Federalism explained Top; Next Down
Federalism is an inherent part of the American political system but isn't well understood by the American people or by my students at start of this class. My mission is to correct that, and to offer a firm forecast that federalism is with us to stay.
Any federal state has one central government and several provincial (or state) governments, each with a constitution of its own that confers powers and duties upon that entity. In North America the three major nation-states of U.S., Canada, and Mexico, are all federal. You can readily see that on political maps of each, as they show the Canadian provinces and the American and Mexican states by name with territorial demarcations. No such condition attends most nation-states of the world, as few of them are federal. Our nation's preeminent mother country of Great Britain has no provinces despite the recognized distinct realms of Brittany, Wales, and Scotland (and I may have omitted one or two). Likewise, France has recognized regions known for their wine--Bordeaux, for instance--but these are not federal provinces. Germany, however, does have states; and when East Germany vanished for good, its states joined the FRG (Federal Republic of Germany). Russia does, Brazil does, India does, Australia does; but other large countries China and Indonesia do not.
American federalism is not well understood by students. The American Council on Intergovernmental Relations formerly published a Federalism Education Project to overcome that. It asked: "How many people know ... that States are the only independent sovereign entities besides the Federal government? That all local and special purpose governments within States are the creatures of the States and can, at least in theory, be eliminated by those States at will?" Both ACIR claims are affirmed in your text; but few students come to me already knowing these things. There's more. Many students believe that federalism is a necessary precondition for American democracy; and many believe that it's essential to our distinctive separation-of-powers scheme with three distinct branches written into our 51 national and state constitutions. Neither of those beliefs is accurate.
Let's take the second part first, and consider why federalism isn't necessary for either democracy or for separation-of-powers. A simple way to recognize how federalism came to America is to examine the 1787 document. The very word "states" appears repeatedly in the Constitution of the United States. The entirety of Article IV (FindLaw U.S. Constitution Article IV; LII Constitution - Article IV) addresses ways for states to deal with each other. And Article VI (LII Constitution - Article VI) caps it with the famous supremacy clause (see The Supremacy Clause and Federal Preemption. No sooner had Chief Justice John Marshall and his Supreme Court colleagues arrogated judicial review unto their Court than the landmark 1819 McCulloch v. Maryland case rendered judgment that the U.S. Constitution and laws and treaties made under it was "the supreme Law of the Land" and "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Nullification advocates like John Calhoun could stick that in their pipes and smoke it; for this told the southern slave-holding states that either the Constitution or national law might one day be amended to outlaw their "peculiar institution" of enslaving other human beings.
Supremacy now means that direct collisions of state and national law are resolved for the latter so long as that national law is itself constitutional (as determined by the Court). In 1974 the U.S. Congress passed a law setting an upper limit of 55 miles per hour on all roads, including freeways in the State of Missouri or in my State of Texas--even though previous state laws plus near-universal driver practice had vehicles whizzing along lawfully at 70 mph on our German-styled autobahns. This national law was flouted early and often during its 22-year tenure before repeal in 1996, but it was indisputably the law even in wide open desert Nevada, which previously had no specific speed limit state law at all. Since repeal, incidentally, the maximum posted speed limits have reverted to state laws, allowing for resumption of variations; and these exist, yet state-to-state communication, auto and truck insurance practices, published accident studies, and demands for interstate coordination from trucking and auto associations, have now produced 50 state law regimes of nearly uniform character in 2006 (Insurance Institute for Highway Safety, Speed limits by state).
The larger meaning here is that state autonomy is considerable but not universal. Many a battle is fought over respective boundaries of that power. I leave those details to the text but can advise on some good website sources for more about devolution and such.
Now how does this separate federalism from separation-of-powers and from democracy? Let's consider the Missouri Constitution for a minute; or try any of the other 49 state's basic law (from FindLaw State Resources State Constitutions, or U.S. State Constitutions and Web Sites). Once you cut through them you find something missing compared to our federal document. That missing element is separate constitutional status for our 87,000 cities, towns, hamlets, parishes, counties, school districts, special districts, port authorities, or any other local governmental entities. This is Dillon's rule (aka Dillon's law; Lang 1991, Dillon's Rule ... and the Birth of Home Rule): local governments are entirely "creatures of the state" subject to the state's constitution. The fact that most cities have home rule (self-governing) charters is no counterpoint to this, for those charters are granted by states, and can be revoked or altered there. No such thing attends state constitutions confronted with federal constitutional authority. When we in the State of Missouri foolishly decided to limit the terms of our General Assembly legislators in 1992, we did it by voting in an amendment to our state constitution. We did not seek permission from Washington D.C.
In short, we have two separate levels of government with constitutions, not three. States are unitary rather than federal; and their constitutions as much as say this (if you know where to look; and you can do that on your own time). France and Britain are unitary, with no states, but lots of local or provincial governments. These gain their powers from Paris or London and are customarily called "creatures of the nation." America has such a city itself: the District of Columbia, part of no state, but possessed since 1967 of its own home-rule governing charter granted to it from the federal authorities. Canada and Australia and Brazil, all large federal countries, also have such separate capitol districts.
As for separation of powers, that's featured in both our national and state constitutions via Articles specifying three branches, bicameral legislatures (except in Nebraska), and so forth. The federated nation has separation of powers; and so do the 50 non-federated states. Ergo: you can have separation of powers with or without federalism. Taken the other way round, remember that I said Australia and Canada are federal (on Canada, see cric.ca - Canada's Portal - Quick Guide - Federalism). But they also create parliamentary governments rather than separation-of-powers. Like the British "mother of parliaments," this scheme vests all formal power of government in the parliament. Separation doesn't exist. With Canadian federalism, each Province has its own parliament (and if you visit Quebec City, I recommend a stop-by at their fine hilltop citadel).
And now on democracy with federalism: you can have both, or either, or neither. Brazil is now federal and democratic, but once was federal and ruled by military junta. Nigeria is federal but has been afflicted with a succession of undemocratic rulers. Russia is federal today, but can hardly be considered an example of real democracy at work during this Putin regime. Nothing about federalism inherently tells us that governments cannot choose rule over governing, or cannot abuse fundamental rights, or cannot shut off fair and competitive elections.
There's a simple historical answer to this one: the states came first. It's true that 13 states preceded the Nation into existence via the prior Articles of Confederation; and those Articles established workable provisions for still more via the 1787 Northwest Ordinance. The Framers were eminently practical men. Even nationalist Alexander Hamilton understood that ratification of the Constitution would be impossible via assent of 9 among 13 states if the document even hinted at abolition of those states. The original American choice was confederation without much national government, or federation via ratifying our Constitution.
But that was in the Federalist Papers ratification campaign period of late 1787 through year 1788 (The Federalist Papers - THOMAS (Library of Congress). Some 218 years have passed, and America is still entirely a federal system. We weathered eighty years of repeated southern assertion of the right to secede the union, a great war that settled it otherwise, and almost seven more human generations since then. Why after so long is America still a federal system? Surely we have held opportunity to go unitary.
I think there are excellent reasons why this particular country is federal. It has rather little to do with our distant origins with states first. After all, we had slavery for a very long time, yet got shed of it finally and will not return there again.
The real reason lies in the Madisonian combination of size and diversity. When you look over Madison's Federalist 10 or even my meager explanation of it (Madison and Federalism), certain things jump out. One is that Madison saw positive gain from having many factions rather than a few, since it's so much harder for one faction to rule everyone. But don't forget either that Madison was a foresighted nationalist who understood the necessity of 13 or 50 states all pulling together when necessary. That imperative is what makes federalism so valuable, for it reconciles separate states and peoples to all live under a big roof. The bigger that roof, the greater the resources, manpower, land, and other assets to employ toward creating common-market prosperity and conducting major military and diplomatic actions. Great size and population confer giant strategic advantages on any country that figures out how to pull that off while avoiding civil wars within.
The serious price for this size and diversity is internal strife. That can destroy countries and lead to genocides, as our just-done nasty 20th century should tell us. We ought not be so historically smug, considering that our 1861-1865 Civil War killed the equivalent of 5 million persons by proportion to today's population. But we survived that with states intact, and still today allow internal tensions to filter through more than one level of government. Southerners facing civil war in their terrain, and a century later a federal campaign to extinguish tyranny toward black citizens, have understandably seen Washington D.C. as home of a foreign empire bent on changing the south to the nation's purposes. Aye; but now that south enjoys nearly full measure of the benefits of such great size and wealth. Would those on the Gulf Coast in 2006 forego hurricane assistance from the nation at large? Would they shut themselves off from tapping a nationwide labor market to find teachers, lawyers, accountants, engineers, and fruit pickers? I rather doubt that. Some strife is the price for having a giant common market and world power status in the 21st century.