The Evolution: Dual Federalism to Fiscal Federalism

The limits of Constitutional power and the power of the different spheres of government (national/state) continued to evolve during the early 19th Century. After all, the United States was (and still is to some extent) an experiment in federal democratic republicanism.

Secession & Civil War
  at question: Does a state have the autonomy to decide to withdraw from the Union?
  conclusion/result: No (might makes right); 14th Amendment

Dual Federalism essentially ends with FDR and the New Deal. America then enters a period characterized by what is known as Cooperative Federalism. (state and national government work together on a common problem; i.e.- unemployment)

Cooperative Federalism evolves into what is called (for our purposes) Picket-Fence Federalism by the 1960s. Different levels of government tackle the same problem in their own way while trying to support the efforts of the other levels.

The most influence that the national government has over state governments today comes by the way of what we call fiscal federalism.

Fiscal federalism - taxing, spending, and providing aid within the federal structure

The national government can have an immense amount of influence over what the states do by offering grants-in-aid to the states. (We can just refer to them as grants) This is money that is given to the state by the national government to aid the state governments in doing something.

Grants come in 2 forms: categorical grants or block grants

Categorical grants - money is designated and can only be used for a specific purpose (category)
  Example: Money is provided to the state to assist specifically with bridge repairs/renovations

Block grants - money that is provided for use in a general area
  Example: money is provided to the state to assist with general transportation needs

So the national government just gives away money to state governments? Is the national government the most benevolent institution or what? Well.......no.
As with many gifts, there are strings attached. The strings, we call mandates.

Mandates - conditions of aid
  Things the state has to do in order to receive the grant money
  Examples: Education money & 'No Child Left Behind'; National Drinking Age

Some mandates exist, not so that a state can get aid, but so that the state can continue to receive the aid it already received regularly. These are referred to as unfunded mandates. (comply or else)

Again, it all comes down to money. What is money? (Power) How much of it do you want? (All of it or as much as you can get) So are you willing to comply with some rules and stipulations in order to get it?
Welcome to the world of grants & mandates. Fiscal federalism at its finest.

As you can see, under the current structure of American Federalism, economic conditions/incentives make things happen. This is also true of how the government exercises its influence over the people. The government, through the use and interpretation of the commerce clause, has seen an expansion of power ever since Gibbons v Ogden. That expansion of the commerce clause has become more acute in recent history.

Cases about federalism you may want to consider:
Kelo v New London

United States v Lopez

Defining Interstate Relations and Defining Constitutional Powers

While the Constitution allows a certain amount of autonomy for the states, it also lays out specific rules for how the states must interact with one another as a part of this Union.

Interstate Relations - Article IV
A4 S1 - give full faith and credit to every other state's public acts, records, and judicial proceedings
  full faith & credit clause
As long as the conditions surrounding the record, act, license, etc. are similar between the states, each state is expected to recognize the records, judicial rulings, licenses, of other states (rule of reciprocity)

A4 S2 - extend to every other state's citizens the privileges and immunities of its own citizens
  privileges & immunities clause
A state cannot discriminate against a citizen of another state in the application of law just because they are from another state

A4 S2 - agree to return persons who are fleeing from justice in another state back to their home state
  extradition clause
States must be willing to extradite persons fleeing justice when requested and not knowingly harbor them

Defining Constitutional Power
Since the federal court system has the power to interpret the Constitution (What's that called? Where did it come from?), it stands to reason that they would be the ones to define the limits of Constitutional power when it is in dispute.

McCulloch v Maryland - 1819
  - at question: the necessary & proper clause
  - decision defines: validity of n&p clause; supremacy clause

McCulloch v Maryland: Part 1

McCulloch v Maryland: Part II

Gibbons v Ogden - 1824
  - at question: state power v national power
  - decision defines: extension of commerce clause

Concurrent & Prohibited Powers

Concurrent powers
  powers held at both levels of government as a matter of fact; not necessarily due to enumeration

The Constitution, while being very gray at times, is also a very logical document. It is structured as a basic outline of government and its powers. It stands to reason then, that if Article I Section 8 were to list the powers of the Congress, that Article I Section 9 lists the powers that are denied to Congress. 

In short hand form:

AI S9 C1 - slave trade cannot be abolished before 1808

AI S9 C2 - writ of habeas corpus shall not be suspended (unless in times of rebellion)

AI S9 C3 - no bill of attainder or ex post facto laws allowed

AI S9 C4 - no direct tax shall be laid (direct tax on the people)

AI S9 C5 - no export tariffs

AI S9 C6 - no preference given to certain states/ports regarding tariffs

AI S9 C7 - no shady money dealings Congress

AI S9 C8 - no giving of titles of nobility; no accepting titles of nobility

Dual Federalism & the Separation of Powers

So, federalism establishes a model in which the national government has its power but the states have some level autonomy to do what they wish, right?

Perhaps it is not that easy and clean. The Constitution does not clearly lay out the parameters for this system of dual federalism. It enumerates some powers for the national government and reserves some for the states.

 - Enumerated powers (aka - delegated powers): those powers specifically given to the national government in the Constitution

 - Reserved powers: those powers reserved for the states (see Amendment X)

 - Inherent powers: those powers not spoken of but which are, by their nature, powers of a national government

This will leave us with what?

Instead of being totally confused by the federal system (marble cake style) let's try and figure out who does what?

Article I Section 8 of the Constitution pretty clearly lays out what the Congress can do in Clauses 1-18

"The Congress shall have the power to...."

AI S8 C1 - levy taxes

A1 S8 C2 - borrow money

A1 S8 C3 - regulate commerce (Ahh, the commerce clause. This will be important later on.)

........

A1 S8 C11 - declare war

A1 S8 C12 - raise an army

A1 S8 C13 - raise a navy

........

A1 S8 C18 - "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof."

         (This is the coup de grace. This is what is known as the 'necessary and proper' clause)

 The 'necessary & proper' clause gives Congress what we call implied powers. The are not enumerated anywhere, but can be implied by a reading of the Constitution. 

Contrast that with the 10th Amendment.

Brook Lopez just had the inherent contradiction
in the Constitution explained to him during a timeout.

Will someone please give us a sign! Tell us, what are we to do if ever the national government's laws and a state government's laws contradict!

A6 C2 - The Supremacy Clause

"The Constitution, and laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

But wait....there's more.

Since Article 1 Section 8 tells you everything Congress can do, they included Article 1 Section 9 to spell out what Congress cannot do.

Does your brain hurt yet? More to come.....

Federalism: A Love Story

The United States operates under a governmental model known as federalism. It is not the only type of government model however.

3 main systems of governmental distribution of power
- unitary systems
- confederal systems
- federal systems

The United States, under the Constitution, operates under a model we call dual federalism.

This would, in Madison's mind, be the best way to ensure the protection of liberty and preservation of the nation in his new republic. One of the reasons it would do so is because it would allow the states a certain amount of autonomy. Therefore, various political subcultures would develop in the individual states that was more reflective of the people of that state than of the nation as a whole.

Note what Madison said about this in Federalist No.51. Its in the back of your book. There is also an excerpt on p.90 of the text.

In essence, this autonomy allows the states to serve as 'laboratories of democracy'. Google that term and see what comes up.