FIRST PAGE
Federalism (a federation, a federal union, or a federal system) is a federated sovereign state formed by establishment of a closely-knit, or tightly-knit, union of two or more small- er political communities, which, after formation of the union, are no longer sovereign (com- pletely independent) but do retain a significant degree of autonomy (partial self-govern- ment). The smaller political communities that are members of the larger federal union pos- sess and exercise a substantial amount of home rule, but at the same time, are bound by the constitution and constitutionally valid laws of the national, or central, government--i.e., the general, or common, government over the entire federation and country.
The 50 smaller regional political communities comprising the membership of the federal union known as the "United States of America" are officially designated as "states." And so are the six constituent political units of the federation called the "Commonwealth of Australia." The ten regional political communities comprising the federation of Canada are officially designated as "provinces."
Federalism is distinguished by the following characteristics:
(1) Only the national, or central, government of the fed-
erated sovereign state speaks and acts for the entire
country its relations and dealings with foreign gov-
ernments. In this sense, the national government is
the sole possessor and exerciser of SOVEREIGNTY. Only
the national government can operate as the government
of a completely independent political community.
The smaller regional political communities--the member
"states" or "provinces" of the federal union--are not
SOVEREIGN STATES. That is, they are neither complete-
ly nor virtually independent. Instead, they SEMIAU-
TONOMOUS--i.e., partially self-governing. They pos-
sess AUTONOMY, not sovereignty. However, the DEGREE
OF AUTONOMY, or self-government, is SUBSTANTIAL.
(2) The national constitution--the constitution over the
whole country--divides and distributes the constitu-
tional powers of government between the national gov-
ernment and the constituent political units.
The national constitution recognizes the existence of
two levels of government in the country:
(a) The national, or central, government;
(b) The governments of the smaller regional
communities.
And the national constitution grants SUBSTANTIAL AU-
THORITY to each of the two levels of government--na-
tional and regional.
Each level of government is given the right to make
final decisions on at least some governmental activi-
ties and services.
(3) The national constitution protects the RIGHT OF EACH
LEVEL OF GOVERNMENT TO EXIST.
Legally, neither level of government can destroy the
other level.
The U.S.A., for example, has been referred to as "an
indestructible union of indestructible states."
(4) The national constitution gives the central govern-
ment control over matters of GENERAL, or COMMON, con-
cern to the country as a whole and permits the con-
stituent political communities to regulate matters of
more REGIONAL or LOCAL concern.
(5) Neither level of government receives its powers from
other. The constituent communities do not receive
their powers from statutes enacted by the national
legislature. And the national government does not
receive its powers from decisions and actions of the
regional legislatures. Both levels of government--
national and regional--receive their respective sets
of powers from a COMMON SOURCE--the NATIONAL CONSTI-
TUTION.
(6) Both levels of government OPERATE THROUGH THEIR OWN
AGENTS and EXERCISE POWER DIRECTLY OVER INDIVIDUALS.
In a given geographic, or territorial, region within
the country, two different governments--one national,
and the other regional--simultaneously govern the
same land and people.
(7) Under ordinary conditions within the country, neither
level of government is dependent upon the other for
enforcement of its decisions within its own constitu-
tional sphere of authority.
The U.S.A., Canada, Australia, Austria, and Switzerland.
UNITARY GOVERNMENT: FEDERAL SYSTEM:
The national constitution The national constitution di-
vests ALL the constitutional vides the constitutional pow-
authority of government in ers of government between the
the central government. central government and the
constituent units.
Regional or local political Regional political units re-
units are created by acts ceive their powers from pro-
of the national legislature visions of the national con-
and receive their powers stitution. These powers can
from national legislative be taken from the regional
statutes. These powers can communities only by amending
be withdrawn from the re- the national constitution.
gional or local units by Both levels of government
statutes of the national must consent to changes in
legislature. the national constitution.
The national legislature The national constitution
can, by statute, abolish or protects the right of the
completely reorganize the constituent communities to
regional units, which exist exist.
and operate at the suffer-
ance of the national gov-
ernment.
Britain; France; Japan; Spain; Italy; Ireland; Greece;
Israel; Norway; Sweden; Finland; Denmark; Netherlands.
CONFEDERATION: FEDERAL SYSTEM:
The union is a loosely-held- The states joining together
together league or associa- in the union yield to the
tion of virtually sovereign central government a substan-
states--a loose union or al- tial amount of political au-
liance of almost completely thority. The constituent
independent states. communities are no longer
sovereign. They are now sem-
iautonomous; they are par-
tially self-governing, not
completely self-governing.
The central government does The national government exer-
not have authority to regu- cises power directly over in-
late the conduct of individ- dividuals. The central gov-
ual persons. To impact on ernment operates through its
individuals, the central own agents--not through the
government must act through regional governments, unless
the states. it chooses to do so.
The central government has Under the national constitu-
only ENUMERATED, or EXPRESS, tion, the central government
powers--powers EXPRESSLY has broad power to decide and
delegated (granted in so act on matters of general
many words) to the central concern to the nation as a
government by the constitu- whole. The central govern-
tional compact or treaty. ment of the U.S.A., for ex=
ample, is by no means limited
to the enumerated (express)
powers. It also possesses
and exercises IMPLIED powers
--powers which are not men-
tioned in so many words in
the national constitution as
powers assigned to the cen-
tral government, but which
can be REASONABLY IMPLIED
from the enumerated powers.
The powers of the central The national government is
government are severely granted substantial authority
limited by the constitu- by the national constitution.
tional compact or treaty.
The U.S.A. under the Articles of Confederation (1781-1789).
Germany as the "Holy Roman Empire" (962-1806).
The European Union.
"The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the states, are reserved
to the states respectively, or to the people."
MEANING:
The national government possesses and exercises those
powers DELEGATED (i.e., granted, or assigned) to it
by the U.S. Constitution.
All other powers not prohibited by the U.S. Consti-
tution to the states are left in the hands of the
states, or the people.
THE BASIC PRINCIPLE OF AMERICAN FEDERALISM:
The Tenth Amendment embodies the basic principle of
American federalism--the basic principle governing
the constitutional division and distribution of po-
litical authority between the national government
and the states.
THE BASIC PRINCIPLE:
The national government possesses all those
powers delegated to it by the national con-
stitution.
The states possess all those powers which the
U.S.--
Neither delegates to the national gov-
ernment;
Nor prohibits the states from exercising.
WHAT THE TENTH AMENDMENT MAKES EXPLICIT:
The Tenth Amendment makes explicit what was implicit
in the seven original articles of the U.S. Constitu-
tion:
Under the Constitution, there are two levels
of government--
Each with its own sphere of authority;
Each enjoying constitutional protection
of its right to exist.
All powers neither delegated to the central
government nor denied to the states remain
within the sphere of state authority.
THREE SPHERES OF POLITICAL AUTHORITY
NATIONAL AUTHORITY SHARED AUTHORITY STATE AUTHORITY
Delegated Concurrent Reserved
Powers Powers Powers
Enumerated (Residual
Powers Powers)
Implied [Original, Inherent,
Powers & Largely Undefined]
Inherent
Powers
in
Foreign
Affairs
The DELEGATED POWERS are the powers granted to the national
government by the U.S. Constitution.
The delegated powers are the powers of government which
were--
Surrendered by the states when they ratified the U.S.
Constitution;
Vested in the central government by the Constitution.
There are two categories of powers delegated to Congress by
the U.S. Constitution:
(1) Enumerated, or express, powers;
(2) Implied powers.
DEFINITION:
The ENUMERATED, or EXPRESS, powers of Congress are
those powers enumerated (listed or mentioned) in so
many words in the Constitution as grants of authority
to Congress.
Particular clauses in the Constitution delegate these
powers to Congress.
LOCATION:
Article I, Section 8, Clauses 1-18.
Article IV, Section 3.
Amendment 16.
Enforcement Sections, Amendments 13, 14, 15, 19, 23,
24, and 26.
The IMPLIED POWERS of Congress are those powers which--
Are not listed or mentioned in the Constitution;
But are deemed by Congress and the U.S. Courts to be
REASONABLY IMPLIED from the enumerated, or expressly
delegated, powers of Congress.
In a number of cases, the U.S. Supreme Court has ruled as
follows:
In the field of FOREIGN AFFAIRS, or INTERNATIONAL
RELATIONS, the national government of the U.S.A.
possesses INHERENT powers as well as DELEGATED
powers.
The INHERENT POWERS of the national government are powers
that do not depend on the constitutionally delegated pow-
ers, neither those delegated by enumeration nor those dele-
gated by implication.
The national government's inherent powers in foreign af-
fairs inhere in the national government as the sole spokes-
man and representative of a sovereign state, the U.S.A., in
its dealings with other sovereign states in the world.
These powers grow out of the very existence of the
U.S. central government as the instrument of a sov-
ereign nation-state.
America's national government, in its dealings with the
governments of other sovereign states in the world, has
the same powers that the governments of all sovereign
states have in the area of international relations.
EXAMPLES OF THE INHERENT POWERS OF THE U.S. NATIONAL GOV-
ERNMENT:
(1) Authority to acquire by discovery and occupation
territory outside the existing boundaries of the
U.S.A.
(2) Authority to make and enforce immigration laws regu-
lating, limiting, and prohibiting the entrance of
aliens into the U.S.A.
DEFINITION:
The RESERVED, or RESIDUAL, powers make up the sphere
of political authority allocated to the states by the
U.S. Constitution.
The reserved powers of the states are the powers
which the Constitution neither delegates to the na-
tional government nor denies to the states.
The Constitution reserves these powers to the
states, or the people.
The reserved powers are ORIGINAL, GENERAL, INHERENT,
and largely UNDEFINED.
EXAMPLES OF THE RESERVED POWERS OF THE STATES:
Examples of the reserved powers include state author-
ity to--
(1) Adopt and change state constitutions and
organize state governments;
(2) Organize and establish local governments;
(3) Exercise the GENERAL POLICE POWER:
The power to protect the PUBLIC HEALTH,
PUBLIC SAFETY, PUBLIC MORALS, and PUBLIC
WELFARE within the borders of a state--
The power to regulate the conduct of
individuals within the borders of a
state in order to protect the HEALTH,
SAFETY, MORALS, AND WELFARE OF THE
CITIZENS OF THAT STATE--
In short, to act in the PUBLIC IN-
TEREST within the state--to regulate
human conduct to safeguard and pro-
mote the the GENERAL WELFARE, or
COMMON GOOD, of the state;
(4) Protect life and property and maintain
order within a state--under ordinary con-
ditions;
(5) Set up tax-supported systems of public
education, e.g., state-supported elemen-
tary and secondary schools and state-sup-
ported colleges and universities.
DEFINITION:
The CONCURRENT POWERS constitute the sphere of au-
thority shared by the states and the national govern-
ment under the U.S. Constitution.
The concurrent powers can be exercised by the central
government and the states CONCURRENTLY--i.e., SIMUL-
TANEOUSLY (at the same time).
EXAMPLES:
Examples of the concurrent powers include authority
to--
(1) Lay and collect taxes;
(2) Spend public funds in the public interest
--i.e., spend the taxpayers' money to pro-
vide for the general welfare, or common
good;
(3) Borrow money on the public credit;
(4) Charter banks and other corporations;
(5) Make and enforce laws;
(6) Establish courts;
(7) Exercise the power of EMINENT DOMAIN--
i.e., the right to take private property
for public purposes;
(8) Regulate INTERSTATE COMMERCE--i.e., regu-
late trade and other economic activities
carried on within the borders of a state.
DEFINITION:
The NECESSARY AND PROPER CLAUSE, or ELASTIC CLAUSE,
is Article I, Section 8, Clause 18, of the U.S. Con-
stitution.
The clause provides as follows:
"The Congress shall have power ... to make all
laws which shall be necessary and proper for
carrying into execution the foregoing [17 ex-
press, or enumerated] powers, and all other
powers vested by this Constitution in the gov-
ernment of the United States, or in any depart-
ment [branch] or officer thereof."
LITERAL MEANING OF THE CLAUSE:
Article I, Section 8, Clause 18--the NECESSARY AND
PROPER CLAUSE--delegates to Congress authority to
make any laws necessary and proper for--
Exercising its own enumerated powers;
Putting into effect the constitutional powers
of the other branches or organs of the national
government.
SIGNIFICANCE OF THE CLAUSE:
The NECESSARY AND PROPER CLAUSE is the CONSTITUTIONAL
BASIS of the IMPLIED POWERS of Congress.
The implied powers of Congress derive from the very
BROAD CONSTRUCTION--the very LOOSE AND GENEROUS IN-
TERPRETATION--the U.S. Supreme Court has given to the
authority of Congress under the NECESSARY AND PROPER
CLAUSE.
The clause is called the ELASTIC CLAUSE because it
has been interpreted, or construed, in such manner
as to allow the authority of Congress to be stretched
far beyond the enumerated, or express, grants of pow-
power by the Constitution.
DEFINITION & LOCATION:
The NATIONAL SUPREMACY CLAUSE is Article VI, para-
graph 2, of the U.S. Constitution:
"This Constitution, and the laws of the United
States which shall be made in pursuance there-
of; and all treaties made, or which shall be
made, under the authority of the United States,
shall be the supreme law of the land; and the
judges in every state shall be bound thereby,
anything the constitution or laws of any state
to the contrary notwithstanding."
WHAT THE CLAUSE PROVIDES:
Article VI, paragraph 2, does two things:
(1) The clause defines the content of the SUPREME
LAW OF THE LAND in the U.S.A.--the law which is
superior to and takes precedence over all other
laws and public policies in the country.
The supreme law of the land is defined to in-
clude--
(a) The provisions of the U.S. Constitu-
tion;
(b) All national laws made in pursuance
of the U.S. Constitution--i.e., all
congressional statutes and federal-
court decisions that are in harmony
with the provisions of the U.S. Con-
stitution;
(c) All treaties made under the authority
of the United States--i.e., all trea-
ties made in accordance with the pro-
cedure of treatymaking prescribed by
the U.S. Constitution.
(2) The NATIONAL SUPREMACY CLAUSE requires that all
STATE JUDGES (as well as federal judges) be
BOUND BY THE SUPREME LAW OF THE LAND, regardless
of any contrary provisions in state constitu-
tions or state statutes.
Thus, any legitimate exercise of national au-
thority under the U.S. Constitution supercedes
any conflicting state action.