A. Considerations that influenced the

formulation and adoption of the Constitution

B. Separation of powers

C. Checks and balances

D. Federalism

E. Theories of democratic government

I. CONSTITUTIONAL UNDERPINNINGS OF UNITED STATES GOVERNMENT 5 – 15%

JUDICIAL REVIEW

The power of the courts to decide the constitutionality of laws and acts of government

Marbury v. Madison

MARBURY V. MADISON (1803)

Established the doctrine of judicial review Article III - judicial powers Chief Justice John Marshall Issue of President John Adams appointing

Federalists and Thomas Jefferson’s Secretary of State James Madison refusing to deliver commissions.

Mr. Adams, the late President of the United States, nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the District of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said President appointing them justices…

FEDERALISMDivision of government powers and functions

between national and state levels of government

FEDERALISM

The powers of government are divided between national and state levels

Results in a dual system of government Each level has some independent powers

THE CONSTITUTIONAL BASIS OF FEDERALISM

FEDERALISM Inherent/Exclusive Powers: Powers given to the national

government because it is the only representative of the entire nation (i.e., war powers)

Delegated/Expressed Powers: Powers written in the Constitution (i.e., power to regulate trade)

Implied Powers: Powers not exactly written in the Constitution - based on the Necessary & Proper Clause

Reserved Powers: Powers of the state government / 10th Amendment (i.e., public schools, marriage laws)

Concurrent Powers: Powers shared by both the national and state levels of government (i.e., power to tax)

FEDERALISM

NATIONALGOVERNMENT

STATE GOVERNMENTS

SHAREDPOWERS

LAYER CAKE VS. MARBLE CAKE FEDERALISM

DUAL FEDERALISM A constitutional theory that

the national government and the state governments each have defined areas of authority, especially over commerce Federal government has

very limited delegate powers

States Rights- states have vast reserved powers not delegated to the federal government

Each entity is sovereign within its own powers

Powers of one can’t encroach on the other

Article 10-US Const Reserved Clause

1ST 150 YEARS OF U.S. HISTORYDUAL FEDERALISM – LAYER

CAKE State Governments: Policies governing the lives

of individuals Property laws, marriage & family laws, education,

criminal laws…

National government: commercial development Land grants, tariffs, currency, transportation… Spared potential conflicts resulting from divisive

decisions

MCCULLOCH V. MARYLAND (1819)

Supremacy ClauseImplied Powers – Necessary & Proper Clause

MCCULLOCH V. MARYLAND (1819)

Upheld the right of implied powers based on the Necessary and Proper Clause and the Supremacy Clause

Called the “Bank of the United States” case involved the Second Bank of the United States and

the State of Maryland Supreme Court landmark case

unanimous decision Chief Justice John Marshall

GIBBONS V. OGDEN (1824) Question of NY’s right to grant a monopoly

to Aaron Ogden on waterways between New York & New Jersey; Thomas Gibbons obtained a license from the federal government.

Supreme Court upholds Gibbon’s right based on Interstate Commerce Clause (Article I, Sec.8)

National supremacy in all matters affecting interstate commerce

SHIFT IN SUPREME COURT DECISIONS

Barron v. Baltimore (1833) State power not subject to the U.S. Bill of Rights Dual citizenship defined separately as national

and state citizens

Dred Scott v. Sandford (1857) Congress could not regulate slave trade in the

territories

STATE VS. NATIONAL POWER 19th Century – efforts by Congress to regulate

commerce ruled unconstitutional Issues..fraud, child labor...(intrastate trade) Supreme Court defines commerce clause as barrier

to Congress interfering with states Plessy v. Ferguson (1896)

Supreme Court upholds segregation laws

Separate but Equal doctrine

STATE VS. NATIONAL POWER Industrial Revolution

Consolidation of great national industrial corporations…U.S. Steele, AT&T, Standard Oil…

Interstate Commerce Act (1887) Created the Interstate Commerce Commission ICC becomes first federal administrative agency

Sherman Antitrust Act (1890) Regulation of monopoly practices

CIVIL WAR (1861-1865)

13th Amendment (1865) Prohibits Slavery

14th Amendment (1868) Due Process & Equal Protections for all citizens Bill of Rights applied to states

15th Amendment (1870) Right to vote for former male slaves

COOPERATIVE FEDERALISM Theory of federalism in

which federal, state, and local governments interact cooperatively and collectively to solve common problems rather than making policies separately. Overlapping state and federal

functions Most federal and state

functions are cooperatively undertaken (highways, schools, hospitals)

Feds and states have shared powers (police, taxes)

Fragmented centers of political power

Article VI- the supremacy clause- the Constitution specifically subordinates state law to federal law

COOPERATIVE FEDERALISM (MARBLE CAKE) FDR – NIXON

Grants-in Aid New Deal programs National Labor Relations Board (NLRB)

v. Jones & Laughlin Steel (1937)Redefines interstate commerce to permit

the national government to regulate local economic & social conditions

Brown v. Board of Education (1954)Segregation ruled unconstitutional

Voting Rights Act (1965) Civil Rights Acts (1964 & 65)

NEW FEDERALISMNIXON - REAGAN

Revenue Sharing Block Grants Criticism of unfunded mandates by national

government Mandates are the “strings” attached to federal money Unfunded mandates are requirements on state & local

governments- but no money

GRANTS-IN-AID

Federal funds provided to states and localities. Typically provided for

airports, highways, education, and major welfare services

INTERGOVERNMENTAL RELATIONS TODAY Federal Grants to State and Local Governments (Figure

3.1)

INTERGOVERNMENTAL RELATIONS TODAY

The Scramble for Federal Dollars $350 billion in grants every year Universalism- a little something for everybody

Fiscal Federalism: The Grant System: Distributing the Federal Pie

Categorical Grants Block Grants Grants are given to states & local governments

CATEGORICAL GRANTS

Federal grants for specific purposes defined by federal law Requires the state or locality to “match” some part

of the federal grant Formula Grants

States and Feds share costs of a proejct Ex. (20% fed-80% state)

Project Grants Money given out to states and localities for a purpose Applied for by state Usually research based- universities, agencies

BLOCK GRANTS Grants of money from the federal government

to states for programs in certain general areas rather than for specific kinds of programs Money to states with few strings attached

Example: 1996 Welfare Reform Act States have broad discretionary powers to use

money as they see fit Favored by Republicans/Conservatives Nixon and Regan: New Federalism

More Power to the states

ADVANTAGES OF FEDERALISM Promotes diverse policies that encourage

experimentation and creative ideas. Provides multiple power centers – makes it

difficult for any one interest group to dominate Keeps government close to the people –

increases opportunities for participation

DISADVANTAGES OF FEDERALISM

Promotes inequality because state resources differ

Enables local interests to delay or halt majority support for a policy

Creates confusion – different levels of government make it difficult for citizens to know what different governments are doing

UNDERSTANDING FEDERALISM

Federalism and the Scope of Government Which level of government is best able to solve

the problem? Which level of government is best able to fund

solutions to the problem?