When the 13 United States of America declared independence from the United Kingdom in 1776, the founders were trying to break free from the tyranny of Britain’s top-down centralized government.
But the first constitution created by the founders, the articles of Confederation, conferred almost all the power to the individual legislatures of the States and practically nothing to the national government. The result – political chaos and overwhelming debt – almost sank the fledgling nation before it left port.
The founders therefore met again in Philadelphia in 1787 and drafted a new Constitution based on a new separation of state and national powers known as federalism. Although the word itself does not appear anywhere in the Constitution, federalism has become the guiding principle to protect Americans from King George III-style tyranny while preventing rogue states.
Failed Articles of Confederation
The articles of the Confederation were written and ratified while the revolutionary war was still raging. The document is less a unifying constitution than a loose pact between 13 sovereign states intending to enter “a firm friendship league”. The executive or judicial bodies were absent from the articles of the Confederation and the national congress only had the power to declare war and sign treaties, but not the power to levy taxes directly.
As a result, the newly independent United States was buried in debt in 1786 and unable to pay the long-awaited wages of revolutionary soldiers. The US economy has sunk into a deep depression and struggling citizens have lost their farms and homes. In In Massachusetts, angry farmers joined the Shays rebellion to seize courthouses and block foreclosures, and a toothless congress was unable to quell it.
George Washington, temporarily withdrawn from government service, lamented John Jay, “What a triumph for the supporters of despotism to find that we are incapable of governing ourselves, and that systems based on equal freedoms are simply ideal and fallacious!”
Alexander Hamilton called for a new constitutional convention in Philadelphia in 1787, where the articles of Confederation were ultimately rejected in favor of a whole new form of government.
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The middle path of federalism
When the United States broke ties with Britain, the founders wanted nothing to do with the British form of so-called “unitary” government. In a unitary regime, all power comes from a centralized national government (Parliament) and is delegated to local governments. This is still the way government works in the UK.
Instead, the founders first chose the opposite form of government, a confederation. In a confederation, all powers come from the local level in the different states and are only delegated to a weak central government at the discretion of the states.
When the founders met in Philadelphia, it was clear that a confederation was not enough to maintain the youth of the country. States fought across borders and beat their own money. Massachusetts had to hire its own army to quell the Shays rebellion.
The solution was to find a middle way, a model of government in which powers were shared and balanced between states and national interests. This compromise, enshrined in the Constitution and the Bill of Rights, became federalism.
Two types of “separation of powers”
The first and most well-known separation of powers is between the three branches of government: the executive, the legislature and the judiciary. If the President acts against the best interests of the country, he can be removed by Congress. If Congress passes an unjust law, the President can veto it. And if a law or a public institution infringes the constitutional rights of the people, the Supreme Court can remedy it.
But the second type of separation of powers is just as important, the granting of separate powers to the federal and state governments. Under the Constitution, state legislatures retain much of their sovereignty to pass laws as they see fit, but the federal government also has the power to intervene when it is in the national interest. And by virtue of the “supremacy clause” in Article IV, federal laws and laws replace state law.
Federalism, or the separation of powers between the state and the federal government, was entirely new when the founders incorporated it into the Constitution. And although it functions as an important control, it has also been a continuing source of conflict between the two levels of government. During the last phase of the civil war, the southern states separated from the Union in part because of the federal government, which unconstitutionally encroached on their “national institutions” of slavery.
How federalism works in the Constitution
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According to James Madison, a committed federalist, the Constitution maintains state sovereignty by listing very few express powers in the federal government, while “[t]The pipes that must remain in state governments are numerous and undefined. “
Section I, Section 8, lists all of the “listed” powers that are exclusively delegated to the federal government. These include the power to declare war, maintain the armed forces, regulate commerce, currency and establish a post office.
But that same section 8 also includes the so-called “rubber-band” that authorizes Congress to draft and adopt all laws that are “necessary and appropriate” to exercise its enumerated powers. These powers are collectively called “implied powers” and have been used by Congress to create a national bank, collect a federal income tax, institute the project, pass gun control laws and set a federal minimum wage , among others.
Aside from that, the Constitution grants almost all other powers and powers to individual states, as Madison said. Although the Constitution does not explicitly mention the powers retained by the states, the founders included a catch-all in the 10th amendment, ratified in 1791:
“Powers that are not delegated to the United States by the Constitution, or prohibited by it by states, are reserved to the states respectively or to the people.”
These so-called “reserved” powers include all the authorities and functions of local and state governments, the police, education, the regulation of commerce within a state, the conduct of elections and many others.
In the United States, federalism has been a successful experience of shared governance since 1787 and has provided the model for similar federalist systems in Australia, Canada, India, Germany and several other countries.