The Collapse of Federalism in the Contemporary United States of America

In the course of the development of modern constitutional interpretation in America, few concepts have been as important or as fluid as the concept of Federalism. A brief look at how constitutional interpretation has evolved in contemporary America demonstrates that the Framers’ conception of Federalism no longer exists in this country.

Federalism as originally envisioned

Under the Articles of Confederation, state sovereignty was a crucial concern and a weak federal government was seen as a good protection of the states. However, under the Articles, the federal government was too weak to deal with national problems. An inability to collect taxes and pay revolutionary war debts created economic crises and violent uprisings like Shay’s Rebellion.

Even though states saw a need for stronger federal government, they were hesitant to give up any power or sovereignty. The Tenth Amendment of the United States constitution, in reserving all unspecified powers for the states, created a compromise that the states could handle; A federal government of enumerated powers and states with almost unlimited powers. In the Federalist Papers, Federalism was described as the key to checks and balances and to protecting state sovereignty and civil liberties. From the beginning, the Constitution and its framers made it clear that Federalism was to be a key aspect of the newly created union hereafter.

Transitions to the Modern system

Contemporary America is not the country that the framers intended to create, and the collapse of modern Federalism is a primary example of that fact. In Marbury v. Madison, the Supreme Court held that it was their job to determine what the constitution says. The Supreme Court, as a part of the federal government, was never in an objective position to strike a balance between federal powers and state powers. It demonstrated that early on, in McCulloch v. Maryland, by asserting that the Necessary and Proper clause gives the federal government an indeterminate number of implied powers. For Federalism, this was the beginning of the end.

A massive attempt to protect the conception of state sovereignty occurred in the American Civil War, but those protecting united federal control were victorious. When Lincoln said, “A house divided against itself cannot stand,” he was asserting the need for a powerful federal government with few limitations. Franklin D. Roosevelt affirmed the same need with the New Deal, feeling that national economic solutions would be needed to combat a national economic crisis. In West Coast Hotel Co. v. Parrish, the Supreme Court began summarily affirming New Deal legislation as constitutional under the commerce clause. Many modern cases have affirmed that much deference will be given to the federal government in determining what its powers are. As a final blow to the judicially enforced concept of federalism, in Garcia v. San Antonio Metropolitan Transit Authority, the Supreme Court implied that political checks might be the only real protection of traditional areas of state control.

In analyzing the modern federal administrative state, it seems that political checks have not effectively safeguarded traditional areas of state control. Federal regulation has expanded to cover health, education, and crime issues that were previously solely state concerns. The Framers’ conception of federalism has not been politically enforced.

Values in Contemporary America

To understand how the Federal government has gained such seemingly unchecked power in America today, one must look to the underlying values that Federalism once protected. One is the value of checks and balances, which means that the federal and state governments were expected to hold each other accountable. Another important value was efficiency, insomuch as local solutions might be better and faster for local problems. This is closely tied to the value of experimentation. Finally, the value of self-determination is at play, because if states create different societies, citizens can choose which society is best fit to their needs. Seen as a group, these are essential American values that are still relevant today.

How has America survived without concrete, judicially enforced ideas of Federalism? While political checks have not effectively protected the traditional idea of Federalism, they have protected the values underlying that idea. For example, the Federal government has extensive regulation in the area of criminal legislation, but if they were to pass a law defining the gender requirements of a legal marriage, there would be an outcry. The electorate is not rallying behind the cause of state sovereignty, but they are fighting to protect the underlying values of self-determination and experimentation. The Federal government has also gained legitimacy as a result of the many internal checks and balances. The judiciary, the executive, and the legislature check each other and the bicameral nature of the legislature allows it to check itself. The checks that Federalism would have imposed from the states may not have been necessary; however, the checks in the current system are not perfect.

In moving further away from the framers’ conception of Federalism, the structure of the American government has evolved considerably. Does it matter that this country has turned out so differently than it was envisioned? It is possible that the only normative consideration should be that the country functions the way its current residents want it to. As long as political checks generally protect the values underlying federalism, the American electorate does not seem to care about a formalistic conception of Federalism. The Federal government gains legitimacy because the people believe that national solutions are needed to solve increasingly national problems in a rapidly globalizing world. After all, the Framers’ did intend it to be a government “for the people.” If the people see the government as legitimate, then maybe that aspect of the Framers’ intent is really all that matters.

-- By OluwafemiMorohunfola - 13 Feb 2008

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