Matthew Netardus
AP Government and Politics, Piccillo
How do the powers of Federalism in practice relate to the institution of Federalism in theory? That is, the thinking and values of the Founders.
In 1789, a group of State representatives met in Philadelphia, Pennsylvania to revise the then defunct Articles of Confederation. What came out of that sealed off think tank was far from an improved articles based government, but an entirely knew government all together. A large part of this new government under the Constitution was the concept of Federalism. Developed and defended in part by James Madison, the Federalism that was developed in theory then was, and still is vastly different from the Federalism that was used in practice. The Federalism of theory had three parts; a National government, State governments, and then the citizens themselves. In the theological Federalism the State and National government acted upon the citizens with the exact same amount of power. In practice however, today more then in the past, Federalism has morphed from a traditional sense of homeostasis between State and Federal government, to an imbalance on the part of the National government.
The commerce clause, part of the main document conceived in 1789, was included to discern where and when the Federal government could act inside the States. While this power was used by the early Constitution based government, its powers are used much more actively by today’s government; to the extent that some may say that the commerce clause is used as an excuse by the Federal government to increase its powers. Some of the positive examples of this clause in action would be the Lacey Act, which prohibited the shipment of game bird from one State to another. Import and Export taxes are also well within the original powers given to the Federal Government under this clause. However, sometimes the Federal government uses this clause when clear justification can not be found in its actions. The Virginia Tech rape case could be used as one such example, where the Federal government sought to increase protection of women who had been a victim of rape. When the States declared that this was not within the Federal government’s enumerated powers, the Fed replied that it was an implied power based off of this commerce clause. While their excuse may have satisfied other members of Congress, and perhaps of the nation, the Supreme Court declared that the Federal government did not have the constitutional authority, and the act was rescinded. Thus is shown that while ideal Federalism intended the commerce clause to be used in an effort to maintain the traditional homeostasis, the Federal government was actually able to turn it around and use it in an effort to effectively increase their own power, checked only by the second part of the double security, checks and balances by the Supreme Court.
The overall power of the Federal government in respect to the State governments has changed greatly since the times of the Fathers original, untested, and ideal concept of Federalism through the use of the court system. While the safety net of checks and balances evened out the effect of the Federal governments use of the commerce clause as best its could, the Supreme Court has also been used as an instrument through which the Federal Government has sought to increase its power over the States. Starting with Chief Justice Marshall, a grand majority of court cases between the States and the Federal government have gone in favor of the Federal government. This is a trend that today has started to slow down, with the courts sending a bit of power back to the States over time, attempting to return, at least in some small degree, to the balance of power envisioned by the ideological version of Federalism.
The last great influence which disrupted the idea of theological Federalism was money. While the States can raise a limited selection of taxes upon those within its borders, this money is seen by many as not near enough for the niche’s that the States must fill. Grant money from the Federal government is one of the main ways that the States alleviate this burden. While it may seem as if the Federal government feeling, or being, obligated to assist the States with their financial woes would in fact be making the States more powerful, it is actually yet another way the Federal government is increasing its power over the States. The uses of categorical grants give the States much needed money, but also gives the Federal government virtually 100% of the power to decide exactly what the state spends it on. This allows the sitting Federal government to decide what the States fund best, meaning that State spending is bound to change with each change of administration. The use of condition of aid grants also give the Federal government more of a chance to make the States comply. With these grants, the Federal government could “ask” the States to do something, say change the drinking age to 18 and lower the highway speed limits, but declare that a State not in compliance with this order would not receive any Federal highway grants. While this may seem like a choice for the States, in a large percentage of the time the States are forced to comply with whatever order is given by the Federal government because they can not operate without this Federal government grant money. While mandates could formerly come unfunded, which in no doubt increased the Federal governments ability to manipulate the States, such as mandating bussing to increase school diversity and integration, their use has come to an end. This is one of the few cases in which theological Federalism attempts to make a comeback to equality. If the Federal government mandates the States must do something, the Federal government must pay for this action with its own money. Overall however, while this influx money allows the States to generally remain in the black in regards to money, it does in no way contribute to the ideological balance of power between the States and Federal government.
While it is doubtful that Madison, Mason, John Jay, or Jefferson would find to many similarities between their original concept of ideal Federalism, and the Federalism in practice both then, but more importantly, currently, it is doubtful that any of them would find a problem with this. The document itself, and the idea of Federalism was conceived in a way that would not only allow, but encourage the adaptation of their ideas to fit the changing needs of the government, people, and more importantly, the Nation. They realized that in 1789, they could not predict and include all the power, restrictions, and safeguards against “all enemies, foreign and domestic” that the government needed to last until end of time. This flexibility, while undeniably important and invaluable in inclusion, has for the most part, created a practice of Federalism that is vastly different from the theological kind envisioned at first by the Founders.
