Understanding Our Constitution - Part 12 - Federalism

The United States was initially organized as a confederacy, with the Articles of Confederation as the governing document. Confederations are unions of equal states, with some power being held at the national level. Generally, conflicting interests lead to the break-down of confederations.

When the system proved unsuccessful, it was transformed into a federal system by the Constitution. In a federal system, both the national government and the smaller political states hold significant power.

Initially, the American system leaned toward "Dual Federalism". It holds that the federal government and the state governments are co-equals, each sovereign. The analogy of “layer cake” federalism is often used to describe dual federalism because the powers of the layers of government are distinct (as in a layer cake).

In this theory, the Constitution is interpreted very narrowly. A large group of powers belong to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.

The Great Depression ushered in a change in attitude towards the role of the national government. The United States moved from Dual Federalism to one of "Cooperative Federalism", in which the national and state governments share responsibility for public policies.

In Cooperative Federalism, the national government is supreme over the states. Using the analogy of “marble cake” federalism, cooperative federalism is portrayed as a system with mingled responsibilities and blurred distinctions between the levels of government.

The Constitution does not refer directly to federalism. Advocates of strong national powers generally emphasize the “Supremacy Clause”. In Article VI, three items are listed as the supreme law of the land: the Constitution, laws of the national government, and treaties. However, the national government cannot usurp powers of the states.

Advocates of states’ rights believe that the Tenth Amendment states that the national government has only those powers specifically assigned by the Constitution. They do not believe that our founding fathers wrote the Supremacy Clause to give more power to the federal government.

The powers of the states and federal government are divided into three categories:

Reserved powers are those that have been reserved specifically for the states or are traditionally state powers (police powers, education, licensing, etc.)

Granted powers, are those powers listed in Article 1, Section 8, specifically granted to the Federal government (coin money, raise an army and navy, make treaties, etc.)

Concurrent powers are those held by both the federal and state governments (taxation power, construction of roads, etc.)