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Federalism

The Constitutional Basis of Federalism

Overview

History of Federalism

The U.S. Constitution does not use the term federalism, nor does it provide extensive details about the federal system. Nevertheless, the framers helped created a federalist system in the United States, particularly in the ways the Constitution allocates power.

The National Government

Article VI of the Constitution declares that the Constitution and any laws passed under it form the “supreme Law of the Land” in a passage called the supremacy clause. This clause implies that the national government has authority over the state governments.

The Constitution grants the national government several different kinds of powers and prohibits it from taking certain actions. The Constitution outlines four major types of power: enumerated, implied, inherent, and prohibited.

 
THE NATIONAL GOVERNMENT’S POWERS

Type

Key Clause

Explanation

Examples

Enumerated (expressed) Article I, Section 8 Powers explicitly granted to Congress Declare war, coin money, levy taxes, regulate interstate commerce
Implied Necessary and proper (Article I, Section 8) Powers that Congress has assumed in order to better do its job Regulate telecommunications, build interstate highways
Inherent Preamble Powers inherent to a sovereign nation Defend itself from foreign and domestic enemies
Prohibited Article I, Section 9 Powers prohibited to the national government Suspend the writ of habeas corpus, tax exports
Enumerated Powers

In Article I, Section 8, the Constitution specifically grants Congress a number of different powers, now known as the enumerated powers. The enumerated powers include the power to declare war, coin money, and regulate interstate commerce. Because these powers are expressly stated in the Constitution, political scientists sometimes also refer to them as expressed powers.

Implied Powers

The national government is not limited to the enumerated powers. At the end of Article I, Section 8, the Constitution also grants Congress the power to do anything “necessary and proper” to carry out its duties. This clause is known as the necessary and proper clause or the elastic clause because of its mutability. Because the powers bestowed by this clause are implied rather than stated, they also are known as implied powers.

Example: The Constitution does not specifically grant Congress the power to regulate telecommunications because such technology did not exist at the time of the founding. But according to the Constitution, Congress has the power to regulate interstate commerce. Regulating telecommunications is considered necessary for Congress to properly regulate interstate commerce, and so Congress has since assumed this power.

Inherent Powers

The preamble to the Constitution lays out the basic purposes of the United States government: to provide for the welfare of its citizens and to defend against external enemies. Because the federal government is sovereign, it also has certain powers called inherent powers, which are necessary to protect its citizens and defend its right to exist. The primary inherent power is self-preservation: A state has the right to defend itself from foreign and domestic enemies.

Prohibited Powers

The Constitution also explicitly denies the national government certain powers. For example, Congress cannot tax exports or tell states how to choose electors for the Electoral College. The powers denied to the national government are called the prohibited powers.

The State Governments

The Constitution also grants state governments some key powers, including the right to determine how to choose delegates to the Electoral College. States also have a great deal of latitude to write their own constitutions and pass their own laws. All state governments have three branches (paralleling the national government), although the powers granted to the branches differ in each state. In some states, for example, the governor has a great deal of power, whereas in others, his or her power is severely limited. States also use a variety of methods to choose judges.

The vast expanse of the national government has led some to conclude that state governments are of secondary importance. In 1941, for example, Supreme Court justice Harlan Stone remarked that the Tenth Amendment (which reserves powers to the states) had no real meaning. State governments, however, are still vital political actors, and they have adapted to new roles and new circumstances. At the start of the twenty-first century, many states have reasserted their strength and taken a larger role in homeland security, economics, and environmental policy.

Reserved Powers

The Tenth Amendment states that the powers not granted to the national government, and not prohibited to state governments, are “reserved to the States.” Political scientists call this the reservation clause, and the powers that states derive from this clause are known as the reserved powers.

The Full Faith and Credit Clause

The full faith and credit clause (found in Article IV of the Constitution) both establishes and limits state powers. It declares that state governments must respect the laws and decisions of other state governments, such as driver licenses and marriage certificates issued by other states. To some extent, then, the clause expands state power: A state’s decision is binding on other states. At the same time, the clause limits state power by forcing the states to honor one another’s laws.

Local Governments

Although the Constitution mentions state governments and grants them some specific powers, it does not mention local governments at all. Courts have interpreted this omission to mean that local governments are entirely under the authority of state governments and that a state can create and abolish local governments as it sees fit.

Types of Local Government

States have created a multitude of types of local government. In fact, there are approximately 84,000 local governments in the United States. Each state has the power to define local government in any way it wants, allocating different types and degrees of power and responsibility. For a local government to have power, it must be granted a charter by the state, specifying its powers and responsibilities.

Most states grant some degree of autonomy to local governments. This autonomy is known as home rule: a promise by the state government to refrain from interfering in local issues. State governments give up this power because local governments with substantial autonomy can often manage local affairs better than the state government could. Ultimately, however, the state can still take power away from local governments, even those with home rule.

Some states have a complicated patchwork of town governments, with villages, townships, counties, and cities all having different powers. The most common—and probably the least known—type of local government is called a special district, a local government created to deal with a single issue or problem. Special districts frequently overlap with other types of local government, and the range of powers they possess varies greatly. Control of special districts also varies greatly: Some have elected leadership, whereas others have leaders appointed by the governor or legislature.

Example: Special districts are the most numerous type of government in the United States—totaling more than 39,000 across the country. They are also the most diverse. In some states, boards of education are special districts. Most states also have very specialized districts, such as water reclamation districts, boards to oversee public universities, and economic development districts. In some states, many of these districts have elected leaders. In Illinois, for example, citizens vote for dozens of local governments. Some special districts have the power to borrow money and oversee major construction projects (such as bridges, landfills, and treatment plants).

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