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Founding Principles: American Governance in Theory and Action (Chapter 2--Federalism)

13 minutes

I'm Andy Rudalevige-- Professor of Government at Bowdoin College. I'd like to welcome you back to Brunswick, Maine; our beautiful main quad; and Founding Principles-- an introduction to American government and how it works. We've looked at the basic founding principle-- the separation of powers between the branches of government. We turn to another fundamental example of separated powers between the national government and the states, often called federalism. Let's see how it works.

I bet you like to complain about the government. Most people do. But which government do you mean? There are more than 89,000 distinct governments within the United States, according to the Census Bureau's recent count. Besides the 50 states and District of Columbia, there are more than 3,000 counties, more than 35,000 cities and townships, and more than 50,000 local districts and regional authorities dealing with everything from schools to recreation to drinking water to public transportation. State and local governments employee 16.5 million people to the tune of close to a trillion dollars a year. To an extent that's rare in the world, when Americans say, "Government," or, "I work for the government," they don't automatically mean the national government. In the Federalist Papers, James Madison argued that the new government was... ...by which he meant state-based-- but rather a composition of both. There are advantages to that composition. First, think of it as a backup plan-- what Madison called... It gives us checks against arbitrary tyranny, not only within each level of government but across different levels of government. Plus it helps keep functions important to daily life close to popular control. Do we really want Washington, DC telling us how big trash barrels have to be? It provides for what are called laboratories of democracy-- places where policy experiments can be tried on a small scale at a low cost. Some will work; some won't. Either way, federalism can provide an economical means of vetting policy innovations. One good example is state variations of welfare reform in the 1980s and '90s. On the other hand, when policymaking is shared and divided, it can be expensive, not to mention confusing, duplicative, even lacking in accountability. It might not be clear who is supposed to do what. The 10th Amendment says that... This doesn't help as much as we hope. It gets wrapped into the larger question of what powers the national government has. Let me turn to the virtual blackboard and sketch out three models for this. One possibility is what's sometimes called dual sovereignty. Each level of government does different things. We might put national security in the federal circle, the local police or schools in the state and local one. Another possibility is the layer cake model. Here the two levels are clearly separate, but there's a definite hierarchy. The Constitution's supremacy clause holds that national laws override state-level laws where they conflict, assuming the federal government has the power to act in that area. This would be pretty straightforward, especially if the division of authority were clear. What if it isn't? That might turn our layer cake into a marble cake, where policy flavors wander across the boundaries between levels of government. The Constitution doesn't mention education, health care, or the environment as national issues, but policies in these areas are debated and implemented by the federal government as well as states and towns. Which of these is right? That is an argument that has gone on for 225 years. And not for nothing, who should pay for it? After all, everyone likes to have their cake and eat it too. We can track the history of these questions in the history of the Supreme Court. We start in 1819 with the famous case of McCulloch versus Maryland. The United States had created a national bank-- the first iteration of what would be the Federal Reserve. Maryland wanted to tax that bank, so two questions arose. Could the national government create a bank in the first place? Article 1 doesn't seem to list that specific power. And second... If so, it would arguably be able to control the federal government, which was just fine with lots of folks back then and now too. The court said yes to the feds and no to the states. The Necessary and Proper Clause allowed Congress to achieve the ends laid out in the Constitution by the means it felt were needed. The courts have tended to give Congress the benefit of the doubt, which means the Necessary and Proper Clause is often called the Elastic Clause. Maryland was out of luck, because the bank was a legitimate national function. And because... As the court memorably added... The state didn't get to destroy the national government. That didn't mean the national government could do anything it wanted. In the late 19th century, Congress ran up against limitations when it tried to rein in monopolies. One was the E. C. Knight Corporation, which refined 98% of sugar sold in the United States out of a single plant near Philadelphia. Well Congress has the power to regulate interstate commerce but not commerce inside a single state. In this case, the Supreme Court said... A little later, Congress wanted to stop child labor. Again, the court said no go. Any given child was laboring in a single place at a time, not wandering across state lines. In these cases and others, only the states had authority to regulate. That changed during the New Deal, when the notion of interstate commerce shifted. A modern economy, the court felt, meant that much more was interstate, and hardly anything important was intrastate. Consider the case of Wickard versus Filburn, 1942. A federal law set a limit on the amount of wheat Filburn could grow. But he grew too much-- 239 bushels, to be exact. I don't know my way around a plow. That's barely enough to keep my teenager in Twinkies. Filburn didn't sell it. He used it to feed his livestock. So can that be interstate commerce? Can Congress regulate the growth of crops that never leave the farm? Well again, the Supreme Court said yes. By not buying those extra 239 bushels of wheat on the open market, Filburn changed the price of wheat. That affected interstate-- heck, international--commerce. The key was not Filburn's wheat but the aggregate of all the potential Filburns out there in the heartland removing their purchases from the market. The court had made the Constitution safe for a larger scope of federal regulation. It was hard to imagine an area of the economy characterized as strictly local or beyond the reach of Congress. In the 1960s, when states were failing to enforce the equal protection of the law, the power to manage interstate commerce even underpinned the Civil Rights Act, prohibiting discrimination in local restaurants, hotels, and other businesses. Mandates are one way for the federal government to get states to do what it wants. There are other ways-- bribery or blackmail works too. Over 50 years, annual grants from Washington to the states have risen more than eightfold, past the half-trillion dollar mark. In other cases, the feds tell the states to make policy changes. If they don't, key funding might, you know, that funding might have a little accident. In 1987, South Dakota sued the Secretary of Transportation over a law requiring states to raise drinking age to 21 if they wanted highway repair money. The Supreme Court said if South Dakota didn't take the cash, it could keep drinking age where it was. If it did, it had to accept the strings attached. In recent years, the federal government's power has been dialed back. In 1995, a federal law restricting guns on school property was found to be invalid. Congress argued that schoolyard guns would interfere with education, which would ultimately undermine the American economy, since uneducated people would make less money. The court thought this was finally a leap too far. Accepting that chain of logic would require them to conclude there will never be a distinction between what is truly national and what is truly local. "This," they said, "we are unwilling to do." Likewise, in 2012, the court found that the requirements in the Affordable Care Act-- that individuals buy health insurance policies-- went beyond Congress's interstate commerce power. The Act was upheld anyway, because that requirement was within Congress's power to tax. In another part of the ruling, the court rolled back the section that gave states federal cash if they expanded the Medicaid program and took away more cash if they did not. Backing away from their precedent in the highway funds case, the justices said punishment was too severe. It was up to the states. They could take the money, but they wouldn't lose existing funds if they didn't expand Medicaid. As it turns out, about half have gone in each direction. And so the structure of federalism is alive and well. Just scan the headlines. In areas like abortion, criminal justice, education, environmentalism, immigration, same-sex marriage, states keep moving in different directions and at different speeds. Some argue this leads to inequity. They say that the laboratories of democracy are filled with mad scientists. Others argue that a one-size-fits-all policy makes no sense in such a big country, and that a healthy democracy requires engaging citizens where they live. As usual in American politics, the side you take depends on whether you agree with what any government is doing at the time. The good news is having governments to argue about means no one is shut out of the argument. That is a double security to the rights of the people. We turn back to the structure of the Constitution itself. In following episodes, we'll dig deeper into the mechanics of how each branch of government works. We'll start at the beginning with Article 1 of the Constitution--Congress. Accessibility provided by the U.S. Department of Education.

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In this episode, Dr. Andrew Rudalevige discusses the concept of federalism in American government. Through the review of primary source documents like the Federalist papers, students explore the positive and negative aspects of federalism. Part of the "Founding Principles: American Governance in Theory and Action" series.

Media Details

Runtime: 13 minutes

Founding Principles: American Governance in Action
Episode 1
13 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 2
13 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 3
12 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 4
13 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 5
12 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 6
13 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 7
12 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 8
16 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 9
14 minutes
Grade Level: 10 - 12
Founding Principles: American Governance in Action
Episode 10
13 minutes
Grade Level: 10 - 12