The term federalism is often confusing. You would think that federalism involves a system where the federal government has more influence and power, but it’s just the opposite. Federalism actually describes a system of government where some powers belong to the national government, and some powers belong to the state government.
Federal systems must have at least two levels of government. As you know, America has a federal government that consists of the executive, legislative, and judicial branches (headquartered in Washington, DC). That’s one level. The other level comes from the 50 state governments, each with their own powers and sovereignty.
When was federalism adopted in the United States?
The Founding Fathers adopted federalism in response to the problems with America’s first system of government, the Articles of Confederation. If you think back to your high school history class, you may remember the 13 original states created the Articles of Confederation as the United States’ first form of government. Under this system, the states remained sovereign and independent, and a newly created Congress served as a last resort to resolve disputes.
But the articles had some weaknesses. The biggest problem was Congress wasn’t strong enough to enforce laws or raise taxes. These flaws prompted the Constitutional Convention of 1787. There, delegates from the 13 states drafted the Constitution to address the problems with the Articles of Confederation. The Constitution created a stronger central government to oversee national issues while keeping most power in the states. This is a federalist style of government—and America’s system—where power is shared between the state, local, and national governments.
What does federalism look like in America?
In the United States, the federal government has the power to regulate trade between states, declare war, manage the mail, and print money—among several other powers.
State governments have their own set of powers too. States generally oversee education, roads, drivers’ licenses, police departments, elections, and more. Notably, all power not granted to the federal government is reserved to the states and the people. The Founders intended the federal government’s powers to be limited. In The Federalist Papers, James Madison noted: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
And then there are shared powers, also known as concurrent powers. Both the federal and state governments have the power to tax and establish courts, for example.
What are recent examples of federalism in action?
A healthy federalist system is one in which citizens are active, informed participants who hold government officials accountable and push back when they overstep their powers. The recent challenges to Governors Cuomo and Newsom’s actions are an example of individuals and organizations demanding accountability. An example of state governments pushing back against overreach by the federal government can be seen with the recent federal vaccine mandates. When OSHA and other federal agencies issued mandates which attempted to usurp states’ acknowledged authority over public health, states pushed back, filing lawsuits that have been upheld by federal courts.
Related Resources
America Needs a Great Decentralization
States respond to President Biden’s vaccine mandate
Why did the founders create a federal system of government?
The American colonists fought the American Revolution because they wanted to break free from the tyrannical government led by England’s King George III. After winning the war in 1781, the new American citizens were very hesitant to create a powerful, centralized government. That’s why they created the Articles of Confederation. But the Articles were too weak and gave states too much power. Federalism was a compromise. It’s the idea that government authority rests in both the national and state governments. It’s why you are a citizen of both your state and the United States!
What are the benefits of federalism?
One benefit of federalism is it creates “laboratories of democracy” across the country. This means states are free to try different policies and see what works best for their populations. A good policy in Wyoming, for example, might not be the most effective policy for a bigger state such as California. Federalism allows states to adopt policies that best fit their needs.
Another benefit of federalism is it protects the American people from tyranny. Because power isn’t concentrated at one level—or within one branch of government—it’s difficult for one branch to take control of the others.
Do other countries have federalism?
Yes. Besides the United States, 30 other countries use federalist systems for their governments. These countries include India, Germany, Switzerland, Mexico, and Brazil.
There you have it. A very brief overview of what federalism is and how it works. If you’re interested in learning more about this form of government, these resources may interest you:
Federalism
Bill of Rights Institute
What is Federalism?
History on the Net
When the Founding Fathers Settled States’ vs. Federal Rights—And Saved the Nation
History Channel
What is Federalism?
US Law Essentials
Federalism is a Condition for Better States
American Enterprise Institute
How can Americans ensure federalism remains at the heart of our country’s government?
Too many decisions have been taken out of the hands of citizens and our elected representatives and left up to Washington, DC. The solution lies in reclaiming self-governance in our states and communities.
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In the United States, the organizing principle of federalism distributes power between the national government and the state governments, both of whose powers rest on written constitutions and both of which can act directly on individuals. This governmental system ensures cooperation and conflict within and between levels of government.
Relationship between federalism and the First Amendment has three dimensions
The relationship between federalism and the First Amendment has three important dimensions:
- The first centers on the political theory of the founders and their original intent as reflected in the design of the relationship between the national and state governments and in the ratification and amendment processes they created at the Constitutional Convention of 1787.
- The second dimension is the political development of the national government and the establishment of a nation-led intergovernmental partnership with subsequent interpretation of national policy authority under the First Amendment.
- The third dimension is the political development of the state governments under a nation-led intergovernmental partnership with subsequent interpretation of national policy authority under the First Amendment and concurrent state constitutional guarantees of freedom of speech, religion, press, and assembly.
Founders saw Bill of Rights as an afterthought
The founders were divided on whether there should be a bill of rights. In fact, the Constitutional Convention of 1787 completed its work without including any such explication of rights, though delegates had considered and subsequently rejected the enumeration of rights. According to historian Gordon Wood (1969), delegate “George Mason, almost as an afterthought in the last days of the convention, brought the issue up, . . . [and subsequently] it was defeated by every state” (p.536).
Although the ratification debates produced a compromise between the leading Federalists such as James Madison and the Anti-Federalists, other Federalists such as Roger Sherman, the author of the Connecticut Compromise that created modern American federalism, remained opposed to a bill of rights as unnecessary. Even after the Constitution was ratified and the first 10 amendments were added, a natural rights understanding informed the founders’ views of the Constitution.
As political scientist James Burnham (1959) observed, “These rights, in short, are limits, not powers” (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights.
First Amendment orginally only applied to national government
Initially, the founders interpreted the First Amendment, and indeed the entire Bill of Rights, as limiting only the powers of the national government rather than those of the states. Indeed, it was not until the Supreme Court ruled in Gitlow v. New York (1925) that the Court began a systematic application of the Bill of Rights to the states and other subnational governments through a judicially constructed due process understanding of rights protected by the Fourteenth Amendment, which was ratified after the Civil War in 1868.
But states had constitutions, statutes, and common law practices that predated the First Amendment and provided a broad area in which states could address policy in areas prohibited to the national government and could protect individual liberties from government interference.
“The first constitutions represented only the initial phase in the development of civil rights in the United States,” remarked constitutional historian Willi Paul Adams (2001),“. . . [and] the codification and application of civil rights were part of a political process that had a promising beginning under the favorable conditions of the founding” (p.144).
State constitutions had their own enumerations of rights
In their 1776 constitutions, Virginia, Pennsylvania, Maryland, Delaware, and North Carolina all provided for enumerations of rights such as those found in the Bill of Rights. These rights-based protections were later included in the constitutional preambles of Vermont, Massachusetts, and New Hampshire, and in the constitutional provisions of New York, New Jersey, South Carolina, and Georgia.
As political scientist George Anastaplo (1995) has noted, “The American people were already exercising [these rights] by 1789, whether or not their States had bills of rights or guarantees in them of freedom of speech or of the press. These were rights that were confirmed, not created, by the speech, press, assembly, and petition provisions of the First Amendment”(p.53).
Some states protect more First Amendment rights than the national government does
As the Union grew during the two centuries after the founding, state constitutions increasingly included enumerations of rights. Even today, some states are more active than the national government in protecting individual rights.
For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.
Daniel J. Elazar (1987) and other federalism scholars have observed that the states serve as laboratories for policy experimentation and for addressing the often unique needs arising from local and regional diversity.
Even after a century of nationalizing policy authority, the states play a significant, meaningful, and constitutionally guaranteed role in the intergovernmental policy process that both affirms and extends the rights and limitations in the First Amendment and Bill of Rights.
This article was originally published in 2009. Michael W. Hail (1966-2020) was a professor of political science at Morehead State University. He was actively involved in the Kentucky Political Science Association and the American Political Science Association.
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Sweezy v. New Hampshire (1957) stands as the first U.S. Supreme Court case to expound upon the concept of academic freedom though some earlier cases mention it.
Most constitutional academic freedom issues today revolve around professors’ speech, students’ speech, faculty’s relations to government speech, and using affirmative action in student admissions.
Although academic freedom is regularly invoked as a constitutional right under the First Amendment, the Court has never specifically enumerated it as one, and judicial opinions have not developed a consistent interpretation of constitutional academic freedom or pronounced a consistent framework to analyze such claims.