CYBERLAND UNIVERSITY OF NORTH AMERICA

Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science

FIRST PAGE

NOTES ON FEDERALISM & THE
AMERICAN FEDERAL SYSTEM


FEDERALISM--DEFINITION & CHARACTERISTICS:

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.

EXAMPLES OF FEDERAL SYSTEMS OF GOVERNMENT:

      The U.S.A., Canada, Australia, Austria, and Switzerland.

HOW FEDERALISM DIFFERS FROM A UNITARY GOVERNMENT:

        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.

EXAMPLES OF CONSTITUTIONAL DEMOCRACIES THAT ARE UNITARY GOVERNMENTS:

      Britain; France; Japan; Spain; Italy; Ireland; Greece;
      Israel; Norway; Sweden; Finland; Denmark; Netherlands.

HOW FEDERALISM DIFFERS FROM A CONFEDERATION:

        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.

PAST EXAMPLES OF CONFEDERATIONS:

      The U.S.A. under the Articles of Confederation (1781-1789).
      Germany as the "Holy Roman Empire" (962-1806).

CONTEMPORARY EXAMPLE OF A CONFEDERATION:

      The European Union.

THE TENTH AMENDMENT TO THE UNITED STATES CONSTITUTION:

      "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 TENTH AMENDMENT & AMERICAN FEDERALISM:

      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.

HOW THE U.S. CONSTITUTION ALLOCATES AUTHORITY BETWEEN THE NATIONAL GOVERNMENT & THE STATES:

               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

DELEGATED POWERS--THE SPHERE OF NATIONAL AUTHORITY:

      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.

ENUMERATED POWERS (EXPRESS 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.

IMPLIED POWERS:

      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.

INHERENT POWERS OF THE NATIONAL GOVERNMENT:

      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.

RESERVED POWERS (RESIDUAL POWERS)--THE SPHERE OF STATE AUTHORITY

      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.

CONCURRENT POWERS--THE SPHERE OF SHARED AUTHORITY:

      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.

THE NECESSARY & PROPER CLAUSE (ELASTIC CLAUSE)--THE CON- STITUTIONAL BASIS OF THE IMPLIED POWERS:

      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.

THE NATIONAL SUPREMACY CLAUSE:

      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.

CONTINUED ON SECOND PAGE,
NOTES ON FEDERALISM & THE
AMERICAN FEDERAL SYSTEM




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