Con Law 1.2 – Federalism – National Powers


So last time I introduced the three functions of the US constitution. And now I wanna turn to the first one, federalism, controlling the relationship between the federal government and the states. And I'll begin with the definition. What is federalism? What do lawyers and judges and scholars mean when they refer to the United States as a federal system?

Federalism refers to a system of governance in which two governments, national and state posses legislative jurisdiction. That is to say, power to regulate individual behavior over the same territory. When the constitution was drafted, this arrangement unique to American government. It was a distinctive contribution of the United States to what Alexander Hamilton famously called the science of politics. In other words, I'm speaking to you from North Carolina and my behavior is subject to regulation by both the government of North Carolina and the government of the United States, the United States Congress. Both levels of government have power within their appropriate spheres to regulate my behavior.

Now, this immediately raises a question, why do it this way? Why have two levels of government? Wouldn't it be more efficient to simply have one? And this question can be subdivided into two further questions.

First, why have a national government at all? Why not just leave all regulation to the states? And second, if the national government is so important, why keep the states around? Why not just let the national government in a centralized fashion govern all behavior in the United States? And I'm gonna consider those two sub-questions in turn.

First, why did the framers create a national government with significant powers and the authority to exercise them directly over individuals, as opposed to indirectly through the states? Why not just rely on the states? And this decision by the framers to create a national government with robust power to act directly over individual citizens was the primary accomplishment of the constitutional convention, which met in Philadelphia during the summer of 1787. The federal government under the Articles of Confederation, the nation's first constitution, which was really like a loose treaty relationship among the states. The Articles of Confederation, government had no such power and many national leaders like James Madison, Alexander Hamilton, James Wilson, doubted during the so called critical period of the 1780s, whether such an arrangement was working and could work.

And I'll give you some specific examples and they are reflected in the text of the constitution, rather than the constitution's answer to those problems is reflective in the texts, particularly in article one, section eight, where most of Congress's legislative powers are housed. First, under the Articles of Confederation, Congress had no power to tax and thus little money to spend. One way to destroy a government is to deny it tax revenue, without any tax revenue, it cannot accomplish whatever objectives it may be expected to accomplish.

In 1781, Congress asked the states for $8 million and it received $500,000 in return. In 1786, Congress requested, these were called requisitions, it requisitioned $3.8 million and received a total of $663. Well, if you look at the initial clause of article one, section eight, it gives Congress robust power to lay and collect taxes, to provide for the common defense and general welfare of the United States. The taxing power is listed first in article one, section eight, for a reason. With no ability to tax, Congress had bad credit and thus little ability to borrow money, which will be as critical in the next war as it was during the American revolution. Without any kind of ability to raise tax revenues, Congress was not gonna be receiving loans in European capital markets. Clause two of article one, section eight, just after the taxing power gives Congress the power to borrow money on the credit of the United States.

In addition, Congress had no power to regulate commerce among the several states, interstate trade, and states passed laws disadvantaging goods coming from sister states, they impose tariff barriers and there were trade wars. States interacted with one another in the commercial sphere much the way nation states interact with one another today in the absence of free trade agreements that are respected. Clause three of article one, section eight gave Congress the power among other things to regulate commerce among the several states and Congress used this power over the next couple of centuries to create a unified national market for goods, capital, and labor. Congress created with the help of the federal courts, the largest free trade zone in the world, which goes a long way towards explaining the nation's remarkable economic performance.

Congress had little money and no power to raise and support a national military force to protect the states from foreign powers. As with taxation, Congress was limited to requisitioning the states for their fair share of troops. Also as with taxation, states free road, of the contributions of other states, declining to contribute their fair share. Fear of war was the main reason that the constitution was ratified despite serious misgivings in key states, particularly Virginia and New York. If you look at clauses 11 through 16 of article one, section eight, this gives Congress robust power to raise and support a national military directly without having to rely on the states to contribute their fair share of troops.

Moreover, under the Articles of Confederation, there was no chief executive and no federal judicial power. Thus, there was no way to ensure that the states would comply with federal law, including treaty obligations that the young nation had with other nations and noncompliance with treaty obligations could draw on what was a young and vulnerable nation into war with superior European powers. Article two of the us constitution creates an independent executive headed up by a president, unlike parliamentary systems around the world, the majority party in the legislature doesn't form a government in the United States. Rather, the president is elected independently of the Congress.

Moreover, the constitution creates an article three, an independent judiciary, one not subject to the control of Congress and the executive branch at least once the judges are appointed. And so articles two and three of the constitution in addition to article one helps to ensure that states will actually comply with federal law, that Congress won't simply pass laws that states and private actors can defy with impunity.

Now, these various powers in article one, section eight, have something important in common, protecting the several states from military warfare waged by other nations and from commercial warfare waged by one another are both examples of what social scientists call collective action problems involving multiple states. Collective action problems are problems in which individually rational self-interested behavior leads to collectively irrational results. In other words, during the critical period of the 1780s, the states were acting individually when they needed to act collectively in order to solve a mutual problems because the sculp and nature of the problems transcended state borders.

In sum, the framers created a national government with significant powers and the authority to exercise them directly over individuals because they learn through experience during the 1780s that the States acting individually were incompetent to provide for the common defense and the general welfare, to quote both the preamble of the constitution and the first clause of article one, section eight. In the next segment, we'll switch from this first sub question about federalism to the second, this time from the opposite perspective, if a powerful national government is so important, why not move all governmental power to the national level? Why didn't the framers get rid of the states?

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