Federalism

POS 2042

Outline
I.
A. B. C. D.

Dual Sovereignty
Interstate Commerce Clause Necessary and Proper Clause Supremacy Clause Tenth Amendment

II. Early Federalism (1789-1937) III. Modern Federalism (1937-present)

Dual Sovereignty
These were basically independent nations coming together, so total submission to a national government was out of the question. Technically, the national government and the state government were seen as equals on most things, with clearly separated powers.

Dual Sovereignty
Up until about 1937, almost all real regulatory laws and criminal justice laws were in the hands of states. Federalism allows different states to have different laws. There are four parts of the constitution, however, that tip the balance in favor of the federal (national government):

1. The Interstate commerce clause

The Congress shall have Power To regulate Commerce among the several States What is commerce and interstate is a matter of interpretation

2. The Necessary and proper clause

The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers An expansive reading of this would give Congress (and the national government) a large reach.

3. The Supremacy clause

This Constitution and the Laws 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. When there is a conflict between state and federal law, federal law wins (it trumps).

4. Tenth Amendment
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. This seems to create a potential conflict with both the necessary and proper clause and the supremacy clause.

Dual Federalism (1789-1937)

All through the 1800s and up to the presidency of Franklin D. Roosevelt (1933-1945), the powers of the national government exercised were basically those outlined in Articles I-V of the Constitution specifically. Still, the supremacy, necessary and proper, and interstate commerce clause were hanging over state governments like a potential sword that the federal government could use to further its power.

McCulloch v. Maryland (1819)

Necessary and proper clause interpreted for the first time by the Supreme Court. Decision also involved supremacy and interstate commerce clauses.

Modern Federalism (1937-present)

The Great Depression increased economic power of the federal government. World War II and the Cold War increased military power of the federal government. 1937 Supreme Court decisions affirmed constitutionality of The New Deal. 1960s expansion of federal regulatory power over the states (Civil Rights Act, Voting Rights Act, Medicaid, EPA, etc). Post-9/11 2001 changes vastly increased government surveillance.