Federalism: Dividing Power in American Government

Federalism represents the fundamental division of power between the federal government and states, serving as a core animating feature of American government since the Revolution. Dr. Sean Beienburg explores how this constitutional principle works, its history, and why it remains crucial in today's polarized political environment.

• Federalism means power is divided, with most authority remaining with states rather than the central government
• The Constitution grants "few and defined" powers to the federal government while states retain "numerous and indefinite" powers
• The 10th Amendment reinforces that powers not given to the federal government remain with the states or the people
• Federalism has been championed by both progressives and conservatives throughout American history
• States cannot nullify federal laws but can decline to help enforce them
• Federal law is only supreme when the Constitution grants that specific power to the federal government
• Federalism limits tyranny, increases government responsiveness, and accommodates America's diverse political preferences
• In an era of polarization, federalism allows states to pursue different policies without forcing uniformity

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Chapters

• 1:32 Introduction to Federalism
• 4:04 Federalism in the Constitutional Framework
• 8:08 Power Division Between States and Federal
• 11:44 Federalism's Complex Political History
• 16:25 Myths About Federal Power
• 19:44 Why Federalism Matters Today
• 23:18 Closing Thoughts on Federalism's Value

Transcript

Speaker 1: 0:46

Welcome to Civics in a Year. Today we are talking about federalism and we have Dr Sean Byenberg back with us to have this conversation. So, dr Byenberg, can you tell me what is federalism and how does it work within our constitutional system of government?

Speaker 2: 1:03

Sure, and it's worth noting, and one of the things I'll just start at the beginning, because particularly folks who are studying American history often can get frustrated because we have the Federalist, the Federalist Party and Federalism and these in some ways have overlap, but in some ways they're different. So I'll spend a little bit of time just at the beginning sort of trying to get us, hopefully, to understand what that is. So Federalism as a concept is the idea that power is divided in a government and primarily, that most power is exercised by the more local units. So similar terms are federation or confederacy or things like, the idea being that smaller groups have built up to something larger versus political scientists would say the opposite is a unitary government where power starts at the top and then is temporarily delegated back down. So a federal system, just in the abstract, is one in which power is fundamentally divided between the lower states or provinces or territories, whatever you want to think of it, whatever the term is and the central government. And so we talked in an earlier episode about Federalist 39, which is my favorite Federalist paper, where Madison goes through and discusses this in more detail, and so I won't go into all the exact structures on that.

Speaker 2: 2:32

But conceptually, federalism is this idea that power is divided. And this is, as I think is, maybe a slightly hot take, but I think a defensible one. I would argue is one of the, if not the core, animating features of the American Revolution that the Americans understood the British system, the British system, to be one where power is divided, where most government is left at the more local levels, at least under the empire, that they all worked with the king but that they all had sort of their own separate legislatures. And in the 1760s and 1770s parliament is basically pulling more power to itself and this freaks out the Americans. So this is a fundamental value of the American political culture, arguably from the beginning.

Speaker 2: 3:17

Now the complicating thing comes that when we the term that we most hear, federal is federal government, so we're sort of inclined to think, oh, that's the thing that happens in Washington DC. But in a sense that's actually an inversion, which is that federal as a concept means power is divided. And so the complicating factor is when we think about federalist, as in the federalist papers, or federalist as in the party, because the folks drafting the Constitution understand at the time that most people at the founding are fundamentally committed, because they just fought a revolution over it to power being divided. This is actually one of the things that even the skeptic Brutus concedes. He says, at least rhetorically we understand. You defenders of the Constitution are promising us you also want a federal system. So pretty much other than, I'll say, maybe other than Alexander Hamilton and a few others, most people at the founding want power to be divided, as we talked about in the articles one. They think that maybe it's a little too divided, but they do fundamentally want this. So the drafters, the ratifier, the defenders of the constitution call themselves the federalist in order to sort of co-opt and say we are on behalf of this idea of federalism and divided power.

Speaker 2: 4:34

The skeptics of the Constitution are frustrated because they view themselves as the great champions of divided power and a more limited central government. So you know when we say that the anti-federalists is the term that gets used, but they're actually pro-federalism as a concept, because they're all basically arguing for why our faction is the one that will best defend decentralized government. And then the complication is that most of because the term federalist from the papers sort of becomes associated with the constitution as the political parties are forming, one of them takes the term the Federalist Party to basically call them, it's effectively calling themselves the Constitution Party. At that point, though, the Federalist Party is, of the two of the parties, the one that is more sympathetic to a stronger central government. I say stronger, not strong, because they still believe in fundamental decentralized limits et cetera, but they are not as hardline about it as the party that becomes the Jeffersonian Democrats or the Jeffersonian Republicans Democratic Republicans. The parties have sort of shifting names early on, and I know that will be the subject of future podcasts, but so federalism, just conceptually, is the idea that power is decentralized and divided rather than being concentrated in the central government. I mean, this is a foundational value of the American political project.

Speaker 2: 6:03

I actually also think that the term largely is similar to, we hear, states' rights, which is basically the idea that the states have a right not to be pushed around by the federal government. In some ways that's a more politically loaded term, because, as the other defenses of segregation fell away in the 1940s and 50s and 60s, that's what Southerners sort of latched onto as their last, their sort of rhetorical better claim. It's easy, it's better to say we're trying to defend the constitution than we're trying to defend straight up white supremacy. There are reasons, and we'll talk about that. I think they're wrong on the legal merits in future podcasts. But so states rights has sort of a bad sort of political odor because most people just heard it coming from the Southern racists for a while.

Speaker 2: 6:49

Some scholars disagree with me on that. I think the term is similar enough that I don't have a problem using them. But others would say that federalism is a little different. So that's the basic idea of just what federalism as a concept is. Power is fundamentally divided. Most authority should remain with the states, and this is not unique to America. Canada is a federal system. The provinces in Canada continue to wield most authority. In fact, in some ways the provinces are actually stronger compared to the central government than in the United States. There's other ways that that relationship is reversed. Mexico is formally a federal system as well. There are Mexican states. So this isn't just some weird crazy thing that the Americans came up with, but fairly they're one of the first places to make it sort of stick and last in a meaningful way. But it's not something that was sort of hallucinated here and no one else has ever thought of it or used it. So that's what federalism is at the core, how it plays out in the US constitutional order. The two best places to understand this, I would say, are Federalist 39 and Federalist 45.

Speaker 2: 8:00

Federalist 45 has the sort of real punchy pull quote that I think explains that, which is Madison is saying that the powers that are delegated by this constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The ones that will go to the federal government, he says, will be exercised on external objects, war, peace negotiation and foreign commerce. The powers of the states will basically be everything in the ordinary state of government that concerns the lives, liberties and properties and the internal order, improvement and prosperity of the state. So in constitutional law we call this the police power, the idea that the states wield authority for health, welfare, safety and morals, which, if you think about it, is actually almost everything that a government would do. So the 10th Amendment then sort of restates Federalist 45 in sort of constitutional text, which says that effectively all powers that are not given to the federal government remain with the states or the people, as sort of the people want to give it to the states or not. So we see this all over the US Constitution, this idea that most power is supposed to continue to remain with the states.

Speaker 2: 9:18

Now federalism, it's also worth noting, doesn't mean the states always win. One of the things that they're switching from in the articles to the US Constitution is they say we need to put a few more constraints on the states. We want to make it so the states can't screw with contracts. We want to make it so the states can't screw with paper money. We want to make it so the states can't screw with contracts. We want to make it so the states can't screw with paper money. Make their own paper money. So federalism and states' rights does not mean the states always win.

Speaker 2: 9:48

A famous example of this in the 1830s Andrew Jackson is ferociously pro-states' rights. He's fighting with John Marshall and the Whig Party because he's very, very, very strict on this and the Whig Party because he's very, very, very strict on this. And yet he has no tolerance whatsoever for John Calhoun and the South Carolinians saying states' rights mean we in the state can unilaterally veto federal policy. Jackson says no. If it's a power that is given by the Constitution to the federal government, then under our federal system that's one that the feds get to wield and the states don't get to block it. The question is, has it actually been given to the federal government? And that's a sort of adjudication question. But the idea that the states just can say states' rights, we win, feds go away. Some people characterize it as that and that's not accurate. Under the US constitutional model the feds do have certain legitimate enumerated powers and authorities. The states have the bulk of them. But that doesn't mean that those few and legitimate powers can't be exercised by the federal government. So federalism and similarly in states' rights have this sort of as I alluded to this sometimes association that this is the position of sort of the Southern racists or whatnot.

Speaker 2: 10:58

But it's worth emphasizing that the Americans, and particularly actually abolitionists in the 1850s, 40s, 50s and 60s, took federalism seriously and they appreciated it because federalism or this division of power was what had begun the anti-slavery movement. The Constitution sort of tolerates it, doesn't it tolerates slavery in the sense that it doesn't explicitly ban it in the states. It basically says states, you do your own thing. But if there had been basically a national vote or a national Congress deciding, slavery would have continued. It was the fact that the states had the authority to govern themselves, which is why basically all of the northern states have eliminated slavery or at least passed bills that slavery sort of gets phased out. By the early 1800s, no federalism I don't think you would still have slavery basically everywhere at the time of the Civil War. And federalism similarly, is what gives the northern states tools to try to make sure that there's legitimate sort of due process in adjudicating slave cases.

Speaker 2: 12:01

So the northerners associate federalism and states' rights actually with the anti-slavery position and so they're kind of annoyed when suddenly the southerners sort of make a hard pivot to that in many ways because they've lost control of the federal government. The southerners, the slave power has dominated the federal government for a long time and suddenly they lose and become like hardcore states' rightsers. It's not the only time that federalism has been used opportunistically. Obviously people sort of switch on that. It turns out when you're out of power at the federal government you suddenly like states' rights and Madison wouldn't see a problem with that because it means again you have proper incentives to vindicate constitutional principles instead of just someone abstractly a college professor like me writing a book saying federalism is important, nobody cares. But you need somebody with an actual institutional incentive to say something illegitimate is happening at the federal level and we're going to put it in court, we're going to push back against it. And so the Constitution creates and this is one of the places where Madison and Jefferson disagree a little bit.

Speaker 2: 12:59

There are several ways in which federalism can be enforced legitimately. The one that I think we're most familiar with is court cases. You can take it to a court. Supreme Court has struck plenty of things down in American history on 10th Amendment grounds. Nope, the federal government simply doesn't have authority to do this. You can't do this. The states can also write protests. This is what the Virginia resolution originally is. From the Virginia and Kentucky resolutions. Madison says you can protest, that's legitimate. Congress can get the signal and say, ooh, maybe we shouldn't be doing that. That one may not be potentially the most effective. Another one that, but it is one that exists.

Speaker 2: 13:49

Another one that Madison is explicit about in Federalist 46, which is coming up in the last few years of politics the federal government cannot make the state governments do the Fed's dirty work. So if the states can, just Feds. If you want to enforce alcohol law, go for it, but you and your five treasury agents can go roam the whole state. It's not going to work. So the states cannot proactively interfere. This was the Calhoun, south Carolina mistake. Scholars call this nullification. They can't nullify, they can't proactively interfere, but they don't have to help, and this has been repeatedly blessed by the Supreme Court for sort of causes left and right. And so this is actually, I think, one of the really interesting conversations we see in constitutional law in the last few years. So the states can basically protest, the states can decline to help. The states have a few other techniques, but the bulk of it is in ways that the court will be a major factor and the Senate also serves as a structural reinforcement for this, as does the Electoral College, that the states have a strong anchor in terms of the way that the system is allocated, and we talk more about that in Federalist 39, so I don't want to belabor that too much.

Speaker 2: 14:52

There are a couple of myths that I think are worth noting about federal power. One is I alluded to the idea that federalism is an inherently conservative doctrine. In fact, if you look over American history in the years before the New Deal, it's progressives that are actually more invested. Now there's terms, obviously, with the. There's a reason why it's a problem to use the term progressive, because it's shifted over time. But folks who would identify, as, I think, on the left of politics. They wanted a much more robust welfare state. They wanted a much more robust regulation of business In Arizona. The folks who were recording this podcast they had the founders of Arizona were ultra states rights committed. They sound like Clarence Thomas today because they wanted to be left alone by the feds in order to use their state's police powers to regulate on behalf of what they saw as the public good. And so they sound like hey. 10th Amendment, original intent very, very strict on that front. So, and similarly with the abolitionists who viewed themselves as pro-states right. So for the last few decades, conservatives have been the ones that are more invested in this, but this was pretty much a unanimous position through the New Deal that everybody left and right cared about federalism. You would side it against your enemies when they were in power, but you would, at least rhetorically, always care about it.

Speaker 2: 16:09

It's alluded to this earlier, but we also have the narrative that federal law is supreme. Federal law is supreme only when the Constitution says it is, and Alexander Hamilton, who is no states' rights fanatic, is quite explicit about this in the Federalist Papers, where he says in Federalist 33, right, it does not follow that acts of the large society, meaning the federal government, which are not in pursuance to its constitutional provisions are real law. He describes those as acts of usurpation and says they should properly be resisted by legitimate means. Yes, but that this should be resisted. One of my favorite figures from the early 20th century, ella Hugh Root, who's one of Theodore Roosevelt's inner circle, very famously says a law that is passed by Congress not pursuant to its powers, should be treated as having no more authority than, basically, a resolution of a debating society. Right, so the federal government doesn't always win. The federal government wins when the Constitution says it is. So. It's not. Feds are supreme over states, its Constitution is supreme over both.

Speaker 2: 17:14

Another myth that I think people tend to have is the idea that the federal government has the authority to sort of do whatever is necessary and proper. There will be an entire separate podcast on the necessary and proper slash elastic clause, so I will not say more on that. But that is another myth of federalism. Is that the necessary and proper clause lets the feds do whatever they think is prudent? Not the case. So yeah, federalism is something that I think people lost a lot of interest in in the mid-20th century, again partly for reasons of the people who were defending it the most were sort of the last-ditch bleedings of the Southern segregationist movement, and otherwise it wasn't being cited very much in politics for a few years. But I think this is one of the things where Arizona in particular has had an influence, where figures from Arizona have sort of revivified this as a major doctrine of constitutionalism more broadly, and I think we're starting to potentially see folks on the more progressive side of politics flirting with saying, hey, maybe the folks at the beginning of the 20th century that were our left-wing sort of ancestors maybe they were onto something too. So again, this is one at the beginning of the 20th century that were our left-wing sort of ancestors. Maybe they were onto something too. So again, this is one of the places where I think the US Constitution proves to be actually quite brilliant is that it creates institutions and structures and incentives to basically be vindicated that are going to shift, and that's not a bug of the system if sort of who's defending the position is who's invoking the position has switched. I think that's a feature. It means that basically the incentive structure has been set correctly and I think federalism serves, I guess, just sort of in closing, I think that it has a few sort of particular sort of reasons that we think it's important, at least that I think it's important for Americans to continue vindicating so one.

Speaker 2: 18:59

We've talked about the anti-tyranny sort of liberty provision. It makes it so that power is divided. It makes it harder for the federal government to be abusive. Now the states themselves can be abusive and we've seen this, and that's why the Reconstruction Amendment sort of added a list of states. Thou shalt not. But fundamentally federalism limits the damage. Maybe a state is crazy. If a state is crazy, you can theoretically always move to another state. If the US government goes crazy, it's harder. So making sure there are extra checks on the feds is a way to ensure additional protections of liberty and against tyranny.

Speaker 2: 19:34

Another one that I think is notable and useful to think about is responsiveness and accountability. It's hard by design to pass laws in Congress. The state governments can be a lot more responsive and accountable. You can actually know your legislators. I have seen state legislators like knock on doors and talk to people. There's no chance in the world that a member of the United States Congress is going to knock on your door and say, please vote back, like it's just not going to happen, right, and so there's a. The smaller scale means that there can be a responsiveness and accountability.

Speaker 2: 20:08

And finally and they wouldn't have used the term at the time of the founding and it might not be used the same way that other people think of the term but America is a big, complicated and very diverse place with very diverse preferences and very diverse needs. We have different weathers, we have different political cultures and ideologies, we have different traditions. Pick whatever your metric is. It's a big, complicated country and federalism is a way to sort of recognize and implement that in a way that keeps the scope and scale of political conflict to be more manageable. So it doesn't matter, in a sense, if California and Wyoming want to do things very differently.

Speaker 2: 20:52

Under federalism they don't basically get to tell each other what to do, whereas the more that the federal government is saying here's the rule everybody has to follow. If you're the loser on that, if you're in Wyoming while California gets to call the shots or we'll make them comparably sized states, california and Texas, you're going to be increasingly resentful of that federal government, whereas, hey, we get to do things here. You folks do things a little weird over there, but you do you. There's an element in which that is actually very healthy and channels disagreement in productive ways, whereas, effectively, instead of it just being your sort of friendly neighbor who does things differently, this is the jerk who's telling you how to live your life. Federalism is a way to keep that sort of constraint, and, especially as our politics becomes more polarized, I think that there's the logic in the early 20th century that America has basically all become the same, we all believe the same things, we can sort of discern a unifying American spirit.

Speaker 2: 21:51

This is one of the sort of visions of Wilson and Theodore Roosevelt and some of the other parts of the progressive movement. I think that the late 20th and early 21st century has pretty firmly indicated that that is wrong, that Americans actually still continue to disagree and they should continue to disagree, and so there are some scholars who say that federalism is obsolete. I would actually argue that federalism is, in fact, more important in a time of polarization and that one of the ways to sort of descale the conflict, the trauma you don't have to be as scared of who's going to wield the imperial scepter if it's somebody closer to home and California can't tell Texas what to do and Texas can't tell California what to do. So I think this is actually a constitutional principle that is even more timely today than it was at the American founding.

Speaker 1: 22:40

Dr Meilenberger, thank you. I think federalism can be very complicated for people to understand, but you did a fantastic job at giving us examples and letting us know the importance today, so thank you so much.