Federalism

I

INTRODUCTION

Federalism, also referred to as federal government, a national or international political system in which two levels of government control the same territory and citizens. The word federal comes from the Latin term fidere, meaning “to trust.” Countries with federal political systems have both a central government and governments based in smaller political units, usually called states, provinces, or territories. These smaller political units surrender some of their political power to the central government, relying on it to act for the common good.

In a federal system, laws are made both by state, provincial, or territorial governments and by a central government. In the United States, for example, people who live in the state of Ohio must obey the laws made by the Ohio legislature and the Congress of the United States. In Canada, residents of the province of Québec follow the laws made by Québec’s legislature and those made by the Canadian parliament. In addition to the United States and Canada, countries that are considered federalist include Australia, Brazil, Germany, India, Malaysia, Mexico, Nigeria, and Switzerland.

Federal political systems divide power and resources between central and regional governments. The balance of power between the two levels of government varies from country to country, but most federal systems grant substantial autonomy to state or provincial governments. Central governments decide issues that concern the whole country, such as organizing an army, building major roads, and making treaties with other countries. Federalism varies in practice, however, and in some countries with federal systems the central government plays a large role in community planning, schools, and other local issues.

Federal political systems are relatively uncommon around the world. Instead, most countries are unitary systems, with laws giving virtually all authority to the central government. The central government may delegate duties to cities or other administrative units, but it retains final authority and can retract any tasks it has delegated. The central government in a unitary system is much more powerful than the central government in a federal system. Cameroon, France, Italy, Japan, Kenya, Morocco, South Korea, Sweden, and Uruguay are examples of unitary systems.

A confederation is similar to a federal system but gives less power to the central government. The loose alliances of countries or other political entities that make up a confederation seek to cooperate with one another while retaining ultimate control of their own internal policies. Unlike federal systems, confederations usually give each member nation absolute control over its citizens and territory. The central government decides only issues that affect all members of the confederation. In the 18th century the United States was founded as such a system under the Articles of Confederation. More recently, the Soviet Union dissolved in 1991, and many of the former republics formed a confederation called the Commonwealth of Independent States (CIS) to coordinate domestic and foreign policy. Confederations tend to be weak and unstable because member nations often resist relinquishing final authority on any matters and insist on their right to withdraw from the confederation at any time. Confederations are uncommon; most are international bodies with limited and specific responsibilities, such as the European Community (EC) and the British Commonwealth.

II

THE BEGINNINGS OF MODERN FEDERALISM

The United States began as a confederation. A weak central government ruled the country from 1783 to 1789 under the Articles of Confederation. Each state had an equal voice in Congress, but Congress could not collect taxes to operate the government. The confederation of states had no chief executive and no central body with enough power to make the states abide by the Articles of Confederation. Some states refused to follow the terms of the 1783 Treaty of Paris that ended the American Revolution, even though the Articles of Confederation gave Congress the right to make treaties for all the states. Trade disputes with Great Britain and other countries paralyzed the economy, but the Articles of Confederation left Congress powerless to take charge of international trade. Some states imposed heavy taxes on goods from neighboring states, further stifling commerce.

The ensuing economic crisis threatened to destroy the young country, but no political authority had power to assume leadership. “The wheels of government are clogged,” future president George Washington remarked in 1785. Washington and other statesmen realized that the country could only survive if the central government had more power, but they also wanted to avoid trampling the rights of the states. In 1787 political leaders held the Constitutional Convention to confront the crisis, and this historic meeting produced the principles of modern federalism.

III

FEDERALISM IN THE CONSTITUTION

Delegates to the Constitutional Convention at first sought merely to improve the Articles of Confederation, but this proved impossible. They wrote the Constitution of the United States, an almost entirely new document. The Constitution’s advocates, called Federalists, envisioned an energetic national government (see Federalist Party). The U.S. Constitution gave Congress broad powers, some of which are exclusive—that is, not shared with the states. For example, only Congress can make war, deal with foreign nations, issue money, and regulate interstate and foreign commerce. The laws of the national government prevail if they conflict with state laws. The Supremacy Clause in Article VI of the U.S. Constitution holds that the federal constitution, and all laws and treaties based on it, are “the supreme law of the land.”

The Constitution preserves some powers for the states, however, making the United States what Federalists such as James Madison called a “compound republic.” The states share some powers with the national government, but they also retain some independence. The concurrent powers—those shared by both the national and the state governments—include taxing, spending for the public welfare, borrowing money, and eminent domain (taking private property for public use at a fair price).

The Tenth Amendment to the U.S. Constitution specifies that powers not granted to the national government are reserved, or held, only by the states. The states regulate businesses and professions, conduct elections, provide for public schools, and protect the health and safety of their people. The states also retain sole power to establish local governments, including counties, cities, towns, school districts, and many kinds of special districts. These local governments provide a wide range of services, such as schools, streets and roads, elections, and police and fire protection. Most of these government bodies can impose taxes.

IV

CONFLICTS OVER FEDERALISM

From the time the Constitution was adopted in 1789, questions about the exact boundary between state and national power have sparked frequent disputes. Using “states’ rights” as support for their cause, Southern states defended the practice of slavery as an issue for states to decide, while Northern states pushed to abolish slavery. Combined with economic and political tensions between the states, slavery led 11 Southern states to secede (withdraw) from the Union during 1860 and 1861. The American Civil War, which began in 1861, was partly a conflict over the proper role of national and state governments.

The power of Congress to make laws affecting state and local issues grew steadily after the Civil War ended in 1865. The Supreme Court of the United States gave Congress more and more control over the states, often basing its decisions on the Commerce Clause in Article I, Section 8 of the Constitution. This clause empowers the federal government to regulate interstate commerce. By the late 19th century the Supreme Court interpreted this authority broadly, allowing Congress to take action on food quality, child labor, and other problems not specifically related to interstate trade. The Supreme Court further expanded the scope of congressional power under the Commerce Clause during the New Deal in the 1930s. The New Deal, which President Franklin Roosevelt created to confront the country’s economic depression, included laws affecting nearly every home and workplace. The Supreme Court upheld most of Roosevelt’s New Deal initiatives, including laws setting minimum standards for pay and working conditions, protecting labor unions, and regulating farm production. After World War II (1939-1945), national authority under the Commerce Clause continued to grow.

The action of Congress against racial segregation stands as the most important expansion of national power in the postwar period. Some Southern states argued that the Tenth Amendment gave them the right to maintain segregation and that Congress had no authority to interfere in purely local matters. In 1964 the Supreme Court ruled in Heart of Atlanta Hotel v. United States that despite the rights reserved to the states by the Tenth Amendment, Congress had the authority to bar segregation because it could harm interstate commerce.

The authority of the federal government has also grown as a result of a more gradual increase in power at all levels of government in the United States. Since the Constitution was adopted in 1789, national, state, and local governments all have assumed more powers and duties. They have been forced to do so by the increase in population, the growth of cities and towns, the rise of huge industries, and the ever-growing need for better roads, railways, and communication systems. Once strictly local, problems such as crime and transportation have become national issues.

Many experts defend the growth in power of the federal government in the United States. They insist that the public interest demands federal control in cases involving more than one state. Other experts fear that the continued expansion of federal authority over state and local matters will create an inefficient and possibly dangerous concentration of power in federal hands.

When conflicts arise, the courts must decide how to balance states’ rights with the needs of the nation. Although federal courts tend to take a broad view of national powers, in the early and mid-1990s the Supreme Court issued several rulings that curtailed congressional power over the states. In 1992, for example, the court ruled that Congress could not require states to make laws controlling radioactive waste. The Court issued another important decision in 1997, ruling that Congress could not compel local law enforcement officers to conduct background checks on gun buyers.

In 1999 the Court issued a series of rulings that further shifted power from the federal government to the states. In three 5-to-4 decisions that reflected the justices’ deep divisions over how to balance state and federal powers, the Court strengthened the principle of sovereign immunity, which gives states immunity from lawsuits arising from violations of federal law. In one case, the Court ruled that state employees cannot sue states for overtime wages due to them under federal labor laws. In the two other cases, the Court ruled that businesses cannot sue states in federal court for patent infringement or false advertising claims that violate federal law. In a similar decision in 2000, the Court ruled that states cannot be sued for violating a federal age-discrimination law. In 2001 the Court ruled that state employees cannot sue states for money damages based on employment-discrimination violations of the federal Americans with Disabilities Act. Combined with earlier rulings, the decisions reduced the ability of individuals to sue states for violating federal law.