Concepts of Federalism

Federalism is a type of government in which the power is divided between the national government and other governmental units. It contrasts with a unitary government, in which a central authority holds the power, and a confederation, in which states, for example, are clearly dominant.

While the Constitution addressed only the relationship between the federal government and the states, the American people are under multiple jurisdictions. A person not only pays his or her federal income tax but also may pay state and city income taxes as well. Property taxes are collected by counties and are used to provide law enforcement, build new schools, and maintain local roads.

Throughout the 20th century, the power of the federal government expanded considerably through legislation and court decisions. While much recent political debate has centered on returning power to the states, the relationship between the federal government and the states has been argued over for most of the history of the United States.

The constitutional framework

Although the Constitution sets up a federal system, nowhere does it define what federalism is. However, the framers of the Constitution were determined to create a strong national government and address the shortcomings of the Articles of Confederation, which allowed the states too much power. In terms of the balance of power between the federal government and the states, the Constitution clearly favors the federal government.

The powers specifically given to the federal government are not as relevant to the expansion of its authority as the Constitution's more general provisions; that is, Congress is to provide for the general welfare (preamble) and ". . . make all laws which shall be necessary and proper . . ." (Article I, Section 8). In the Constitution as ratified, there is no similar broad grant of powers to the states. It emphasized what states cannot do (Article I, Section 10) and gave them authority in just a few areas — namely, establishing voter qualifications and setting up the mechanics of congressional elections. This reduction in power was corrected through the Tenth Amendment, which reserved to the states or the people all powers either not specifically delegated to the national government or specifically denied to the states. The language in the general welfare and elastic clauses and the Tenth Amendment is vague enough to allow widely different interpretations. Because both federal and state governments can turn to the Constitution for support, it is not surprising that different concepts of federalism have emerged.

Dual federalism

Dual federalism looks at the federal system as a sort of "layer cake," with each layer of government performing the tasks that make the most sense for that level.

The initial framing and ratification of the Constitution reflected this theory. Even those people supporting a stronger national government proposed that powers in the federal government be distinct and limited, with certain tasks enumerated for the national government in the Constitution and the remaining tasks left to the state governments. Because this theory leaves each government supreme within its own sphere of operations, it is also sometimes called dual sovereignty.

One more-extreme outgrowth of this theory is the idea of states' rights, which holds that, because the national government is not allowed to infringe on spheres left to state government, doing so violates the states' constitutional rights (especially the Tenth Amendment, which specifically reserves undelegated powers for the states). Federal government action in those spheres represents an unlawful seizure of power by one level of government at the expense of another. This view has historically been popular in the South, where it was viewed as preventing national government interference in the region's race relations, but it has been invoked elsewhere as well.

The problem with taking dual federalism this far is figuring out who defines where one layer ends and the next layer starts. Before the Civil War, some voices said that, to protect their rights, states could secede from the Union or declare national laws that affect them null and void — but those arguments are no longer taken seriously. Instead, the U.S. Supreme Court resolves disputes within the federal structure, and because the Court is a national institution, it rarely favors the states.

Cooperative federalism

The theory of cooperative federalism emerged during the New Deal, when the power of the federal government grew in response to the Great Depression. It does not recognize a clear distinction between the functions of the states and Washington, and it emphasizes that there are many areas in which their responsibilities overlap. For example, drug enforcement involves federal agents, state troopers, and local police. The federal government supplies funds for education, but the state and local school boards choose curriculum and set qualifications for teachers. (Interestingly, attempts to set national standards for students in certain subjects have raised concerns of federal intrusion.) The notion of overlapping jurisdictions is expressed by the term marble-cake federalism.

Cooperative federalism takes a very loose view of the elastic clause that allows power to flow through federal government. It is a more accurate model of how the federal system has worked over much of U.S. history.