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Federalism in the United States

Federalism and Its Alternatives

Creating the Federal System

Under the principle of federalism, the U.S. Constitution gave the national government the power it needed to unite the states and enforce its laws while balancing that with protections for state power. In this federal system, some powers of the federal and state governments overlapped, but others were assigned to the national or state governments.

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.

Thus, federalism created a structure in which the national government could work on behalf of the country as a whole but the states remained free to exercise choices suitable to each state.
The federal system of government, reflected in the U.S. Constitution, divides powers and authority between the national government and the states. Some powers are shared; others are not. Shared powers are called concurrent powers.

Alternatives to Federalism

Based on experience, Americans rejected two alternatives to federalism, finding the unitary system too liable to abuse of power and the confederal system too ineffectual to be practical.

The delegates to the Constitutional Convention had experienced two alternatives to federalism, the unitary system and the confederal system. Each had its benefits and its drawbacks. The primary drawback was that neither system worked efficiently.

A unitary system is a political system in which the central government holds most or all of the governing power. Great Britain had a unitary system of government in the 18th century. Britain and all its colonies were ruled by one central authority, in the form of the reigning monarch and Parliament. In a unitary system, lower levels of government may be able to pass laws, but only if given that power by the central government—which can also take away that power. This form of government offers tight central control and a unified focus. However, it is not a form of government that accommodates differences among varied regions. Most importantly, the framers of the Constitution saw the unitary system as vulnerable to the tyrannical exercise of power. Britain's unitary system, they believed, had allowed the central government to infringe on their fundamental rights.

A confederal system is a political system with a weak or loose organization of states, under which the central government is granted limited authority by the constituent states. This was the system the newly independent United States first adopted. Rejecting the supreme central authority of Britain, the new country adopted the Articles of Confederation, which were ratified on March 1, 1781. Under this system, the states remained essentially autonomous. As a result, while the Confederation Congress in theory had many of the same powers it would later have with the Constitution, it did not have the authority to enforce those powers. For example, Congress could ask for money or military volunteers, but the states could deny the requests. As a result, there was little money flowing into the federal government and no army to back up federal laws and national sovereignty. During the American Revolution, the government borrowed money to pay for the war, but under the Articles of Confederation the Congress could neither raise money nor pay debts. The federal government was essentially paralyzed.

Some people feared anything stronger than a confederal system would represent an immediate descent into a unitary system. Thomas Jefferson was among those who argued against federalism. However, the government could not continue as a confederation. Federalists, spearheaded by James Madison and Alexander Hamilton, presented detailed reports in The Federalist Papers on how a federal system could guarantee state sovereignty while still making the government effective.