The Constitution and Federalism

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Constitution basics

  • The constitution was created at the Philadelphia convention in 1787 after the war of independence.
  • Some  delegates were influenced by the ideas of democracy but fear centralized power
  •  The wealthy also fear centralized government along with the power of the masses and smaller states
  • Smaller states feared oppression from larger richer states
  • For some the constitution is an example of democratic values however left wing critics say that it was not created for democracy but rather to make sure no radical change happened
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What sort of constitution?

A written (codified) entrenched constitution: Found in one source, difficult to change

The sovereign constitution/fundamental law:  overrides federal/state government. The Supreme Court can rule conflicting actions/laws as unconstitutional.

Limited Government

Separation of powers: separation of the three branches of government by forbidding an individual from sitting in more than one branch (expect VP).

Checks and balances:forces branches to share power, limiting the powers of each other.

The system therefore shares power to stop concentration of power/block radical change

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Branches of government: Executive Branch

Executive branch:

  • Includes cabinet departments and agencies such as the FBI, NASA. The president proposes bills, executes laws, spends the federal budget passed by congress, the president is elected with a 4 year term. Presidents can veto bills passed by congress.
  • The president is allowed to propose bills t congress from ‘time to time’ however since Roosevelt there is a convention for the president to present a policy programme.
  •  President can nominate to a range of posts (cabinet, federal judges including the supreme court and ambassadors)
  • President is commander in chief, the president signs treaties with other nations.
  •  Presidents can pardon all those found guilty of federal crimes expect those impeached 
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Branches of government: Legislative Branch

Legislative Branch 

  • Two chambers separately elected, the house and the senate. The house is elected every 2 years, senators every 6 years. Congress makes federal laws and passes the budget/authorizes spending. Congress can override the president’s veto with 2/3 majority
  • All measures have to pass through congress

  • 2/3rd in both chambers is needed to pass constitutional amendments 33/11000

  • Senate must approve nominations by a simple majority

  •  Only congress can declare war (only 5 times, last time in 1941)
  • Congress can impeach and remove from office, 2/3rd majority is needed to convict
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Branches of government: Judicial Branch

Judicial Branch 

  • Includes federal judges appointed for life. Supreme Court Is highest court of appeal. The court applies and interpret the constitution. They can strike down unconstitutional laws.
  • Supreme court has struck down acts of congress or state laws as unconstitutional on a number of occasions 
  • Constitutional amendments must be passed by ¾ of all states, only 27 have made it through this second hurdle
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Presidential Veto


Truman: 180 RV, 70 PV, 12 OR

Ford: 48 RV, 18 PV, 12 OR

Reagan: 39 RV, 39 PV, 9 OR

Clinton: 36 RV, 1 PV, 2 OR

Obama: 8 RV, 1 PV, 0 OR

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Federalism Basics

What is federalism?

A form of government which shares power between federal government and state government.

Why federalism in the USA? :Strong state identity, size and diversity, brings decisions closer to the people, small states are not dominated, history of perceived struggle against centralized power

What does the constitution say about federalism?

10th amendment, regulate interstate commerce, national supremacy, collect taxes for general welfare. Decentralization of power to states after the 70s with republican presidents/congress using block grants decentralizing in some areas such as speed limits. Some argue Obama era is a reversal of this to some degree through stimulus funds and the affordable health care act.


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New federalism

  •  Growing dissatisfaction with national government since 1970s. Congress seen as obstructive, scandal ridden, the presidency was also hit with scandal, failing to offer good leadership.
  •   Republicans had success at national level which meant decentralization of power to states
  •  Nixon and New Federalism: Block grants, gave freedom to spend money with broad aims, instead of categorical.
  • Reagan and New Federalism: 77 categorical grants to 9 block grants, with fewer conditions, however he also cut aid to states and used the threat of withholding money to force states to adopt measures (highway funds for drinking age)
  • The Republican Congressfrom 1995: national speed limit abolished, drinking water regulation flexible, 96 saw repeal of state obligation to provide national welfare entitlement, states can withhold Medicaid, restricted unfunded mandates.
  • Clinton ‘reinventing federalism’:states greater flexibility in implementation of a federal programme with goals and a board of freedom. 40 states tested welfare schemes. 
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The Supreme Court and federalism

From the 80s the court shifted to protect the states:

  • US V Lopez
  • Gonzalez V Oregon
  • Chamber of Commerce V Whiting
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However there has been coercion including from those who support state power

  •  Bush Snr and coercive federalism:unfunded mandates (drug free workplaces)
  • Bush Jr:No child left behind making education funds dependent on testing, Bush supported national ban on partial birth abortions.
  • Clinton:School gun free zones act, Brady Bill.
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Obama’s progressive/ cooperative federalism

  • Medical marijuana, consumer protection, limits on emissions. However when California lowered payments to home healthcare workers Obama threatened to withhold stimulus money.
  • Stimulus money has been criticised by Republicans as expanding federal spending and power as the money comes with conditions and purpose (levels of education etc.)
  • The Affordable Health Act expanded national responsibilities
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Positive effect of change

Decentralization since 1970s, positive effect of change

  • More freedom to spend federal grants as states wish with more block grants, states become more independent.
  • More power to regulate as states see fit
  • States can become laboratories for policy experimentation
  • Some state governments have been revitalized by the need to raise finances, governors as presidential candidates.
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Negative effect of change


  • States have had to cut services or raise taxes as federal aid has been cut, some have a small tax base and considerable social problems (Alabama, West Virginia)
  • National action has been beneficial in the past e.g. - civil rights, welfare, working conditions. Some states have a poor record (1/3 of Mississippi cannot read)
  • When it suited republicans they have coerced states to pursue policy priorities or for financial benefit.
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Dual/Layer cake federalism

  • States do make decisions in a wide range of issues (mandatory sentence laws/death penalty, Medical marijuana, assisted suicide, school voucher schemes)
  • New federalism saw post 70s era of devolution of power and responsibility to states, more discretion on federal spending money and how programmes are delivered (not just republicans Clinton) (devolution of drinking water regs, abolition of national speed limit etc)
  • The Supreme Court has become more conservative so favour states’ rights since 70s (chamber of commerce v whiting, US V Lopez). 

20th century limits on federalism 

  • Democrat expansion of federalism, Roosevelt-Johnson (Medicare, Medicaid, minimum wage etc) 
  • Court rulings have eroded but no overturned (Mapp, Miradna, Roe)
  • Republicans using federal power to acheive goals (No Child Left Behind)
  • Dependence of federal funds means Coercion (highway funds and drinking age)
  • Over 3000 federal offences 
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Cooperative/Marble Cake Federalism

Federal and state responsibilities and relationships are intertwined and interdependent:

  • States cannot ban abortion but can ban dilate and extract and can restrict through parental notification
  • They can use the death penalty but cannot execute minors or the mentally incapacitated
  • States administer funds but they are still mainly for specific purposes
  • States have their own welfare standards but there are some federal social security and unemployment benefits such as food stamps
  •  Obama stimulus money given by federal gov but ultimately spent by states
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States Rights

States’ rights

  • Emphasizing the size and diversity of the country, the writers of the 10th amendment wishing for most power to be given to states
  • Often associated with the view that federal government have gone too far using interstate commerce clause
  • Often associated with republicans in particular the right wing of the party
  • Note the decentralization of power from the 70s as a reflection of republican success and dissatisfaction with federal government
  • Note there is a sinister side to states’ rights as often used to justify racial segregation in 50s and 60s  
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