The Evolution of Federalism
by Shari Dovale
Federalism is where two governments share powers over the same territory. This is the method used by most democracies around the world. Some countries prefer to give more power to their main centralized (Federal) government, while others prefer to strengthen their individual provinces or states.
The United States operated under “Dual Federalism”, in which the federal and state governments managed individually, until around World War II. The Federal government was responsible for the sweeping countrywide issues, like National Defense and Foreign Policy, and the states were responsible for everything else.
The Civil War brought many of these issues to the forefront, as the Southern States believed they should be able to decide for themselves about slavery and other important matters. The Northern States thought this was too important an issue for the states to decide alone and felt the Federal government should settle the controversy.
This problem was compounded during the Great Depression with Roosevelt’s “New Deal” policies. These policies infringed into people’s lives in ways that were unprecedented and morphed our system of government into a “Cooperative Federalism Government.“
Where Dual Federalism operated under the system that the national and state governments had distinct and separate government functions, Cooperative Federalism authorized the overlapping functions of these different entities. In essence, this system operates in the belief that Federal and Local governments share power, instead of keeping them unique.
From the Center for the Study of Federalism:
The constitutional foundations of the cooperative model of federalism are threefold. First, the proponents of cooperative federalism rely on a broad interpretation of the Supremacy Clause (Article VI) of the Constitution.
Second, they contend that the Necessary and Proper Clause (Article 1, Section 8), also known as the Elastic Clause, allows the national government to make laws that are essential to carrying out the government’s inherent powers.
Finally, they hold a narrow interpretation of the Tenth Amendment.
In essence, they are eliminating the sovereignty of the individual states.
From Tulane Law School:
Lyndon B. Johnson’s War on Poverty falls under the definition of creative federalism, which transfers more power to the federal government. 3 Years later, Nixon’s EPA established the Clean Air Act (CAA), Federal Environmental Pesticide Control Act and Clean Water Act.
When Reagan entered the political arena, a desire to crush creative federalism resulted in a return to dual federalism, coined new federalism during the Reagan era.
During the Bush presidencies, federal control over state governments increased, partially from the passing of the Patriot Act.
By 2009, President Obama’s progressive federalism allowed states to create stricter regulations, but the federal government enforced compliance with federal rules.
The Trump administration ushered a return to dual federalism in some ways while interfering in the state’s rights in others; some called this approach punitive federalism.
Federalism has morphed into a tool for the powerful. This change has turned the states into the servants of the Federal government. They have negotiated powers from states in exchange for federal funding.
These changes have caused many people to accept as fact that the federal government is superior to the states, though it is not, or rather it should not be.
The Founding Fathers envisioned a country of individual states. They did not want the Federal government to increase. They saw it as a “necessary evil”. Yet, as Lord Acton asserted, “Power tends to corrupt, and absolute power corrupts absolutely.”
Returning to the vision of the founding fathers is what is critically needed in this country.
Sources and Further Reading:
https://www.thoughtco.com/what-is-federalism-3321880
https://www.reference.com/world-view/dual-federalism-198d7baf19c6304f
http://encyclopedia.federalism.org/index.php/Cooperative_Federalism
https://study.com/academy/lesson/what-is-new-federalism-definition-examples.html
https://www.law.cornell.edu/wex/federalism
https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/
https://colors-newyork.com/how-has-american-federalism-changed-and-developed/
https://online.law.tulane.edu/blog/the-evolution-of-cooperative-federalism
https://www.washingtontimes.com/news/2021/feb/23/justin-owen-give-power-back-states-founders-envisi/
https://www.thefreemanonline.org/why-is-federalism-important/
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It’s dicey at this point…Federal subcontractors posing as State officials…a sprawling Fed “Administrative State” little different from organized crime..A population ignorant of Federalism, to whom the proper State vs Federal relationship is a novel idea..Will an all powerful and all consuming Fed give up it’s power without a fight ? When in history has this ever happened ?
And one of the major vehicle’s used by the Fed’s to impede on State sovereignty is the Commerce Clause at U.S. Constitution, Article I, Section 8, Para 3: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;…”
The Supreme Court has so liberally defined what is “commerce” between two States that the Fed’s can jump on anything and “regulate” it via this Commerece Clause.