Law in Contemporary Society

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.

  • It would be more convincing if you wrote Shays' Rebellion. Its leader was Daniel Shays. Still more convincing if you knew that it was a minor and unimportant example of the western protests characteristic of the 1780s, deliberately exaggerated by Alexander Hamilton and Henry Knox in order to motivate Geo Washington to attend the Philadelphia Conference that led to the Constitution of 1787.

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.

  • So clear that there was no Tenth Amendment until three years after the Convention, as a result of the activity of the First Congress? And where is the evidence that the States would not ratify the Constitution without the Tenth Amendment? Is it mentioned anywhere other than in anti-Federalist minority protests in the ratification conventions?

  • It seems to me you've cut a pretty quick and labor-saving swath through the history of the 1780s, resolving a number of the important historical issues by ignoring them outright. Questions about the forward-looking issues such as expectations of "federalism" (a word that these people used for a very different purpose, having nothing to do with the balance of state/imperial relations) may have been almost irrelevant to the political calculations of the people who made the federal union: they were, as politicians usually are, consumed with current issues, many of which we have forgotten about or, as the case may be, never understood in the first place.

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.

  • This is a strange way of presenting the constitutional issues in the Civil War. Might we not have said that the Confederacy insisted on the expansion of state sovereignty to include secession in defense of slavery, and the Union as fighting the war for a post-conflict imperium that largely dissolved the States through the Reconstruction Amendments and the addition to an immense Western Internal Empire owned and operated under plenary Article IV powers by the federal government?

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.

  • Even more peculiar, this seems to involve issues on the scale of elephants with those on the scale of fleas.

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, and 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.

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 checks that Federalism would have imposed from the states may no longer be necessary.

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

  • I don't understand the thesis. In the beginning you seemed to be presenting a definite position on the "intended" position of the States as against the Empire. Though I thought it historically incorrect, at least it seemed clear what it was that you were contending. But these last three paragraphs seem to slip the thesis loose, so that by the end you could be saying anything up to and including "the constitution iz what the pepul sez they wants." So what in the end was the thesis, and how did the essay show us reason to be convinced of it?


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r9 - 12 Jan 2009 - 23:09:41 - IanSullivan
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