Federalism: An American Quirk

My readers from outside the US (and maybe some in the US) are probably scratching their heads in puzzlement at the US political scene as displayed this spring and early summer. The president has left so many things to the states, all of which responded in slightly different ways, that it makes the US look somewhere between chaotic and insane. The President of France or Prime Minister of Russia would never allow this.

Welcome to Federalism. Germany has a little, although not as much as the US does. It is written into the Constitution, especially the Constitution before the Progressive Era reforms of the 1890s-1920s. The US has, in theory, two tiers of government. The federal government does federal things and the states do state things. Each level is a check on the other, or was, and this fits in with the three branches of the federal government.

In reality it is a lot more complicated, and things have changed a great deal since the Constitution was written. However, federalism still exists. I’m going to look at the idea as was originally in the Constitution before, oh, 1910 or so.

The Articles of Confederation gave (very roughly guessing) 80% of power to the state governments, and 20% to the federal government. Among other things, states could be asked for money to pay for national expenses, but there was no way to dun them if they balked. If you read the Articles, they read a bit oddly, because “The United States are . . .” Multiple states are doing things.* It soon became apparent that although this system would prevent a king from coming to power, it wouldn’t meet the needs of the country. A meeting was called to fix the worst of the problems, to patch the holes.

Instead an entirely new document was drawn up. Even people like Alexander Hamilton who favored a very strong central government acknowledged that there was some validity to the concerns about an overly-strong central government. As a result of a lot of arguing, debating, proposals, and compromises, a new document came to be. It leaned on the concept of federalism. The states would be a counterweight to the central government. The central government would check the states and keep them from fighting each other. Likewise, each branch of the federal government would check the others, although the courts were the weak sister by far. If you read Article I, it lists the powers of Congress, and what they are not to do. Likewise Article IV, which focuses on the states.

The states selected the members of the Senate. The idea was that the states acted as a buffer between the upper house and the mob. The individual voters of each state selected the House, the House did money things, but “the people” could too quickly become the mob, fickle and wild. The Senate would check that, especially in foreign policy (ratifying treaties, approving ambassadors). The Senate represented the will of the states, the House represented the will of the people.

States could also amend the Constitution if needed. It was not an easy process, but it could be done. The States also buffered the presidential election from the mob via the Electoral College. The first flaw in that became glaringly obvious in 1800’s election, and a slight change in procedure was made not long after.

The Bill of Rights was the price several states charged for ratifying the Constitution. Although most of it is about the relationship of the individual and the federal government, the 10th Amendment clarified that all powers not specifically given to the federal government remained with the states. Although the Marshall Court (the Supreme Court under the leadership of John Marshall) created the doctrines that 1. the Courts decided what was Constitutional or not and 2. that the federal government always overrode the states, they also ruled that the Bill of Rights only applied to the federal government (Baron v. Baltimore.)** The state constitutions had their own provisions for rights. If the state of Maryland and the city of Baltimore deprived Mr. Baron of use of his property without paying, he had to go to the state court for redress.

So, a quick recap. The states chose the Senate, and could amend the Constitution. They could defend themselves from attack with their own forces until help came. They could sue the feds and each other. State legislatures told senators what they needed to do. The 10th Amendment reaffirmed that if it was not explicitly given to the federal government, power remained with the states.

We see that still in things like education. States set their policies about education, including private and parochial schools, home schooling, subjects that will be studied in what order, and so on. States in turn let local districts have a lot of lee-way (or did.)

Another area where federalism became most visible this year was and is public health. The governors are the chief executives of the states. The federal government can issue general guidelines, or set border policy and the like, but it is the states’ duty to see to public health and their own needs. Wyoming will not have the same health concerns as New York or Florida. So we saw some states with very strict lock-in policies, border controls, and tracking of anyone who might have the Wuhan fever. Other states, such as Wyoming and Iowa, had lower population densities and different demographics, so they opted to remain “open” and allow greater freedom of movement and of commerce. That’s federalism. The US president didn’t “allow” it, because it’s baked into the Constitution. His job is national policy, like closing the border to people coming from areas with high infection rates, or insisting that immigrants be screened for certain diseases.***

Are the United States crazy and disorganized? Compared to France, yes. But Oregon is not Ohio is not Oklahoma. Federalism makes sense in a huge place with very different regional cultures. It has weak areas, sure. It also allows a lot of flexibility and testing out of things before they become national policy.

*In German, the United States and Switzerland still “are.” The War Between the States/ Civil War/Late Unpleasantness/ whatever is considered to be the end of “the United States are” in US English.

**This remained true until 1954 with Brown et al vs. the Topeka Board of Education et al. Earlier cases had used other ways to get states to acknowledge the First and Fourth Amendments, but this started the blanket use of the 14th Amendment. The use of the 14th Amendment to impose the Bill of Rights on the states is called “incorporation,” in that the states are incorporating the BoR into their laws. [Yes, I know it is more complicated. This is a blog, not a textbook].

*** This goes back to the 1800s, if not earlier. No one wanted a bunch of people with chronic, spreading, debilitating diseases dumped on them, be it cholera or yellow fever or some eye diseases.


12 thoughts on “Federalism: An American Quirk

  1. Doesn’t Switzerland have a strong federal structure? Or has that been eroded, perhaps by the EU?

    I wonder whether the victims/subjects of the EU might not be gaining a little appreciation for federalism.

    • The last time I studied Switzerland, in the mid-1990s, it was somewhat bottom up, in that while the central government proposed policies and handled international matters (to an extent) and set guidelines, the cantons and even towns had the greatest authority. However, I’ve seen things that suggest that has reversed, or at least the balance has shifted considerably, so I didn’t mention Switzerland in the post.

  2. A lot of *Americans* don’t seem to grasp that we have a federal system, and that Trump does not appoint the Mayor and the police chief of Minneapolis. Or control the virus-spreading subway operations of New York City.

    One effect of the last several months should be to reinforce the importance of *local* elections.

    • The various public school systems I went to covered *nothing* about the Federal system. And they unanimously referred to our government as a “democracy.”

      There was a 9-week “American Government” course when I was in high school, but I think they got rid of it before left school. I did get to take pre-Soviet Russian history to fulfill my American History requirement in the 11th grade, though. Most people I tell that to refuse to believe it, though.

      • I’m swearing over here. That’s terrible! We had the system explained in general information when we were little kids, around election time. We also did federalism in baby-version American history in 4th grade, in Ohio history in 7th grade, in American history in 8th grade, in 11th grade American history, and in 12th grade American government. (Also in the little elective Law and Government in junior high.

        The two American history year classes, and the half-year Ohio history and American government classes, were not optional for any Ohio student, even if you went to private or parochial school. Your school had some options about how they taught it, but federalism was one of the non-optional things in the curricula.

        Beyond that, of course a lot of people did Girl Scout or Boy Scout merit badges that involved civics knowledge of this kind.

  3. Very useful summary in the post, and plenty of places for people to begin further research.

    One of the reasons for the Convention in 1787, and why Hamilton and some others advocated for a stronger Federal government, was taxation and money – specifically, the Federal government being able collect the monies needed to retire war debts incurred by the Confederation and by the individual States in support of the Confederation. The British counterfeit paper that inflated this amount was so good, that no one could tell the difference. It was approaching a point of having won the war with arms and allies, the peace could be lost by a foreign State or cartel literally buying one or more of the States’ debt paper with specie for pennies on the Continental dollar, and then demanding repayment NOW in the one commodity that the States had in plenty – land, perhaps, all of it. Imagine the Duke of Upper Dudgeon and his company of friends buying out and evicting the unwelcome from, say, Massachusetts. All perfectly legal at the time; with enough friends, or tacit sympathy from France to get something back …

    • It’s sort of ironic, considering taxation was one of the root causes of the Revolution…

      The Revolution incurred massive debt, and then there were the expenses of setting up a national government from scratch. The legislature and taxmen were scrabbling for every mill and penny they could squeeze out of the populace. Shay’s Rebellion was one of the things driving the Convention, and even afterward the pressure continued, leading to the Whiskey Rebellion. And meanwhile, increasing number of people were relocating north where the King’s taxmen weren’t nearly as rapacious as those of the New Bosses, so the number of people who actually had anything worth taxing was shrinking.

      It mostly got sorted out in a few more decades, but it wasn’t Yankee Doodle and sparkleponies like some of the history books try to imply.

  4. The Euros don’t understand that we have ~3000 miles from east to west…and a LOT of different climates to go with them.

Comments are closed.