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American Government
Azusa Pacific University
Mr. Jonathon Pyles
September 21, 2004
"Fedearlism"

I.   Federalism Defined
A.   Modern: "Federalism refers to a political system in which local (territorial, regional, provincial, state, or municipal) units of government, as well as a national government, make final decisions on at least some governmental activities and whose existence is specifically protected." (Wilson, p. 35)
B.   Original: "The proposed Constitution, therefore, É is, in strictness, neither a national nor a federal Constitution, but a composition of both." (Federalist No. 39)
1.   Originally, federalism was not a political theory. It was not in the vocabulary of political science
2.   "this means we now deem as a unique principle what The Federalist regarded as a mere compound." (Diamond, p. 110)
II.   Where does federalism come from?
A.   Intentional View – "The general intention of the Framers seems clear: federalism was a device to protect personal liberty." (Wilson p. 38)
B.   Accidental View – Federalism was born out of the unique situation in which the people of thirteen independent States wanted to have a national union without giving up their state governments, both because of their fear of a tyrannical national government and because of their attachment to their native states
1.   Solution: the best of both worlds
2.   Theory: Give to the federal government all powers necessary for it to accomplish the goals of Union, and reserve all other powers to the States (or the people)
3.   Practice: "The power 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." (Constitution, Article X)
C.   From Accident to Inspiration – "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 is subdivided among distinct 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." (Federalist No. 51)
III.   The Federal Balance
A.   How is balance between the States and the National Government going to be maintained
B.   Publius on Fuderalism
1.   Publius sought to defend the Constitution, which required, most of all, that he allay the concerns that the national government might tyrannize over the people and the States
C.   The three guardians of the federal balance
1.   Formal guardians of the Constitution: the national government, especially the courts
2.   Natural guardians of the Constitution: the people
3.   Third guardians: the state governments
D.   "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." (Fed. No. 39)
E.   What if the national government tries to overstep its constitutional boundaries?
1.   "An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authorityÉ the success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and voidÉ If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest." (Fed. No. 16)
2.   But it may be again asked, Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union?" (Fed. No. 33)
3.   "I answerÉthat the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, mustÉtake such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify." (Fed. No. 33)
4.   "If the American Constitution were the only guarantee of the independence of the American states, the states would long since have become mere administrative subunits of the government in Washington. Their independence depends in large measure on the commitment of Americans to the idea of local self-government and on the fact that Congress consists of people who are selected by and responsive to local constituencies." (Wilson, p. 35)
5.   But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community." (Fed. No. 78)
F.   The Commerce Clause
1.   "The congress shall have power É to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes." (Constitution, Article 1, Section 8)
2.   Federal legislation enacted under commerce clause authority
a.   Civil Rights laws
b.   Environmental laws
c.   Gun Control laws
d.   Drug laws
3.   Substantial effects – We have said that Congress may regulate not only "CommerceÉamong the several States," but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life. (Justice Clarence Thomas, U.S. v. Lopez (1995))
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