The most persistent source of political conflict has been the relations between national and state governments. Federalism. This is evident today with devolution (the transfer of functions from the national government to the states)
Types of Government
Federalism: political system in which there are local as well as national units of government, each has specific duties, and each are specially protected. United States.
Unitary systems: Systems whereby local governments can be altered or abolished by national government. Britain. Has the advantage of making everything the same. Disadvantage: Local needs
Confederation : States are sovereign, and federal government can only do what states permit. Like UN.
The most obvious effect of federalism is facilitating political action. People only get involved if they think they have a chance, and a federal system allows them many chances. Decentralization of authority lowers the cost of political lobbying.
The founders didn't enumerate state or personal liberties because they thought the constitution only listed what government could do (natural law).
Hamilton thought the national government was superior, hence its powers ought to be broadly defined and liberally construed.
Jefferson thought that federal government was the product of an agreement among states.
Madison went from Hamiltonian to Jeffersonian
McCulloch v. Maryland.
Concerned whether congress could set up bank or do anything else that wasn't written in the constitution. Justice Marshall claimed extent of powers needed interpretation, and decided to endow the "necessary and proper" clause with as much power as possible.
The states may not tax any federal instrument. The federal government abdicates sovereignty only to the people. Since the power to tax is the power to destroy, no states could tax federal agencies.
Nullification & Duel Federalism
Nullification : states have the right to nullify federal legislation. Proposed in the Virginia and Kentucky Resolutions by Madison and Jefferson
Dual federalism: National Government is supreme in its sphere, and State governments are supreme in their spheres, and those spheres should be kept separate.
Original Intent -- look to what the framers wanted, Those clamoring for it really want to turn back time for their own political agenda
Wickhard v. Filburn (1942) Farmer couldn't grow his own wheat under AAA, and the courts supported the state in saying he couldn't.
Literalist – just does research, claims uninterested in results but still have agenda. Look to dictionary for definition, but can choose definitions.
Evolutionary approach – is concerned with result. admits to interpretation.
- Implied that there is intrastate commerce which federal government can regulate and interstate commerce which only the states can regulate
- Challenges were great in differentiating types
- Result was that everything eventually became part of interstate commerce, hence subject to federal regulation. End result is that duel federalism is dead.
- I.e. Thurgood Marshall. "I cannot conceive of any civilized society that would permit a death penalty" – thus death penalty is cruel and unusual.
Activist – Only cares about current and correct result. Precedent is irrelevant
Incrementalist (moderate)- mid-range
Deferentialist (Sandemeyer Term) – will not vote to overturn precedent as a general rule
Madison’s veto of the internal improvement act
Would have given congress money to construct internal improvements (roads and canals)
The roads and canals would be located in states and would cross state lines
Madison argues that building r & c is not an enumerated power
Congress claims authority under commerce clause, and it is not valid.
Regulate trade among the several states
Improvement – it is different from regulation
Inserted because of problems under articles of confederation
"if congress has the power to reach into a state and build a road, than congress has the power to reach into a state and control other forms of economic activities [read: slavery]"
Hammer v. Dagenhart, 1918
Law will prevent the interstate transportation of items which are produced by children under various conditions
Supreme court relies on precedent
The power to "regulate trade" does not include manufacturing but does include transportation of products or regulation of harmful products.
New goal: possibly bind the union with trade to lower the chance of interstate war. . .
Wickard V. Filburn (1942)
Filburn had filed for a subsidy, which was based upon a field size. He was asked to refund the subsidy, because he had grown too much wheat.
Quota amount was 11.1 acres, Filburn produced 23. Sold 11.1, keeps the remaining for his own use.
Filburn argues that it is about production, and Hammer v. Dagenhart said you can’t regulate production. In effect, commerce is essentially regulating what he does by himself.
Interpretation: Anything which has a substantial effect on interstate commerce may be regulated as though the thing were interstate commerce.
"What I produce for myself is in competition with interstate commerce."
Heart of Atlanta Motel v. United States
Hotel discriminates against blacks; law prohibits discrimination by businesses engaged in "interstate commerce"
Hotel claims that it will hurt hotel business.
Opinion: as long as congress is rational in its findings. . .
Parez v. US
Organize crime has a substantial effect on organized crime.
Wechsler – Democracy will limit congress’s power, because they can raise their objection. Yet Madison would argue that government must control itself.
The main check on power in the united states is the set of limited powers that have been delegated to it; government only has what it is given.
Printz v. United States
Law passed by congress required local law enforcement officers to conduct background checks on all handgun purchases.
Supreme court ruled that congress couldn’t force states to perform background check. Stands out as a case where States actually, gasp, have sovereignty.
Student brought a gun to school and Congress had a law making this a federal crime. Federal court rules that handguns in school do not demonstrate substantial effect on commerce, and therefor, congress cannot pass the law.
Southern Pacific v. Arizona
Arazona looked at train length, and decided to limit train length to promote safety. Surrounding states didn’t have length limiting law. Federal laws didn’t address the topic. Sothern Pacific went to Supreme Court saying arizona couldn’t have said law. Supreme court claimed that federal law preempted state law. Justice Johnston cliamed State action is preempted in congress.
Strongest opposition: Does this go beyond congressional authority?
Grants in aid
i.e. land grants for schools, money for militias, etc.
Federal income tax gave federal government great taxing authority -- states liked not having to worry about it.
Federal money seemed to states to be "free" money
After the 1960s, grants-in-aid changed from what locals wanted to what the government wanted for locals
Who wants Grants?
Intergovernmental lobby -- local officials who want to lobby federal government for assistance
Categorical grants -- for a specific purpose defined by federal law (i.e. build dormitory); usually require that state or local put up some type of matching money.
Block Grants -- consolidate several categorical grants into a more general, larger grant.
Revenue Sharing -- no real requirements for matching of fund or specific purpose. (States still attached some qualifiers to the money). Required the state to put up money too
- Locals complained that they were so narrowly defined that it was impossible to adapt categorical
- grants to local needs
- Has the greatest degree of lobbying for it.
What are mandates
Mandates – conditions of aid
Difference: mandates can be added on after aid is being given
Reagan claimed to be conservative, yet later years saw an increase, Bush wasn’t an increase
Sending control back to the states
Contract with America – the Devolution Revolution
1998-1999 AP American Government Notes
copyright Eric Jonas, 1999.
notes have been taken from American Government, 7th edition, by Wilson
and DiIulio, and from in-class lecture by Mr. Greg Sandmeyer at Timberline High