congressional majorities and their hold on the presidency from 2000 to 2008, their zeal for returning responsibilities to the states became less urgent, slowing the devolutionary trend. Calls for increased national security in the days after September 11, 2001, have also helped reverse the transfer of power to the states. As the state-federal relationship changes, so too do the arenas in which citizens and their leaders make the decisions that become government policy. Fundamental shifts usually mean changes in the probable winners and losers of American politics.
In this chapter we examine the remarkable power-sharing arrangement that is federalism, exploring its challenges, both historical and contemporary. We look at the definition of federalism and the alternatives the founders rejected when they made this compromise, how the balance of power in American federalism has shifted over time, and the structure of federalism today and the ways the national government tries to secure state cooperation.
What Is Federalism?: Balancing power between national and state governments
Federalism is a political system in which authority is divided between different levels of government (the national and state levels, in America’s case). Each level has some power independent of the other levels so that no level is entirely dependent on another for its existence. In the United States, federalism was a significant compromise between those who wanted stronger state governments and those who preferred a stronger national government.
federalism a political system in which power is divided between the central and regional units
The effects of federalism are all around us. We pay income taxes to the national government, which parcels out the money to the states, under certain conditions, to be spent on programs such as welfare, highways, and education. In most states, local schools are funded by local property taxes and run by local school boards (local governments are created under the authority of the state), and state universities are supported by state taxes and influenced by the state legislature. Even so, both state and local governments are subject to national legislation, such as the requirement that schools be open to students of all races, and both can be affected by national decisions about funding various programs. Sometimes the lines of responsibility can be extremely unclear. Witness the simultaneous presence, in many areas, of city police, county police, state police, and, at the national level, the Federal Bureau of Investigation (FBI), all coordinated, for some purposes, by the national Department of Homeland Security.
Even when a given responsibility lies at the state level, the national government frequently finds a way to enforce its will. For instance, it is up to the states to decide on the minimum drinking age for their citizens. In the 1970s, many states required people to be only eighteen or nineteen before they could legally buy alcohol; today all the states have a uniform drinking age of twenty-one. The change came about because interest groups persuaded officials in the federal—that is, national—government that the higher age would lead to fewer alcohol-related highway accidents and greater public safety. The federal government couldn’t pass a law setting a nationwide drinking age of twenty-one, but it could control the flow of highway money to the states. By withholding 5 percent of federal highway funds, which every state wants and needs, until a state raised the drinking age to twenty-one, Congress prevailed. This is an example of how the relations between levels of government work when neither level can directly force the other to do what it wants.
What Does the Constitution Say?
No single section of the Constitution deals with federalism. Instead, the provisions dividing power between the states and the national government appear throughout the Constitution. As a state matter, local government is not mentioned in the Constitution at all. Most of the Constitution is concerned with establishing the powers of the national government. Since Congress is the main lawmaking arm of the national government, many of the powers of the national government are the powers of Congress. The strongest statement of national power is a list of the enumerated powers of Congress (Article I, Section 8). This list is followed by a clause that gives Congress the power to make all laws that are “necessary and proper” to carry out its powers. The necessary and proper clause has been used to justify giving Congress many powers never mentioned in the Constitution. National power is also based on the supremacy clause of Article VI, which says that the Constitution and laws made in accordance with it are “the supreme law of the land.” This means that when national and state laws conflict, the national laws will be followed. The Constitution also sets limitations on the national government. Article I, Section 9, lists specific powers not granted to Congress, and the Bill of Rights (the first ten amendments to the Constitution) limits the power of the national government over individuals.
enumerated powers of Congress congressional powers specifically named in the Constitution (Article I, Section 8)
necessary and proper clause constitutional authorization for Congress to make any law required to carry out its powers
supremacy clause constitutional declaration (Article VI) that the Constitution and laws made under its provisions are the supreme law of the land
The Constitution says considerably less about the powers granted to the states. The Tenth Amendment says that all powers not given to the national government are reserved to the states, although the necessary and proper clause makes it difficult to see which powers are withheld from the national government. The states are given the power to approve the Constitution itself and any amendments to it. The Constitution also limits state powers. Article I, Section 10, denies the states certain powers, mostly the kinds that they possessed under the Articles of Confederation. The Fourteenth Amendment limits the power of the states over individual liberties, essentially a Bill of Rights that protects individuals from state action, since the first ten amendments apply only to the national government.
What these constitutional provisions mean is that the line between the national government and the state governments is not clearly drawn. We can see from Figure 3.1 that the Constitution designates specific powers as national, state, or concurrent. Concurrent powers are those that both levels of government may exercise. But the federal relationship is a good deal more complex than this chart would lead us to believe. The Supreme Court has become crucial to establishing the exact limits of provisions such as the necessary and proper clause, the supremacy clause, the Tenth Amendment, and the Fourteenth Amendment. This interpretation has changed over time, especially as historical demands have forced the Court to think about federalism in new ways.
concurrent powers powers that are shared by the federal and state governments