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American Federalism
Russell D. Renka
PS103 - February 4, 2009

Federalism explained
Why America is federal
Works Cited

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.

    The seminal thinker on American federalism is William Riker (now deceased).  His 1964 classic Federalism: Origin, Operation, Significance, stipulates that all federal systems contain three common elements:  1) two separate levels of government in one country, with each level having powers anchored in its own constitution; 2) the ability of each level to sustain itself through taxation derived from its own constitution, and not from permission by the other level of government; and 3) control of the choice of its own public officials.  This applies to the U.S. and equally to other federal nations, including our close northern neighbor Canada (Why Canada has a federal system of government - About Canadian Federalism - AIA).  So you are jointly a citizen of both United States and the State of Missouri (or another state).  Neighboring Canadians are jointly citizens of their nation and one province.

     This isn't a formula for genteel leave-each-other-alone coexistence.  It pits a central government's political leaders against those of the states in a tug of war for power.  It's true that the U.S. Constitution and those of the 50 states specify division lines in power, but politicians still have license to expand their own powers by entering deals or bargains with other politicians.  Please remember this:  our operative players here are politicians, not governments as a whole.  "The government" may be "the president" or "the state governor" or "the 5-person majority of the U.S. Supreme Court" or "the House Democratic majority led by the Speaker of the House."  It's led by political leaders who have assembled enough followers to decide what an institution of government will do.  And they'll consistently arrogate to themselves a label of "the government" as though everyone were in accord.  That's not so (except very rarely), but winners decide these things.

    Power-seeking politicians can create a federal system, or they can break one up.  American federalism was created, quite deliberately, in 1787 among the 55 attendees and 39 signers of the U.S. Constitution.  It replaced the failing confederation of the Articles.  It came close to its own dissolution 80 years later in the 1860s Civil War (called the "War Between the States" in some southland locales even today).  Because the Union won that war under guidance of politician Abraham Lincoln, we'll never know what form (confederation or federation) the Confederate States of America might have assumed in a postwar North America.  That experiment was terminated.

    Federation is not a common political solution to organizing modern countries unless they have large territories or populations.  Canada's World Federations - IGA website lists 23 countries among a total of more than 200 in the world now.  In North America all three large nation-states of U.S., Canada, and Mexico are federal, and so are the two truly large South American  nations of Brazil and Argentina.  You can see the Canadian provinces and American and Mexican states by name with their territorial demarcations.  But most nation-states of the world are unitary with no separate states having independent authority of their own.  Our nation's preeminent mother country of Great Britain has no provinces despite the recognized distinct realms of Brittany, Wales, and Scotland.  Likewise, France has recognized regions known for their wine--Bordeaux, for instance--but no states or provinces; and like Britain, French central nationhood originated centuries ago.  Germany, however, does have states; and when East Germany vanished for good, its states joined the Federal Republic of Germany (Germany - World Federations - Intergovernmental Affairs).  Russia does, Brazil does, India does, and Australia does.  They're all large in area; but other large countries China and Indonesia are not federal.  The vast Chinese landspace even operates under a single time zone--and it's Beijing capitol-city time that prevails everywhere.  To advocates of federalism like myself, that time zone arrogance is plainly dumb, and is a telling sign of Beijing's current arrogance of power toward distant provinces like Sinkiang or Tibet.

    Federalism is a fundamental political adaptation to large land area wherever relatively democratic governance methods are in vogue.  It's also an excellent adaptation to high ethnic diversity such as bilingual Canada and small but multi-lingual Switzerland.  You can easily get the particulars on federalism or non-federalism for any country via CIA - The World Factbook alongside World Federations - IGA.

    America is the world's oldest or second-oldest true federal system, dating from 1789.  But American federalism is not well understood by college students.  The onetime American Council on Intergovernmental Relations published a Federalism Education Project that 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?"  Text affirms these things; but few students arrive already knowing them.

    There's other misunderstanding too.  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 strictly 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).  Chief Justice John Marshall's Supreme Court in the landmark 1819 McCulloch v. Maryland case ruled against Maryland's taxation of the U.S. Bank because the Bank was created by the U.S. Congress in furtherance of its enumerated powers; and "the power to tax is the power to destroy"; so Maryland could not constitutionally tax the Bank. That gave some teeth and substance to the Supremacy Clause:  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.  And one day during the 1860s, it was (Constitutional Topic Slavery - The U.S. Constitution Online).

    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 or more on our German-styled autobahns.  This national law was flouted early and often during its 21-year tenure before the U.S. Congress repealed it in 1995, 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, the maximum posted speed limits have reverted to state laws, allowing for resumption of variations.  There are some--but much fewer than in the past before 1974 federal preemption.  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 for cars in calendar 2009 (Insurance Institute for Highway Safety, Speed limits by state).  Only trucks are now limited in some states to 55 mph (which is always flagrantly violated on the major east-west freeways like Interstate 40 or Interstate 70 since those trucks are often going coast to coast under get-there-fast imperatives).

    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.  Remember that politicians decide these things, and their incentives to expand or reduce federal power vary by circumstance.

    Now how does this separate federalism from separation-of-powers and from democracy?  Consider the Missouri Constitution for a minute; or try another state constitution (FindLaw State Resources State Constitutions, or U.S. State Constitutions and Web Sites).  There's 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, and 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.  This is true even though Cape Girardeau, like most towns its size, has a "home rule" charter that sets up its Council/Manager Form of Government.  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 State of Missouri voters in 1992 foolishly decided to limit the terms of our General Assembly legislators, we did the deed by voting to amend our frequently-altered Missouri Constitution (use search protocol or just go to Missouri Constitution, Article III Section 8).  We didn't seek permission from Washington D.C. to create this damage; it's on us alone.

    Local government have no such autonomy.  Take the infamous little Missouri hamlet of Macks Creek, which had bad habits of raising nearly all its revenue by speed-trapping people heading to or from the popular Lake of the Ozarks resort on U.S. Highway 54.  They raised more than 70 percent of their revenue this way, from non-residents.  You can readily guess why local politicians might pull such a stunt, just by noting that locally based city sales taxation is always much lower than local hotel taxes.  Local voters pay the former, out-of-towners (and maybe a local sinner or two) pay the latter.  The reminder:  governments are moved by politicians, not by some mysterious or unidentified force field out there; and elected politicians are a lot nicer to local voters than to others.  Anyhow, the Macks Creek highway robbers one day made a crucial error:  they caught a state legislator in their little speed trap.  He got mad, and then went back to Jefferson City and got even.  Result:  a 1995 state law passed that restricted any town from collecting more than 45% of its revenue from a single source.  Only one town in Missouri exceeded that figure, at 75% via traffic fines and court costs.  Can you guess its name?  Result:  Macks Creek went bankrupt while disbanding its extensive police force, some of which had been supported by a federal grant (USDOJ, GR-50-98-003 audit of Macks Creek in 1998; NPR 2004 - Missouri Town Faces Disincorporation; The Touffer Report, 04-12-06).

    America has two separate levels of government with constitutions, but not three.  Local governments instead have self-rule charters granted to them by states, and alterable by states.   Each state has a unitary rather than a federal government; and their constitutions say so.  Elsewhere in the world, most nations are unitary rather than federal.  France and Great Britain are unitary, with no states, but lots of local or provincial governments.  These gain their powers from Paris or London and are thus "creatures of the nation."  America has such a city too:  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 (D.C. City Council, History of Self-Government in the District of Columbia; District of Columbia Home Rule Act of 1997).  Canada and Australia and Brazil, all large federal countries, also have such separate capitol districts that aren't part of any state.   

    As for separation of powers, that's featured in both our national and state constitutions via articles specifying three branches, bicameral legislatures (except in the unicameral State of Nebraska), and so forth.  The federated nation has separation of powers; and so do the 50 non-federated states.  Separation of powers is done with, or is done without, federalism.

    Taken the other way round, remember that I said Australia and Canada are federal (on Canada, see 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 of powers doesn't exist in any parliamentary system.  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).

    As for democracy with federalism:  you can have one without the other.  Democracy is a lot more amenable to federalism, that's for sure.  But federated non-democratic countries do exist.  Brazil is now federal and fairly democratic, but once was federal while under rule of several military junta governments.  Nigeria is federal but has been afflicted with a succession of undemocratic rulers as well.  Russia is nominally federal today, but it's been no example of real democracy at work during the autocratic regime of Vladimir Putin.  Nothing about federalism inherently tells us that governments cannot adopt authoritarian rulership over democratic governance, or cannot abuse fundamental rights, or cannot shut off fair and competitive elections.

Why America is federal                 Top; Next Down

    There's one simple historical answer to this one:  states were here first.  Our 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 the deeply 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).  Almost 220 years have passed, and America is still federal.  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.

    There are excellent reasons why this particular country is still federal today.  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.

    Riker tells us 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 become a majority and practice majority tyranny.  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 with a lot of pull.  Riker reinforces this by emphasizing the desire to fend off foreign military threats, and to expand our territory (Riker 1964).  The bigger that territorial 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.

    Think of modern America as a giant Common Market.  The Europeans have striven mightily to create something similar, with brilliant results in their Euro-based European Union (CIA - The World Factbook -- European Union).  We already have one, a vast 3.6 million square miles worth of terrain tied closely together by freeways, weblinks, and mail service among 300 million persons.  We're a rich nation, and one that enjoys excellent (but not perfect) protection from major foreign military dangers.

    The serious price for this size and diversity is internal strife.  We face racial tensions and high crime rates compared to other democracies.  Intolerance of such diversity 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 (based on death count estimate of 625,000).  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 south's Gulf Coast 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 deeply doubt it.  Some strife is the price for having a giant common market and world power status in the 21st century.

Works Cited

Lang, Diane.  1991.   Dillon's Rule...and the Birth of Home Rule.  URL:  http://nmml.org/files/2008/01/dillon.pdf

Riker, William.  1964.  Federalism: Origin, Operation, Significance.  Boston:  Little, Brown.

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Copyrightę2009, Russell D. Renka