CYBERLAND UNIVERSITY OF NORTH AMERICA

Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science

SECOND PAGE

NOTES ON FEDERALISM & THE AMERICAN FEDERAL SYSTEM

(Continued)

THE FRAMERS' FAILURE TO SPELL OUT, IN EXACT TERMS, THE CONSTITUTIONAL RELATIONSHIP BETWEEN THE NATIONAL GOV- ERNMENT & THE STATES & THE FULL EXTENT OF THE CONSTITU- TIONAL POWERS OF THE NATIONAL GOVERNMENT:

      THE FAILURE:

            In drafting the U.S. Constitution, the Framers were
            unable to--

                  Spell out exactly what relationship was to
                  exist between the central government and the
                  states;

                  Make an exact and exhaustive enumeration, or
                  express delegation, of all the powers they in-
                  tended the U.S. Constitution to assign to the
                  national government.

      THE CONSEQUENCE:

            Different delegates carried away from the Federal
            Constitutional Convention different views, or percep-
            tions, of what federalism under the U.S. Constitution
            meant.

                  Different delegates had different views of the
                  scope of the authority of the central govern-
                  ment under the Constitution.

THE MEANING OF FEDERALISM UNDER THE U.S. CONSTITUTION-- THE VIEW OF ALEXANDER HAMILTON:

      Hamilton's view is often referred to as the "HAMILTONIAN,"
      or "NATIONALIST" interpretation of the U.S. Constitution.
      It is also called the "BROAD CONSTRUCTION"--the "LOOSE,"
      or "LIBERAL," construction (interpretation)--of the Con-
      stitution.

      HAMILTON'S VIEW:

            The U.S. Constitution is not a compact or treaty
            establishing an alliance or association of sovereign
            states.

                  It is the supreme law of the U.S.A.--the su-
                  preme law established by the American people,
                  when the popularly elected state conventions
                  ratified the Constitution.

            Through ratification of the Constitution by popularly
            elected state conventions, the sovereign people gave
            the national government sufficient authority to ac-
            complish the great objectives listed in the Preamble
            to the Constitution:

                  (1)  To establish justice;
                  (2)  To ensure domestic tranquility;
                  (3)  To provide for the common defense;
                  (4)  To promote the general welfare--i.e., the
                       the national public interest, or the com-
                       mon good of the entire country;
                  (5)  To safeguard, protect, and preserve liber-
                       ty.

            The sovereign people intended that a BROAD CONSTRUC-
            TION be applied to the constitutional powers of the
            central government.

                  That is, it was the intention of the people
                  that the constitutional grants of power to the
                  national government be INTERPRETED BROADLY AND
                  LIBERALLY (loosely ang generously).

                  Under the NECESSARY AND PROPER CLAUSE, Congress
                  has many IMPLIED POWERS--a vast amount of au-
                  thority that cannot be precisely defined.

            It was also the intention of the sovereign people
            that the central government be denied authority only
            when the Constitution clearly prohibits it from act-
            ing.

            Nothing in the Tenth Amendment denies the national
            government the right to exercise to the fullest ex-
            tent the powers delegated to it by the Constitution.

            Article VI, paragraph 2, of the Constitution declares
            the the supreme law of the land in the U.S.A. con-
            sist of--

                  (1)  The provisions of the U.S. Constitution;
                  (2)  All national laws made in pursuance of the
                       Constitution;
                  (3)  All treaties made under the authority of
                       the U.S.A.                       

                  The judges in all states are bound by the su-
                  preme law of the land.

                  The SUPREMACY OF NATIONAL LAW restricts and
                  limits the states in their exercise of the re-
                  served powers.

                        A state may not use a reserved power to
                        interfere with the national government's
                        exercise of a delegated power.

THE MEANING OF FEDERALISM UNDER THE U.S. CONSTITUTION-- THE VIEW OF THOMAS JEFFERSON:

      Jefferson's interpretation of the constitutional delega-
      tions of power to the central government is called "STRICT
      CONSTRUCTION," or "NARROW CONSTRUCTION," of the U.S. Con-
      tution.  It is also known as the "STATES' RIGHTS INTERPRE-
      TATION."

      JEFFERSON'S VIEW:

            The U.S. Constitution is a constitutional compact or
            treaty among sovereign states.

            In agreeing to this constitutional compact (i.e., in
            ratifying the U.S. Constitution), the sovereign
            states thereby--

                  Created the U.S. central government for their
                  own common purposes;

                  Gave it carefully limited powers.

            Therefore, the central government under the U.S.
            Constitution is nothing more than an agent of the
            states.

            Under the U.S. Constitution, the U.S.A. is merely a
            SOMEWHAT MORE TIGHTLY-KNIT CONFEDERATION than the one
            that existed under the Articles of Confederation.

                  The Framers of the U.S. Constitution intended
                  to grant the central government under the Con-
                  stitution only SLIGHTLY GREATER AUTHORITY than
                  that of the Congress under the Articles of Con-
                  federation.

            Hence, a STRICT CONSTRUCTION should be applied to the
            constitutional powers of the central government.

                  Each of the powers of the central government
                  should be NARROWLY DEFINED and STRICTLY INTER-
                  PRETED.

            The U.S. Constitution must be interpreted as strictly
            limiting the powers of Congress to the ENUMERATED
            powers--the powers EXPRESSLY delegated to Congress by
            the Constitution.

                  There are no implied powers of Congress.

                  There are only express powers.

            Whenever there is doubt as to whether the states
            (through ratification of the Constitution) have given
            a particular power to the central government or
            reserved that power to themselves, the doubt should
            be resolved in favor of the states.

                  The emphasis should  be on protection and pre-
                  servation of "STATES' RIGHTS"--i.e., the re-
                  served powers of the states.

            The central government should not be allowed to exer-
            cise its delegated powers in such a way as to inter-
            fere with the states' exercise of the powers reserved
            to them by the Constitution.

AMERICAN FEDERALISM & THE POWERS OF CONGRESS UNDER THE U.S. CONSTITUTION--THE DECISION OF THE U.S. SUPREME COURT IN MCCULLOCH V. MARYLAND (1819):

      LEGAL QUESTION ONE:

            Does Congress, under the U.S. Constitution, have the
            power to incorporate a bank, even though this power
            is not listed, or enumerated, in the Constitution as
            one of the expressly delegated powers of Congress?

      THE COURT'S ANSWER--THE HOLDING, OR RULING, OF THE COURT 
      REGARDING LEGAL QUESTION ONE:

            Yes, Congress DOES have the power, under the U.S.
            Constitution, to incorporate a bank.

            It is not necessary fo the Constitution EXPRESSLY to
            authorize Congress to create a bank.

                  Rather, the power can be REASONABLY IMPLIED
                  from some of the expressly delegated powers of
                  Congress.

      THE COURT'S REASONING IN SUPPORT OF ITS HOLDING REGARDING
      LEGAL QUESTION ONE:

            The authority to establish a bank is not among the
            ENUMERATED, or EXPRESS, powers of Congress.

            However, Congress possesses IMPLIED powers as well as
            the expressly delegated powers.

            A major source from which the implied powers of Con-
            gress can be drawn is ARTICLE I, SECTION 8, CLAUSE 18
            --The NECESSARY AND PROPER CLAUSE, or ELASTIC CLAUSE.

                  This clause gives Congress the power to make
                  any laws NECESSARY AND PROPER for exercising
                  its enumerated powers.

                  "Necessary and proper" does not mean "absolute-
                  ly necerrary," "essential," or "indispensable."

                        Rather, it means "APPROPRIATE."

                  Congress may legally employ ANY MEANS THAT ARE
                  APPROPRIATE to the exercise of its enumerated
                  powers.

            In short, Congress may legally exercise--

                  Not only every power expressly delegated to it
                  by the U.S. Constitution--

                  But also every power which can be reasonably
                  implied from one or more of the expressly
                  delegated powers.

      LEGAL QUESTION TWO:

            Can the State of Maryland, without violating the U.S.
            Constitution, tax the bank notes issued by the Balti-
            more Branch of the Bank of the United States?

            THE BROADER LEGAL QUESTION:

                  Can a state legally tax an instrumentality of
                  the national government?

      THE COURT'S ANSWER--THE HOLDING OF THE COURT REGARDING
      LEGAL QUESTION TWO:

            No, Maryland cannot legally tax an instrumentality
            of the national government.

            Congress has full authority, under the U.S. Constitu-
            tion, to establish such an entity as the Bank of the
            United States.

            Therefore, Maryland's tax on the Bank of the United
            States is--

                  An invasion of NATIONAL SUPREMACY;

                  Hence, a violation of Article VI, paragraph 2,
                  of the U.S. Constitution.

            The Maryland tax is UNCONSTITUTIONAL and NULL AND
            VOID (of no force and effect).

      THE COURT'S REASONING IN SUPPORT OF ITS HOLDING REGARDING
      LEGAL QUESTION TWO:

            The national government is supreme in the exercise
            of the powers conferred upon it by the U.S. Constitu-
            tion.

            The national government and its instrumentalities
            must be immune from destruction by the states.

                  The power to tax is the power to destroy.

                  Therefore, the states cannot legally tax any
                  instrumentality of the national government.

                        "The states have no power, by taxation or
                        otherwise, to retard, impede, burden, or
                        in any manner control the operation of
                        the constitutional laws enacted by Con-
                        gress to carry into execution the powers
                        vested in the general [national, or cen-
                        tral] government."

                              The states do not have any right to
                              interfere in the constitutional op-
                              erations of the national govern-
                              ment.

                                    State actions or instrumen-
                                    talities cannot be legally
                                    used to impede, hinder, or
                                    negate exercise by the na-
                                    tional government of its
                                    legitimate powers under the
                                    U.S. Constitution.

            The legitimate exercise of national power supercedes
            any state action which is in conflict.

                  If there is a conflict between a state law and
                  a national law that Congress has a constitu-
                  tional right to pass, then it is the STATE law
                  that has to give way.

      THE CONSTITUTIONAL TEST FOR DETERMINING THE VALIDITY OF AN
      IMPLIED POWER CLAIMED BY CONGRESS:

            In its holding regarding Legal Question One, the Su-
            preme Court established the following TEST FOR DE-
            TERMINING THE CONSTITUTIONALITY of an implied power
            claimed by Congress:

                  "Let the end be legitimate, let it be within
                  the scope of the Constitution, and ALL MEANS
                  WHICH ARE APPROPRIATE, which are plainly
                  adapted to that end, which are not prohibited,
                  but consist with [are consistent with] the let-
                  ter and spirit of the Constitutional, are con-
                  stitutional."

      THE RESULT OF THE SUPREME COURT'S DECISION IN MCCULLOCH V.
      MARYLAND:

            The answers the Supreme Court gave to the legal ques-
            tions involved in the case established two very im-
            portant RULES OF AMERICAN CONSTITUTIONAL LAW:

            (1)  The DOCTRINE OF IMPLIED POWERS:

                 This doctrine, or rule of law, has given the
                 U.S. national government an enormous source of
                 constitutional authority.

                 Under the doctrine, the powers of Congress have
                 been expanded far beyond the enumerated powers.

            (2)  The DOCTRINE OF NATIONAL SUPREMACY:

                 This rule of law denies to the states any right
                 to interfere in the constitutional operations of
                 the central government.

            Operating under these two rules of law, the national
            government has been able to cope with the problems of
            a growing nation and changing society.

                  The U.S. central government would have been
                  unable to do this, if the Supreme Court, in
                  MCCULLOCH V. MARYLAND, had ruled in favor of
                  the State of Maryland and applied a strict con-
                  struction to the constitutional grants of con-
                  gressional power.                  

FEDERAL CONSTITUTIONAL LIMITATIONS ON STATE AUTHORITY-- POWERS DENIED TO THE STATES BY THE U.S. CONSTITUTION:

      ARTICLE I, SECTION 10, LIMITATIONS ON STATE POWER:

            ABSOLUTE PROHIBITIONS:

            Article I, Section 10, of the U.S. Constitution pro-
            prohibits the states from--

                  (1)  Entering into treaties, alliances, or con-
                       federations with foreign nations;

                  (2)  Coining money;

                  (3)  Emitting bills of credit--i.e., issuing
                       paper money;

                  (4)  Making something other than gold or silver
                       tender in payment of debts;

                  (5)  Passing a bill of attainder;

                  (6)  Passing an ex post facto law;

                  (7)  Passing a law impairing the obligation of
                       contracts;

                  (8)  Granting titles of nobility.

            CONDITIONAL PROHIBITIONS:

            Article I, Section 10, prohibits the states from do-
            ing certain things WITHOUT THE CONSENT OF CONGRESS:

                  (1)  Taxing imports or exports;

                  (2)  Entering into an agreement or compact with
                       another state or with a foreign power;

                  (3)  keeping troops or ships of war in time of
                       peace;

                  (4)  engaging in war, unless actually invaded
                       or in such immediate danger as will not
                       admit of delay.

      ADDITIONAL FEDERAL CONSTITUTIONAL LIMITATIONS ON STATE
      POWER:

            FOURTEENTH AMENDMENT:

            Amendment 14, Section 1, prohibits the states from--

                  (1)  Making or enforcing a law which abridges
                       the basic rights and liberties ("privi-
                       leges and immunities") of citizens of the
                       United States;  [PRIVILEGES AND IMMUNITIES
                       CLAUSE]

                  (2)  Depriving a person of life, liberty, or
                       property without due process of law;
                       [DUE PROCESS CLAUSE]

                  (3)  Denying a person within its jurisdiction
                       the equal protection of the laws.  [EQUAL
                       PROTECTION CLAUSE]

            FIFTEENTH AMENDMENT:

                  The states are prohibiting from denying or
                  abridging the right of citizens to vote on
                  account of race or color.

            NINETEENTH AMENDMENT:

                  The states are prohibited from denying or
                  a bridging the right of citizens to vote on
                  account of sex (gender).

            TWENTY-FOURTH AMENDMENT:

                  The states are prohibited from denying or
                  abridging the right of citizens to vote in
                  federal elections by reason of failure to pay
                  any poll tax or other tax.

            TWENTY-SIXTH AMENDMENT:

                  The states are prohibited from denying or
                  abridging the right of citizens 18 years of
                  age or older to vote on account of age.

CONSTITUTIONAL OBLIGATIONS OF THE NATIONAL GOVERNMENT TO THE STATES:

      ARTICLE IV, SECTION 3, OBLIGATION:

            The national government must observe and protect the
            territorial integrity of every state in the Union.

            In admitting new states into the Union, Congress may
            not, WITHOUT THE CONSENT OF THE LEGISLATURES OF THE
            STATES CONCERNED--

                  Form or erect a new state within the jurisdic-
                  tion (borders) of another state;

                  OR

                  Form a new state by the junction (merger) of
                  two or more existing states or parts of states.

      ARTICLE IV, SECTION 4, OBLIGATIONS:

            The national government is obligated to--

                  (1)  Guarantee to every state a "republican
                       form of government";

                  (2)  Protect the states against foreign inva-
                       sion;

                  (3)  Protect any state against domestic vio-
                       lence, or armed insurrection--whenever
                       the state requests federal protection.

      ARTICLE I, SECTION 8, CLAUSE 1, OBLIGATION:

            Taxes levied by Congress must be UNIFORM throughout
            the U.S.A.

                  Federal taxes may not be levied on or in some
                  states, but not on or in other states.

                  Federal tax rates may not be higher in some
                  states than in other states.

      ARTICLE V OBLIGATION:

            "... no state, WITHOUT ITS CONSENT, shall be deprived
            of its EQUAL SUFFRAGE [equal voting power, or equal
            representation] in the Senate."  [ENTRENCHED CLAUSE]

                  The U.S. Constitution may not be amended to
                  give states unequal representation in the U.S.
                  Senate--

                        UNLESS, such a proposed amendment is
                        ratified by ALL the states.













































































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