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THE UNITED STATES OF AMERICA Sanford F. Schram 1. History and Development of Federalism With independence in 1776 the American colonies formed a confederation. Without a strong central government, however, centrifugal forces soon began to pull the states apart. Instead of working together, some states began coining their own money and erecting trade barriers, and the state governments were too weak on their own to ensure the rule of law. These problems seemed to be a result of shortcomings in the Articles of Confederation and Perpetual Union. It was to address these issues that a convention was held in Philadelphia in 1787. The result was a new constitution that has survived to this day. In 1789 the United States of America adopted what was at that time an entirely unique form of governance. The government created by the new constitution became, arguably, the first structured according to principles of what is today referred to as federalism. Confederalism had existed for centuries; federalism had not. While confederalism called for a loose union of states, federalism called for a two-tier system of governance and it was a revolutionary idea. The Swiss canton system of the Middle Ages and other instances of confederalism were built upon by the framers of the US Constitution to create this new form of governance. The constitution that emerged from Philadelphia sought to build a national government on top of the states to create a “more perfect union” that could ensure liberty while enforcing law and order. The constitution was, however, less than a systematically planned blueprint for the development of a federal system. It was to emerge out of a series of compromises during the days of deliberation in Philadelphia. One major compromise of particular significance for the new federal system was the specification of a bicameral Congress with the Senate providing equal representation to each state in the form of two Senators, and a House of Representatives providing representation of the people by districts based on population. In this way, less populous states could agree to the development of a new national government because they were accorded better representation in it than would be the case if representatives were apportioned strictly on the basis of population. Even with such compromises, the constitution was not without its opponents. The battle over its ratification pitted Federalists and Anti-Federalists against each other largely over the question of whether the new national government would become an all-powerful source that would threaten the liberty of the common people. This battle threatened to doom the constitution until a compromise was reached. According to this compromise, the first Congress under the new constitution would put a bill of rights before the states for ratification. The result was the first 10 amendments to the constitution which guaranteed such rights as the freedom of speech, press and religion, the right to jury trials, protection against unwarranted searches and seizures, the right to bear arms, and even an amendment that suggested there were other unspecified rights beyond those listed in the constitution. James Madison was in many ways one of the most important thinkers behind the idea of a new federation. He reasoned that an “expanded republic” would actually increase the protection of liberty, by introducing diversity and cancelling out the power of a tyrannous minority or even a tyrannous majority. And the United States did indeed become an expanded republic with the Louisiana Purchase in 1803 in particular massively increasing the territory and creating the basis for the westward expansion and the gradual growth of the country from 13 to 50 states. Sectionalism, however, was always a threat to the viability of the expanded republic. In particular the issue of slavery increasingly divided the country along a north-south axis in the first half of the nineteenth century and eventually led to the Civil War (1861-1865). The Civil War was to have a critical impact upon the shape of US federalism, leading as it did to the national government asserting its responsibility for upholding the Union as inviolable. The national government’s imposition of a period of reconstruction on the South from 1865-1876 solidified its role as the keeper of the Union and gave new meaning to the constitution’s statement that the laws of the national government were supreme. After reconstruction, the power of the national government was not asserted to a similar degree, but rapid industrialization of the country created forces of nationalization that would lay the basis for the growth of federal power. In the twentieth century, two world wars, and the emergence of the United States as a world power would further re-define the character of US federalism. The national government, particularly the office of the President would assume increased significance and authority. Today, the national government is far stronger than it was when it was first established. All three branches of the national government—not just the presidency, but also the Congress and the Supreme Court—have assumed greater power in the federal system than they had in the early years of the republic. Nonetheless, for more than 200 years the US Constitution has resisted giving answers as to the definitive shape and scope of American federalism. Instead, all questions regarding it have remained subject to contestation, from its origins, to its purposes, to, most commonly and critically, its distribution of powers between the national government and the states. The division over the origin of the federal system is critical to understanding it. If the “compact” theory—which argues that the two-tier federal system of governance is the product of a compact between the different states—holds, then the states, and their people as citizens of separate states, are the fundamental units of the federal system. If the “national democracy” theory—which argues that the federal system was a creature of the American people as a democratic polity unto itself—holds, then both the states and the national government are creatures of that collective will and are subservient to it. James Madison seems to have tried to have it both ways, trying to resolve the conflict so as to ensure both the sovereignty of the states and supremacy of the new national government, thereby hoping to ensure it would not become a mere creature of the states. For over two centuries this debate has persistently arisen, even as the issues changed, thus, for example, undermining national law, as with the National Bank under President Andrew Jackson, and taking the country into civil war, as with the battle over slavery. The compact theory was re-introduced by Ronald Reagan in his inaugural address in 1981 when he stated that he was committed to reducing the power of the national government so as to “restore the balance between the levels of government”.1 He justified this at the time on the grounds that the federal government had improperly come to exercise too much control over the states. He then famously noted: “The federal government did not create the states; the states created the federal government”. For Reagan, the compact theory was unassailable and unquestioned. Yet this is not the case for many others. Today, President George W. Bush develops his domestic agenda to turn back power to the states. He faces opposition from Democrats in Congress, however, who see constitutional justification for the national government to assert its role in influencing the states on matters of national importance concerning issues as diverse as education and the environment, welfare and discrimination, economic development and crime. 2. Constitutional Provisions Relating to Federalism The national government has three branches—the bicameral Congress (made up of the House of Representatives and the Senate) serving as the legislative branch, the independently elected President heading the executive branch, and the Supreme Court heading the judicial branch. The relationship of each of these branches to the states has changed since the federation was created. With the rise in power of the presidency along with the increasing responsibility of that office for the national economy, Presidents have become the national political figures they were originally intended to be. The Supreme Court—made up of nine Justices appointed by the President, but ratified by the Senate, and removable only by impeachment—has come a long way from first asserting in Marbury v. Madison (1803) the right of judicial review to serve as the final arbiter as to the constitutional questions. Article I, Section 3(1) of the constitution specifies that states are to be represented in the national government by two Senators from each state. With 50 states, there are 100 Senators, each serving a six-year term and one-third of whom are up for election every two years. The Seventeenth Amendment (1913) switched the election of Senators to popular vote from election by the legislature in each state. While this undoubtedly has led Senators to become more independent of state legislatures, they continue to be a source of federalism in the national government, often focusing on representing the interests of their states more so than the interests of the country as a whole. The division of powers between the national government and the states is specified in the constitution. Article VI of the constitution includes the “supremacy clause” that makes the constitution and the laws of the national government supreme. The “enumerated powers” of the Congress are listed in Article I, Section 8, and authorize Congress to: 1. lay and collect taxes; 2. pay the debts; 3. provide for the common defence; 4. promote the general welfare of the United States; 5. borrow money on the credit of the United States; 6. regulate commerce with inter-state commerce; 7. establish a uniform rules for naturalization; 8. establish uniform rules for bankruptcies; 9. coin money and regulate its value; 10. fix the standard of weights and measures; 11. establish a Post Office and post roads; 12. issue patents and copyrights; 13. constitute tribunals inferior to the Supreme Court; 14. define and punish felonies committed on the high seas, and offences against the “law of nations”; 15. raise and support an army and a navy; and 16. declare war. Article I, Section 8, ends by stating that Congress shall also have the power to make all laws which shall be “necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States”. This clause has been referred to as the “elastic clause” because it has allowed over time for a great expansion of the powers of the national government especially to regulate inter-state commerce and promote the general welfare. It is also important to note that the Fourteenth Amendment, ratified after the Civil War, specifies that the national government must ensure that state actions do not deny citizens due process, privileges and immunities and rights to equal protection of the laws. Despite the “enumerated powers” listed above, the division of power between the national government and the states is not outlined in explicit terms by the constitution. It is possible that this is because the framers intended there to be overlapping or concurrent powers, including, inter alia, the power to tax, the power to regulate forms of commerce, and the power to initiate social policies. The supremacy clause, however, has at times been invoked to preempt state concurrent powers, for instance in recent years regarding the regulation of air and water pollution. The area of concurrent powers suggests that the debates about the allocation of power in the US federal system are unavoidable. Article IV, Section 4, guarantees all states a “republican form of government”. The Tenth Amendment reserves all power not granted to the national government to the “states or the people”. While the early years of the constitution saw the growth of a national government, for much of its history especially after the Civil War, the Tenth Amendment has served to create a great reservoir of residual powers for the states. This changed with the Great Depression which spurred President Franklin Delano Roosevelt to initiate the “New Deal” with its great expansion of federal powers. In the post-World War II era, the Tenth Amendment lost much of its power, but in recent years to some degree the Supreme Court has renewed it as a constraint on the growth of federal power. The procedure for amending the constitution is specified in Article V which in part reads: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments”. Three-fourths of the states must approve an amendment for it to be ratified as part of the constitution. Yet, formal revision of the constitution has not been the primary means by which power has been re-allocated in the system. While the Fourteenth Amendment did significantly revise the division of powers between the national government and the states, most of the shift has been accomplished by means other than formal amendment of the constitution; decisions of the Supreme Court in particular. The Supreme Court has performed a critical constitutional role, at times reining in federal power over the states, and at times allowing for the growth of federal power. The variations in American federalism have been regulated by the Court which over time built on its assertion of judicial review to establish itself as an independent arbiter between the states and the federal government on constitutional issues. In its early years, the Court, particularly under the leadership of Chief Justice John Marshall, was a nationalist court that asserted the supremacy of the national government. Starting after Marshall and until the New Deal, however, the Court limited the ability of Congress to expand its powers at the expense of the states. At first the Court struck down key New Deal legislation in the mid-1930s as violating principles of federalism, but under intense political pressure from Roosevelt, a new majority emerged on the Court and it began to uphold expansion of national power in ways that would continue into the 1970s. The Court, thus, became a strong supporter of the growth of national power, especially in the areas of regulating inter-state commerce, expanding social policy initiatives, and enforcing the Fourteenth Amendment to ensure civil rights. In recent years, however, the Court has changed again. A slim 5-4 states’ rights majority on the Court under the leadership of Chief Justice William Rehnquist has worked to strike down national legislation as undercutting the constitutional autonomy of the states. In particular, the Court has resurrected the idea that the national government cannot legislate away the “sovereign immunity” of states, thereby reducing the extent to which citizens can sue states for failure to uphold federal laws. The conceptualization of national-state government relations has changed over time as well. A contrast has historically been between the theories of dual and cooperative federalism. Dual federalism emphasized the separateness of the tiers and the need to limit the national government so that it did not undermine the sovereignty of each state as vouchsafed by the constitution. Others noted that the framers’ vague wording in the constitution intended a more nuanced system of overlapping powers necessitating a more cooperative federalism of sharing powers and supporting each other as the national government helped states fulfill basic functions and states helped the national government fulfill national objectives. Still others have noted that since the presidency of Richard Nixon, but especially since Reagan, there has been an effort to have a “new federalism” that insists on turning power “back” to the states. The status of the fundamental constitutional rights of citizens has been significantly affected by the shifts in federalism over time. The Civil War brought a major assertion of national power and resulted in the ratification of three constitutional amendments that still have supreme importance in the system. The Thirteenth Amendment barred slavery (and all involuntary servitude except for punishment of a crime), the Fourteenth Amendment prohibited all states from denying any citizens equal protection of the laws and guaranteed due process of the laws and privileges and immunities, and the Fifteenth Amendment extended that guarantee to all black citizens including former slaves. While slavery is not likely to return, these amendments remain significant in their creation of national power. With these amendments, the national government assumed ultimate responsibility for ensuring that states did not deny citizens their civil rights under the constitution. The Supreme Court, however, at times leaned towards allowing states substantial latitude and, thus, in Plessy v. Ferguson (1896) infamously upheld the racially exclusionary “separate but equal” Jim Crow laws in the South. The “separate but equal” doctrine would hold until the 1954 decision of Brown v. Board of Education at which time a new era of national intervention in the states commenced in order to enforce civil rights. The Rehnquist Court has in recent years stopped further extensions of federal power in this area. The fiscal arrangements of the federal system have changed dramatically. Article I, Section 8(1), gave Congress the power to raise taxes and impose duties. The national government levied an income tax during the Civil War but did not implement a graduated income tax until the early twentieth century. With the Supreme Court questioning the constitutionality of such a tax, it could only finally be established as a constitutionally legitimate power of the national government with the ratification of the Sixteenth Amendment in 1913. With this power to levy taxes on incomes, the federal government increasingly became the primary source of revenue in the federal system. The federal government increasingly relied on this power to gain leverage on the states, enticing them to enlist in national programs by offering them conditional grants-in-aid. This leverage was maximized during the Johnson Administration’s “Great Society” during the 1960s. The high-water mark in federal grants-in-aid was the 1970s. With the budget cuts adopted by the Reagan Administration in the early 1980s, federal aid began a long decline. Once President Bill Clinton proposed, and Congress enacted, a balanced federal budget in the late 1990s, the downward trend had been set. In addition, since 1994 Congress has moved toward turning more power back to the states. This has prompted interest in shifting away from narrow categorical grants with matching-fund requirements for the states toward removal or relaxation of conditions-of-aid and the conversion of categorical grants into block grants. Even with reforms, the power of the “federal fisc” remains strong and grants-in-aid are still a potent source of federal leverage over the states. The relatively new idea of “performance partnership” grants suggests a trend toward giving states substantial discretion in using grant funds while making allocations in part contingent upon performance effectiveness in achieving nationally specified goals. 3. Recent Political Dynamics Even before he was elected in late 2000, the presidency of Republican George W. Bush quickly demonstrated the persistence of old issues of federalism in the new millennium. Most controversially, Bush gained office even as he got fewer popular votes than his main opponent, Democrat Al Gore, Bill Clinton’s Vice-President. Bush narrowly won a majority of the Electoral College votes, only after a prolonged battle contesting the outcome of voting in the state of Florida. This historic battle dramatically reminded the world just how decentralized the system of voting is in the United States and how significant principles of federalism are in the system of electing a President. Yet, the end result, with the states’ rights majority (5-4) on the Supreme Court intervening to overturn the decision of the Supreme of Court of Florida, caused some to worry that a highly politicized process had made a mockery of important principles of federalism and in a way that made them less viable for the future. The presidential election of 2000 powerfully underscored how federalism is even built into the only truly nationally elected office in the land. Citizens only vote indirectly for the President because the votes are used to determine the allocation of electors from each state who then vote accordingly as an “Electoral College” to choose the President (and the designated Vice-President). The process therefore makes the election a question of garnering enough support in enough states in order to achieve a majority in the Electoral College. In addition, all states but Maine and Nebraska give all their electors to the candidate who gets the most popular votes. Also, small states are over-represented in the Electoral College because the number of electors is based on the number of Senators (each state has two) and the number of members of the House of Representatives (each state has a delegation which is based on the population of the state, but small states have at least one representative). All of these factors make the national election very much a federal one, where candidates must develop a strategy to build support, not necessarily nationwide, but in a number of selected states in order to garner a majority of electoral votes. The Electoral College works against the idea that a simple national majority, concentrated or dispersed, can be relied upon to win even the one nationally elected office of the system. Therefore, even though Bush lost the national popular vote, he could still win the presidency as three other Presidents had before him. All he needed in the end was to carry Florida. Yet, Florida was to highlight another dimension of the federalism of presidential elections. Each state gets to run its election largely on its own terms as long as it is consistent with the constitution and federal law. And Florida, like most states, allows local election boards to vary their practices within state law. The result was that in Florida, as in most other states, different counties used different mechanisms for recording votes, with poorer areas in particular more likely to use outdated machinery that is subject to error. The Florida election proved to be extremely close, with Bush ahead by fewer than 2,000 votes. Gore subsequently asked for hand recounts of the ballots and eventually won a decision from the Florida Supreme Court to hand recount all ballots in the state for which machines did not record a vote for President. Bush appealed to the Supreme Court in spite of his having campaigned as a candidate who promoted states’ rights and discouraged federal, particularly judicial, intervention in the affairs of states. And even more dramatically, the slim 5-4 states’ rights majority on the Supreme Court surprised many when it took the case and ruled in Bush v. Gore (2000) that the hand recounts violated federal standards of equal protection under the Fourteenth Amendment. Many accused the Court of allowing partisanship to affect its decision, thereby handing the presidency to Bush at the expense of preserving important principles of federalism. Bush as President faces not only questions of legitimacy but a Senate evenly divided between Democrats and Republicans at 50-50, and a closely divided House. The spectre of gridlock which has haunted the national government in recent years is poised to linger longer. Nonetheless, Bush continues to push for more of the “new federalism” that had been touted by his Republican predecessors. His efforts include the turning of welfare programs over to local community agencies, including faith-based organizations, so as to reduce the power of the federal government further and thereby create even greater opportunities not only for states but communities to exercise more discretion in the use of federal funds. Yet, such actions could also further weaken national commitments to provide service, enforce rights and protect values across a gamut of policy areas. Supporters emphasize that Bush is seeking to enable states and local governments to act independently of federal regulation. Opponents stress that he is threatening to eviscerate federal commitments in key areas of social policy and the environment in particular. If all the turmoil of the presidential election clouded the picture, one historic reality remains persistently clear—federalism lies at the centre of the system and disputes about almost any policy issue inevitably raise issues of federalism. In spite of all that happened in the presidential election, the federal nature of the system is not about to go away. 4. Sources for Further Information Beer, Samuel H., To Make a Nation: The Rediscovery of American Federalism, Cambridge, MA.: The Belknap Press of Harvard University Press, 1993. Donahue, John D., Disunited States: What’s at Stake as Washington Fades and the States Take the Lead, New York, NY: Basic Books, 1997. Elazar, Daniel J., American Federalism: A View from the States, New York, NY: Thomas Y. Crowell Co., 1966. Kincaid, John, “The International Competence of U.S. States and Their Local Governments”, Regional and Federal Studies, Vol. 9 (Spring 1999), pp. 108-130. Peterson, Paul E., Barry G. Rabe and Kenneth K. Wong, When Federalism Works, Washington DC: The Brookings Institution, 1986. Zimmerman, Joseph F., “National-state Relations: Cooperative Federalism in the Twentieth Century”, Publius: The Journal of Federalism, Vol. 31, No. 2 (Spring 2001, forthcoming). Notes 1. Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge, MA: The Belknap Press of Harvard University Press, 1993), p. 2.