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3. Federalism: U.S. v. the States, Readings
Topic Overview Using the Video Readings Critical Thinking Activity Web-Based Resources







Readings Unit 3

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Download Unit 3 Readings, Federalism: U.S. v. The States

  • Introduction—Federalism: U.S. v. the States

  • Tocqueville, Democracy in America: “In What Respects the Federal

  • Constitution Is Superior to That of the States”

  • Federalist Papers: “Federalist No. 46”

  • McCulloch v. Maryland

  • Dred Scott v. Sandford


  1. “In examining the Constitution of the United States, which is the most perfect constitution that ever existed,” wrote Tocqueville, “one is startled at the variety of information and the amount of discernment that it presupposes in the people whom it is meant to govern. The government of the Union depends almost entirely upon legal fictions; the Union is an ideal nation, which exists, so to speak, only in the mind, and whose limits and extent can only be discerned by the understanding.” What are some of the legal fictions that Tocqueville discussed?

  2. What are the three clauses of the Fourteenth Amendment that articulate how people are to be treated by the United States government? Who shall be entitled to the various provisions?

  3. Why does Congress have the power to create a bank, according to Chief Justice Marshall in McCulloch v. Maryland?

  4. What would be the probable result of the national government sending a military force against the state?

  5. Why was an act of Congress prohibiting a citizen of the United States from taking his slaves with him when he moved to a territory an unconstitutional provision?

Introduction—Federalism: U.S. v. the States

“The first question which awaited the Americans,” claimed Tocqueville, “was so to divide the sovereignty that each of the different states which composed the Union should continue to govern itself in all that concerned its internal prosperity, while the entire nation, represented by the Union, should continue to form a compact body and to provide for all general exigencies.” Generally, federalism refers to this primary question: the relationship between the states and the federal government. What powers belong to the national government and what powers belong to the states? This seemingly simply question organizes and sustains some of the most important political debates in American history. These relationships function from strongly separate to mutually dependent. Additionally, historical periods are marked by particular arrangements between the different layers of government as people change their perceptions of how these institutions should relate. The participants in the Constitutional Convention, particularly James Madison, worked to arrange federalism, according to the scholar Martin Diamond, so that the delegates could “have their cake and eat it too.” Substantial agreement was the icing they did not quite get to taste.

Federalism scholars have often attempted to figure out exactly what kind of cake the founders baked. Layer cake has been the conclusion when the system separates areas of control very strictly between the state and national governments. Others have argued that federalism never functions that starkly and that the most separation that ever occurs is more like a marble cake in which the functions swirl around each other. Others have suggested it’s more like a birthday cake or even a fruitcake.

Whatever kind of cake it was for the drafters, promoters, and signers of the Constitution, federalism was certainly one of the parts of the new Constitution that needed the most sweetening for those who feared that the Constitution was a tool for the centralization of great, possibly tyrannical, political power. This great question of the necessity or conspiracy of a more centralized government directed much of the debate between the Federalists, the supporters of the new Constitution, and the Anti-Federalists, those who, generally, found it to be an unsupported grab for power. After the ratification and adoption of the Constitution, the Democrat-Republican party would inherit some of the skepticism of the Anti-Federalists.

The earliest years of American history are typically perceived to be the most layered, that is, with the most clear distinctions between the fields of the national and state governments. This is often overstated; there was significant interaction in this early period particularly in the area of exploring, acquiring, connecting, and defending new territory. Chief Justice John Marshall, moreover, found a broad meaning for the powers assigned to Congress as “necessary and proper” in affirming the creation of a national bank, and its protection from state taxes, in McCulloch v. Maryland. The Court found, alternatively, important limitations on the role of the federal government, particularly in the application of the Bill of Rights, which the Supreme Court decided did not apply to states.

This ruling would eventually be rendered moot (in the middle of the twentieth century) through the application of the Fourteenth Amendment (in the Readings collected in the previous unit); even though the initial application of the Fourteenth Amendment was virtually gutted by the Slaughterhouse Cases, one of the earliest attempts by the Supreme Court to explore the meaning of the Fourteenth Amendment. While changes in federalism were certainly not the most important changes wrought by the Civil War and the emancipation of the slaves, emancipation and the war were the most significant events in the history of federalism. Not only did the war settle questions of the ability of states to leave the union but it also resulted in the passage of legislation and constitutional amendments that would allow the national government to become the protector of the civil rights and liberties of citizens against denials by the states.

In the twentieth century, regulation of business and civic rights have often been questions of the limitations and possibilities of the federal government’s ability to regulate issues previously regulated by the states, particularly as new forms of corporate power generated pressing need for a powerful national government to oppose powerful international corporations. The responses of the federal government to the Great Depression, World War II, and the Civil Rights Movement all emphasized the importance of a powerful national government able to act to achieve national ends. These events produced important precedents for the federal government to act on a national scale to regulate business, enforce workplace compliance, and regulate rather private personal interaction.

At the end of the twentieth century, this national government power was criticized by those who resisted the growth of the federal government compared to states, those who resented the Civil Rights Movement’s transformation of American society, and by large corporations that refused to defer to the government’s regulation of their business or believed that they could perform many of the government’s function in a more economical manner. These groups brought significant pressures to bear within both the Democratic and Republican parties and realized sizable achievements in shifting power from the national government to states and from the government to private corporations.

Early events of the twenty-first century (the attack on the World Trade Centers and the attack on Iraq) also changed the role of the federal government in relation to the states, through, for example, the creation of the Homeland Security Office; the national government distributed federal money through this office, and increased its power through federal policing agencies (powers historically left to the states). Federalism remains an important aspect of politics in the United States. The future of federalism remains, as it was for Tocqueville, “impossible to determine beforehand, with any degree of accuracy, the share of authority that each of the two governments was to enjoy as to foresee all the incidents in the life of a nation.”


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