Federalism PowerPointWord Lecture NotesN
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Federalism PowerPointWord Lecture NotesN

This lecture is going to be on
federalism, which is the form of government that we have
in these United States. Federalism is defined as the
sharing of power between a national and regional
governments. Before the United States came
into being, this form of government did not even exist. This is unique to us. Even though governments today
have this, we were the first. Other systems of government. Unitary systems are systems of
government in which the power is concentrated in one place
in the central government. Federal systems, on the other
hand, are systems of government in which the central
government is very weak and most of the power is
in the regional governments. Now, why do we have
a federal system? Well, the federal systems– the founding fathers, I should
say, were suspicious of power. They had just fought a war. They didn’t want to centralize
the government again. This was seen as a problem. And so they were wanting
to divide the power to preserve liberty. And the way they thought they
could preserve this liberty was to make it so the
power was not concentrated in one place. So here’s your definition of
federalism when you need are asked to give it– a system of government that
divides power between a national government and
regional governments. In our country, we call these
regional governments states. In other countries, they may
be called something else. Now, we have two different
theories of federalism, the national theory and the
compact theory. The national theory says
our government was created by the people– of the people, by the people,
for the people. This theory has been used to
support the expansion of the powers of the national
government, especially in the last century. The compact theory, on the other
hand, says the federal government was brought into
existence not by the people but by the regional governments,
by a compact among the sovereign states. And when you think about it, the
colonies did come together and create the United
States of America. Ronald Reagan has a famous quote
in which he says “The federal government did not
create the states, the states created the federal
government.” So where is this balance
between state power and central power? Well, this will define where
you are on the balance beam when you think about that. Those who are on the right,
and we call conservatives, Republicans, conservative
Republicans, depending on how far to the right they
are, are strong believers in states’ rights. They believe that the states
should have more rights, and that the power should be located
at that end of the balance beam. Those on the left we call
liberals or Democrats, and they believe in a strong
national government. And they would like to see the
balance of the power of government located more in the
center and in the national government. So this is where we come up with
the political parties and where they are. And you’ll know that they’re
pretty consistent in their arguments about where power
should be located. Now, how does the Constitution
interact with this idea of federalism? Well, in the Constitution, we
talk about vertical federalism in which we are talking about
what we were just talking about, the relationship between
the federal government and the states. Where is the power? Where should the power
be located? Horizontal federalism, on the
other hand, talks about the relationship of the states
with each other. And a good example of this is
the full faith and credit clause in the Constitution,
which says we accept each other’s public acts,
such as marriage and divorce, et cetera. And you get married in one
state, you’re married in another state. And that is all well and good. Now, we have this issue of
gay marriage coming up. And so a lot of people, myself
included, kind of wonder how this is going to affect this. How can you be married, say,
in Vermont, and you move to California and you’re
no longer married? Is this a problem? That’s going to be for
you to answer. Here, again, this is one of the
things that happens with federalism. We sometimes have these
conflicting laws between the states. And frequently, it’s up to the
federal government to decide then what it is. I don’t know where this
is going to lead. But we will just have
to wait and see. Privileges and immunities. Citizens have the same
rights no matter what state they reside in. So we have this overarching
thing that makes us a citizen of the United States. And then we live in these
regional governments that sometimes disagree
with each other. The supremacy clause in the
Constitution: Article VI, Paragraph 2 states, “This
Constitution, and the laws of the United States, under the
authority of the United States, shall be the supreme
law of the land. And the judges in every state
shall be bond thereby.” In other words, whenever state
and federal laws conflict, the federal law is supreme. This is going to be interesting
in California if we pass the medical marijuana
law– or the marijuana, not medical marijuana. The marijuana law, and legalize
marijuana, which a lot of people in this
state want to do. So far, it hasn’t happened. It has failed. But one of these days
it just might pass. Well, it’s against the federal
law to use and dispense and sell marijuana. So what are we going to do when
California has a law that says marijuana is legal, the
federal government has a law that says marijuana
is not legal? This, again, will probably
be in the courts. And remember, we said in the
initial lecture, usually the law’s policy is determined
by your legislature. Sometimes it’s decided
by the courts. And this may be one of those
examples where our policy will be determined by the court. Here’s the hierarchy
of authority. Who has the power? At the top of a list,
of course, is the US Constitution. Underneath it, you can see the
laws and treaties, then Supreme Court decisions,
administrative regulations– that’s the bureaucracy. When we get to the bureaucracy,
we’ll talk about how they make some laws. Then we have the state
constitution, state laws, state Supreme Court decisions,
state appellate court decision, state administrative
regulations, and then local ordinances. So there’s your hierarchy of
who has the final word on a given law or policy. Powers of the separate
governments. Now, the Constitution is a
beautifully written document. I hope some day you take
the time to read it. It does not take that
long to read. It is laid out beautifully, and
you can find Section 8 of Article I of the Constitution
give some pretty specific items about who has
the power to legislate and to make policy. And they make these distinctions
based on five different types of powers– delegated powers, reserved
powers, implied powers, prohibited, and concurrent. Delegated or expressed powers. Delegated powers are also
known as expressed or enumerated powers. These are the powers that are
granted to and exercised only by the national government. These include the power to coin
money, power to enter into treaties with foreign
governments, the power to regulate commerce with other
nations, and also between the states; to provide for the
common defense and general welfare, and to declare war. Reserved powers. Reserved powers, in the 10th
Amendment it says, “The power not delegated to the United
States by the Constitution, nor prohibited to it by the
States, are reserved to the States or to the people.” These powers would include
voting, public education, police powers, criminal laws,
and the right to regulate commerce within the state. In other words, intrastate
commerce. Some people have a lot
a problem with this. If states have the policymaking
power of public education, then a lot of people
want to know, why do we have a federal Department
of Education? What are they there for? Why do they have any power, and
why should they be telling the States what to do? Voting. We saw what happened
in the election. You guys are probably too young
to remember it, or some of you are. But in 2000, when Bush,
Bush 2, and Al Gore were in the election. And the election actually had to
go to the Supreme Court to determine who had won that. Well, if Florida makes up
Florida’s laws and this is a national election, if the voting
laws are determined by Florida, why was it that the
Supreme Court of the United States could override the
decision of the Supreme Court of Florida? All of these things show that,
yes, this policy is out there. But it kind of gets muddy
once you step into it. Implied powers. In 1819, McCulloch v. Maryland,
a very famous case, the state of Maryland. The national bank was located
in the state of Maryland. And Maryland needed revenue, so
they decided they wanted to tax the federal bank. The Supreme Court Justice at
the time was Chief Justice John Marshall. He was our first Supreme Court
Justice, and a very powerful man, and a believer in the
national theory of federalism. And he enacted this, or he
referred to the “necessary and proper” clause in Article 1 of
the Constitution and said we have to have a federal bank in
order to carry out the duties of the national government. Therefore, this is
an implied power. Just because it wasn’t given
in so many words in the Constitution doesn’t mean
that it isn’t a power. So implied powers are those
powers of the national government that flow from
those powers that are enumerated. Prohibited powers. Those are powers that either
the state government or the federal government, or both
of them, cannot do. For example, state governments
are prohibited from coining money. Only the federal government
can coin money. Neither the federal nor the
state can pass what’s called ex post facto laws. Those are laws after the fact. If it’s legal to do something
today and they pass a law against it tomorrow, you cannot
be held accountable or held delinquent because you
did something prior to it becoming a law. No titles of nobility. Unlike England, we don’t have
our celebrities being knighted and stuff like that. We don’t have earls,
et cetera. That is written into the
Constitution that there are no titles of nobility. Concurrent powers are those
that are exercised independently by both the
national and the state governments. These would include the power
to tax, the power to borrow money, and the power to regulate
commerce within their own borders. This power to regulate commerce
between the States, interstate commerce regulation,
came about because of Gibbons v. Ogden in 1824. This is a Supreme Court case
that dealt with New York and New Jersey, and a waterway
between them, and who actually had the power to regulate
that commerce. The Supreme Court at that time
stepped in and said that they were the ones that
had the power. Pros and cons of federalism. Federalism permits diversity
and diffusion of power. There’s lots of access points
for us, as citizens, to participate in decision-making
in a democracy when we can participate at the state level,
as well as at the national level. There is, of course, less chance
that individual rights will be abused because
power is not concentrated in one place. Avenues for innovation. What this means is that the
50 states act like 50 laboratories of innovation. One state may have
a good idea. It gets picked up by another
state and another state, and maybe even by the federal
government. There is more than one way to
solve individual problems. And finally, it suits a large
country with a very diverse population. And we are large and diverse. Some of the cons of federalism
is it has permitted discrimination, racial
discrimination, in the South especially. Up through the ’50s and the
’60s, we had a lot. And we will talk in-depth about
that when we get to the chapter dealing with
civil rights. Special interests and certain
localities can frustrate national goals by becoming
a block of protest in a certain policy. Local communities may
lack the expertise. It seems like a lot of the
really great talent floats to the federal government. And sometimes, local communities
don’t have as much expertise as they need to
handle the problems. And law enforcement and justice may be unevenly applied. We can look at the death
penalty laws. When we look at the death
penalty laws, for instance, in New York, if you commit murder,
they do not have a death penalty. In California, we do have
the death penalty. In Texas, they also have
the death penalty. And people actually die. They are much more
likely to die. Some people say that
this is a problem because it’s not equitable. Talk a little bit about the
historical evolution of federalism. As I said, the constitution
was written in 1787 and signed in 1789. Over the years, the 200-plus
years since the American federal system come into
being, it has changed. The three major phases are
the conflict phase, the cooperative phase, and
new federalism. The conflict phase of federalism
lasted from 1789 until the 1930s. The cooperative phase lasted
from 1930s until 1979. And new federalism from 1980
until the present time, although some people
would say we’re actually in another phase. The conflict phase of federalism
began with the founding of the country and
lasted until the Great Depression. At this time, the country was
interested in defining its boundaries. And I don’t mean their
geographical boundaries, but where should the power be? How much power should the
federal government have? How much power should the
state government have? And so there was this
constant conflict. McCulloch v. Maryland
was one of the examples I gave you earlier. Dillon’s Rule has to do with
local governments and what power they have. And according to Judge John
Dillon, local governments really don’t have any power,
except the power that was given to them by the
individual states. The city of Riverside has
certain powers, but they only have the powers that have been
expressly given to them by California, the state
of California. So within this period of time up
until the 1930s, these were the major questions
that were coming before the Supreme Court. What happened, of course, when
we had the Civil War? The Civil War was really a lot
about– it was certainly about slavery, but it was also
about federalism. Who had the power? The South said, we don’t want
to live here anymore. And the North said, well, you’re
going to live here. Look at the name that the
South gave to them self. It was the Confederate Army. They wanted a Confederate
form of government. They wanted to go back to that
old way of deciding things. And the North, of course,
was the Union. And this was major. Then the Great Depression came
and, all of a sudden, the States were confronted with
things they could not handle. The cooperative phase of
federalism came in because of the Great Depression and
the Second World War. These are major crises
for our country– economic distress, international
threat. And during this period of
federalism, from the 1930s up through the 1970s, you saw the
balance of federalism move more and more to the center,
to the central government I should say– more to the left
and to the central government. Where people were interested
in, what can the national government do for me? The Great Depression showed us
that the States could not operate on their own. And of course, the Second
World War was a great centralizing force as well. After that, we had the
civil rights issues. We had the States, as I
mentioned before, abusing their power with racial
discrimination. And the federal government
had to step in again. And, of course, it stepped in
again with the war on poverty. Part of this cooperative phase,
it contains another phase that’s in your textbook
called the creative phase. And this was under
Lyndon Johnson. Lyndon Johnson gave this name
to federalism under his term in office in which he was
pouring lots of money into local and state governments
for his war on poverty. And the new federalism is
the one that came in under Ronald Reagan. The new federalism is a reversal
of this movement to the left that had come about
from the 1930s to the 1970s. And this one is characterized
by more of an emphasis on states’ rights, and states doing
things for themselves. Federal aid is cut and we have
what’s called devolution. And devolution means moving responsibility back to the states. And the way to do this is to
say, you know what, states? You are responsible
for yourself. We are not going to be
giving you the money. You decide how you want to spend
your own money and what policies you’re going to have. And this also was followed with
forced compliance with mandates for national
policy objectives. One example of these mandates
would be the legal age for alcohol. Legal age for alcohol
consumption in this country is 21. Now, the reason this is a
legal age across all 50 states, it used to be, a long
time ago, every state decided what the legal age
for drinking was. Well, the national government
said, you know what? If you want to have money for
your roads, if you want to have transportation funding,
this is what you will put into place. That’s called a mandate. And so that’s why every state
has the legal age of 21 now for alcohol consumption, so that
they are eligible to get funds from the Department of
Transportation to maintain their roads. Now we are in a phase, some
people call it ad hoc federalism. It seems sometimes to be
state-centered and sometimes to be nation-centered. It depends on your political
or partisan convenience. For example, No Child
Left Behind. This was under Bush. Bush was pretty much a states’
rights person– president. And yet, he was– the No Child Left Behind was a
national policy for education. Some people say he should have
just left it all alone. After September 11, 2001, which
we’re coming up on the 10th anniversary of, this is
one of those great crises, sort of like the Civil War and
the Great Depression, where the war on terror cannot be
fought by individual states. It’s going to take the national
government and the state governments
both to do this. One thing now, of course, we
have the Great Recession. I have the dates listed
here as 2008 to 2009. Here it is 2011, and
we are still pretty much in the recession. I don’t know if we are
technically in a recession still, but we are certainly
in bad economic straights. And this, again, makes the
states more dependent on the federal government. And so the results of this
economic recession is going to be more and more dependence
on the federal government.

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