The United States Constitution created a federal republic. Our government is based on the twin ideas of republicanism and federalism. What does federalism mean, though?
We have different units of government, from our national government to state governments. Under the states, we have counties, cities, and other units of local government. Whether or not a system is federal depends on how the levels of government relate to each other. There are three basic ways that levels of government can be related to each other: unitary, confederal, or federal.
Unitary Political Systems
In a unitary system, the more centralized unit has all of the power. The central unit delegates power and authority to the subordinate units.
The relationship between state governments and local units of government, is unitary. State governments create counties and cities, and they can abolish counties and cities. Counties and cities get their powers from the states. For instance, a city’s power to tax comes from the state. Cities have no independent authority to collect taxes.
Confederal Political Systems
Confederal systems reverse the roles in unitary systems. In a confederal system, the local governments exist and then create centralized levels of government. The centralized unit derives its powers from the local units.
The United Nations is an example. The U.N. has no authority independent of what its member states delegate to it. It relies on its member states to provide it resources and support. If member states withdraw support from the U.N., the U.N. ceases to exist.
Federal Political Systems
Federal systems exist between unitary and confederal systems. In a federal system, the local and central levels of government exist independently of each other. Neither creates the other, and neither empowers the other. This is the constitutional relationship between the state and national governments in the United States.
Misunderstandings of American Federalism
States not Superior to National Government
Many people misunderstand federalism – to either extreme. Some argue that the states created the national government and therefore the states are superior to the national government. This, however, is incorrect. In Federalist No. 39, James Madison writes:
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.
On examining the first relation, the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for that special purpose; but on the other, that this assent and ratification is given by the people, not as individuals composing one entire nation; but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several States derived from the supreme authority in each State, the authority of the people themselves.
It is not the states as institutions that created the central government. It is the acts of the people within those states. Sovereignty, or ultimate political authority, rests with the people. Because special ratifying conventions ratified the Constitution, it is representative of the people. The people, not the states, created the national government. Both levels of government derive their authority from the people.
National Government Not Superior to States
At the other extreme, some argue that the Supremacy Clause suggests that the national government is to be supreme in all things over the states. This is also incorrect. Article VI of the Constitution contains the Supremacy Clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
The Supremacy Clause provides that the Constitution, then the Laws of the United States shall be the supreme law of the land. Bad laws, however, are not the supreme law of the land. Only laws made in pursuance of the Constitution are “supreme law of the land.”
The people, through the Constitution, only vested certain powers in the central government. National government laws are only supreme when the national government stays within its Constitutional bounds. The Constitution reserves all other powers to the states or to the people.
Constitutional Federalism
Let’s take a look at how the Constitution divides powers between the state and national levels of government. In general, the national government is responsible for taking car of “external” affairs like foreign policy and national defense and some things concerning relations among the states and admission of states. Some powers are explicitly denied to the national government, and some are explicitly denied to the states. Everything not given to the national government and not prohibited to the state governments is the responsibility of the states. Let’s dig in a bit deeper into the Constitutional framework.
American Federalism Grants Powers to the National Government
Article I, Section 8
Most of the powers granted to the national government are granted to Congress in Article I, Section 8, of the Constitution. These congressional powers include the following.
- Taxation to “provide for the common Defence and general Welfare of the United States.”
- Borrow money on the credit of the United States
- Regulation of interstate commerce, international trade, and relations with the Indian Tribes.
- Uniform naturalization and bankruptcy laws
- Coin money and standardize weights and measures and to prescribe punishment for counterfeiting coins and securities of the United States
- Create a Post Office, Post roads, etc.
- Protect intellectual property for a specified time through patent and copyright law
- Creation of federal courts inferior to the Supreme Court. (Article III of the Constitution directly establishes the Supreme Court.)
- To legislate in areas of piracy, maritime law, and to enforce international law
- Declaration of War
- Establish an Army and Navy and to provide rules for the military forces of the United States, including the militia when called into service of the United States
- To legislate for the district (now, the District of Columbia) in which the seat of the United States government is located and for federal facilities within the states
- To exercise necessary powers to effectively implement the powers listed above
While Article I, Section 8, lists most of the powers granted to the national government, there are a few others.
Article IV
Article IV of the Constitution also grants certain powers to the national government.
- The states must give “full faith and credit” to each others records and proceedings. Congress may regulate the mechanics of how that works.
- With some limitations about changing boundaries of existing states, Congress may admit new states to the United States.
- Congress may legislate for territories of the United States that are not part of a state.
- The national government is bound to guarantee to each state a republican form of government and to protect every state against invasion. The national government may also protect states against domestic violence when requested by the governor of the state.
Powers Granted to the National Government by Constitutional Amendments
- The thirteenth (abolishing slavery), fourteenth (defining citizenship and providing other post-Civil War adjustments), and fifteenth (prohibiting racial discrimination in voting) amendments all contain provisions allowing Congress to enforce them with appropriate legislation.
- The sixteenth amendment authorized Congress to impose income taxes.
- The nineteenth amendment prohibited sex discrimination in voting and conferred on Congress the power to enforce it with appropriate legislation.
- The twenty-third (granting presidential electors to the District of Columbia), twenty-fourth (abolishing poll taxes), and twenty-sixth (setting the voting age to 18) amendments also contain provisions for Congress to enforce them by appropriate legislation.
Powers Denied to the States and to the National Government
When we look at American federalism, we must consider not only powers granted to various levels of government, but also powers denied to them. These explicit denials of power clarify the boundaries of the powers granted. Article I, Section 9, lays out some things that the national government can not do in exercising the powers granted to it. Article I, Section 10, lays out powers denied to the states. Some things appear in both lists and are powers prohibited to any level of American government. These include the following.
- Passing bills of attainder (legislative acts basically punishing someone for a crime without any judicial proceedings)
- Passage of ex post facto laws (laws that are made retroactive, making previously legal conduct illegal and allowing for punishing those who engaged in that conduct prior to passage of the law prohibiting it)
- Granting titles of Nobility
American Federalism Denies Some Powers to the States
Besides the powers denied to all levels of government, some powers are denied just to the states in Article I, Section 9. The Constitution does this to protect the powers of the national government.
- The power to coin money is exclusively a national government power. States are prohibited from coining money, producing bills of credit (paper money), or providing for anything other than gold and silver to be legal tender for payment of debts.
- The authority to conduct foreign policy is an exclusively national power. States are prohibited from entering into treaties, alliances, or confederations.
- Related to that, the authority to wage war is intended to generally be an exclusive national power. Unless Congress has granted approval, states may not maintain their own military forces. They may not enter into agreements with other states or foreign powers to wage war. Finally, they may not engage in war, “unless actually invaded, or in such imminent Danger as will not admit of delay.” Recall that Article IV requires the national government to protect the states from invasion.
- States are prohibited from taxing imports or exports into or out of the state without the approval of Congress, except for what may be necessary to pay for their own inspection laws. The states must give any excess revenue from such taxes to the national treasury, and Congress may revise such state laws.
- States may not pass laws “impairing the Obligation of Contracts.” This is to protect the national government’s exclusive power to legislate bankruptcy law.
American Federalism Denies Some Powers to the National Government
We will now take a look at the powers explicitly denied to the national government in Article I, Section 9.
- Prior to 1808, Congress could not prohibit the importation of slaves, but a tax of up to ten dollars could be charged for each slave imported. This was a 20 year protection of the slave trade to get southern states to ratify the Constitution. Though Congress could not prohibit the trade outright, Congress passed several laws prior to 1808 to regulate and restrict that trade, and the importation of slaves was banned when the twenty year period expired.
- The national government may not suspend access to a Writ of Habeas Corpus “unless when in Cases or Rebellion or Invasion the public Safety may require it.” A writ of Habeas Corpus is a legal pleading to bring an issue before a court. It was originally a tool to prevent secret detention without trial.
- Certain types of taxes are prohibited. Courts ruled that income taxes violated this provision. This led to the ultimate passage of the sixteenth amendment, authorizing national income taxes.
- Congress may not impose taxes on goods exported from a state.
- The national government may not favor the ports of one state over another. It may not require ships entering ports in one state to pay duties to another state.
- Funds can only be drawn from the national treasury when appropriated through the law-making process. Along with this, the national government must publish statements of receipts and expenditures. It is perhaps interesting that the framers of the Constitution chose to prohibit spending unappropriated funds instead of including the appropriation process in the powers granted to Congress in Article I, Section 8.
- Finally, no officer of the national government may accept a title, office, or pay from any foreign power.
What About Everything Else?
Notice that the Constitution does not generally grant powers to the states. This is because the Constitution creates the national government. The states already existed and had their own powers based on their own constitutions. That did not change when the U. S. Constitution was ratified. Powers that the Constitution did not take away from the states remained with the states. Only powers delegated, or given, to the national government can be exercised by the national government.
At the time of the American Founding, some people were concerned with too much power being transferred to the national government. They sought to have additional limitations placed on government power to protect the rights of the people. This led to passage of the Bill of Rights, the first ten amendments to the Constitution.
The tenth amendment clarifies the what about everything else issue.
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.
The tenth amendment makes explicit that the national government has only those powers that the Constitution gives to it. Everything else is left to the states. If states were not exercising certain powers, those powers remain with the people. The people may then delegate those powers to state or national government through constitutional amendments.
Here, we did not generally dive into why power is divided the way it is. That is a topic for later. The aim here is to help the reader under the concept of federalism and the Constitutional framework for dividing powers between the state and national levels of government. We hope that objective has been achieved.