federalism advantages essay

3.5 Advantages and Disadvantages of Federalism

Learning objectives.

By the end of this section, you will be able to:

• Discuss the advantages of federalism
• Explain the disadvantages of federalism

The federal design of our Constitution has had a profound effect on U.S. politics. Several positive and negative attributes of federalism have manifested themselves in the U.S. political system.

THE BENEFITS OF FEDERALISM

Among the merits of federalism are that it promotes policy innovation and political participation and accommodates diversity of opinion. On the subject of policy innovation, Supreme Court Justice Louis Brandeis observed in 1932 that “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” 70 What Brandeis meant was that states could harness their constitutional authority to engage in policy innovations that might eventually be diffused to other states and at the national level. For example, a number of New Deal breakthroughs, such as child labor laws, were inspired by state policies. Prior to the passage of the Nineteenth Amendment , women already had the right to vote in several states. California has led the way in establishing standards for fuel emissions and other environmental policies ( Figure 3.18 ). Recently, the health insurance exchanges run by Connecticut, Kentucky, Rhode Island, and Washington have served as models for other states seeking to improve the performance of their exchanges. 71

Another advantage of federalism is that because our federal system creates two levels of government with the capacity to take action, failure to attain a desired policy goal at one level can be offset by successfully securing the support of elected representatives at another level. Thus, individuals, groups, and social movements are encouraged to actively participate and help shape public policy.

Get Connected!

Federalism and political office.

Thinking of running for elected office? Well, you have several options. As Table 3.1 shows, there are a total of 510,682 elected offices at the federal, state, and local levels. Elected representatives in municipal and township governments account for a little more than half the total number of elected officials in the United States. Political careers rarely start at the national level. In fact, a very small share of politicians at the subnational level transition to the national stage as representatives, senators, vice presidents, or presidents.

If you are interested in serving the public as an elected official, there are more opportunities to do so at the local and state levels than at the national level. As an added incentive for setting your sights at the subnational stage, consider the following. Whereas only 35 percent of U.S. adults trusted Congress in 2018, according to Gallup, about 63 percent trusted their state governments and 72 percent had confidence in their local governments. 74 , 75

If you ran for public office, what problems would you most want to solve? What level of government would best enable you to solve them, and why?

The system of checks and balances in our political system often prevents the federal government from imposing uniform policies across the country. As a result, states and local communities have the latitude to address policy issues based on the specific needs and interests of their citizens. The diversity of public viewpoints across states is manifested by differences in the way states handle access to abortion, distribution of alcohol, gun control, and social welfare benefits, for example.

THE DRAWBACKS OF FEDERALISM

Federalism also comes with drawbacks. Chief among them are economic disparities across states, race-to-the-bottom dynamics (i.e., states compete to attract business by lowering taxes and regulations), and the difficulty of taking action on issues of national importance.

Stark economic differences across states have a profound effect on the well-being of citizens. For example, in 2017, Maryland had the highest median household income ($80,776), while West Virginia had the lowest ($43,469). 76 There are also huge disparities in school funding across states. In 2016, New York spent $22,366 per student for elementary and secondary education, while Utah spent $6,953. 77 Furthermore, health-care access, costs, and quality vary greatly across states. 78 Proponents of social justice contend that federalism has tended to obstruct national efforts to effectively even out these disparities. When national policy-making is stymied, and policy advocates move to the state level, it takes fifty-one different advocacy efforts to bring about change, compared to one effort were the national government to take the lead.

Link to Learning

The National Education Association discusses the problem of inequality in the educational system of the United States. Visit the Racial & Social Justice page of the NEA website to see how NEA EdJustice is advocating for change in this area.

The economic strategy of using race-to-the-bottom tactics in order to compete with other states in attracting new business growth also carries a social cost. For example, workers’ safety and pay can suffer as workplace regulations are lifted, and the reduction in payroll taxes for employers has led a number of states to end up with underfunded unemployment insurance programs. 79 As of March 2021, twelve states have also opted not to expand Medicaid, as encouraged by the Patient Protection and Affordable Care Act in 2010, for fear it will raise state public spending and increase employers’ cost of employee benefits, despite provisions that the federal government will pick up nearly all cost of the expansion. 80 , 81 More than half of these states are in the South.

The federal design of our Constitution and the system of checks and balances has jeopardized or outright blocked federal responses to important national issues. President Roosevelt’s efforts to combat the scourge of the Great Depression were initially struck down by the Supreme Court. More recently, President Obama’s effort to make health insurance accessible to more Americans under the Affordable Care Act immediately ran into legal challenges 82 from some states, but it has been supported by the Supreme Court so far. However, the federal government’s ability to defend the voting rights of citizens suffered a major setback when the Supreme Court in 2013 struck down a key provision of the Voting Rights Act of 1965 . 83 No longer are the nine states with histories of racial discrimination in their voting processes required to submit plans for changes to the federal government for approval. After a tumultuous 2020 election, many states in 2021 advanced legislation to make voting rules and processes more rigorous, a move many said was an effort to limit voting access. For example, elected leaders in Georgia passed a law making voter ID requirements much stricter and also significantly limited options to vote outside of Election Day itself. 84 In 2023's Moore v. Harper , the Supreme Court affirmed that state legislatures were not able to pass these laws with complete autonomy. Rejecting the theory of "independent state legislature," which asserted that states had the sole power to pass election laws, the Court ruled that voting laws passed by state governments were subject to judicial review. In 2023, the Court also ruled in favor of a challenge—already upheld by district courts—to new voting maps drawn up in Alabama; the plaintiffs had asserted that the new maps violated the Voting Rights Act by diluting the votes of Black voters. The Court agreed, and in the process held that the Voting Rights Act remained constitutional with regard to redistricting. 85

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Federalism Advantages and Disadvantages Essay

This paper discusses the advantages and disadvantages of a federal system of government. It is thus divided into an introduction, advantages, disadvantages and finally, a reference list.

Introduction

Federalism is a political philosophy where a number of parties are conjugated together by an agreement (Pierre, 2003). Federalism is a type of public administration system where power is allocated between a national or central government and constituent or provincial political units. Both governments derive their powers from a constitution. A federal government can either be centralized where the central government has broad powers compared to state or provincial powers, or a decentralized one where the scope of authority for the provincial government is comprehensive.

A federal system has a greater scope for diversity and experimentation. Some states are more advanced than others, and this offers a platform for the federal government to experiment different social policies that can later be adopted. It allows development for unique and innovative methods of eliminating social, economic and political problems (Shafritz et al., 2008). A good example is Australia where Victoria State was the first to introduce compulsory wearing of seatbelts, and Queensland State which introduced a very innovative hospital management system.

Uniform currency system is easy to create and manage. Common currency saves minting and production cost through utilization of a common central bank. Uniform currency stimulates economic growth since it favors ease of trade. Trade increases since as a result of elimination of exchange rates that keep changing from time to time. Incase one state experiences some economic hardships, the effects are absorbed by the rest of the states, and this is advantageous since its currency value would have decreased significantly if it had a different currency. A good example is that of Canadian states, where they trade more with each other than with the United States (Shafritz et al., 2008).

A federal system must consider the different ethnic or cultural groups. Federal system allows people to differ from one another but is united by common goals and benefits. It must protect the minority and special groups. Different groups are allowed to maintain their cultural diversity and individuality, for instance Massachusetts did not have to adopt the ways of South Carolina and vice versa. A good example was constitution enactment in Nigeria that forbids any form of discrimination against a particular ethnic tribe, religion and political opinion.

Disadvantages

Individual states lose their identity to a degree under the title of United States. In some cases, individual states have to wait for the approval of their legislative statutes from the federal government there by, compromising their independence. A good example was in Canada where Nova Scotia and New Brunswick provinces had strong identities but had to loose them for the sake of Canadian federal government (Pierre, 2003).

Local interests are sometimes sacrificed on the altar of federalism. When federal government has more powers, local interests have no priority over national interest. An example where local interest was compromised was in the formation of Canadian federalism, where Quebec province was unwilling to join the central government due to their minority but had to compromise (Pierre, 2003).

Rebellion against authority is a constant threat although this is counter balanced with a strong federal military. The state is in charge of matters that affect the nation as a whole such as national security. In health and education, rebellion may arise if it doesn’t consider local concern as national concerns. Rebellion may arise when a state feels neglected or not protected. Tension may arise when funds are allocated unfairly among states on various projects. A good example was the 1788-1787 Shays’ armed rebellion in central and western Massachusetts where farmers were protesting against the federal government for improper dealing in debt administration (Khan, 2008)

Khan, H. A. (2008). Introduction to Public Administration New York: University Press of America.

Pierre, J. (2003). Handbook of Public Administration . New York: Sage publications.

Shafritz, J., Russel, E. W. and Borick, C. (2008). Introducing public administration . (Ed) London: Longman.

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1. IvyPanda . "Federalism Advantages and Disadvantages." November 22, 2021. https://ivypanda.com/essays/federalism-advantages-and-disadvantages/.

Bibliography

IvyPanda . "Federalism Advantages and Disadvantages." November 22, 2021. https://ivypanda.com/essays/federalism-advantages-and-disadvantages/.

• American Federalism: Why It Is Good for the Nation?
• Federalism and Policy Formulation
• Costs and Benefits of Federalism
• Capitalism and Industrialization in the “Communist Manifesto” by Marx
• How Best To Ensure US-Style Global Capitalism
• Will China Become Democratic in Near Future?
• Problematic Aspects of the USA Foreign Policy
• Modern Conservatism Political Ideology

Chapter 3: American Federalism

Advantages and Disadvantages of Federalism

Learning outcomes.

By the end of this section, you will be able to:

• Discuss the advantages of federalism
• Explain the disadvantages of federalism

The federal design of our Constitution has had a profound effect on U.S. politics. Several positive and negative attributes of federalism have manifested themselves in the U.S. political system.

THE BENEFITS OF FEDERALISM

Among the merits of federalism are that it promotes policy innovation and political participation and accommodates diversity of opinion. On the subject of policy innovation, Supreme Court Justice Louis  Brandeis  observed in 1932 that “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” [1]  What Brandeis meant was that states could harness their constitutional authority to engage in policy innovations that might eventually be diffused to other states and at the national level. For example, a number of New Deal breakthroughs, such as child labor laws, were inspired by state policies. Prior to the passage of the  Nineteenth Amendment , women already had the right to vote in several states. California has led the way in establishing standards for fuel emissions and other environmental policies ( Figure 3.18 ). Recently, the health insurance exchanges run by Connecticut, Kentucky, Rhode Island, and Washington have served as models for other states seeking to improve the performance of their exchanges. [2]

[3] Another advantage of federalism is that because our federal system creates two levels of government with the capacity to take action, failure to attain a desired policy goal at one level can be offset by successfully securing the support of elected representatives at another level. Thus, individuals, groups, and social movements are encouraged to actively participate and help shape public policy.

GET CONNECTED!

Federalism and political office.

Thinking of running for elected office? Well, you have several options. As  Table 3.1  shows, there are a total of 510,682 elected offices at the federal, state, and local levels. Elected representatives in municipal and township governments account for a little more than half the total number of elected officials in the United States. Political careers rarely start at the national level. In fact, a very small share of politicians at the subnational level transition to the national stage as representatives, senators, vice presidents, or presidents.

If you are interested in serving the public as an elected official, there are more opportunities to do so at the local and state levels than at the national level. As an added incentive for setting your sights at the subnational stage, consider the following. Whereas only 35 percent of U.S. adults trusted Congress in 2018, according to Gallup, about 63 percent trusted their state governments and 72 percent had confidence in their local governments. [5] , [6]

If you ran for public office, what problems would you most want to solve? What level of government would best enable you to solve them, and why?

The system of checks and balances in our political system often prevents the federal government from imposing uniform policies across the country. As a result, states and local communities have the latitude to address policy issues based on the specific needs and interests of their citizens. The diversity of public viewpoints across states is manifested by differences in the way states handle access to abortion, distribution of alcohol, gun control, and social welfare benefits, for example.

THE DRAWBACKS OF FEDERALISM

Federalism also comes with drawbacks. Chief among them are economic disparities across states,  race-to-the-bottom  dynamics (i.e., states compete to attract business by lowering taxes and regulations), and the difficulty of taking action on issues of national importance.

Stark economic differences across states have a profound effect on the well-being of citizens. For example, in 2017, Maryland had the highest median household income ($80,776), while West Virginia had the lowest ($43,469). [7]  There are also huge disparities in school funding across states. In 2016, New York spent $22,366 per student for elementary and secondary education, while Utah spent $6,953. [8]  Furthermore, health-care access, costs, and quality vary greatly across states. [9]  Proponents of social justice contend that federalism has tended to obstruct national efforts to effectively even out these disparities. When national policy-making is stymied, and policy advocates move to the state level, it takes fifty-one different advocacy efforts to bring about change, compared to one effort were the national government to take the lead.

LINK TO LEARNING

The National Education Association discusses the problem of inequality in the educational system of the United States. Visit the  Racial & Social Justice page of the NEA website to see how NEA EdJustice is advocating for change in this area.

The economic strategy of using race-to-the-bottom tactics in order to compete with other states in attracting new business growth also carries a social cost. For example, workers’ safety and pay can suffer as workplace regulations are lifted, and the reduction in payroll taxes for employers has led a number of states to end up with underfunded unemployment insurance programs. [10]  As of March 2021, twelve states have also opted not to expand Medicaid, as encouraged by the Patient Protection and  Affordable Care Act  in 2010, for fear it will raise state public spending and increase employers’ cost of employee benefits, despite provisions that the federal government will pick up nearly all cost of the expansion. [11] , [12] More than half of these states are in the South.

The federal design of our Constitution and the system of checks and balances has jeopardized or outright blocked federal responses to important national issues. President Roosevelt’s efforts to combat the scourge of the Great Depression were initially struck down by the Supreme Court. More recently, President Obama’s effort to make health insurance accessible to more Americans under the Affordable Care Act immediately ran into legal challenges [13]  from some states, but it has been supported by the Supreme Court so far. However, the federal government’s ability to defend the voting rights of citizens suffered a major setback when the Supreme Court in 2013 struck down a key provision of the  Voting Rights Act of 1965 . [14]  No longer are the nine states with histories of racial discrimination in their voting processes required to submit plans for changes to the federal government for approval. After a tumultuous 2020 election, many states in 2021 advanced legislation to make voting rules and processes more rigorous, a move many said was an effort to limit voting access. For example, elected leaders in Georgia passed a law making voter ID requirements much stricter and also significantly limited options to vote outside of Election Day itself. [15]

CHAPTER REVIEW

See the Chapter 3.5 Review for a summary of this section, the key vocabulary , and some review questions to check your knowledge.

• New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). ↵
• Christine Vestal and Michael Ollove, “Why some state-run health exchanges worked,” USA Today, 10 December 2013. ↵
• Rachel Frazin, "More States Follow California's Lead on Vehicle Emissions Standards," The Hill, 28 February 2021, https://thehill.com/homenews/state-watch/540795-more-states-follow-californias-lead-on-vehicle-emissions-standards. ↵
• Jennifer Lawless. 2012. Becoming a Candidate. New York: Cambridge University Press. ↵
• Justin McCarthy. 2014. “Americans Still More Trusting of Local Than State Government," Gallup, 8 October 2018, https://news.gallup.com/poll/243563/americans-trusting-local-state-government.aspx. ↵
• Lydia Saad, "Trust in Federal Government's Competence Remains Low," Gallup, 29 September 2020, https://news.gallup.com/poll/321119/trust-federal-government-competence-remains-low.aspx. ↵
• United States Census Bureau. 2017. “Median Household Income (in 2017 Inflation-Adjusted Dollars.” 2017 American Community Survey 1-Year Estimates. https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_1YR_R1901.US01PRF&prodType=table. ↵
• Governing the States and Localities. 1 June 2018. “Education Spending per Student by State.” http://www.governing.com/gov-data/education-data/state-education-spending-per-pupil-data.html. ↵
• The Commonwealth Fund. “Aiming Higher: Results from a Scorecard on State Health System Performance, 2014.” http://www.commonwealthfund.org/publications/fund-reports/2014/apr/2014-state-scorecard (June 24, 2015). ↵
• Alexander Hertel-Fernandez. 2012. “Why U.S. Unemployment Insurance is in Financial Trouble,” February. http://www.scholarsstrategynetwork.org/sites/default/files/ssn_basic_facts_hertel-fernandez_on_unemployment_insurance_financing.pdf ↵
• Matt Broaddus and January Angeles. 2012. “Federal Government Will Pick Up Nearly All Costs of Health Reform’s Medicaid Expansion,” March 28. http://www.cbpp.org/research/federal-government-will-pick-up-nearly-all-costs-of-health-reforms-medicaid-expansion. ↵
• "Status of State Medicaid Expansion Decisions: Interactive Map," KKF, 7 June 2021, https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/. ↵
• National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). ↵
• Shelby County v. Holder, 570 U.S. 529 (2013). ↵
• Mark Niesse, "Sweeping Changes to Georgia Elections Signed into Law," The Atlanta Journal-Constitution, 25 March 2021, https://www.ajc.com/politics/bill-changing-georgia-voting-rules-passes-state-house/EY2MATS6SRA77HTOBVEMTJLIT4/. ↵

a dynamic in which states compete to attract business by lowering taxes and regulations, often to workers’ detriment

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Advantages and Disadvantages of Federalism

Federalism is a system that presupposes the division of political power between state and federal governments. Like any other political system, it has both advantages and disadvantages. In some instances, there is a thin line between what is considered a benefit of the system and what is considered a drawback when it comes to the discussion of federalism. This essay will examine the advantages and disadvantages of federalism as a political system.

There are several advantages of federalism that can be discussed for this essay. The main advantage of federalism is the dispersion of political power. In federalism, power is divided between state and federal governments, making it challenging to monopolize the said power. For one political party or an individual to completely take over a country, it would require achieving an undisputed majority in all states. Even if this majority is reached, federalism prevents monopolization as passing any bill that can significantly impact the country requires the majority of voters to support it. Federalism effectively diffuses power, making it impossible for any political party to exploit it.

It can also be argued that federalism, as a political system, is more reactive to citizens’ needs. Residents of different states do not always have the same political preferences, and their economic needs differ depending on the state’s economy. For instance, states with the economy dependent on agriculture require different policies and regulations than those with a service-based economy. On the national level, it is impossible to cater to every state’s economic needs by a blanket policy, and it is easier to devolve certain powers to the state authorities. Moreover, in federalism, local governments can respond quickly to the needs of citizens who found themselves in a difficult situation without the earlier approval of the state and federal authorities. It should also be noted that the response time to citizens’ requests is much quicker on the local and state levels than on the federal level.

Another advantage stemming from the state governments being more responsive to their citizens’ needs is increased political participation. The unitary system often prevents citizens’ requests being answered, and it can lead to inevitable fatigue with politics. People are not likely to engage in a system that does not respond to their needs and does not support them. Thus, by being highly responsive to the public’s demands, federalism promotes political participation from it.

There are also certain disadvantages of federalism that need to be examined. One of the significant drawbacks of the system is the unavoidable division between national and state governments. Historically, it happened on numerous occasions, including during the Civil War. State authorities can disagree with a regulation passed by the national government and nullify it or challenge it in court, preventing the law from being implemented within the state’s borders. If the state and federal authorities cannot agree on an issue, it will inevitably affect the state’s citizens.

Furthermore, this can lead to certain undemocratic practices being reinforced by the government. Local and state governments can pass laws deemed undemocratic by other states and the federal government. However, overruling it will take time and can lead to further conflict between the divided authorities. Finally, federalism is a democratic system, and it protects the choice of the majority. This can put the minority of voters at a severe disadvantage if the state does not consider their rights and needs vital and does not consider protecting them.

Overall, federalism is a political system with both advantages and disadvantages. It can prevent the country’s political power from being monopolized and is more responsive to the citizens’ needs, evoking increased political participation from them. It has certain drawbacks, including the separation between state and federal authorities, possible support of undemocratic practices, and limited support of minorities. Nevertheless, the careful balance between state and federal governments can result in a stable political situation.

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15 Advantages and Disadvantages of Federalism

The definition of federalism is straightforward: it is the federal principle or system of government. Throughout history, it has been a political system where 2+ governments share authority over the same geographical area. Most of the democratic countries in the world today use this method of governing, including Australia, Canada, India, and the United States.

Even the European Union is an example of federalism.

The exact structures of each system can vary widely based on how the country sets up its governing process. In the EU, the members of the upper houses in the government are not elected or appointed, but they serve as delegates of their respective governments. For the United States, there are local, country, and state governing authorities which all have a unique set of laws and regulations for people to follow.

Some choose to use a central system of government that regulates the entire country. Others do not. Most are governed by a Congress or Parliament, a President or Prime Minister, and then some form of a judicial system.

There are several pros and cons of federalism to consider when looking at it as a political system.

List of the Pros of Federalism

1. Federalism provides a structure that diffuses governmental power. Many forms of federalism look to create checks and balances throughout society as a way to create an equal governing process. By diffusing power to multiple branches of office, like the U.S. does with the executive, legislative, and judicial segments, it becomes more challenging for one division to take over the country. When power is not centralized in a government, then there are fewer issues with individual corruption that can impact the entire nation.

2. Federalism creates a protection against tyranny. This form of government will also make it challenging for a single branch of government to obtain complete control over the structure. There is no way to obtain runaway power in this structure unless voters approve of that process first. Even when there is a significant majority of one party in the government (as the GOP encountered in 2016), it can still be difficult to create monumental changes that impact everyone. This process is one of the primary reasons why democratic countries choose this form over the other governing options which are available.

3. Federalism is an efficient process. Because the U.S. provides some of the power to the states, it creates efficiencies in the governing system because delegation is possible. Local governments receive the right to begin solving some of their own problems. If this structure was not available, then you would get cookie-cutter regulations that may not apply to some geographical areas. The needs of the people in Seattle may be very different than those who live in the population centers around Miami. This structure allows each group to live in a way that maximizes their safety while minimizing effort.

4. Federalism increases the level of participation by individuals. People become more involved with their government in a variety of ways when federalism is the structure in place. Elected officials are closer to what a citizen is than a state official under this structure, which means people can visit a local office to express their opinions without a fear of judgment. When we have a chance to embrace diversity as a culture, then it is an opportunity to draw upon each of our strengths to create something amazing. Other forms of government do not offer such an opportunity.

5. Federalism encourages a system of cooperation. Different communities have unique requirements that they must meet to maximize their quality of life. Instead of mandating that everyone follows the same set of laws, this system allows each community to create a foundation that works the best for their needs. If you travel to almost any town, city, or village in the United States, then you will discover a different set of laws, rules, and regulations to follow. Many of them are similar, but there are also several which are not.

6. Federalism encourages innovation in governing. Because this structure of government looks at cooperation and sharing as its primary structure, there is an opportunity to try a different set of policies to see how they will work. This process can create positive or negative results. A recent example in the United States of this advantage is the requirement to drug test working adults who receive welfare benefits. Some governments are trying it, while others or not. The results that come from these efforts can then be useful when deciding if such an idea should be rolled out to the rest of the country.

7. Federalism allows the government to become more responsive to individual needs. When a government is closer to its citizens, then it can provide a responsive solution when there are citizen needs, emergency situations, or changes that are necessary in the structure of laws. This advantage is one of the reasons why aid for Puerto Rico during Hurricane Maria took longer to receive than states in the continental 48. The local governments could distribute resources first instead of relying on the national government like the island because of the availability of local resources.

List of the Cons of Federalism

1. Federalism often protects the will of the majority at any cost. Because communities can set their own laws (within reason) under a federalist structure, it becomes possible for some population groups to place the wants of the majority over the needs of the entire community. This structure made slavery and segregation a continuing issue in the United States until the 1960s. It was partially responsible for the division in the 1800s that eventually led to the Civil War. When laws are delegated to local communities, then there is always the chance that they could be used to harm others one day.

2. Federalism can encourage the passing of ridiculous laws. The structure of federalism encourages local communities to self-govern in the most efficient manner possible. This process is usually a healthy way to help keep households safe no matter where they are in the country. It can also be used as a way to pass ridiculous laws as a way to make a political statement, discourage tourism, or some other specific result. Here are just a few of the craziest laws you can find in the U.S. right now.

• It is illegal in Arizona for a donkey to sleep in a bathtub. • If you go to Colorado, then it is illegal to keep a couch on your porch. • You are not allowed to sell the hair of a dog or cat in Delaware. • Hawaii made it against the law to place a coin in your ear. • You cannot “drive” a horse in Indiana above a set speed limit of 10mph.

3. Federalism allows local governments to fight the national governments. The local governments can decide to fight the existence of some specific national laws by going through the justice system of the country. This process involves filing a lawsuit to block the implementation of what the community feels is a potentially harmful requirement. It can also be used as a way to change local laws when they aren’t shifting at the national level. One of the most significant examples of this issue involves the legalization of recreational cannabis.

That’s not to say that all actions are a disadvantage. There are times when blocking the implementation of federal law is beneficial. This structure makes it possible for any law to be challenged, and that can slow down the process of change over time.

4. Federalism allows national governments to fight the local ones. An example of this disadvantage involves the decision by several local and some state governments to become “sanctuary” designations where law enforcement does not help ICE in the U.S. with immigration detainment. The U.S. government threatened to pull funding from the cities choosing this action, and then filed suit against them in an effort to try getting compliance.

The structure of this government can create inefficiencies in the system because the national government might not like the way the local officials choose to oversee their communities. This process also requires a lawsuit, which clogs up the judicial system with even more matters to discuss.

5. Federalism can create oppositional competition. Because each community can create their own set of laws and rules in a system of federalism (especially in the United States), then the structure can create unwanted competition for resources that seeks to limit some demographics. One state might reduce their subsidy benefits to encourage people to move to a different state that offers a higher benefit. Another government might offer a significant tax break to a company that encourages them to place offices in one location and not another.

6. Federalism can create uncertainty. Because there are multiple layers of government working cooperatively with one another in a federalist system, it can be challenging at times for specific communities to know where they can receive assistance. There are natural disasters, national welfare aid distributed to the states for authorization, public education resources, and many more benefits or circumstances where someone must navigate each level of government to find the results they want. Knowing who is responsible for specific issues can make it difficult for any aid to make it to its intended destination.

7. Federalism can be inefficient. There are efficiencies to consider with delegation that make this governing structure such an inviting option. Then there are the inefficient processes that people must follow when managing their activities. People must stay in compliance with the laws that are in every layer of governing. That means some people in the U.S. must follow four different sets of laws. Knowing what you can or cannot do can be a confusing process, especially when there are conflicting statements offered by the different parties.

8. Federalism can be structured to benefit only the rich. Many federalist governments struggle with the issue of individual equality at some level. For the United States, it is the wage and wealth gaps to consider. The top 1% of income earners own a majority of the wealth increases experienced since 2009. Many women only make 80% for doing the same job that men do when they look at their salary. These structures can be challenging to change when there are some many obstacles that are put in the way thanks to the checks and balances of this system.

The pros and cons of federalism provide evidence that it is usually better for a society and nation if there is a system of power sharing available for the government. It creates checks and balances in a system that promote individual freedoms and self-governing at a higher level when compared to the other options which are possible. Although there are challenges to face in any type of government, most people who live in a federalist system say that they wouldn’t change the structure whatsoever.

Why Federalism Matters

Subscribe to governance weekly, pietro s. nivola pietro s. nivola former brookings expert.

October 1, 2005

• 19 min read

“What do we want from federalism?” asked the late Martin Diamond in a famous essay written thirty years ago. His answer was that federalism— a political system permitting a large measure of regional self-rule—presumably gives the rulers and the ruled a “school of their citizenship,” “a preserver of their liberties,” and “a vehicle for flexible response to their problems.” These features, broadly construed, are said to reduce conflict between diverse communities, even as a federated polity affords inter-jurisdictional competition that encourages innovations and constrains the overall growth of government.

Alas, as Professor Diamond and just about anyone else who has studied the subject would readily acknowledge, the promise and practice of federalism are frequently at odds. A federal republic does not always train citizens and their elected officials better than does a unitary democratic state. Nor are federations always better at preserving liberties, managing conflicts, innovating, or curbing “big” government.

Whatever else it is supposed to do, however, a federal system should offer government a division of labor. Perhaps the first to fully appreciate that benefit was Alexis de Tocqueville. He admired the decentralized regime of the United States because, among other virtues, it enabled its national government to focus on primary public obligations (“a small number of objects,” he stressed, “sufficiently prominent to attract its attention”), leaving what he called society’s countless “secondary affairs” to lower levels of administration. Such a system, in other words, could help the central government keep its priorities straight.

Federalism’s several supposed advantages are weighed in this first of two Brookings Policy Briefs. A subsequent one will delve more deeply into the facet of particular interest to de Tocqueville: a sound allocation of competences among levels of government. For arguably, it is this matter above all that warrants renewed emphasis today, because America’s central government with its vast global security responsibilities is overburdened. 

Policy Brief #146

Ensuring Unity Sometimes nations face a stark choice: allow regions to federate and govern themselves, or risk national dissolution. Clear examples where federalism is the answer exist. Belgium would probably be a partitioned state now if Flanders had not been granted extensive self-government. If under Italy’s constitution, Sardinia, a large and relatively remote Italian island, had not been granted significant autonomy, it might well have harbored a violent separatist movement—like the one plaguing a neighboring island, Corsica, a rebellious province of unitary France.

Where truly profound regional linguistic, religious, or cultural differences persist, however, federating is by no means a guarantee of national harmony. Canada, Spain, and the former Yugoslavia are wellknown cases of federations that either periodically faced secessionist movements (Quebec), or have had to struggle with them continually (the Basques), or collapsed in barbarous civil wars (the Balkans). Iraq seems headed for the same fate. The Sunni minority there is resisting a draft constitution that would grant regional autonomy not only to the Kurds in the north but to Shiite sectarians in the oil-rich south. So far, proposed federalism for Iraq is proving to be a recipe for disaccord, not accommodation.

In much of America’s own history, federalism did not ease this country’s sectional tensions. On the contrary, a long sequence of compromises with the southern states in the first half of the nineteenth century failed to prevent the Civil War. Then, through the first half of the twentieth century, additional concessions to states’ rights did little to dismantle the South’s repulsive institution of racial apartheid. Southern separatism was subdued by a military defeat, not diplomatic give-and-take, and only further assertions of central power—starting with the Supreme Court’s school desegregation decision in 1954—began altering the region’s corrosive racial policies.

If we fast-forward to present day America, the thesis that federalism is what holds the country together seems no less questionable, though for a different reason. For all the hype about the country’s “culture wars,” the fact is that socially and culturally, the contemporary United States has become a remarkably integrated society, particularly when compared to other large nations such as India, Indonesia, and Nigeria, or even some smaller European states. Thanks largely to massive interregional migrations, economic dynamism, and ease of assimilation, contrasts between America’s deep South and the rest of the country seem minor today compared to, say, the continuing cultural chasm between the north and south of Italy. In America, where examples of religiously or ethnically distinct jurisdictions are mild ones, like Utah and Hawaii, it seems hard to argue that the nation’s fifty states represent keen territorial diversity, and that they are the secret to this country’s cohesion. Put more generally, the sub-national entities of an increasingly mobile and assimilative society such as ours tend to demand less independence than they once did, and how much of it they get may not make as much difference for national unity.

Laboratories of Democracy

In principle, empowering citizens to manage their own community’s affairs is supposed to enhance civic engagement in a democracy. Its “free and popular local and municipal institutions,” argued John Stuart Mill, provide “the peculiar training of a citizen, the practical part of the political education of a free people.” From this, informed deliberation and a pragmatic ability to respect both the will of the majority and the rights of minorities—in short, fundamental democratic values—are inculcated.

But in the real world of local politics, these results are often elusive. Prior to the Voting Rights Act of 1965, southern blacks got a “political education” all right, only not the kind Mill had in mind. Presently, even if it no longer perpetrates wholesale disenfranchisements, community governance can fall short in other ways: it edifies few people when few participate. Keep in mind that the average municipal election in the United States engages less than a third of the local electorate. And the smaller the community’s scale, the smaller the share of participants. At best, one in ten registered voters shows up at New England’s quaint town meetings.

If local self-government interests average citizens less than it should, maybe at least it still has much to teach their elected officials. Supplying thousands of state and local elective offices, a federal system like America’s creates a big market for professional politicians. Many of them (for example, state governors and big-city mayors) have demanding jobs. Their challenges help prepare the nation’s pool of future political leaders.

There is no question that those who attain high public office in the United States mostly rise through the ranks of the federal system’s multiple tiers, and have been schooled therein. Fifty-six senators in the current Congress were former state legislators or holders of state-wide elective offices. Four of America’s last five presidents have been governors. It is by no means clear, though, that the ex-governors who worked their way up federalism’s ladder outshine, for example, the national leaders of the United Kingdom. In the twentieth and twenty-first centuries, America elevated such former governors as Franklin D. Roosevelt, Ronald W. Reagan, and George W. Bush to the presidency. Were they better equipped than Britain’s leadership (think Winston Churchill, Margaret Thatcher, or Tony Blair)?

Not only that, but there also is some question just how relevant the lessons learned in, for example, the statehouses of relatively small states—like Georgia, Arkansas, or Vermont—are to the men and women who move from there onto the national, or international, stage. As a one-term governor of Georgia, Jimmy Carter had successfully reorganized that state’s modest bureaucracy and improved its budgetary performance. But the managerial magic he had worked in Georgia proved of limited use when, as president, Carter turned his attention to Washington’s bureaucratic behemoths, such as the Department of Health, Education and Welfare.

Or consider Bill Clinton’s presidency. Not infrequently, its cosmopolitan aspirations and impressive achievements were buried by the rest of this ex-governor’s agenda, which sometimes seemed incongruously steeped in parochial concerns. Clinton’s long speeches, we might recall, delved into the enforcement of truancy laws, the use of school uniforms, the math tests of eighth graders, the need to connect hospitalized children to the Internet, the marshaling of work-study students as reading tutors, the ability of medical insurance to cover annual mammograms, the revitalization of community waterfronts, the appropriate hospital stay for women after a mastectomy, the work of local development banks, the record of Burger King and other businesses in creating jobs for welfare recipients, and so on—in sum, preoccupations suited to governors, county supervisors, hospital administrators, or school boards. But to a world leader?

In 2004, another very good governor, Howard Dean, mounted a spirited campaign for the Democratic party’s presidential nomination. Dean pointed to his accomplishments in Vermont, a state that had (as Mark Singer observed in a January 2004 profile in The New Yorker ) a population smaller than metropolitan Omaha and an annual budget of barely a billion dollars. For a time, he became the front runner, the considerable limitations of his small-state political background notwithstanding. What was some of that experience like? According to an article in The New York Times (also in January 2004) reflecting on Dean’s gubernatorial years, “The profoundly local aspect of his job was clear in 2002, when he said, ‘I can assure you, of all the things that I had to live with…the most difficult were the cascades of calls in the summer of ’93 and ’94 about how long the wait was at the Department of Motor Vehicles.’”

No matter how seasoned and capable a governor may be, travails like these are not the same as those likely to be faced by anyone who aspires to lead the country, never mind the international community. Granted, there is no job that can adequately prepare a wouldbe president. Montpelier is not Washington, nor for that matter is Sacramento or Austin. Other things equal, however, a stint as the chief executive of a large place (like California or Texas) may offer a somewhat better test. Yet, more or less indiscriminately, the process of political recruitment in the United States seems to regard states large and small as equally promising springboards.

Policy Innovation

What about the states as laboratories for other experiments—the testing of new public policies, for instance?

Yes, there have been important policy innovations that had their origins, as Justice Louis Brandeis famously said, in a few courageous states. California has long been the pacesetter in the regulation of air quality. Texas provided a model for recent federal efforts to boost the performance of public schools (the No Child Left Behind Law). Wisconsin pioneered, among other novelties, the income tax and a safety net for the unemployed years before these ideas became national law. Yet, while myopic Washington insiders often pay too little attention to initiatives occurring outside the Beltway, aficionados of state government often devote too much. The significance of experimentation at the state and local level should be neither overlooked nor overstated.

Take the now-legendary example of welfare reform. Thanks to liberal use of federal administrative waivers in the early 1990s, the states took the lead in revising the nation’s system of public assistance. They were widely credited with setting the stage for the historic national legislation of 1996—and also for securing a dramatic decline in caseloads. How much of the decline, however, could be attributed to the actions of the states, both before and after the 1996 law, is actually a matter of considerable debate. Most of the caseload reduction had less to do with inventive state policies than with a strong economy and expanded federal aid (most notably, the Earned Income Tax Credit) to low-income persons who entered the workforce. In sum, although state experiments were undoubtedly instructive and consequential, other fundamentals were more so. One suspects that what holds for the welfare story also applies to some other local inventions—for example, smart growth strategies, school reform, or the deregulation of electric utilities—the impact of which state politicians sometimes exaggerate.

Competitive Federalism

Does federalism necessarily deliver leaner, more efficient government? There is reason to think that it could. The states are constitutionally obligated to balance their budgets. To spend, these governments have to tax—and that unpleasant requirement supposedly disciplines profligate politicians. So does interstate competition. Presumably few jurisdictions will indulge in lavish social programs that are magnets for dependents from neighboring jurisdictions, and that could cause overtaxed residents and businesses to exit.

The federated political structure of the United States does indeed appear to have some restraining effect, at least when compared to the unchecked welfare states of Europe. Whereas there, the beneficiaries of unemployment compensation, for instance, often seem entitled to limitless support, the American state-run model maxes out at six months, and ordinarily replaces only a portion of a jobless person’s lost wages. Why? Part of the reason is that no state in our locallyadministered system can afford to let its benefits get too far out of line with those of competing states.

That said, contrary to the wishes of conservatives and the fears of liberals, devolution does not inexorably shrink “big government.” In fact, measured in terms of public employment, it is the state and local sector that has been swelling. With roughly three million employees, the federal payroll today is about the same as it was a half a century ago, but the number of state employees quadrupled to five million. Nor has the central government’s spending outpaced that of the states and localities. Their outlays, only some of which are strictly mandated by Washington, more or less match federal ones.

The scope of government depends not just on how many people it employs or dollars it disburses but on what it ultimately does. But even by that criterion, the states are looming large. Phenomena such as the explosion of discretionary Medicaid spending for the “medically needy,” the work of state attorneys general that yielded a weighty legal settlement with the tobacco industry in 1998, the widening assault on improprieties in corporate governance, and increasingly aggressive measures to curb air pollution (including greenhouse gases), among other bold activities emanating from the states, suggest that, like it or not, much of the locus of vigorous government in recent years has shifted to state capitals.

In fact, so active have been the statehouses in the past decade that conservatives now frequently seem of two minds about federalism. They champion decentralization (when it suits them). But because decentralized government is not smaller, only situated differently, they also dissent. Confronting the surge of state activism, Republicans increasingly have favored national preemption of state powers in areas as diverse as tort law, land use regulation, and family policy. The proposed constitutional amendment barring marriages among gays is the latest case in point. Much as Roe v. Wade nationalized in a sweeping stroke the rules for abortions, the same-sex marriage amendment would toss into the scrap heap another traditional prerogative of the states: their control of matrimonial law.

When Washington Does It All

Opinions are bound to differ on which level of government should have the last word about marriages or abortions. More puzzling is how the central government has come to meddle incessantly in matters that are ordinarily much more mundane, often meeting little or no resistance. Contemporary American federalism badly needs a realignment here. For the often indiscriminate preoccupation of national policymakers with the details of local administration is not just wasteful; it can be irresponsible.

Let us glance at a small sample of local functions now monitored by federal agencies and courts. Federal law these days is effectively in the business of determining the minimum drinking age for motorists, setting the licensing standards for bus and truck drivers, judging the fitness tests for recruits of local police or fire departments, overseeing spillages from thousands of city storm sewers, requiring asbestos inspections in classrooms, enforcing child support payments, establishing quality standards for nursing homes, removing lead paint from housing units, replacing water coolers in school buildings, ordering sidewalk ramps on streets, deciding how long some unruly students in public schools can be suspended, purifying county water supplies, arresting carjackers, mandating special education programs for preschoolers, influencing how much a community has to pay its snowplow operators or transit workers, planning athletic facilities at state universities, supplying communities with public works and reimbursements for nearly any kind of natural disaster, telling localities in some states how to deploy firefighters at burning buildings, instructing passengers where to stand when riding municipal buses, and so on.

Several of these illustrations may sound farcical, but none is apocryphal. The directives for firefighters, for example, are among the many fastidious standards formulated by the Occupational Safety and Health Administration. The pettifogging about where to stand in buses is a Department of Transportation regulation, which, believe it or not, reads as follows:

• Every bus, which is designed and constructed so as to allow standees, shall be plainly marked with a line of contrasting color at least 2 inches wide or equipped with some other means so as to indicate to any person that he/she is prohibited from occupying a space forward of a perpendicular plane drawn through the rear of the driver’s seat and perpendicular to the longitudinal axis of the bus. Every bus shall have clearly posted at or near the front, a sign with letters at least one inch high stating that it is a violation of the Federal Highway Administration’s regulations for a bus to be operated with persons occupying the prohibited area.

Tangents like these are baffling. Why should a national cabinet department or regulatory bureaucracy be bothered with how “standees” ride local buses or how a town’s firefighters do their jobs? If municipal transit authorities or fire departments cannot be left to decide such particulars, what, if anything, are local governments for? Surely, most of the matters in question—putting out a fire, taking a bus ride, disciplining a troublemaker in school, removing hazards like asbestos or lead from a school or a house—rarely spill across jurisdictions and so do not justify intervention by a higher order of government.

Nor can a plausible case be made that central overseers are needed for each of these assignments because communities would otherwise “race to the bottom.” How many states and localities, if left to their own devices, would practice fire prevention so ineptly that they require tutelage from a federally approved manual? Before Congress acted to rid the Republic of asbestos, the great majority of states already had programs to find and remove the potentially hazardous substance. Long before the U.S. Environmental Protection Agency promulgated expensive new rules to curb lead poisoning, state and municipal code enforcement departments were also working to eliminate this danger to the public health.

Why the paternalists in Washington cannot resist dabbling in the quotidian tasks that need to be performed by state and local officials would require a lengthy treatise on bureaucratic behavior, congressional politics, and judicial activism. Suffice it to say that the propensity, whatever its source, poses at least two fundamental problems.

The first is that some state and local governments may become sloppier about fulfilling their basic obligations. The Hurricane Katrina debacle revealed how ill-prepared the city of New Orleans and the state of Louisiana were for a potent tropical storm that could inundate the region. There were multiple explanations for this error, but one may well have been habitual dependence of state and local officials on direction, and deliverance, by Uncle Sam. In Louisiana, a state that was receiving more federal aid than any other for Army Corps of Engineers projects, the expectation seemed to be that shoring up the local defenses against floods was chiefly the responsibility of Congress and the Corps, and that if the defenses failed, bureaucrats in the Federal Emergency Management Agency would instantly ride to the rescue. That assumption proved fatal. Relentlessly pressured to spend money on other local projects, and unable to plan centrally for every possible calamity that might occur somewhere in this huge country, the federal government botched its role in the Katrina crisis every step of the way—the flood prevention, the response, and the recovery. The local authorities in this tragedy should have known better, and taken greater precautions.

Apart from creating confusion and complacency in local communities, a second sort of disorder begot by a national government too immersed in their day-to-day minutia is that it may become less mindful of its own paramount priorities.

Consider an obvious one: the security threat presented by Islamic extremism. This should have been the U.S. government’s first concern, starting from at least the early 1990s. The prelude to September 11, 2001 was eventful and ominous. Fanatics with ties to Osama bin Laden had bombed the World Trade Center in 1993. Muslim militants had tried to hijack an airliner and crash it into the Eiffel Tower in 1994. U.S. military barracks in Dhahran, Saudi Arabia, were blown up, killing nearly a score of American servicemen in 1996. Courtesy of Al Qaeda, truck bombings at the American embassies in Tanzania and Kenya in 1998 caused thousands of casualties. Al Qaeda operatives attacked the USS Cole in 2000.

And so it went, year after year. What is remarkable was not that the jihadists successfully struck the Twin Towers again in the fall of 2001 but that the United States and its allies threw no forceful counterpunches during the preceding decade, and that practically nothing was done to prepare the American people for the epic struggle they would have to wage. Instead, the Clinton administration and both parties in Congress mostly remained engrossed in domestic issues, no matter how picayune or petty. Neither of the presidential candidates in the 2000 election seemed attentive to the fact that the country and the world were menaced by terrorism. On the day of reckoning, when word reached President George W. Bush that United Airlines flight 175 had slammed into a New York skyscraper, he was busy visiting a second-grade classroom at an elementary school in Sarasota, Florida.

The government’s missteps leading up to September 11th, in short, had to do with more than bureaucratic lapses of the kind identified in the 9/11 Commission’s detailed litany. The failure was also rooted in a kind of systemic attention deficit disorder. Diverting too much time and energy to what de Tocqueville had termed “secondary affairs,” the nation’s public servants from top to bottom grew distracted and overextended.

To be sure, the past four years have brought some notable changes. Fortifying the nation’s security and foreign policy, for instance, remains a problematic work in progress, but is at least no longer an item relegated to the hind sections of newspapers and presidential speeches. Nonetheless, distraction and overextension are old habits that the government in Washington hasn’t kicked. Controversies of the most local, indeed sub-local, sort—like the case of Terri Schiavo—still make their way to the top, transfixing Congress and even the White House.

The sensible way to disencumber the federal government and sharpen its focus is to take federalism seriously—which is to say, desist from fussing with the management of local public schools, municipal staffing practices, sanitation standards, routine criminal justice, family end-of-life disputes, and countless other chores customarily in the ambit of state and local governance. Engineering such a disengagement on a full scale, however, implies reopening a large and unsettled debate: What are the proper spheres of national and local authority?

How to think through that dilemma will be the subject of my next Policy Brief .

Governance Studies

Margaret McMillan, Harun Onder

May 14, 2024

Jack A. Smalligan

Anthony F. Pipa

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Foundations of U.S. Federalism

by Lee Rosenthal and Gregory P. Joseph

What precisely is American federalism? In their seminal work on federal jurisdiction, Felix Frankfurter and Wilber Katz allude to a “dynamic struggle” between federal and state power, the ebb and flow of competing, sometimes conflicting, spheres of federal and state power and influence. In many respects, the story of American government is the story of how that struggle has been resolved.

The antecedents of American federalism trace to colonial days, when the concept of divided sovereign power began to take shape. At the beginning of the Revolutionary War, the thirteen colonies declared themselves to be free and independent states. During the hostilities and at the War’s end, the newly formed states recognized that they needed to operate together to function adequately on the new national stage and to enter the world stage.

America’s first attempt to codify federalism — the Articles of Confederation of 1781 — failed. Replaced by the Constitution of 1787, this sturdy document and the government it established have survived the tenuous early days of the Republic, a Civil War, serious economic depressions, America’s involvement in two World Wars, and 227 years of innumerable internal and external challenges. This paper briefly outlines how American federalism developed and how it serves as the basic organizing principle of American government.

American Federalism: Prerevolutionary Underpinnings

Reflecting on America’s early political development, Alexis de Tocqueville commented that “[i]n America . . . it may be said that the township was organized before the county, the county before the state, the state before the union.” 1 America’s earliest political associations were forged at a local level. Early colonists found themselves separated from their sovereign’s authority and protection by a vast ocean and from their fellow colonists by a vast geographic expanse. As a consequence, they organized and largely governed their day-to-day lives independently and locally.

In 1643, the first American effort to create a political union among the colonies began in Boston. Faced with the need to defend and maintain security over a large territory — and with little hope of receiving aid from England due to the “sad distractions” of the English Civil War — the New England settlers found themselves “convinced . . . of the necessity of banding together to resist destruction. . . .” 2  Delegates from Massachusetts, New Plymouth, Connecticut, and New Haven formed the New England Confederation, “a firm and perpetual league of friendship and amity for offense and defense, mutual advice and succor upon all just occasions, both for preserving and propagating the truth and liberties of the Gospel and for their own mutual safety and welfare.” 3  Their union lasted four decades, until James II folded these colonies into the new Dominion of New England in 1684. 4

Approximately a century after forming the New England Confederation, the colonies again found the need to confederate due to mutual pressing concerns, including relations with Native Americans and each other and the possibility of a French attack. Representatives from the British North American Colonies adopted the Albany Plan of Union on July 10, 1754. The Plan provided that each colony would select members of a Grand Council and the British government would appoint a “president General.” 5   One of the most prominent Plan supporters was Benjamin Franklin. His well-known “Join, or Die” political sketch, first published in Franklin’s Pennsylvania Gazette on May 9, 1754, shows a snake cut into eight pieces. Each piece is labeled with the initials of one of the colonies, except that the four New England colonies are represented by “N.E.” at the snake’s head. 6 “Join, or Die” later became a rallying cry for the Revolutionary War and is perhaps the earliest pictorial representation of the nation’s budding federalism. Neither the New England Confederation nor the Albany Plan of Union sought to sever or even to weaken ties with England. To the contrary, Franklin hoped that the Albany Plan would increase the British participation in the colonies. “Britain and her Colonies should be considered as one Whole, and not as different States with separate Interests.” 7  The New England Confederation, and the Albany Plan of Union — even though it failed — formed precedent for the idea that the colonies could join together to pursue mutual interests, while simultaneously retaining individual power over day-to-day political activities.

The Impact of the Revolutionary War: An Impetus to Federalism and the Failure of the Articles of Confederation

The need for some degree of centralization among the various colonies became clear during the Revolutionary War. The demands of raising the army, putting it under a central command, supplying it, and raising funds for it exceeded state and local government capabilities. The revolutionaries recognized that some confederation was needed, but they remained deeply suspicious of centralized power. 8  The implications of failure were not lost on the revolutionaries. In 1775, Silas Dean wrote to Patrick Henry that, “[i]f a reconciliation with G Britain take place, it will be obtained on the best terms, by the Colonies being united, and be the more like to be preserved, on just and equal Terms; if no reconciliation is to be had without a Confederation We are ruined to all intents and purposes.” 9 The wartime urgency and the necessity of union, combined with the fear of a new overarching sovereign, led the revolutionaries to ratify the Articles of Confederation on March 1, 1781. The Articles left the states as the source of sovereign power but created a new central government with its powers derived from the consent of the states. 10

Americans were cautious in creating this new centralized government. “Whatever their collective commitments to new government, the revolutionaries were in no mood to issue blank checks in the form of another strong central government that could become as harmful as the one they fought to remove.” 11  The central government under the Articles was relatively feeble. The states delegated the central government limited powers and even more limited resources. That government was unable to levy taxes or regulate commerce and depended on the states for revenue; there was no executive and no independent judiciary; there were no standing land or sea forces; and any change to the Articles required the states’ unanimous vote. Exercising the limited powers the new government did have, including making treaties and coining money, often required a majority or supermajority vote.

Postrevolutionary Needs

The Articles proved unworkable. Disputes among states were difficult to resolve, and the central government was underfunded and unable to compel delinquent states to pay their shares of common expenditures. By 1784, a disagreement over the use of the Potomac River highlighted these problems:

First, all the other States were asked to agree to send delegates to the meeting, and all the States hardly ever agreed to do anything; second, if the meeting did take place it must agree upon a report to the States, and there was no reason to expect greater harmony in this assemblage than there was in the Continental Congress, where discord reigned; third, if a plan should be agreed upon, under the terms of the call of the meeting every State must accept it before it could become effective, and it seemed preposterous to expect such unanimity from such antagonistic elements. But affairs were rushing to a crisis, and it was clear that something must be done to save the Union from disintegration and America from disgrace. Far-seeing men began seriously to apprehend that soon the people who had won a glorious victory against Great Britain would fall back under the yoke of that or some other foreign power. The most dangerous and demoralizing inclinations of weak human nature were becoming more and more in the ascendancy in the State governments — a tendency to pass law by which the fulfillment of contracts might be avoided, to stamp paper with figures and promises and call it money, to repudiate debts and avoid obligations of honest men. 12 The challenge was to preserve state sovereignty within a national polity that could operate on a world stage, resolve interstate differences, and facilitate common interests. Fears that a central government would accumulate too much power and erode state sovereignty persisted, along with the fear that no central authority could govern such a huge expanse of territory.

The solution the Framers posited and the states adopted was the federalism embodied in the Constitution. “The Framers split the atom of sovereignty. The genius of their idea was that American citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” 13   One scholar has described this federalism “as a new-modeled creation cobbled together out of a mix of necessity (the existence of the states) and theory (the belief that republics could not be easily maintained across a large territory).” 14   The basic structural characteristics of this “more perfect union” formed the basis of the system of American government that continues to the present.

Developing “A More Perfect Union”

Between May and September of 1787, the Constitutional Convention met in Philadelphia to address and try to remedy the failures of the Articles of Confederation. Although the word “federalism” appears nowhere in the Constitution, it pervades the structure of the government the document creates.

Article I, Section 8 specifically enumerates the powers of Congress. At the time of the founding, there was little controversy that many of these powers were best suited for national regulation, including the power to provide for a common defense, declare war, raise an army and maintain a navy, regulate naturalization, coin money, regulate international commerce, and punish piracy and violations of international law. 15 Other powers in Article I, Section 8, however, have proved controversial and have been interpreted to permit the expansion of the federal government and restrictions on powers of the states. The Commerce Clause, which empowers Congress to “regulate commerce . . . among the several states . . . ,” 16  is among the most controversial. “Commerce” can be read restrictively, to refer to a category of activities distinct from, for example, manufacturing, farming, or mining, preventing the federal government from using the Commerce Clause to regulate these and similar activities. This narrow reading is consistent with the Supreme Court’s interpretation for the first century after ratification, and with current scholarship on the original meaning of the Clause. 17 The Commerce Clause can also be, and has been, read to allow Congress to regulate any activity that in the aggregate has an effect on a national market, even if the conduct is purely intrastate. 18 The Constitution’s Taxation Clause, which provides Congress with the power to tax and spend to “provide for the . . . general Welfare of the United States,” 19 similarly has been “controversial since it first saw the light of day.” 20  Does this phrase mean that Congress can spend only in connection with the powers otherwise granted to Congress or for any good purpose? Does it permit Congress to regulate through spending? These questions have been the subject of heated debate, 21 and the answers have had a substantial impact on the balance of federal and state power. 22

Finally, the Necessary and Proper Clause, which grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” its other enumerated powers, 23 has profound federalism implications, depending on how broadly or narrowly the term “necessary” is interpreted. 24   In addition to Article I, Section 8, other parts of the Constitution provide key features of the federalist system. Article I, Section 10 prohibits states from regulating in certain areas. Article VI makes the “Constitution, and the Laws of the United States . . . and all Treaties made . . . the supreme Law of the Land.” Under the constitutional structure, all powers the Constitution neither delegated to the federal government nor prohibited to the states are reserved to the states or to the people. This structure was later made explicit in the Tenth Amendment.

In their Federalist Papers , Alexander Hamilton, James Madison, and John Jay promoted state ratification of the Constitution. In Federalist No. 9, Hamilton attempted to assuage the concerns that the states would lose sovereignty under the new Constitution:

So long as the separate organization of the members be not abolished . . . though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty . . . and leaves in their possession certain exclusive and very important portions of sovereign power. 25

In Federalist No. 51, Hamilton argued that federalism would help limit the ability of the proposed new central government to abuse its powers:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. 26 The Federalist Papers repeatedly address concerns that the proposed federal government would run roughshod over the states. 27   Federalist No. 39 focused on the limited powers of the federal government and the continuing sovereignty of the states:

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. . . .

[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact . . . . 28 Federalist No. 39 maintained that there must be some arbiter to resolve disputes among the states and that this limited sacrifice of state sovereignty was preferable to resolution by “the sword and a dissolution of the compact.” Equally noteworthy is the distinction drawn between a national and federal government, the former indicative of a boundless overarching power, the latter representing a government of limited enumerated powers.

While the Federalist Papers emphasized that the states retained their sovereignty, the authors stressed that some limits on state sovereignty were essential for the welfare of the American people:

[I]f, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? 29

There was fervent opposition to the federalism built into the Constitution. Robert Yates and John Lansing, New York’s delegates to the Constitutional Convention, wrote to New York Governor George Clinton on Dec. 21, 1787, that, in addition to lacking authority to consider the idea of a new government, a central authority would also oppress faraway citizens:

[W]e entertained an opinion that a general government, however guarded by declarations of rights, or cautionary provisions, must unavoidably, in a short time, be productive of the destruction of the civil liberty of such citizens who could be effectually coerced by it, by reason of the extensive territory of the United States, the dispersed situation of its inhabitants, and the insuperable difficulty of controlling or counteracting the views of a set of men (however unconstitutional and oppressive their acts might be) possessed of all the powers of government, and who, from their remoteness from their constituents, and necessary permanency of office, could not be supposed to be uniformly actuated by an attention to their welfare and happiness . . . . 30

They were also concerned that “the expense of supporting” the new government “would become intolerably burdensome” and that many citizens would be “necessarily . . . unknown” to the national representatives given the size of the new country. 31

The antifederalists were well aware that the stakes were high:

If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. . . . But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty — if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory. 32

Many antifederalists, fearful of a powerful central government, demanded a Bill of Rights, which, in 1791, became the first ten amendments to the Constitution.

The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Writing in 1833, Justice Joseph Story noted that the Ninth Amendment “was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others . . . .” 33 The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment made explicit that “what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty.” 34

On June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and it became effective. 35  According to one scholarly view, federalism was “the greatest of American contributions to the art of government.” 36  Alexis de Tocqueville celebrated this singular achievement: “This Constitution . . . rests upon a novel theory, which may be considered as a great invention in modern political science . . . . [A] form of government has been found out which is neither exactly national nor federal . . . . [T]he new word which will one day designate this novel invention does not yet exist.” 37

Federalism In Practice: The Early Precedents

The federal courts quickly became the arbiter of federalism, defining the relative powers of the federal and state governments. In 1810, the Supreme Court, then a young institution still establishing its authority, ruled in Fletcher v. Peck 38  that Georgia’s legislature could not invalidate a contract because the federal Constitution did not permit bills of attainder or ex post facto laws. Chief Justice John Marshall carefully noted that the Court did not intend any “disrespect of the legislature of Georgia, or of its acts.” 39  Despite this deferential tone, Fletcher v. Peck established the principle that the Supreme Court has the power to strike down an unconstitutional state law.

In 1816, the Supreme Court ruled that it could also override state courts in Martin v. Hunter’s Lessee . 40  Four years earlier, the Supreme Court had ruled in Fairfax’s Devisee v. Hunter’s Lessee 41  that the Jay Treaty between the United States and Britain precluded Virginia from appropriating the property of a loyalist. The Virginia Supreme Court ruled that it was not bound by the Supreme Court’s ruling, stating: “The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court . . . .” 42  In Martin , the Supreme Court reemphasized that it walked carefully when it reviewed state-court judgments. “The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us.” 43  The Supreme Court again balanced this respect and deference with the recognition that “[t] he constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’” 44  The Supreme Court ruled that state courts were subject to its appellate jurisdiction on constitutional matters. By 1816, the Supreme Court had declared that it could overrule state courts and invalidate unconstitutional state laws.

That same year, Congress chartered the Second Bank of the United States, a private corporation that handled all fiscal transactions for the federal government. Two years later, Maryland passed legislation to impose a tax on the Bank, which Bank employee James M’Culloch refused to pay. The Maryland state courts upheld the legality of the tax. In M’Culloch v. Maryland , 45  the Supreme Court made two critical rulings. First, it declared that the Necessary and Proper Clause of Article I, Section 8 of the Constitution granted Congress discretion in choosing the means by which to execute its enumerated powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 46 Despite the absence of an enumerated power to incorporate, the Supreme Court held that creating the Bank was constitutional under Article I, Section 8 as “necessary and proper” to carry out Congress’s other enumerated powers. Second, the Court concluded that while Article I, Section 8 gave Congress the power to create the Bank, Article VI’s Supremacy Clause meant that Maryland lacked the power to tax that Bank. “The government of the Union, though limited in its powers, is supreme within its sphere of action . . . and its laws, when made in pursuance of the constitution, form the supreme law of the land.” 47

In 1824, one of the most significant cases on congressional powers came before the Supreme Court. Gibbons v. Ogden 48  involved competing steamboat ferry owners whose vessels operated in the waters between New York and New Jersey. Ogden obtained an exclusive license from the State of New York authorizing him to operate along the contested route and sought an injunction to stop Gibbons from operating along the same route. In response, Gibbons argued that a 1793 act of Congress regulating coastal commerce allowed him to compete with Ogden. He lost in the trial and appellate courts in New York, but the Supreme Court reversed. The Court’s decision for Gibbons rested on its first interpretation of the Commerce Clause, which provides that “Congress shall have power . . . [t]o regulate commerce . . . among the several States . . . .” 49

The Court found that the word “commerce” included navigation among the states, and the word “among” before the phrase “the several States” meant that Congress’s commerce power did not “stop at the external boundary line of each State, but may be introduced into the interior.” 50 The New York law granting Ogden an exclusive license was a “nullity” in light of Congress’s conflicting act and the Constitution’s Supremacy Clause. 51 Gibbons significantly expanded the authority of the federal government by recognizing Congress’s broad power to regulate commercial activity. By the Civil War, the federal courts had established several key principles of federalism, including the power of federal courts to invalidate unconstitutional state laws, to nullify conflicting state-court rulings, and to ensure the supremacy of federal law enacted within the enumerated powers the Constitution delegated to the federal government. Nonetheless, during this period, the federal government remained small and had little impact on the lives of most citizens. Most Americans identified more with their states than with the nation.

The Civil War and Reconstruction

Civil war: federalism in crisis.

The Civil War threatened the survival of the American experiment. Could states legitimately claim a right to secede from the nation? President Lincoln vehemently opposed the idea. “Plainly, the central idea of secession, is the essence of anarchy.” 52   There was the bond of geography: “Physically speaking, we cannot separate.” 53 And there was the bond of the constitution itself: “[N]o State, upon its own mere motion, can lawfully get out of the Union.” 54 Secessionists strongly disagreed. Future Confederate President Jefferson Davis, announcing his departure from the United States Senate following Mississippi’s decision to secede, declared: “I have for many years advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union.” 55

  He explained:

Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever. 56

The South’s defeat in the Civil War greatly expanded the power of the federal government and “destroyed the doctrine that the Constitution was a compact among sovereign states, each with the right to interpose or nullify an act of Congress, and each with the ultimate right to secede legally from the Union.” 57   Under modern conceptions of federalism, states retain sovereignty. The Civil War, however, removed any doubt that the federal government — which derives its sovereign power from “the People,” not the states — is supreme when acting within the scope of its enumerated powers. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals, and for other constitutional ends.” 58

Post Civil War: Reconstructing Federalism

When the Civil War ended, the country entered “Reconstruction,” a period that included rebuilding the roles of the federal and state governments. There was significant disagreement in the country about how to treat the former Confederate states, implicating whether the basic relationship between the federal and state governments that existed before the War was to be restored, or whether it was necessary to make fundamental alternations in that relationship to prevent the continuation of the causes of the conflict.

Ultimately, three constitutional amendments, commonly referred to as the Reconstruction Amendments, were ratified in the five years after the Civil War ended, altering the balance of federalism in America. The Thirteenth Amendment abolished slavery 59   and the Fifteenth Amendment guaranteed African Americans the right to vote. 60   The Fourteenth Amendment imposed substantial restrictions on state power and expanded the power of the federal government. 61

Section 1 of the Fourteenth Amendment, which overruled the Supreme Court’s 1857 ruling in Dred Scott v. Sandford 62  holding that African Americans were not entitled to any of the rights of citizenship, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” and prohibits states from passing any law that abridges “the privileges or immunities of citizens of the United States.” 63  The breadth and meaning of the phrase “privileges or immunities” remains uncertain. One theory is that the phrase was intended to be limited to certain natural rights, such as property ownership. Others argue that the phrase was intended to extend to all positive law, whether provided by state law or the Bill of Rights. 64  However, “the standard view of the effect intended by the drafters of the Privileges or Immunities Clause seems to be that it ‘has been a mystery since its adoption.’” 65

Section 1 of the Fourteenth Amendment also prohibits the states from depriving “any person of life, liberty, or property, without due process of law,” or “deny[ing] to any person within its jurisdiction the equal protection of the laws.” 66 The Due Process Clause has since been interpreted to incorporate almost all of the provisions of the Bill of Rights against the states, 67 and the Due Process and Equal Protection Clauses have since been interpreted to restrict or bar state regulation in diverse areas, including contraception, 68  abortion, 69  and same-sex marriage. 70 Significantly, Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Fourteenth Amendment, providing a potentially broad grant of federal power.

The restriction of state sovereignty was a principal basis for the opposition to the Fourteenth Amendment, as reflected in a published letter of Interior Secretary Orville Browning that President Andrew Johnson — a Reconstruction opponent — reportedly approved:

The object and purpose are manifest. It is to subordinate the State judiciaries in all things to Federal supervision and control; to totally annihilate the independence and sovereignty of State judiciaries in the administration of State laws, and the authority and control of the States over matters of purely domestic and local concern. . . . [I]f adopted, every matter of judicial investigation, civil or criminal, however insignificant, may be drawn into the vortex of the Federal judiciary. 71

Supporters of the Fourteenth Amendment found Browning’s attack to be little more than the same states’ rights argument that had led to, and been defeated by the Union’s victory in, the Civil War:

In a few words the great fear of Mr. Browning is that this amendment in its operation will do away with State sovereignty, legislative and judicial, and will put the legislatures and courts of the several States under Congress and the federal courts . . . . We hold that this old Southern theory of our government was demolished at Petersburg and surrendered at Appomattox Court House with Lee’s army; and so we dismiss this branch of the argument. 72 The Fourteenth Amendment was ratified in July 1868. By 1870, however, support for a very strong version of Reconstruction had begun to wane. As part of this trend, the Supreme Court narrowly interpreted the Privileges or Immunities Clause when it first addressed the Fourteenth Amendment in the Slaughter-House Cases . 73  These cases concerned a Louisiana law permitting only one slaughterhouse in the New Orleans area, ostensibly to promote health and safety. Competing butchers were allowed to slaughter, but only at the approved slaughterhouse. Critics contended that the state law unconstitutionally deprived the other butchers of the “privilege” of practicing their profession, violating their “privileges or immunities” under the Fourteenth Amendment.

The Supreme Court ruled that the Privileges or Immunities Clause protected the privileges of United States citizenship but did not require the states to grant its citizens any particular privileges. The Court stressed that it considered these questions as vital to federalism and therefore to the nation:

No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. 74 The Court analyzed the historical underpinnings of the Fourteenth Amendment, emphasizing the “pervading purpose” of the Reconstruction Amendments as freeing the slaves, securing that freedom, and protecting the new freemen from oppression. The Court refused to interpret the Privileges or Immunities Clause as a dramatic general reworking of the federal-state balance:

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights — the rights of person and of property — was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. 75 The Equal Protection Clause of Section 1 of the Fourteenth Amendment was effectively nullified when the Supreme Court ruled in 1896 that “separate, but equal facilities” were constitutional in Plessy v. Ferguson , authorizing state-sanctioned segregation. 76  It was not until 1954 that the Supreme Court reversed that decision in Brown v. Board of Education , ruling that “separate educational facilities are inherently unequal.” 77

Progressive Era: Federalism Grows

Rapid industrialization in the late nineteenth and early twentieth centuries raised a variety of economic and social issues that in turn produced a series of political reforms. This period has been described as characterized by a “growing conviction that government at all levels ought to intervene in the socioeconomic order to enact antitrust and regulatory legislation, labor and welfare measures, and tax reform.” 78   The nation adopted several constitutional amendments, including the Sixteenth, which authorized direct federal income taxes, and the Seventeenth, which provided for the citizens in each state to elect their senators directly rather than through their state legislatures. Federal power continued to expand and become entrenched.

The Sixteenth Amendment: Taxation

The Sixteenth Amendment, ratified on Feb. 3, 1913, is considered the first Progressive Era constitutional amendment. In 1895, in Pollock v. Farmers’ Loan & Trust Company , 79   the Supreme Court had invalidated a federal income tax as an unconstitutional direct tax because it was not apportioned to the states based on their respective populations. The Sixteenth Amendment overturned this ruling. 80 Some opponents saw this as a federal “power grab” designed to further weaken the states:

A hand from Washington will be stretched out and placed upon every man’s business; the eye of the federal inspector will be in every man’s counting house. . . . An army of Federal inspectors, spies and detectives will descend upon the state. . . . I do not hesitate to say that the adoption of this amendment will be such a surrender to imperialism that has not been since the Northern states in their blindness forced the fourteenth and fifteenth amendments upon the entire sisterhood of the Commonwealth. 81 Following the Sixteenth Amendment, the federal government began using its expanded resources to pass legislation approving federal funding for social welfare programs, including the 1921 Sheppard Towner Act to fund child and maternity care, described as the “first venture of the federal government into social security legislation.” 82   Over time, the Sixteenth Amendment significantly impacted the balance of federal-state power. Together with an expansive interpretation of the congressional spending power, the taxing power permitted the substantial growth of the federal government in myriad areas it previously had not occupied or regulated.

The Seventeenth Amendment: Direct Election of Senators

The Seventeenth Amendment, adopted on May 31, 1913, provided for the voters of each state to elect their Senators directly, rather than having state legislatures select them. This abrogated one of the original, fundamental structural protections for the states by affording direct state influence over the operations of the federal government.

Incorporating the Bill of Rights

The Reconstruction Amendments profoundly impacted the federal-state balance by applying the Bill of Rights through the Fourteenth Amendment (“incorporating” the Bill of Rights in the Fourteenth Amendment) to limit or invalidate state action. Before the Civil War, the Supreme Court held that the Bill of Rights did not apply to the states. In 1833 the Supreme Court ruled in Barron v. City of Baltimore 83   that the Constitution’s Fifth Amendment prohibition against government confiscation of property without just compensation was a limit only on the power of the federal government. “Had the people of the several States, or any of them, required changes in their Constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.” 84   Years after the Civil War, in 1875, the Court ruled that the First Amendment right to free assembly and the Second Amendment right to bear arms did not apply to the states. 85

  In so holding, the Court emphasized the existence of more than one sovereign in the federal system:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. 86

This changed over time, as the Supreme Court slowly applied specific protections afforded by the Bill of Rights to the states. The Court relied on the commandment in the Fourteenth Amendment’s Due Process Clause that no state may “deprive any person of life, liberty or property, without due process of law.” In 1925, the Supreme Court used the Clause to apply the First Amendment to the states. In Gitlow v. New York , 87   the Court stated: “For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” 88   In 1931, the Supreme Court relied on the Clause to remove any doubt that the First Amendment rights of freedom of the press applied to the states 89   and, in another case, to recognize that a defendant’s right to legal representation in capital cases applied to the states. 90 As recently as 2010, the Court recognized that the Second Amendment applies to the states through the Fourteenth Amendment, restricting the states’ ability to regulate gun ownership. 91

Expanding Federal Power: The New Deal

After his election in 1933, President Franklin Roosevelt initiated a series of economic and regulatory programs to address the Great Depression. Congress passed the National Industrial Recovery Act, authorizing the promulgation of fair competition codes. The Roosevelt administration adopted a series of these codes, including one governing the poultry industry. That led to the Schechter Poultry Corporation case, invalidating the legislation as exceeding constitutional limits on federal powers.

The Schechter Poultry Corporation was charged with violating the Live Poultry Code. Schechter sued, claiming that the federal government had exceeded its authority by issuing the code. The Supreme Court agreed, holding that Article I of the Constitution vested the Congress, not the President, with the power to legislate, and the National Industrial Recovery Act unconstitutionally authorized the President to do so. The Court also held that the Code regulated intrastate commerce, making the Code unconstitutional because the Commerce Clause authorized Congress to regulate only interstate commerce. 92 Between 1933 and 1936, the Supreme Court invalidated other pieces of New Deal legislation. In 1936, buoyed by his landslide reelection, President Roosevelt proposed a plan that would reshape the Court, allowing him to select additional justices who would approve his policies. Dubbed “court packing” by his critics, his plan was opposed even by some of his fervent supporters. It was never enacted, in part because the Supreme Court began approving Roosevelt’s New Deal legislation. 93   A series of decisions gradually recognized the Commerce Clause as providing constitutional authorization for expanding federal government power.

In 1937, the Supreme Court ruled in NLRB v. Jones & Laughlin Steel Corporation 94   that Congress may regulate isolated economic activities, like labor relations, under the Commerce Clause, because that activity has a “close and substantial relationship” to interstate commerce. In United States v. Darby , 95   the Court found the Fair Labor Standards Act constitutional under the Commerce Clause, barring states from enacting lower standards to obtain a commercial advantage over other states. In Wickard v. Filburn , 96   the Supreme Court declared that the Commerce Clause empowered federal regulation of wheat grown by a farmer for his own use, on his own farm, that never crossed state lines, because of its effect on interstate commerce. “A new era of judicial construction had been launched” and “[a]reas of authoritative action that previously had been left to the states’ sphere of sovereignty or to the private sector now fell within the powers of Congress.” 97

Federalism Today

How America interprets the balance of federal and state power has changed over two hundred years. Those changes reflect, and helped us survive, challenges that almost destroyed the nation. How best to strike that balance continues to pervade critical aspects of modern American government, including healthcare, race, civil liberties, the environment, and foreign policy. 98 Federalism also directly affects tax policy, 99   elections, 100 and domestic relations. 101 Yet more than 200 years after the nation’s founding, fundamental questions implicating federalism remain unsettled. That is nowhere more apparent than in the Supreme Court’s June 2015 decision on same-sex marriage, Obergefell v. Hodges . 102

Historically, the view had been that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the States and not the laws of the United States.” 103   Over time, Supreme Court decisions began to recognize limitations on the states’ traditional power to regulate marriage. In Loving v. Virginia , 104   for example, the Supreme Court applied the Fourteenth Amendment to overturn a Virginia prohibition on interracial marriage. In Kirchberg v. Feenstra , 105   the Court similarly applied the Fourteenth Amendment to strike down state laws deeming the husband “head and master” of the household.

The Supreme Court initially declined to apply Fourteenth Amendment principles to state restrictions on same-sex marriage. The first time the Supreme Court addressed same-sex marriage, it issued a “one-line summary decision . . . in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.” 106 As recently as two years ago, in United States v. Windsor , 107 the Supreme Court relied on the states’ primacy in domestic relations to strike down a congressional attempt to define marriage as “a legal union between one man and one woman as husband and wife” for purposes of federal statutory law. 108   This year, however, the Court held in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” 109   The definition of marriage is no longer the exclusive province of the states. 110 Recent jurisprudence under the Second Amendment, addressing the right to bear arms, presents another example of the fluid nature of American federalism. For years, states were thought to have virtually unbridled authority to regulate the ownership, possession and use of firearms within their borders. That understanding changed dramatically in a short period. In 2008, the Supreme Court held in District of Columbia v. Heller 111   that the Second Amendment conferred an individual right to keep and bear arms, precluding the District of Columbia from banning handguns in the home and requiring firearms to be kept inoperable at all times. Subsequently, in McDonald v. City of Chicago , 112   the Court ruled that the Second Amendment applies to the states through the doctrine of incorporation. Together, Heller and McDonald dramatically altered firearms regulation by prohibiting the states from banning handgun possession outright, and by circumscribing the states’ ability to regulate firearms to an extent that remains to be determined.

In addition to these examples, Commerce Clause jurisprudence continues to present a source of contested but expansive federal power, with uncertain scope. In 2000, for example, the Supreme Court ruled in United States v. Morrison 113   that the federal Violence Against Women Act’s civil remedy for victims of gender-motivated violence exceeded congressional power under the Commerce Clause. By contrast, in 2005, the Court concluded in Gonzales v. Raich 114   that federal criminalization of intrastate marijuana growers and users did not violate the Commerce Clause. Perhaps most notably, in National Federation of Independent Business v. Sebelius , 115   the Court held that the Patient Protection and Affordable Care Act was constitutional under Congress’s power to tax, but was not a proper use of the Commerce Clause power because although the federal government can regulate interstate commerce, it cannot compel it. 116 Recent interpretations of the Supremacy Clause also illustrate some of the shifting contours of federalism. Under the preemption doctrine, when Congress acts within the scope of its enumerated powers, or a federal agency acts within the scope of its statutory mandate, their action may preempt conflicting state laws or, if federal action is sufficiently pervasive, may even bar state regulation within that field. 117   Over the past decade, state laws have been held preempted under this doctrine in such divergent areas as aviation, 118   food and drug regulation, 119   immigration, 120   trucking 121   and locomotive equipment, 122   arbitration agreements, 123   regulation of emissions, 124   state age-verification requirements for the shipment and delivery of tobacco, 125   and even the treatment and processing nonambulatory animals in a slaughterhouse. 126   At the same time, preemption has been denied in multiple other contexts. 127

As this discussion suggests, the only safe prediction about the future of American federalism is that none can be made with certainty. But while the interpretation of the balance of federal and state power has changed from the colonial period to the present, federalism continues to be a foundational principle defining America and a principal tool used to build its government.

The Supreme Court continues to look to the Framers for guidance in resolving important questions raising federalism issues or implicating federalism concerns. In District of Columbia v. Heller , 128   for example, the Court noted that “[d]uring the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” 129   The Court echoed the concerns America’s founders had over 200 years ago about the danger to democracy posed by the new federal government. “But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.” 130

As the nation has grown and become established, so have both federal and state power. That path has been neither smooth nor linear. Dispute and even armed conflict have marked the way. But throughout, the Constitution has served as the source of federal and state government powers and their limits. The courts continue to be the first, and often last, arbiters of the struggle to define both. That has worked so far, although far from perfectly or, at times, even well. But no one has devised an alternative approach, much less a better way.

The problems of federalism, like many aspects of the work judges across legal systems confront, are real. A great judge and legal scholar, Benjamin Kaplan of Massachusetts, described one aspect of why judges’ work is so difficult and so compelling. Rules and principles, however long established and seemingly clear, cannot “solve [the] problems fully and forever. If the problems are real ones, they can never be solved. We are merely under the duty of trying continually to solve them.” 131

The judiciary has many grave responsibilities. Shaping and protecting federalism continue to be among the most important and enduring of those obligations. It is a responsibility and a joy that we in the United States and the United Kingdom share.

Related Reading: The Emergence of the American Constitutional Law Tradition

• Alexis de Tocqueville, Democracy in America ch. II (Henry Reeve trans., Bantam Classics 2004) (1835).
• Alison L. LaCroix, The Ideological Origins of American Federalism 21 (2011).
• Articles of Confederation of the New England Confederation of 1643.
• LaCroix,  supra  note 2, at 21–22.
• Albany Plan of Union of 1754, http://avalon.law.yale.edu/18th_century/albany.asp
• Georgia and Delaware (then part of Pennsylvania) were also omitted.
• Letter from Benjamin Franklin to Peter Collinson, The Papers of Benjamin Franklin (May 28, 1754), http://franklinpapers.org .
• John Witherspoon made this point succinctly in a July 30, 1776, debate with Benjamin Franklin: “We all agree that there must and shall be a Confederation, for this War. It will diminish the Glory of our Object, and depreciate our Hope. It will damp the Ardor of the People. The greatest danger We have is of Disunion among ourselves.” Notes of Debates in Congress (1776),  in  1 Classics of American Political and Constitutional Thought: Origins through the Civil War 303 (Scott J. Hammond et al. eds., 2007).
• LaCroix,  supra  note 2, at 128.
• See  Articles of Confederation and Perpetual Union of 1777 (ratified Mar. 1, 1781), http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=127.
• Larry N. Gerston, American Federalism: A Concise Introduction 24 (2007).
• Gaillard Hunt, The Life of James Madison 93–94 (1902).
• U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
• Alison L. LaCroix,  The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology , 28 L. & Hist. Rev. 451, 452 (2010).
• See  U.S. Const. art. I, § 8, cl. 1, 3, 4, 10–13.
• U.S. Const. art. I, § 8, cl. 3.
• See United States v. Lopez , 514 U.S. 549, 553–54 (1995); Randy E. Barnett,  The Original Meaning of the Commerce Clause , 68 U. Chi. L. Rev. 101 (2001).
•   See, e.g. ,  Gonzales v. Raich , 545 U.S. 1, 15–21 (2005) (“Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”).
• U.S. Const. art. I, § 8, cl. 1.
• Robert G. Natelson,  The General Welfare Clause and the Public Trust: An Essay in Original Understanding , 52 U. Kan. L. Rev. 1, 3 (2003).
• Id . at 3–10.
• See infra  p. 28 (discussion of the Patient Protection and Affordable Care Act).
• U.S. Const. art. I, § 8, cl. 18.
• The Federalist No. 9 (Alexander Hamilton).
• The Federalist No. 51 (Alexander Hamilton).
• The Federalist Nos. 26, 31 (Alexander Hamilton).
• The Federalist No. 39 (James Madison).
• The Federalist No. 45 (James Madison).
• Letter from Robert Yates and John Lansing to George Clinton, Governor of New York (Dec. 21, 1787), http://www.constitution.org/afp/yatesltr.htm.
• Letter from Brutus to the Citizens of the State of New York (Oct. 18, 1787), http://www.constitution.org/afp/brutus01.htm.
• Joseph Story, Commentaries on the Constitution 3:§ 1898 (1833), http://press-pubs.uchicago.edu/founders/documents/amendIXs9.html.
•   Id . at § 1900.
• See  U.S. Const. art. VII. The remaining four of the original thirteen states completed ratification of the Constitution by May 29, 1790.
• Gerston,  supra  note 11, at 6 (quoting Leslie Lipson, The Democratic Civilization 143 (1964)).
• Tocqueville,  supra  note 1, at ch. VIII.
• 10 U.S. 87 (1810).
• Id.  at 134.
• 14 U.S. 304 (1816).
• 11 U.S. 603 (1812).
• Martin , 14 U.S. at 323.
• Id.  at 324.
• 17 U.S. 316 (1819).
• Id.  at 421.
•   Id.  at 405–06.
• 22 U.S. 1 (1824).
• U.S. Const. art. I, § 8.
• Gibbons , 22 U.S. at 194.
• Id.  at 210.
• Abraham Lincoln Inaugural Address (Mar. 4, 1861), http://www.abrahamlincolnonline.org/lincoln/speeches/1inaug.htm.
• Letter from Jefferson Davison to the United States Senate (Jan. 21, 1861), http://jeffersondavis.rice.edu/Content.aspx?id=87.
• David B. Walker, The Rebirth of Federalism: Slouching toward Washington 74 (2d ed. 2000).
• New York v. United States , 505 U.S. 144, 181 (1992).
• U.S. Const. amend. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”).
• U.S. Const. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”).
• U.S. Const. amend. XIV.
• 60 U.S. 393 (1857).
• U.S. Const. amend. XIV, § 1.
• See  Note,  Congress’s Power to Define the Privileges and Immunities of Citizenship , 128 Harv. L. Rev. 1206, 1207 (2015) (citations omitted).
• John Harrison,  Reconstructing the Privileges or Immunities Clause , 101 Yale L.J. 1385, 1387 n.5 (1992) (citing Robert H. Bork, The Tempting of America 166 (1989)).
• See, e.g. ,  McDonald v. City of Chicago , 561 U.S. 742, 750 (2010).
• Griswold v. Connecticut , 381 U.S. 479 (1965);  Eisenstadt v. Baird , 405 U.S. 438 (1972).
• Roe v. Wade , 410 U.S. 113, 164 (1973);  Planned Parenthood v. Casey , 505 U.S. 833 (1992).
• Obergefell v. Hodges , 135 S. Ct. 2584 (2015).
• John E. Nowak,  The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments , 75 Colum. L. Rev. 1413, 1457–58 (1975) (citing The Cincinnati Commercial, Oct. 26, 1866, at 2, col. 4).
• Id.  at 1462–63 (citing New York Herald, Oct. 25, 1866, at 6, col. 4).
• 83 U.S. 36 (1872).
• Id.  at 67.
• Id.  at 82.
• 163 U.S. 537 (1896).
• 347 U.S. 483, 495 (1954).
• John D. Buenker,  The Ratification of the Federal Income Tax Amendment , 1 Cato J. 183, 184 (1981).
• 57 U.S. 429 (1895).
• Buenker,  supra  note 78, at 185.
• Roy G. Blakey & Gladys C. Blakey, The Federal Income Tax 70 (The Lawbook Exchange Ltd., 2006) (quoting Richmond Times-Dispatch, Mar. 3, 1910).
• J. Stanley Lemons,  The Sheppard-Towner Act: Progressivism in the 1920s , 55 J. Am. Hist. 776, 776 (1969).
• 32 U.S. 243 (1833).
• Id.  at 249.
• United States v. Cruikshank , 92 U.S. 542 (1875).
• Id.  at 549.
• 268 U.S. 652 (1925).
• Id.  at 666.
• Near v. Minnesota , 283 U.S. 697, 707 (1931) (“It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”).
• Powell v. Alabama , 287 U.S. 45 (1932).
• McDonald v. City of Chicago , 561 U.S. 742 (2010).
• A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495 (1935).
• Walker,  supra  note 57, at 92.
• 301 U.S. 1, 37 (1937).
• 312 U.S. 100 (1941).
• 317 U.S. 111 (1942).
• In 2011, the Supreme Court held that the federal government’s attempt to prosecute a woman who tried to poison her husband’s mistress pursuant to the Chemical Weapons Treaty could be challenged on the grounds that it violated the Tenth Amendment and basic principles of federalism: “States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . . Fidelity to principles of federalism is not for the States alone to vindicate.”  Bond v. United States , 131 S. Ct. 2355, 2364 (2011).
• Neb. Dep’t of Revenue v. Loewenstein , 513 U.S. 123 (1994).
• Perry v. Perez , 132 S. Ct. 934 (2012).
• Rose v. Rose , 481 U.S. 619 (1987).
• 135 S. Ct. 2584 (2015).
• In re Burrus , 136 U.S. 586, 593–94 (1890).
• 388 U.S. 1 (1967).
• 450 U.S. 455 (1981).
• Obergefell , 135 S. Ct. at 2598 (citing  Baker v. Nelson , 409 U.S. 810 (1972)).
• 133 S. Ct. 2675 (2013).
• Id.  at 2683, 2691–92.
• Obergefell , 135 S. Ct. at 2604.
• The dissents in  Obergefell  emphasized the federalism implications of the Court’s decision.  See id.  at 2611 (Roberts, J., dissenting) (“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”);  id.  at 2643 (Alito, J., dissenting) (“The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not . . . . The majority today makes that impossible.”).
• 554 U.S. 570 (2008).
• 561 U.S. 742 (2010).
• 529 U.S. 598 (2000).
• 545 U.S. 1 (2005).
• 132 S. Ct. 2566 (2012).
• In dissent, four justices maintained that the Commerce Clause supplied the necessary Congressional power, emphasizing federalism issues.  See id.  at 2615 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“The Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’ . . . Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable . . . . The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation ‘in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.’”) (citations omitted);  see also id.  at 2609 (“Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm . . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”).
• See Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1594–95 (2015).
• See Northwest, Inc. v. Ginsberg , 134 S. Ct. 1422 (2014).
• See PLIVA, Inc. v. Mensing , 131 S. Ct. 2567 (2011).
• See Arizona v. United States , 132 S. Ct. 2492 (2012).
• See Am. Trucking Ass’ns, Inc. v. City of Los Angeles , 133 S. Ct. 2096 (2013).
• See Kurns v. R.R. Friction Prods. Corp. , 132 S. Ct. 1261 (2012).
•   See Marmet Health Care Ctr., Inc. v. Brown , 132 S. Ct. 1201 (2012).
• See Am. Elec. Power Co. v. Connecticut , 131 S. Ct. 2527 (2011).
• See Rowe v. N.H. Motor Transport Ass’n. , 552 U.S. 364 (2012).
• See Nat’l Meat Ass’n v. Harris , 132 S. Ct. 965 (2012).
• See, e.g., Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1591 (2015) (state antitrust claims arising from natural gas pricing);  CTS Corp. v. Waldburger , 134 S. Ct. 2175 (2014) (state statutes of repose in certain environmental cases);  Chadbourne & Parke LLP v. Troice , 134 S. Ct. 1058 (2013) (state law class action arising from bank certificates of deposit).
• Id.  at 598.
• Id.  at 599.
• Benjamin Kaplan,  A Prefatory Note , 10 B.C. Indus. & Com. L. Rev. 497, 500 (1969).

Also In This Edition

• Table of Contents
• Judicial Honors (Spring 2017)
• A Model Trial Judge: U.S. District Judge Sim Lake
• Cain questions court funding, highlights best practices for proportionality
• Saving Our Profession: It’s Up to Us
• Judicial Excellence after Earl Warren
• Why We Read the Scalia Opinion First
• Rebuild our Courts: State Chief Justices Call for Action to Achieve Civil Justice for All
• Mindfulness and Judging
• #Engage: It’s Time for Judges to Tweet, Like, & Share
• A Speech Code for Lawyers?
• Hold the Parentheticals, Please
• Picking Judges: How Judicial-Selection Methods Affect Diversity in State Appellate Courts
• National Security. Civil Liberties. Can We Have Both?
• Lastly: A Judge Honors the Activist Who Brought Her to Jail
• As I See It: Updates from the Center for Judicial Studies
• Salary by Committee
• Editor’s Note: Relentlessly Relevant

About Lee Rosenthal

Lee Rosenthal is chief judge of the U.S. District Court for the Southern District of Texas. She serves as vice president of the American Law Institute and as a member of the Bolch Judicial Institute Advisory Board.

About Gregory P. Joseph

Gregory P. Joseph, partner at Joseph Hage Aaronson LLC, is a past president of the American College of Trial Lawyers; former chair of the American Bar Association Section of Litigation; and a former member of the Advisory Committee on the Federal Rules of Evidence.

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Advantages And Disadvantages Of Federalism (Essay Sample) 2023

Table of Contents

Advantages And Disadvantages Of Federalism

How Can I Get Essay For Free and Is it realistic to expect a low-cost, High-Quality Essay from a Cheap Paper Writing Service ?

Advantages and Disadvantages of Federalism

Federalism is a system of government in which sovereignty is completely divided constitutionally into a central authority and political units such as states or province. It is also a system where the central government shares the democratic and constitutional right with the province or state, as a result creating federation. Adolf Hitler viewed fidelity as a hindrance to his goals during Nazmas 1933 to 1945.Analytically people who had strongly not support for deisms up to date in South Sudan as an example poses the same fear Hitler had. Chinese did not support deisms since they thought it could act as a backdoor of succession and control of power will be in a central community or state. As a result of this fideism it has brought with it merits and demerits. This essay seeks to describe the significance of federalism as well as the demerits that come with it.

Federalism acts as a tool to protect against tyranny. One of the vital points in undertaking federalism is to act as deterrent to tyranny or runway power. Federalism divides the power between state government and national government and distribution of power to every state of government. Tyranny or runway of power has seen governments collapse but as a hindrance to that federalism helps to prevent such acts. Federalism diffuses the power since the three branches of government will have access to power of which is not in excess.  Excess power in a group or state tends to influence rise in corruption. It increases citizen’s participation. This is archived through the state government which is closer to the citizens compared to the central government. Citizens take crucial part in the implementation of government policy and law making. Federalism also aids in conflict management by allowing different community states to make their own choices in terms of policies creating harmony. Those with strong differences can solve their differences in the state government. Federalism is efficient since by distribution of power it is easy to determine places with different problems. This is an advantage to the national government as power running is efficient. Innovation in policy and law is encouraged since state government can easily apply the policies and those not undertaken can easily be noted. The state government will therefore seek to adjust the policy in order to suit the people in the state.

Federalism has also its drawbacks. Federalism creates inequality between two states of the same country. For instance, education money set aside for the ministry to be used, states can opt to use more per chapter income in education than other states, and this will create in the state disparity. The same applies to other sectors. Another drawback is that elites or the rich in the state will try to proclaim their determination so that they may have a control of resources in the state. Major tribes or majority group in some state will try and build their kingdom and have influence over the state resource. Federalism can lead to tribal difference or conflicts and as a result vengeance and hatred will arise between the two states. With many states in the countries some will have poor policies, while other have good policy, others unresponsive or ineffective and corrupt while others doing well. The difference makes a country not stable.

In conclusion federalism has brought merits and demerits. As power is distributed to the states, one need to note that it has side effects, because it can influence change in people and implement policies, minimizes tyranny, encourages citizen participation in government work or even improve life standards because the government is near the citizens. However the state government should avoid tribal conflicts caused by it, use state resource well and ensure every sector receives equal share to avoid disparity.