Federalism and Its Alternatives

When the delegates to the Constitutional Convention met in 1787, they aimed to create a stronger central government to rectify the weaknesses experienced in the government under the Articles of Confederation. Still, they did not want to create too powerful a central government. To balance power, they created a federal system. Federalism is a system of government in which power is divided and shared between two entities.

The goal of the U.S. Constitution, as exemplified in the Preamble, was "to form a more perfect Union." To be able to operate efficiently, the central government needed a more clearly defined role and more authority to act than it had under the Articles of Confederation. While many wanted the states to remain virtually autonomous, that arrangement under the Articles had left the country unable to function as a unit. The federal system that was created by the Constitution established a more powerful central government than had existed under the Articles of Confederation. However, to avoid possible abuse of power, the new Constitution divided political authority between the central government and the states. The constitutional system of checks and balances, allowing the three federal branches to check the power of each other, provided a further check against the abuse of federal power. Some leaders worried that the Constitution would eliminate the states’ sovereignty. Sovereignty is the ultimate authority of a state to govern itself without interference from outside governments or powers. To emphasize that states retained much of their sovereignty, the First Congress added the 10th Amendment, part of the Bill of Rights, which states that all powers not held or prohibited by the federal government belong to the states or to the people. This language created a tension between the 10th Amendment and the necessary and proper clause, or elastic clause, is clause 18 of Article 1, Section 8, of the U.S. Constitution granting Congress the right to make any laws required to carry out Congress's specific powers listed in the Constitution.

The division of power led to the creation of concurrent power, which is a political or legislative power granted to both the state and federal governments. These powers can be exercised either independently or simultaneously.

Concurrent powers include collecting taxes, spending or borrowing money, making laws, building roads, and establishing courts. Both federal and state governments also have police power, which refers to the extent to which the federal or state government is permitted to exercise control over individuals in order to ensure the general security, health, safety, morals, and welfare of the public. Under this power, for example, state courts have ruled that states have a legitimate interest in requiring parents to have their children vaccinated against certain common communicable diseases. Federal police power is constrained by the 10th Amendment. In Hammer v. Dagenhart (1916), the Supreme Court ruled that a federal child labor law violated the 10th Amendment by interfering with state power to set labor laws. Then, in the 1941 decision Darby v. United States, the court effectively overruled the Hammer decision by declaring the Fair Labor Standards Act—which set national rules for working hours, minimum wages, and child labor—constitutional under the power of Congress to regulate interstate commerce. Police power also extends to the right to determine criminal conduct. The federal government has responsibility to investigate and prosecute crimes that extend across state borders; states deal with crimes such as theft, arson, and fraud within state boundaries.

Congress has several delegated powers. A delegated power is a power specifically identified and assigned in the U.S. Constitution. These powers, detailed in Article 1, Section 8, include establishing and controlling currency, making treaties and foreign policy, declaring war, raising and maintaining an army and navy, establishing post offices, regulating trade between states and between the United States and other countries, and amending the Constitution.

Powers possessed by state governments but not the national government include the power to regulate commerce within the state, establish local governments, issue permits and licenses (such as a driver's or medical license), conduct elections, and ratify amendments to the Constitution. In addition, under the 10th Amendment, states have the authority to do anything not specifically assigned to the national government or forbidden by law.

Article 1, Section 10, stipulates several powers that states shall not possess. Some of these prohibitions ensure that the states cannot compete with the national government in dealing with foreign powers or international trade. Thus, Clause 1 prevents states from signing treaties or alliances, and Clause 2 declares that states cannot tax imports or exports without the consent of Congress. In addition, the clause specifies that the revenues from any such taxes a state does impose would go to the federal treasury, which effectively means that no state would bother taxing trade since it would not see the proceeds of such action. To avoid competing with federal money, states are barred from coining money.