Federalism: Legislative Power Of Congress And The State And Local Levels – Guest Essayist: Patrick Garry

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Following ratification of the U.S. Constitution, political philosophers described the federalism inherent in the document as America’s hallmark contribution to the eighteenth century science of political governance.

Defined as a system of dual sovereignty, federalism envisions a constitutional order in which national and state governments each possess their own sphere of autonomy and authority.  Whereas the concept of separation of powers operates on a horizontal level, ensuring the autonomy of the different branches (legislative, executive and judicial) within any one level of government (state or national), federalism operates vertically, ensuring the autonomy of those different levels.  Both federalism and separation of powers act as a coordinated system of checks and balances.  Separation of powers checks the various branches, while federalism checks the different levels of government.  Under federalism, autonomous states with their own sphere of power can help prevent a national government from abusing its power.

American federalism was not so much a deliberate political theory as it was a development of history.  Throughout the colonial period, federalism evolved out of necessity.  Because of the great distance between London and the American colonies, local government arose to fill the void.  While the British parliament provided centralizing governance, local and colonial governments in America provided the day-to-day governance.  This scheme not only allowed the colonists to address their own local concerns, it supplied a political experience and structure that would be invaluable once independence from England was declared.  Consequently, when America designed its own constitutional structure, federalism naturally formed a vital foundation of that structure, ensuring the dual sovereignty of state and national governments.

Although there is no specific federalism provision in the U.S. Constitution, just as there is no specific separation of powers provision, federalism pervades the constitutional structure, which recognizes the autonomy of the states while also limiting the ability of the federal government to infringe on that autonomy.  The closest to a specific federalism provision in the U.S. Constitution is the Tenth Amendment, which states that all powers not specifically granted to the federal government are reserved to the states.

The U.S. Senate, prior to the Seventeenth Amendment providing for popular election of senators, once reflected federalism concerns.  Under the original Constitution, the House of Representatives was directly elected by the voters, but the Senate was chosen by the state legislatures.  This system gave states a greater voice in the makeup of the federal government.  It also created a sharper distinction and hence balancing function between the state-chosen Senate and the popularly-elected House.

Aside from its historical basis in the American experience, federalism also served several important values.  Federalism provides a check on the abuse of national power.  It also supports the diversity of a sprawling nation.  Diverse state and local populations can shape local policy to their particular interests, whereas the federal government can only enact a one-size-fits-all policy for the entire nation.

Federalism enhances political accountability and trust.  The smaller the governmental unit, the closer it is to the electorate and the more accountable it is.  This higher degree of accountability in turn builds a higher level of trust in government.  And finally, federalism creates a more flexible system of political governance, since smaller government units are more able to experiment in their policies.

From its colonial beginnings until the early twentieth century, the American political system rested on a strong belief in federalism.  But this abruptly changed in the 1930s with Franklin Roosevelt’s New Deal agenda, which greatly boosted national power at the expense of the states.  Congress acquiesced in this expansion of the national executive branch, as did the Supreme Court, which essentially abandoned one hundred and fifty years of constitutional jurisprudence in allowing such an expansion.

For nearly a half-century after this New Deal constitutional revolution, the Court continued to disregard the federalism mandates of the Constitution.  Not until the mid-1990s did the Court reconnect with federalism.  Dubbed by the media as “the federalism revolution,” the Court’s revival of constitutional federalism coincided with President Bill Clinton’s assertion that “the era of big government is over.”  Nonetheless, the Court’s “federalism revolution” attracted intense opposition from the advocates of an all-powerful central government.  These advocates opposed federalism because of the potential limits it places on the unrestrained growth of the national government.

In U.S. v. Lopez, the Court upheld federalism by ruling that Congress could not invade areas traditionally controlled by state and local governments.  The Court struck down a federal law prohibiting guns within a certain distance of a school, ruling that schools were historically state and local concerns.  This decision contrasted with the New Deal-era decision in Wickard v. Filburn, where the Court ignored all distinctions between local and national.  In Wickard, the Court held that a farmer’s growing of wheat on his own land for his own use constituted an act of interstate commerce legitimately regulated by Congress.

Federalism not only limits the reach of the national government, it also allocates the use of legislative power among the different levels of government.  Legislative power is shared through a system of dual sovereignty between state and national governments, and Congress cannot use its power to threaten the autonomy of the other levels of government.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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March 13: Bill Of Rights: Placing Limits On Congressional Governing – Part Three – Guest Essayist: Patrick Garry

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The Bill of Rights comprises the first ten amendment to the U.S. Constitution.  These amendments — containing provisions addressing such matters as freedom of speech and religion, and freedoms from search and seizure and compelled self-incrimination – are often seen as concerned with individual liberties and hence reflecting a different focus than that of the U.S. Constitution, which primarily addresses government structure and powers.  Under this view, the Constitution and the Bill of Rights are seen as separate documents with separate aims.  However, both the Constitution and the Bill of Rights focus on limiting the power of the federal government, although in somewhat different ways.

The debate over ratification of the U.S. Constitution occurred primarily between two groups, known as the Federalists and the Antifederalists.  The former supported passage of the Constitution, with its creation of a strong federal government, while the latter opposed the Constitution, on the grounds that it gave too much power to a potentially abusive central government.  To secure passage of the Constitution, and to address the concerns of the Antifederalists, the Federalists promised that a Bill of Rights would be adopted once the Constitution was ratified.  Thus, the Bill of Rights came into existence through a compromise reached between the Federalists and Antifederalists over the issue of constitutional limits on federal power.

The limitations on government power imposed by the Bill of Rights differ from the limits imposed by the original Constitution.  Provisions on freedom of speech and religion, for instance, as contained in the First Amendment, place substantive restraints on the federal government.  These provisions restrict the federal government from acting in certain substantive areas – e.g., individual speech and religious exercise.  On the other hand, the limitations contained in the original Constitution tended not to deal with substantive areas or issues, but instead created structural limitations that restricted the exercise of government power in general.

Structural limits on government power consisted of the checks and balances imposed by the Constitution’s separation of powers, in which each branch of government could check the power exercised by the other branches, preventing those branches from overstepping their bounds.  Federalism also amounted to a structural limitation, since it allowed the various levels of government – e.g., state, local and federal – to serve as checks and balances on the other levels.

The Bill of Rights provided substantive limits that existed in addition to the structural limits provided in the original Constitution.  For instance, even if the federal government possessed the power to act in a certain way, it could not, pursuant to the First Amendment, use that power to infringe on the freedom of speech or religious exercise.  Consequently, as demanded by the Antifederalists, the Bill of Rights provided yet another level of control and restraint on the use of federal government power under the U.S. Constitution.

Although the Antifederalist concern about limiting the power of the federal government provided the initial impetus for the Bill of Rights, the Bill does more than simply provide a restraint on government action.  It seeks to preserve liberty by protecting particular areas traditionally considered essential to individual freedom and dignity.

In preserving these areas of individual freedom and autonomy, the Bill of Rights also helps to strengthen the democratic fabric of the American political system.  It does so by maintaining the foundations of a democratic society, which in turn sustains a democratic political order.  Individuals can hardly participate in the political process if they do not possess the freedom to speak out on public matters and to hear the viewpoints of others who possess a similar freedom.  Likewise, a political system can hardly be healthy and vibrant if the society underlying it does not reflect the full concerns and values of the individuals living in it.  A society in which individuals are unable to exercise their religious beliefs, for instance, cannot be a free and vibrant society that will produce a healthy democratic governance.

By restricting government’s power to encroach on various areas of liberty, the Bill of Rights attempts to preserve the freedom of individuals to shape and influence the democratic society to which they belong, which in turn shapes and influences the political culture of society, which in turn shapes and influences the actions of the government and the content of the law.  Thus, through the operation of the Bill of Rights, citizens possess greater opportunity to exercise the sovereign and democratic powers envisioned by the U.S. Constitution.

Patrick M. Garry is Professor of Law at the University of South Dakota.
http://patrickgarry.com

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March 8: Articles Of Confederation – What The Founders Thought Of The Articles Of Confederation And Why They Did Not Last – Guest Essayist: Patrick Garry

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The Articles of Confederation provided America’s first form of government structure, in effect during the years immediately following independence from Britain and ending with the adoption of the U.S. Constitution in 1789.  The Articles created a very weak national governing structure, which resembled more of a loose confederation of the different states than a single, unified sovereign entity.

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