Civics Education

The Dynamic Nature of Federalism

Since the inception of the U.S. Constitution, power has shifted back and forth between state governments and the federal government. The federal courts, specifically the U.S. Supreme Court, have stepped in at times to rule in favor of federal power. The Courts have ruled that the U.S. Congress has implied powers in addition to powers enumerated in the Constitution. The case of McCulloch v. Maryland (1819) allowed for the national government to create institutions within the state; additionally, these federal institutions cannot be taxed by the state. This court ruling states that the national government can create institutions that are necessary and proper to carrying out its enumerated powers found in Article I of the Constitution.

In Gibbons v. Ogden (1824), the U.S. Supreme Court ruled that the national government has the power to regulate trade between the states as part of the commerce clause in Article 1, Section 8 of the U.S. Constitution. Once again, the U.S. Supreme Court gave more power to the national government in 1954 with Brown v. Board of Education. The courts ruled that states must racially integrate public schools and could not create policies that would allow for separate public schools.

Did You Know? The U.S. Supreme Court case of Brown v. Board of Education actually combined five cases into one. The case heard before the U.S. Supreme Court included a case filed in Virginia: Davis v. County School Board of Prince Edward County.

Barbara Johns – Virginia Civil Rights Memorial
Barbara Johns, Reaching For The Moon
Courtesy of Karen Hult

The case in Virginia was the only one that was initiated because of a student protest (Marsh, 2012).

 Layer Cake The nature of federalism has changed over our nation’s history, prompting different ways to think about federalism. For example, there are two main and competing concepts: dual federalism and cooperative federalism. Dual federalism has been likened to a layer cake. In this type of federalism, each level of government is responsible for some policy, and each government remains supreme within its own sphere or layer.
 Marble Cake Beginning in the 1930s, there was a trend to move from dual federalism to cooperative federalism. With cooperative federalism the roles of government are not as clearly defined as they are with dual federalism. Cooperative federalism is defined as the national and state governments sharing policy responsibilities. This type of federalism may result in both levels of government working together simultaneously, in the states carrying out mandates passed by the federal government, or in duplicating the efforts of one another on a policy area. This second form of federalism has sometimes been likened to a marble cake.

As a result there has been a trend in the federal system to transfer additional policy responsibility from the national government to the state and local governments. This shift in responsibility is known as devolution. One example of devolution is the federal government’s decision to relinquish distribution responsibilities for welfare services to state agencies. Each state now is responsible for making its own policy and guidelines for how federal money will be distributed.

When there are 50 ways to address policy issues as opposed to one national policy, Americans can distinguish differences in how policies can be interpreted and how privileges are afforded to different citizens in different states within the same nation. In this way, federalism can provide flexibility to the states, which can pass laws that reflect the policy priorities of their own residents, instead of a one-size-fits-all approach.

Protections from government abuses of our civil liberties are found in the Bill of Rights to the U.S. Constitution, but these protections were originally only guaranteed against the actions of the national government. However, over time, the Supreme Court has used the due process clause and the privileges and immunities clause found in the Fourteenth Amendment to rule that some protections found in the Bill of Rights are applicable to state government action as well. (The Fourteenth Amendment establishes that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) This process is known as selective incorporation. Interested in examining how most, but not all, of the rights in the Bill of Rights have slowly been incorporated to pertain to state government action? Then click here.

Conversely, while the Bill of Rights protects citizens against national and most state actions, federal and state laws also regulate citizens’ lives. Clearly, federalism remains a dynamic, complex, and evolving experiment in democratic governance.

In the following video, Mr. Logan Vidal, a political science major at Virginia Tech and Chesterfield County Public Schools alum, explores how the interaction of state and national government regulations on the use of an everyday object may help to introduce the concept of federalism to your students.

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