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Chapter 2: Federalism

2.a – introduction.

      More than any other aspect of U.S. government structure, federalism contributes significantly to innovation in state, local and national government alike. 1 However, it is unlikely that the contemporary impacts of federalism in postindustrial America were fully anticipated by the framers of the U.S. constitution.  The Founders were driven to a much greater extent by a desire to strike a balance in political power between a nascent national government and the several pre-existing state governments than in promoting innovation and the capacity to adapt to ever changing socio-economic and environmental circumstances.  The adoption of a federal form of government at the outset of our nation’s history reflected an appreciation for the cultural heterogeneity that characterized the original thirteen states. 2 As the intergovernmental relationships between the federal government and the several states have evolved over time, however, federalism in America has repeatedly proven to serve as an important institutional asset in the service of sustainability.

      This chapter will demonstrate how a variety of incentive structures propel state and local governments toward greater open-mindedness, experimentation, and learning from experience than is generally the case with the national government.  Unlike the more insulated federal government, the several states and their many local governments face increasingly vexing and complex social and economic challenges which cannot be brushed aside in favor of engagement in the rough-and-tumble of global politics and national partisan competition; citizens in our towns, cities, counties and states frequently demand that action be taken to address their immediate concerns for the quality of life where they live, and they tend to expect tangible results from their state and local governments.

      Law enforcement services and community safety are good examples of such concerns for immediate tangible results.  When criminal activity increases in a state or local jurisdiction, citizens often call for stricter laws, stiffer penalties for violations, and more robust enforcement; the sidestepping of issues and the shifting of blame to others are generally not acceptable dodges of responsibility to citizens calling for effective action.  The heightened visibility of problems at the state and local level, and the demand for quick solutions to those problems, commonly place a heavy burden on state and local governments for timely action. While this often intense atmosphere can be quite stressful for state and local policymakers, some of the very best and most innovative solutions to tough problems emerge from this setting – leading to the development of solutions that promote the sustainability of states and local communities in one location that are often copied, modified and implemented in other state and local government settings across the nation.

      The term federalism refers to a formal legal relationship between one or more levels of government vertically organized , and a whole host of relationships between similar levels of government horizontally organized .  As Watts notes, the highly regarded late scholar of federalism Daniel Elazar viewed federalism as a complex contractual arrangement; for Elazar federalism represents a form of “shared rule plus self rule — and a balance between cooperation and competition among the general and constituent governments.” 3 The structure of American federalism was initially intended to protect pre-existing units of government (the states), and serve as an authoritative method of assigning or dividing responsibilities among the levels of government.  In contrast, contemporary approaches to American federalism — the result of over a century of change — clearly emphasize collaboration among and across units of government while continuing to respect the distinctive priorities and needs of populations in different state and local jurisdictions.  Today, an expansive and flexible understanding of American federalism represents a clear opportunity for innovation rather than representing a strict limitation on what actions any particular level of government is allowed to take.

Learning Objectives

This chapter will:

  • explore the historical evolution of federalism
  • discuss different models of federalism which have evolved over time
  • outline a model of intergovernmental relations which promotes sustainability in state and local government
  • consider the future of American federalism

2.B – Units of Government

      While most of us are aware that there is one national government and there are fifty state governments, we often lose sight of the fact that there are other units of government that serve our everyday needs.  In fact, in the U.S. there are 90,056 units of government beyond the national government and the fifty state governments.  Each of these units of government offers some degree of opportunity for citizens to make their priorities known and to make demands upon government.  The existence of such a multitude of governmental bodies provides Americans with myriad opportunities to become involved in the political process and to “make a difference” in the quality of life in their respective communities.

      Beyond the prominent national and state governments of which most of us are well aware, there are several additional important types of government that are prominent: counties , municipalities , townships , school districts , and special purpose districts .  As of 2012, there are 3,031 counties in the U.S.  Some states have very few counties — Delaware contains only three — while some states have many counties for example, Texas has 254. The number of local governments has increased by 0.6 percent between the 2007 and 2012 Census of Governments, while the overall number of governments has decreased by 22.9 percent from 116,807 in the 1952 Census of Governments. According to the 2012 Census of Governments by the U.S. Census Bureau:

  • Illinois leads the nation with 6,968 local governments — approximately 2,000 more than second-place Pennsylvania.
  • Hawaii has 21 local governments, the fewest of any state.
  • Texas remains first in the nation with the most independent school districts at 1,079. Closely behind is California, with 1,025 independent school districts.
  • Seventeen states had more special districts compared with 2007, and 29 had fewer. Five states had no change.
  • Ten states had fewer townships because of mergers and consolidations. Kansas decreased the most, moving from 1,353 in 2007 to 1,268 in 2012, a decrease of 85.

      While the growth of the national government is a frequent topic of discussion in the news media, the fact of the matter is that local government is the more dynamic component of public sector growth by quite a margin.  Special purpose districts are one of the biggest areas for growth in this regard.  There are over 51,146 special purpose districts in the U.S. at this time.  The U.S. Bureau of the Census places special purpose districts into four major categories:  Natural Resources; Fire Protection; Housing and Community Development; and “Other” Special Districts.  Such other special districts relate to water districts, irrigation districts, sewer districts, road districts, public utility districts, port districts, cemetery districts, etc.  One rather unique aspect of American federalism is the ability of state and local governments to create special purpose districts. We will see in this chapter how this aspect of American government plays a substantial role in the promotion of community sustainability .</

2.C – Historic Roots of Federalism

      The origin of American federalism offers great insight into the values which define American culture, and which have guided the development of our public institutions.  As a governing arrangement, federalism occupies a space somewhere between confederal systems and unified systems. 4

      The first governing relationship in the “break away” colonies of former British North America was confederal.  Following the achievement of independence in the Revolutionary War, the former colonies operated as sovereign governmental powers.  The term sovereignty means that a political authority (in this case each colony) recognizes no higher power as a rightful restraint upon its action, and maintains the full right to agree or desist from any collective action with other political authorities of equal status.  Under the Articles of Confederation 5 state sovereignty was duly recognized.  The Articles bound the states to little more than a promise to engage in mutual armed defense.  The Confederation rather quickly proved to be ineffective at coordinating goals or developing cooperative relationships among and between the thirteen state members.

      The confederal governing arrangement was the exact opposite of the form of government from which the colonies had separated — namely, the unitary form of government.  Under unitary government, political power is concentrated in a single location in the hands of a single office (the sovereign) or among a centralized national elite (elected or otherwise).  All units of government at the sub-national level exist entirely at the mercy of the national government, and they exercise only those powers expressly delegated by the sovereign authority.  Lacking sovereignty, in unitary forms of government all sub-national units of government can be created and abolished at the will of the sovereign national government.

Under the second American constitutional arrangement — the U.S. Constitution (1787) — the Founders shared the belief that the confederal system had not been effective and that a governmental arrangement somewhere between confederal and unitary government would more effectively meet the needs of the new nation. 6 American federalism creates some elements of national sovereignty in particular areas of law and governance, while embedding strong protections for state government in many other areas of public life. 7   Over the years the U.S. Supreme Court has had frequent occasion to adjudicate disputes concerning the relative powers of the federal and state governments under the U.S. Constitution, and for the most part those decisions have permitted the national government to extend its powers while at the same time keeping state sovereignty principally in tact.

2.D – Advantages to Federalism

      Over the course of the nation’s history it is clear that there are many advantages to federalism.  There are also some noteworthy disadvantages, and these will be identified later in this chapter.  For the time being the focus rests on advantages.    Six particular advantages merit some discussion here: 8

      1. Myriad of governmental units. Many opportunities exist for citizens to directly influence policy decisions in their respective states or communities;

      2. Competition between units of government .  Competition between jurisdictions for citizens, business investments, and talent may lead to government efficiency.  State and local governments tend to become entrepreneurial, offering greater benefits for the tax dollar 9 [1] or reducing tax burdens to attract citizens and businesses seeking to reduce their fixed costs of operation.

      3. Incentives to prevent growth in government and promote efficiency . The competitive nature of federalism is comparable to many aspects of free market capitalism.  When government is a monopolistic provider, it is more likely to overproduce goods and services.

      4. Responsiveness to citizens is enhanced . If a unit of government becomes too costly, citizens can either demand improved services or move elsewhere.

      5. Federalism is correlated with local government efforts to support private economic growth . The provision of competitively priced infrastructure resources (e.g., roads, utility services, schools, medical services, recreational amenities, etc.) is a critical ingredient in any model of economic growth.  Economic development, in turn, generally creates jobs and enhances household incomes.

      6. Federalism stimulates public and private innovation, often in active partnership . The existence of federalism in the U.S. facilitates the systematic “reinvention of government.” 10 [2] The speed with which creative solutions to locally-experienced problems are replicated is enhanced by the progressive professionalization of state and local government employees and the use of the Internet to capture, store, and disseminate information on a national (and even global) scale.

2.E – Potential Challenges facing Federalism

      While the advantages of federalism almost certainly outweigh the costs for most scholars writing in this area, federalism does face some potential challenges in application in many circumstances.  Three such challenges are:

      1. Federalism can produce unequal outcomes between states, across communities , and for individuals living within these different jurisdictions .  Unequal outcomes are often associated with economic inequalities due to different levels of economic growth across states, and even within states and local communities.  When traveling from city to city, state to state, observe the differences in wealth and opportunity that exist within each location.  At times, these differences are function of city or state capacity to sustain an economic base or to evolve with and adapt to changing economic conditions.

      Historically, states and cities differed considerably in their level of political and social equality.  For decades in many parts of the South, for instance, individual opportunity was systematically biased to benefit whites over persons of color.   A devastating Civil War, major amendments to the U.S. Constitution, and a series of landmark statutes and watershed decisions of the U.S. Supreme Court have all worked to overcome serious inequalities brought about by a malevolent manifestation of state’s rights in service to racial discrimination – all permitted by the institution of federalism.

      2. Federalism potentially produces inefficiency through policy replication . Each state and local government independently formulates, finances and implements public policy. In many ways, this is a good thing because each state and local government has its own special set of circumstances and cultural values encoded in its public policy.      However, there are added costs to having each state and local government essentially replicating many policy choices.  In many cases it would be more efficient to have one uniform policy that efficiently and effectively meets all citizens’ needs in a particular area of public life.

      3. Federalism can, at times, cloud our understanding of who is responsible for public policy outcomes . In federalism, many units of government overlap and, at times, the policy preferences of different levels of government collide—i.e., their goals might be diametrically opposed. When policy failure results, constituents often want to know why things are either not being accomplished or not being managed in a manner reflecting their preferences.  The spectacle of finger-pointing across different levels and units of government leaves citizens confused and, at times, upset with government overall.

2.F – Models of Federalism

      Political scientists have developed a number of ways to describe and study federalism.   In their highly regarded synthesis of prior research in this area published as an article in Publius: The Journal of Federalism , Donald Rosenthal and James Hoefler 11 identify a condensed list of models of American federalism featuring the following core concepts:

  • dual federalism
  • cooperative federalism
  • pragmatic federalism
  • non-centralized federalism
  • nation-centered federalism

2.F.I – Dual Federalism:

      According to Lord James Bryce, 12 a perceptive British observer of early American political life, the U.S. Constitution represents primarily an attempt to “build a more perfect Union” between the national and state governments.  Strengthening the national government provides for a nationwide common market free of tariffs and barriers to commerce, a condition from which all states would benefit.  Such a national government could also “provide for the common defense” more effectively than was possible under the Articles of Confederation.  While certain governmental powers were expressly enumerated for the national government, the U.S. Constitution recognizes that state sovereignty should be carefully provided for in law.  For the advocates of “states’ rights” the Tenth Amendment to the Constitution served — then as now — as the guarantee of a balanced relationship between national and state government; that provision of the constitution is known as the “reserved powers” amendment which holds that all governmental powers which are not explicitly granted to the national government in the constitution are reserved to the states and their people. 13

      In his major work, The American Commonwealth , Lord Bryce noted that even in the post-Civil War period state sovereignty and the notion of dual federalism —namely, two systems fulfilling distinct purposes without any significant overlap in function 14 -was maintained.   States could not be taxed to finance the national government, which is a principle that remains to this day.  American states were afforded a significant amount of autonomy in creating their own legal systems and governmental institutions.  As long as the authority of the national government was not challenged or constrained in those areas where it was constitutionally authorized to act, states retained a significant degree of sovereignty, in some cases exercising powers concurrently shared with the national government.  For Bryce, dual federalism was feasible in the 18th and 19th centuries largely because the scope of government action was rather restricted and far less complicated than it is today; both levels of government had a strong sense of enumerated, retained, and concurrent powers being exercised within a workable constitutional legal framework.

      The federal-state relationship was fairly simple in the early years of the Republic in part because citizens looked primarily to their local communities to provide the basis of a sustainable existence.  Until the early part of the 20th century, most Americans resided in rural settings — primarily in farming communities or small towns.  There was relatively little overlap in government units, reducing the probability of conflict over resources, or in terms of the impact of public or private choices.

      While the dual federalism model was well suited to its times in pre-industrial America, it suffered from limitations that proved to be insurmountable in due course.  Most importantly, the dual federalism model was largely silent on the issue of the protection of individual rights.  A focus on community-derived notions of a good society within a state can have the deleterious effect of restricting individual rights and liberties, particularly those of vulnerable minorities.  In reflection of the dual federalism concept, in the case Barron v. Baltimore, Maryland (1830) the U.S. Supreme Court narrowly defined the national government’s role in protecting the basic liberties and rights of citizens, leaving to the states and their respective constitutions the lion’s share of responsibility in this area of American law.  The Court ruled that those rights set forth in the Bill of Rights (the first ten amendments to the U.S. constitution) applied to the relationship between states and the national government rather than the relationship between citizens and the national government.  The Court left it to the states to decide matters such as what constitutes freedom of speech, the right to counsel a jury of one’s peers, and due process of law in criminal cases.

      Some of the Founders had argued that dual federalism was an unworkable idea, but it took over a century before the social inequities associated with the dual federal model became widely recognized. 15 In looking back over the history of American federalism, one could conclude that much of our history has been spent trying to maximize both the exercise of “freedom and the pursuit of happiness” by citizens and provide for the welfare of the nation, its states, and the communities within which our citizens reside.  This simultaneous pursuit of individual liberty and collective welfare has always been a challenge for our nation, and it continues to demand the best of our thinking.  In the contemporary setting many of our states and local communities endeavor to build a sustainable foundation for life for both present and future generations of Americans.

2.F.II – Cooperative Federalism:

      The dual federalism model survived the Civil War and remained fairly prominent up until the final decades of the 19th century.  The emergence of cooperative federalism — the notion that the presence of urgent shared goals required concerted effort by all levels of government — was, in part, the result of:

  • the growth of urbanism and demise of intimate small communities;
  • large-scale industrialization and rapid population growth through mass immigration;
  • The expansion of the role of the national government as the guarantor of individual rights and liberties.

      These changes in American society inspired many reformers within cities and in some of the states (i.e., Progressives) to press for government “regulation in the public interest.”  The growth of corporate capitalism led to major excesses in the use of private power to the detriment of the public good and the exploitation of the most disadvantaged, and in time gave rise to unionization, social regulation and political reform of machine politics     arising from the corruption of public institutions.  From a sociological perspective, industrialization and urbanization have led to a dispersal of community members so that people are more likely to be highly mobile.  Ironically, Americans tended to adopt a lifestyle of personal independence from family and kin and neighbors alike, becoming more distant from one another in terms of private choices. This impermanency created a false sense of independence even though societal inter-dependence actually increased with innovation with respect to what forms of transportation are used, what forms of energy are consumed, and what food products are consumed.

      During this period social inequities grew, both in terms of the stratification of wealthy and impoverished classes and in terms of inequities associated with the status of women, unorganized labor and racial and ethnic minorities.  Many influential writers and prominent decision-makers of the time contributed in different ways to the progressive vision for the U.S., one that relied heavily on a cooperative relationship between all levels of government responding in a coordinated way to rapid social change.  In many ways, the aforementioned changes challenged the capacity of American democracy, in general, and federalism more particularly, to respond to modern dilemmas using an 18th century model of governance.

      The Progressive reformers of this period believed that many of the positive communitarian aspects of American community and society—the obligation to help neighbors in need, reciprocating a kindness with a kindness in return, volunteering one’s time to civic projects, participating in local governance, etc.) —as described in the historical writings on America penned by the foreign observers Alexis de Tocqueville 16 and Lord James Bryce, were in peril.  Progressives were at once reflective and visionary in their thinking, embracing an idealized vision of an American past but taking a pragmatic approach of action, free of the constraints created by partisan ideology.  The concept of cooperative federalism was developed to expedite the process of addressing serious social and economic problems through forceful governmental action.  The combined use of local, state and national government authority in addressing public health and safety was commonplace, with the guiding principle being “use what works best” in the best sense of pragmatism. 17

      Some critics of cooperative federalism have argued that this model of federalism represents a national government attempt to pull power away from the state and local governments.  In fact, the roots of Progressivism can be traced directly back to state and local government; it was an idea first born at the local level, not at the national level of public political dialogue.  Progressivism recognized many of the very serious social and economic dilemmas that had been largely unaddressed for quite some time:  women’s rights, minority rights, public health and sanitation problems, food and water safety and availability, homelessness, community planning, open and fair government and elections, and accessible and equitable public education, to name but a few of the major issues—issues that remain important and yet today are not addressed as fully as they should be.  How these issues are addressed constitutes the foundation of community sustainability, and affects group and individual rights alike.

      On the state and local level, Progressivism accomplished a great deal in relation to the aforementioned goals.   It is fair to say that many national government efforts were noteworthy, but overall were less pronounced than those witnessed at state and local government levels.  President Theodore Roosevelt made important in-roads through efforts to promote food and drug safety.  Additionally, he challenged the growth of corporate capitalism, which was central to the complex relationship of the individual, the private market, and the public forum.  President William Howard Taft’s Commission on Economy and Efficiency served as the foundation of the modern bureaucratic systems needed for national government response to progressive demands.  Finally, Governor Robert LaFollette (R-Wisconsin) and Governor (and later U.S. President) Woodrow Wilson (D-New Jersey) both campaigned and advanced progressive agendas for political campaign and election reform. Large-scale national progressive reform was not realized until President Franklin D. Roosevelt’s New Deal.  While critics might claim that many aspects of FDR’s efforts were nation-centered, the outcomes of FDR’s programs have demonstrated over time that many New Deal programs were, in effect, a reflection of cooperative federalism operating under dire socio-economic conditions.

      Cooperative federalism occurs on many points along a continuum of varying locus of action.  Top-down models are generally characterized by considerable national government influence in relation to the states.  An example of top-down federalism might be seen in the area of environmental policies, which are designed to establish national guidelines for environmental quality for the benefit of all citizens.  Conversely, bottom-up federalism often entails innovations originating at the state and local level that, in time, reach national level policy agendas.  Welfare reform, for instance, originated at the state level in Wisconsin.  The innovation was touted as a policy success and became a focus of national policy with the national Welfare Reform Act of 1996.  Over the long run, bottom-up and top-down federalism necessitate a cooperative framework; at the very least, government agencies must accede to the concurrent power and authority of another level of government.

      Given the examples above, it is tempting to fall into the trap of associating top-down with “liberal” and bottom-up with “conservative” political ideologies.  In reality, both political liberals and conservatives alternately see value in both ends of the ideological continuum.  Although a shift away from the strong nation-centered federalism of the Johnson years (1964-1969) occurred, primarily during the Reagan presidency (1981-1989), that shift tended to slow and retreat during the George H.W. Bush presidency. 18   Federalism scholar Paul Peterson has pointed out that many of President George W. Bush’s policies have moved the Republican agenda towards a more top-down model of federalism. 19 Homeland security 20 and education reforms such as No Child Left Behind have increased national government influence over state and local government priorities and, to some degree, led to structural changes in the way services are delivered at the local level. 21 Natural disasters such as Hurricanes Katrina and Rita illustrate the limits of the national government to solve local problems of substantial scope and scale. 22

      By themselves, shifting social and political institutional values do not fully explain the nature 23 of cooperative federalism in the United States.   Evolving legal theories established by the Supreme Court were critical not only to the constitutional legitimacy of cooperative federalism, but also to the initiation of movement along the top-down/bottom-up federalism continuum.

2.F.III – Pragmatic Federalism:

      Rosenthal and Hoefler 24 indicate that pragmatic federalism was in part borne out of disenchantment with cooperative federalism.   The latter approach was premised on the notion that behavioral science of the 1950s and 1960s could be used to guide national-level policy choices, identifying target populations and meeting needs.   Social science would guide policy makers at the national government level to tailor policy responses and interactions with state and local policy makers—in essence, the concept entailed the creation through social science of a cooperative intergovernmental relationship.  Unfortunately, many policy prescriptions guided by the behavioral approach failed because the model often ignored many unquantifiable aspects of the policy process such as the interaction between policy institutions, values, preferences, and effective solutions.

      Pragmatic federalism is characterized by two unique qualities:  (1) flexibility—it is outcome-driven rather than process-driven; and (2) the downplaying of the philosophy of government, meaning the set theories about the proper relationship between the national government and state governments are of limited interest in this model. 25   Ad hoc network relationships are considered more important than ex ante approaches (i.e., build the relationship around the problem to be solved rather than make the problem fit around a pre-conceived notion of the relationship).

      Several Democratic state governors began to take a significant role in both the identification and advancement of this new approach to federalism.  A political scientist, former county administrative officer and later a two-term Maryland Governor, Parris Glendening (and co-author Reeves) wrote one of the earlier accounts of this new model of federalism in a 1984 book entitled Pragmatic Federalism:  An Intergovernmental View of American Government .  In his various roles as local and state official, Glendening’s account of pragmatic federalism is built on both theory and practice as he experienced it.

      When Glendening and Reeves developed their approach in the mid-1980s, it was in response to a growing interest in the centralizing tendencies on the part of American national government. 26   At a time when President Ronald Reagan, a champion of smaller national government, was riding high in the opinion polls, Glendening and Reeves argued that a reversal of the centralizing trend, if it occurred at all, was unlikely to become part of a long-term trend.  They argued that the concentration of authority in a centralized government structure was an historical trend that would continue, but that the nature of the trend must be considered and shaped in a manner most beneficial to all stakeholder governments and to public service recipients.

      Glendening and Reeves tied three very important phenomena together in their effort to explain the value of pragmatic federalism.  First, following on a strong tradition in the academic literature of questioning rigid bureaucratic approaches to policy formulation and implementation, Glendening and Reeves argued for greater reliance on informal relationships between policy actors who are guided by circumstance rather than organizational structure. Second, they favored movement towards proactive street-level policymaking and analysis whenever possible.  Finally, a growing trend towards public-private partnerships in solving problems and a shared-governance movement played an important role in shaping Glendening and Reeve’s innovative approach to thinking about American federalism.

      At the time Glendening and Reeves were writing their account of federalism, Governor Bill Clinton (D-Arkansas) was promoting a similar new governance model.   Interestingly, both Glendening and Clinton were raised in relative poverty in Florida and Arkansas, respectively.   In both cases, they had witnessed first-hand the positive role of government in shaping the lives of the least fortunate members of American society.  Both men had gone on to become prominent state-level politicians in the 1980s.   Importantly, neither forgot the role of government in their lives. They also felt that public sentiment regarding the size of the national government had more to do with the outcomes of government operations and less to do with the government’s process and policy goals.

      The decline of the cooperative federalism model was fueled in part by significant changes to methods of funding programs.   Discussed later in this chapter, funding in the form of grants-in-aid emanating from the national level to meet program goals was increasingly made in the form of block grants — revenue transfers which gave state and local governments considerable flexibility in determining specific policy goals and methods of meeting those goals.  During the Reagan years, the national government retreated in its support of many policy areas; the public need was still present, but solutions and funding were left up to leaders in state and local governments.

      Entrepreneurial-minded state and local government leaders, such as Glendening and Clinton, provide sterling examples of the practicality of pragmatic federalism, which is can be considered an innovation in public management that refines our evolving federal system. 27 The success of Democratic and Republican policy leaders alike at the state and local level in the last two decades of the 20th century offer time-tested support for a pragmatic approach to federalism—a model in which resources, goals, and public/private stakeholders and entrepreneurs are brought together to craft solutions to  priority public concerns.

2.F.IV – Non-Centralized Federalism:

      Non-centralized models of federalism can be traced to a growing skepticism over the dominant role of Congress and the national government in intergovernmental relations.   In the 1960s, Daniel Elazar wrote his now-classic account Federalism: A View from the States in which he illustrated the considerable and persisting political and social diversity present in the U.S. 28 In the 1950s and 1960s, a period where cooperative and nation-centered federalism held sway, Elazar’s analysis was in contradistinction to commonly held views of federalism that downplayed long-standing state and regional diversity.

      Non-centralized federalism tends to look to historically chronicled analysis and community-based approaches for understanding American federalism.  Working from the premise that strong democracy relies most immediately on stalwart local communities and robust public and/or private institutions, advocates for non-centralized federalism argue for a more individual-focused approach, relying on the individual consumer acting in market-transaction to solve his or her own dilemmas rather than with the community through collective decision-making.  The former approach — built on the principles of communitarianism — is closely tied to pragmatic federalism and to an historical interpretation of community-level decision-making capacity, while the latter approach is often built on classical liberalism , which emphasizes a limited role for government.

      Advocates for non-centralized federalism share a common desire to ensure that the citizen-stakeholder plays a critical role in decision-making.  In Democracy in America — a book often quoted by non-centralism advocates — Alexis de Tocqueville expresses similar concern regarding the possibility of unwisely limiting the roles of citizen and community as decision-making is centralized in the hands of professional administrators.

      Not all communities possess an equal capacity for extensive citizen stakeholder participation.  Over decades, in some cases centuries, political and social traditions slowly evolve, producing norms of participation and views about the role of citizens, government and the interchange between the two.  Elazar places these different traditions under the rubric known as political culture .  In his analysis, Elazar identifies three major categories of political and social relationships: individualistic , moralistic , and traditionalistic .

      Individualistic political culture fits well within the classical liberal tradition of non-centralized federalism.  Within individualistic political cultures, most problems are seen in terms of individual solutions — communal solutions are not highly valued.  Individualistic traditions look at most problems in terms of private property rights dilemmas.  Solutions, therefore, are viewed as being best identified through the proper transfer of rights.  For example, the individualist would see poverty as being best solved through the exchange of property:  a person’s labor (property) for a salary (property) to be used to purchase food (property).    In individualistic political cultures, non-centralized federalism would largely mean limited government at all levels and reliance on the marketplace to meet demands or solve problems.

      In moralistic political cultures, problems and solutions are viewed quite a bit differently.  Moralists tend to see problems in terms of community dilemmas that must be identified through interchange and community choice.  Solutions are proffered in an open public forum and agreement on solutions is generally seen as best determined through widespread mutual agreement.  The New England town hall meeting is often held up as a classic example of governance in a moralistic political culture.  Non-centralized federalism, therefore, is more likely to be viewed as the optimum method of creating an inclusive public dialogue about government and governing.  Moralistic political culture is horizontally organized, placing significant emphasis on the role of all individuals regardless of their social status or economic position within society.

      Traditionalistic political culture is vertically organized, which means that individuals in positions of power have greater influence in the decision-making process than individuals who hold lower political, social or economic status.   In traditionalistic political cultures, a limited view of collective decision-making excludes most citizen-stakeholder voices in the governance process.  Citizens in a traditionalistic political culture tend not to expect to play a role in governance at the state and local level—they tend to defer to the aforementioned elites.  In traditionalistic political culture, non-centralized federalism may work to the disadvantage of the mass while benefiting elites and their allies.

      According to Elazar, traditionalistic political cultures are most prominent in the American South.  While conditions have changed a great deal over the last several decades, poverty in the South and responses to poverty provide a solid example of the negative impact of traditionalistic political culture.  President Lyndon Johnson’s War on Poverty in the 1960s uncovered the extent of political, social, and economic disparity.  Traditionalistic elites in the rural South chose to ignore poverty as an issue for reasons related to racial discrimination and contempt of elites for the lower social classes.  National government intervention was the first major step towards alleviating poverty in the South, albeit the issues of institutionalized racism and endemic poverty have not entirely faded from the political scene, either in the South or in many other areas of the country.

      Based on compelling evidence produced through political culture theory and considerable social science, moralistic political culture presents the greatest opportunity for equal access and broadly inclusive dialogue, and widely accepted choices and outcomes.  When considering conflict in relation to the non-centralized federalism model, an underlying assumption is that the scope of conflict will be largely contained to the state or local level.  In moralistic political cultures, governance is constructed in a way where support for public solutions to identified collective dilemmas is initially strong and remains strong on a consistent and prolonged basis.  Individualistic political cultures are less likely to identify problems as requiring collective action — the marketplace is seen as the provider of solutions to individual wants and needs and property rights exchange.  As a consequence, a strong central government is not a likely solution for the individualist.  Conflict in an individualistic political culture will arise over issues related to property rights exchange and are less likely to be contained at the local level.  Non-centralized federalism leads to highly biased governance choices and outcomes. Potentially, non-centralized federalism could increase conflict as citizens actively seek redress at “higher” levels of government when demands or needs are not addressed in local or state governance processes.

2.G – 21st Century Network Approaches to Federalism

      Two major conditions led to dramatic change in the character of federalism in the U.S.   First, as discussed in Chapter 1, technology has forever changed the way in which governance occurs.

Reflections on Government in the Old Days

      Stepping into a county clerk’s office only a generation ago for voter registration, the author found a single employee with index cards and two typewriters—an old manual version and the new electric model.  The sheriff’s office was not dissimilar—a Polaroid camera and flash bulbs lay on the counter for mug shots—there was a teletype machine for important information coming from the state or national level regarding criminal activity, an enormous vacuum tube contraption called the dispatch center (you didn’t dial 911, you dialed “0” and asked the operator to be transferred to the police department)—nobody really sat at the dispatch center, but a burning cigarette in an amber colored glass ash tray indicated that someone was around occasionally.  There was “The Computer” over in the corner, but nobody really knew how to use it except for the sheriff’s young daughter—she played video games on it while she waited for her father to drive her home after school.

      Computers are a central part of the governance process at all levels of government today.   Initially, computer networks were within a single office and were not connected to other networks.  With the advent of the Internet, inter-office networks have expanded exponentially and are increasingly complex — a web of communication connects the government to individuals and to the private sectors.  Technology has made it relatively inexpensive and rather easy to transmit large quantities of information very quickly between decision makers in various government offices, and in the process influence choices and create opportunities for coordination and collaboration across jurisdictions.  Inter-state and inter-local partnerships (or compacts) and agreements of understanding to coordinate efforts and goals have become a prominent aspect of 21st century federalism. 29 Building on the idea of pragmatic federalism, the rise of network-based federalism means that day-to-day governance is often circumstance-based and informal, with networks forming around problems and then quickly dissipating after solutions have been arrived at and implemented.

      A second major condition, which has led to a greater reliance on network-approaches to federalism, is the post 9/11 policy environment and the War on Terrorism .  Events related to terrorism and terrorist plots do not honor jurisdictional boundaries.  In attacking enemies, terrorist organizations often use the same technological tools that have made our lives easier—the Internet, rapid forms of transportation, and the ability to network globally.  Homeland Security policies require interagency communication and collaboration as a condition of the receipt of federal funding.  It is the case, of course, that delays in communications posed by jurisdictional squabbles can significantly reduce the ability of government at all levels to plan for and react to emergencies in a timely and effective manner.

      A related condition has been the decline of the traditional fiscal federalism relationship.  In the 1950s and 1960s, policy goals of the national government—in cooperation with state and local government —were supported with financial resources received from the federal government.  This fiscal federalism relationship meant that new policy goals were not as burdensome to state and local government in cost terms as they had been in the past.  Beginning with the Reagan and G.H. Bush presidencies, and moving forward into the Clinton, G. W. Bush and Obama eras, the monetary taps of fiscal federalism have decreased:  federal resources are now in much more limited supply.  Given these conditions, it becomes clear to state and local government leaders that network federalism is a natural solution to reducing costs — essentially, it expands the information and expert “pool” as well as places greater reliance on mutual assistance. 30

      How is network federalism different than other forms of federalism?  First, network federalism arrangements are often decentralized to the level of the individual or informal team.  Individuals may be assigned to formal organizations, but most of their work is based on highly situational informal relationships or teams that respond to circumstances.  For example, law enforcement response to riots and natural disasters is often a function of changing circumstances.  Second, the strength of coupling or formal control within and between levels of government or agencies is very limited.  Third, power is informally distributed and redistributed depending upon need rather than convention that had been based on formal vertical power distribution.

There are at least three advantages to the newly emerging model of network federalism:

  • Reduced cost —while governmental units continue to overlap, collaboration means that wasteful stand-alone efforts are limited;
  • Increased effectiveness —network federalism means that individuals converge around a problem based on the nature of a problem at any given moment; and
  • Increased unity of purpose —as governmental units begin to work together to create mutually beneficial successes, there is a greater sense of unity, less jurisdictional squabbling and miscommunication.

      While network federalism sounds like a laudatory solution, there are at least three potential challenges that must be considered in the years to come:

  • Diminished accountability —accountability at all levels of government has posed a challenge.  Informal intergovernmental relationships in network federalism means that discovering and rectifying problematic point sources is nearly i mpossible.
  • Groupthink —as intergovernmental or interagency teams become more common, group members are more likely to begin to see problems and solutions in a similar manner, essentially eliminating the necessary argumentation that furnishes information about all sides of a problem. Additionally, groupthink can lead to elitist and exclusionary governance processes and outcomes.
  • Centralizing trends —network federalism does not mean that all levels of government have equal resources and capacity to respond to governance issues.  The national level of government is often thought to be well-funded and highly professional in terms of personnel training and leadership.  Networks tend to form around resource providers and leaders as well as those network points where information is most effectively gathered and disseminated.  In many instances, it is likely that networks will form around national government actors while state and local actors might serve in a supporting capacity.

2.H – Federalism and the Core Dimensions of Sustainability

      Federalism can, and frequently does, work towards the accomplishment of the core goals of sustainability.  Each unit of government is interconnected to other units of government and, as cooperative and network federalism illustrate, there is a need for all of units of government to face the enduring truth:  “we’re all in it together!”    In other words, while each unit of government must consider its own capacity to achieve sustainability, there is a clear sense that working together makes sustainability more likely.    In the U.S. federal system, the social objectives dimension of sustainability is achieved through the porosity of government institutions and the multiple points of contact between citizens and overlapping units of government.  Strong social capital and the collective action of civic-minded communities are often associated with effective and adaptable government.    The economic objectives dimension sustainability is also served by federalism.   Sustainable economics means managing resources at the local level, where citizens are more likely to witness the production process at work and can better scrutinize the sustainability of the economic process in relation to negative environmental impacts produced.  Understanding the true costs and benefits of achieving what is wanted may refocus local consumer attention on which goods and services really do contribute to sustainability.   The environmental dimension of sustainability can benefit from federalism as well.  With multiple points of citizen-government interaction, federalism offers greater opportunity to raise awareness of policies that could damage environmental quality.  Additionally, local management of the environment and common resources may give citizens greater responsibility for the resources from which they collectively derive benefit—good stewardship practiced by multiple actors in a federal system of governance may serve to remind all parties involved of the many different stakeholders who benefit from well-protected environmental resources.  Finally, the institutional dimension of sustainability is well served by federalism.   Institutions operating in a sustainable future government may look and operate differently than the nation’s current paradigm built around 18th and 19th century public and private institutions constructed in far simpler times.  While the desirable values undergirding those institutions might be known—e.g., social and political equity, racial/ethnic/gender equality, intergenerational justice—effective institutional designs may be less understood.  For example, network federalism promises to take governance in new and exciting directions; yet, the exact nature of those new and exciting directions will be shaped by the technology of tomorrow.  Federalism offers the opportunity to experiment with different institutional designs, to determine what works best, when, and for what purpose.

Federalism: What Can I Do?

According to public opinion polls conducted by Gallup, a majority of Americans are unaware of the role of the federal government in their local school districts, knowing little is anything about important laws such as the No Child Left Behind Act of 2002  ( http://www.gallup.com/poll/1612/Education.aspx ). Because education is such an important and expensive function with federal, state and school district levels of governance involved through regulation and finance, informed participation in school board meetings and voting on school funding necessitates some investigation.

1. Contact your local school district to see how federal, state and local governments are involved in financing education.

2. Attend your local school board meeting to learn about pressing issues facing the school district.

3. Contact your state legislators and state department of education to learn how federal government regulations, such as the No Child Left Behind Act, affect state education policy.

4. Contact a K-12 teacher in your local school district to discuss how federal, state and local policies affect how they teach in their own classroom.

For general information go to: “Education and Federalism,” The Nelson A. Rockefeller School of Government, State University of New York: http://www.rockinst.org/education/federalism.aspx

2.I – Conclusion: Conditions for Sustainable Intergovernmental Relationships

      Readers of this book who are preparing for careers in state or local government or who will work closely with government in one capacity or another will likely deal directly with intergovernmentalism.  Intergovernmental relationships are important in the U.S. because the federal model is not clearly defined.  In a political system where powers are separated between governmental units at national, state and local levels, questions of proper jurisdictional authority will certainly arise in the course of carrying out one’s duties or conducting one’s business affairs.  One noteworthy strength of the U.S. model of federalism lies in the overlapping responsibilities shared by a whole host of governmental units, entities which must cooperate in order to address localized and/or regional problems affecting their constituents.  The overlapping responsibilities and duties can be both a source of angst and a source of strength, bringing a diversity of experience and resources with networks of contacts.  Network federalism has proven to be the more accepted view of U.S. federalism, and is the source of cooperative federalism or intergovernmentalism.

      According to research on sustainable federal systems carried out in the international context, those federal systems that are based in constitutionalism (see Chapter 5) and feature defined powers of each layer of government, are 1. reflective of cultural and geographic diversity, 2. have democratic institutions, and 3. provide adequate resources for governance are the most institutionally sustainable systems. 31   One of the most important elements of successful intergovernmental relationships in the U.S. context pertains to resources.  Approximately 70 percent of a typical public agency’s budget goes to salaries for employees.  If proportional weight is any guide, then the most important resource that money buys is people’s time, knowledge, skills, and abilities.  Another important resource purchased by money is the infrastructure of a governmental body and the tangible goods and services needed to produce a desired governmental outcome.  When a county wishes to establish a public health office, money will purchase the time and professional skills of physicians, nurses, and medical supplies needed to accomplish the public health function.  If, however, the state or national government mandates certain health practices — such mandates frequently shape the relationship between governmental entities — then commensurate resources are required to meet the expectations established by those mandates.  A successful intergovernmental relationship often requires the transfer of funds from one unit of government to another.  That being said, some careful observers of American government and some state officials question the amount of federal spending and aid they receive in relation to the amount of federal taxes paid by the citizens and businesses of their state.

      The data reported in Table 2.1 indicate wide disparity among states with respect to how much is paid in federal taxes versus how much is returned in federal spending and aid.  Of course, the amount of money collected and spent by the federal government is related to many factors including, but not limited to: the salary levels of workers in high income states leading to higher federal government revenues through income taxes and other fees; the presence of higher levels of poverty leading to more federal spending on poverty programs and, of course, the presence of strong and influential senior elected officials in Congress steering resources back home to their own state (e.g., “ pork barrel ” projects and the inclusion of earmarks in agency allocations).

Table 2.1 Federal Tax Burden and Expenditures by State—2015

      People, themselves, are important resources; however, the structure of the institutions for which people work, as well as the working environment and location do more to shape the effectiveness of workers.  Individuals working in the Federal Bureau of Investigation, for instance, are often used to working in a particular agency setting with a unique organizational culture .  The culture of an agency impacts the disposition of individuals.  Professionalism is also an important element in intergovernmental relationships.  In terms of elected officials, professionalism is reflected in the level of knowledge, experience and personal and administrative staff support available.  Administrative personnel at different levels of government may vary in terms of their experience, level of education, salaries, and training; these are all quite important characteristics of public sector administrative professionalism.

      Finally, as the literature on sustainable communities suggests, the social and economic conditions under which a particular level of government or an agency of government operates has a significant impact on intergovernmental relationships.  When the U.S. Army Corps of Engineers arrives in a locality intent on building a dam for flood control or power generation, the conditions under which state or local governments’ operate will have an impact upon relationships with the Army Corps of Engineers.

      While conditions cannot be made uniform across levels of government or jurisdictions, successful federalism requires that political and administrative entities engaged in intergovernmental work come to terms with these differences in working conditions in order to maintain effectiveness and professionalism.  Often, variations in these elements of difference become a source of strength in the intergovernmental enterprise as creative synergies are discovered and innovative solutions to difficult problems are crafted.  Alternatively, those intergovernmental relationships that ignore these differences or involve the choice of a mistrusting or intensely competitive relationship often produce intergovernmental failure.

Classical Liberalism Communitarism Confederal Systems Reserved Powers and the 10th Amendment Cooperative Federalism Dual Federalism Fiscal Federalism Progressivism Public Goods Individualistic Political Culture Moralistic Political Culture Point Sources Political Culture Pork Barrel Mandates Organization Culture Traditionalistic Political Culture

Discussion Questions

1. Why was federalism adopted in the United States? Are the reasons leading to its adoption still relevant in the twenty-first century?

2. Based on your reading, what are the various models of federalism that developed over time, and what are some of the advantages and disadvantages of each type?

3. In what policy areas should states have more authority vis-à-vis the national government (e.g., social policy such as medical marijuana, abortion, death penalty, K-12 education standards)? In what policy areas should the national government have more authority vis-à-vis the state governments?

1. S. Krislov, “American Federalism as American Exceptionalism,” Publius: The Journal of Federalism 31(2001): 9-26.

A. Wildavsky, “A Bias toward Federalism: Confronting the Conventional Wisdom on the Delivery of Governmental Services,” Publius: The Journal of Federalism 6(1976):  95-120.

J. Yarbrough, “Federalism in the Foundation and Preservation of the American Republic,” Publius: The Journal of Federalism 6(1976): 43-60.

2. S. Schechter, “Federalism and Community in Historical Perspective,” Publius: The Journal of Federalism 5(1975): 1-14.

R.L. Watts, “Daniel J. Elazar: Comparative Federalism and Post-Statism,” Publius: The Journal of Federalism 30(2000): 155-168.

3. Ibid, Watts, p. 161.

4. J.F. Zimmerman, “National-State Relations: Cooperative Federalism in the Twentieth Century,” Publius: The Journal of Federalism 31(2001): 15-30.

5. J.P. Greene, “The Background to the Articles of Confederation,” Publius: The Journal of Federalism 12(4) (1982), 15-44.

Jack Rakove, “The Legacy of the Articles of Confederation,” Publius: The Journal of Federalism 12(1982): 45-66.

6. See S. Lakoff, “Between Either/or and More or Less: Sovereignty versus Autonomy under Federalism,” Publius: The Journal of Federalism 24(1994): 63-78.

7. J.R. Alexander, “State Sovereignty in the Federal System: Constitutional Protections under the Tenth and Eleventh Amendments,” Publius: The Journal of Federalism 26(1986): 1-15.

8. For a related discussion see: Ostrom, “The Study of Federalism at Work,” Publius: The Journal of Federalism 4(1974): 1-17.

9. C. Tiebout, “A Pure Theory of Local Expenditures,” Journal of Political Economy 64(1956): 416-424.

10. D. Osborne and T. Gaebler, Reinventing Government (Reading, MA: Addison-Wesley, 1992).

11. D.B. Rosenthal and J.M. Hoefler, “Competing Approaches to the Study of American Federalism and Intergovernmental Relations,” Publius: The Journal of Federalism 19(1989): 1-23.

12. J. Bryce, The American Commonwealth (Indianapolis, IN: Liberty Fund, 1995).

13. V.C. Jackson, “State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term,” Publius: The Journal of Federalism 22(1992): 39-54.

14. The national government tended to focus primary concern in exercising its powers enumerated in the Constitution. One important exception to this general point was the passage of the Northwest Ordinance of 1787 , which provided for federal government support the development of grammar schools for the provision of basic education. The Northwest Ordinance established an important precedent for the national government; early on, the national government undertook to legislate for the provision of some “public goods” (societal benefits) that states could not fully consider.

15. In many ways, the history of dominant dual federalism reflects Hamilton’s conjecture in Federalist Paper #36 that in a federal system with weak central government powers, powerful state governments may work to advance their own agenda to the detriment of weaker or smaller states and, ultimately, led to the collapse of the federal system as originally instituted.

16. B. Allen, “Alexis de Tocqueville on the Covenanted Tradition of American Federal Democracy,” Publius: The Journal of Federalism 28(1998): 1-23.

17. The cooperative federalism model was helped along by major reforms at all three levels of government and within the branches of government, particularly at the national level. Campaigns gave voice to the reformers opinions in a wide audience, and elections produced progressively-minded political leaders. The news media and public interest groups advanced a progressive policy agenda, detailing the social and economic issues to be addressed at all levels of government.  The judiciary focused greater attention on the basic rights and liberties guaranteed in the U.S. Constitution, and began the evolutionary process of applying, through legal precedent, nationally-guaranteed rights to public policy making occurring at that state and local level.

18. D.B. Walker, “American Federalism from Johnson to Bush,” Publius: The Journal of Federalism 21(1991): 105-119.

19. P.E. Peterson, “The New Politics of Federalism,” Spectrum: The Journal of State Government 78(2005): 5-7.

20. See also K. Caruson, S. ManManus, M. Kohen and T. Watson, “Homeland Security Preparedness: The Rebirth of Regionalism,” Publius: The Journal of Federalism , 34(2005): 143-168.

21. Nathan (1975) discusses how top down federalism can, through the use of resource provision stipulations and mandates, impact the structural arrangements of state and local government. Structural change may have a more lasting and consequential impact on government than simple resource provision that does not require structural changes. Richard P. Nathan, “The New Federalism versus the Emerging New Structuralism,”  Publius: The Journal of Federalism 5(1975): 111-129.

22. R. Barrales, “Federalism in the Bush Administration,” Spectrum: The Journal of State Government 74(2001): 5-6.

D.C. Menzel, “The Katrina Aftermath: A Failure of Federalism or Leadership?” Public Administration Review 66(2006): 808-812.

23. C. Rothfeld, “Federalism in a Conservative Supreme Court,” Publius: The Journal of Federalism 22(1992): 21-31.

24. D.B. Rosenthal and J.M. Hoefler, “Competing Approaches to the Study of American Federalism and Intergovernmental Relations,” Publius: The Journal of Federalism 19(1989): 1-23.

25. Ibid, p. 7.

26. P.N. Glendening and Mavis M. Reeves, Pragmatic Federalism (Pacific Palisades, CA: Palisades Publishers, 1984).

See also: P.N. Glendening, “Pragmatic Federalism and State-Federal Partnerships,” Spectrum: The Journal of State Government 74(2001): 6-8.

27. See Osborne and Gaebler, 1992, op. cit. (see reference 10).

28. D.J. Elazar, Federalism: A View from the States (New York: Crowell, 1966).

29. J.J. Montjoy, “National Center for Interstate Compacts: A New Initiative,” Spectrum: The Journal of State Government 77(2004): 8-11.

J.F. Zimmerman, “Trends in Interstate Relations,” Spectrum: The Journal of State Government 77(2004): 5-11.

D.M. Sprague, “Priority Focus for 2005:  Interstate Cooperation,” Spectrum: The Journal of State Government 77(2004): 3.

30. R.L. Cole and D.A. Taebel, “The New Federalism: Promises, Programs, and Performance,” Publius: The Journal of Federalism 16(1986): 3-10.

T. Conlan, “From Cooperatives to Opportunistic Federalism: Reflections on the Half-Century Anniversary of the Commission on Intergovernmental Relations,” Public Administration Review 66(2006): 663-676.

P. Eisinger, “Imperfect Federalism: The Intergovernmental Partnership for Homeland Security,” Public Administration Review 66(2006): 537-545.

J. Kincaid, “The Crisis in Fiscal Federalism,” Spectrum : The Journal of State Government 76(2003): 5-9.

31. M. Filippov, P. Ordeshook, and O. Shvetsova. Designing Federalism: A Theory of Self-Sustainable Federal Institutions (Cambridge: Cambridge Press, 2004).

P. Hobson, and F. St. Hilaire, Reforming Federal-Provincial Fiscal Arrangements: Toward Sustainable Federalism (Montreal: The Institute for Research on Public Policy, 1993) .

State and Local Government and Politics Copyright © 2018 by Christopher A. Simon, Brent S. Steel & Nicholas P. Lovrich is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

Why Federalism Matters

Subscribe to governance weekly, pietro s. nivola pietro s. nivola former brookings expert.

October 1, 2005

  • 19 min read

“What do we want from federalism?” asked the late Martin Diamond in a famous essay written thirty years ago. His answer was that federalism— a political system permitting a large measure of regional self-rule—presumably gives the rulers and the ruled a “school of their citizenship,” “a preserver of their liberties,” and “a vehicle for flexible response to their problems.” These features, broadly construed, are said to reduce conflict between diverse communities, even as a federated polity affords inter-jurisdictional competition that encourages innovations and constrains the overall growth of government.

Alas, as Professor Diamond and just about anyone else who has studied the subject would readily acknowledge, the promise and practice of federalism are frequently at odds. A federal republic does not always train citizens and their elected officials better than does a unitary democratic state. Nor are federations always better at preserving liberties, managing conflicts, innovating, or curbing “big” government.

Whatever else it is supposed to do, however, a federal system should offer government a division of labor. Perhaps the first to fully appreciate that benefit was Alexis de Tocqueville. He admired the decentralized regime of the United States because, among other virtues, it enabled its national government to focus on primary public obligations (“a small number of objects,” he stressed, “sufficiently prominent to attract its attention”), leaving what he called society’s countless “secondary affairs” to lower levels of administration. Such a system, in other words, could help the central government keep its priorities straight.

Federalism’s several supposed advantages are weighed in this first of two Brookings Policy Briefs. A subsequent one will delve more deeply into the facet of particular interest to de Tocqueville: a sound allocation of competences among levels of government. For arguably, it is this matter above all that warrants renewed emphasis today, because America’s central government with its vast global security responsibilities is overburdened. 

Policy Brief #146

Ensuring Unity Sometimes nations face a stark choice: allow regions to federate and govern themselves, or risk national dissolution. Clear examples where federalism is the answer exist. Belgium would probably be a partitioned state now if Flanders had not been granted extensive self-government. If under Italy’s constitution, Sardinia, a large and relatively remote Italian island, had not been granted significant autonomy, it might well have harbored a violent separatist movement—like the one plaguing a neighboring island, Corsica, a rebellious province of unitary France.

Where truly profound regional linguistic, religious, or cultural differences persist, however, federating is by no means a guarantee of national harmony. Canada, Spain, and the former Yugoslavia are wellknown cases of federations that either periodically faced secessionist movements (Quebec), or have had to struggle with them continually (the Basques), or collapsed in barbarous civil wars (the Balkans). Iraq seems headed for the same fate. The Sunni minority there is resisting a draft constitution that would grant regional autonomy not only to the Kurds in the north but to Shiite sectarians in the oil-rich south. So far, proposed federalism for Iraq is proving to be a recipe for disaccord, not accommodation.

In much of America’s own history, federalism did not ease this country’s sectional tensions. On the contrary, a long sequence of compromises with the southern states in the first half of the nineteenth century failed to prevent the Civil War. Then, through the first half of the twentieth century, additional concessions to states’ rights did little to dismantle the South’s repulsive institution of racial apartheid. Southern separatism was subdued by a military defeat, not diplomatic give-and-take, and only further assertions of central power—starting with the Supreme Court’s school desegregation decision in 1954—began altering the region’s corrosive racial policies.

If we fast-forward to present day America, the thesis that federalism is what holds the country together seems no less questionable, though for a different reason. For all the hype about the country’s “culture wars,” the fact is that socially and culturally, the contemporary United States has become a remarkably integrated society, particularly when compared to other large nations such as India, Indonesia, and Nigeria, or even some smaller European states. Thanks largely to massive interregional migrations, economic dynamism, and ease of assimilation, contrasts between America’s deep South and the rest of the country seem minor today compared to, say, the continuing cultural chasm between the north and south of Italy. In America, where examples of religiously or ethnically distinct jurisdictions are mild ones, like Utah and Hawaii, it seems hard to argue that the nation’s fifty states represent keen territorial diversity, and that they are the secret to this country’s cohesion. Put more generally, the sub-national entities of an increasingly mobile and assimilative society such as ours tend to demand less independence than they once did, and how much of it they get may not make as much difference for national unity.

Laboratories of Democracy

In principle, empowering citizens to manage their own community’s affairs is supposed to enhance civic engagement in a democracy. Its “free and popular local and municipal institutions,” argued John Stuart Mill, provide “the peculiar training of a citizen, the practical part of the political education of a free people.” From this, informed deliberation and a pragmatic ability to respect both the will of the majority and the rights of minorities—in short, fundamental democratic values—are inculcated.

But in the real world of local politics, these results are often elusive. Prior to the Voting Rights Act of 1965, southern blacks got a “political education” all right, only not the kind Mill had in mind. Presently, even if it no longer perpetrates wholesale disenfranchisements, community governance can fall short in other ways: it edifies few people when few participate. Keep in mind that the average municipal election in the United States engages less than a third of the local electorate. And the smaller the community’s scale, the smaller the share of participants. At best, one in ten registered voters shows up at New England’s quaint town meetings.

If local self-government interests average citizens less than it should, maybe at least it still has much to teach their elected officials. Supplying thousands of state and local elective offices, a federal system like America’s creates a big market for professional politicians. Many of them (for example, state governors and big-city mayors) have demanding jobs. Their challenges help prepare the nation’s pool of future political leaders.

There is no question that those who attain high public office in the United States mostly rise through the ranks of the federal system’s multiple tiers, and have been schooled therein. Fifty-six senators in the current Congress were former state legislators or holders of state-wide elective offices. Four of America’s last five presidents have been governors. It is by no means clear, though, that the ex-governors who worked their way up federalism’s ladder outshine, for example, the national leaders of the United Kingdom. In the twentieth and twenty-first centuries, America elevated such former governors as Franklin D. Roosevelt, Ronald W. Reagan, and George W. Bush to the presidency. Were they better equipped than Britain’s leadership (think Winston Churchill, Margaret Thatcher, or Tony Blair)?

Not only that, but there also is some question just how relevant the lessons learned in, for example, the statehouses of relatively small states—like Georgia, Arkansas, or Vermont—are to the men and women who move from there onto the national, or international, stage. As a one-term governor of Georgia, Jimmy Carter had successfully reorganized that state’s modest bureaucracy and improved its budgetary performance. But the managerial magic he had worked in Georgia proved of limited use when, as president, Carter turned his attention to Washington’s bureaucratic behemoths, such as the Department of Health, Education and Welfare.

Or consider Bill Clinton’s presidency. Not infrequently, its cosmopolitan aspirations and impressive achievements were buried by the rest of this ex-governor’s agenda, which sometimes seemed incongruously steeped in parochial concerns. Clinton’s long speeches, we might recall, delved into the enforcement of truancy laws, the use of school uniforms, the math tests of eighth graders, the need to connect hospitalized children to the Internet, the marshaling of work-study students as reading tutors, the ability of medical insurance to cover annual mammograms, the revitalization of community waterfronts, the appropriate hospital stay for women after a mastectomy, the work of local development banks, the record of Burger King and other businesses in creating jobs for welfare recipients, and so on—in sum, preoccupations suited to governors, county supervisors, hospital administrators, or school boards. But to a world leader?

In 2004, another very good governor, Howard Dean, mounted a spirited campaign for the Democratic party’s presidential nomination. Dean pointed to his accomplishments in Vermont, a state that had (as Mark Singer observed in a January 2004 profile in The New Yorker ) a population smaller than metropolitan Omaha and an annual budget of barely a billion dollars. For a time, he became the front runner, the considerable limitations of his small-state political background notwithstanding. What was some of that experience like? According to an article in The New York Times (also in January 2004) reflecting on Dean’s gubernatorial years, “The profoundly local aspect of his job was clear in 2002, when he said, ‘I can assure you, of all the things that I had to live with…the most difficult were the cascades of calls in the summer of ’93 and ’94 about how long the wait was at the Department of Motor Vehicles.’”

No matter how seasoned and capable a governor may be, travails like these are not the same as those likely to be faced by anyone who aspires to lead the country, never mind the international community. Granted, there is no job that can adequately prepare a wouldbe president. Montpelier is not Washington, nor for that matter is Sacramento or Austin. Other things equal, however, a stint as the chief executive of a large place (like California or Texas) may offer a somewhat better test. Yet, more or less indiscriminately, the process of political recruitment in the United States seems to regard states large and small as equally promising springboards.

Policy Innovation

What about the states as laboratories for other experiments—the testing of new public policies, for instance?

Yes, there have been important policy innovations that had their origins, as Justice Louis Brandeis famously said, in a few courageous states. California has long been the pacesetter in the regulation of air quality. Texas provided a model for recent federal efforts to boost the performance of public schools (the No Child Left Behind Law). Wisconsin pioneered, among other novelties, the income tax and a safety net for the unemployed years before these ideas became national law. Yet, while myopic Washington insiders often pay too little attention to initiatives occurring outside the Beltway, aficionados of state government often devote too much. The significance of experimentation at the state and local level should be neither overlooked nor overstated.

Take the now-legendary example of welfare reform. Thanks to liberal use of federal administrative waivers in the early 1990s, the states took the lead in revising the nation’s system of public assistance. They were widely credited with setting the stage for the historic national legislation of 1996—and also for securing a dramatic decline in caseloads. How much of the decline, however, could be attributed to the actions of the states, both before and after the 1996 law, is actually a matter of considerable debate. Most of the caseload reduction had less to do with inventive state policies than with a strong economy and expanded federal aid (most notably, the Earned Income Tax Credit) to low-income persons who entered the workforce. In sum, although state experiments were undoubtedly instructive and consequential, other fundamentals were more so. One suspects that what holds for the welfare story also applies to some other local inventions—for example, smart growth strategies, school reform, or the deregulation of electric utilities—the impact of which state politicians sometimes exaggerate.

Competitive Federalism

Does federalism necessarily deliver leaner, more efficient government? There is reason to think that it could. The states are constitutionally obligated to balance their budgets. To spend, these governments have to tax—and that unpleasant requirement supposedly disciplines profligate politicians. So does interstate competition. Presumably few jurisdictions will indulge in lavish social programs that are magnets for dependents from neighboring jurisdictions, and that could cause overtaxed residents and businesses to exit.

The federated political structure of the United States does indeed appear to have some restraining effect, at least when compared to the unchecked welfare states of Europe. Whereas there, the beneficiaries of unemployment compensation, for instance, often seem entitled to limitless support, the American state-run model maxes out at six months, and ordinarily replaces only a portion of a jobless person’s lost wages. Why? Part of the reason is that no state in our locallyadministered system can afford to let its benefits get too far out of line with those of competing states.

That said, contrary to the wishes of conservatives and the fears of liberals, devolution does not inexorably shrink “big government.” In fact, measured in terms of public employment, it is the state and local sector that has been swelling. With roughly three million employees, the federal payroll today is about the same as it was a half a century ago, but the number of state employees quadrupled to five million. Nor has the central government’s spending outpaced that of the states and localities. Their outlays, only some of which are strictly mandated by Washington, more or less match federal ones.

The scope of government depends not just on how many people it employs or dollars it disburses but on what it ultimately does. But even by that criterion, the states are looming large. Phenomena such as the explosion of discretionary Medicaid spending for the “medically needy,” the work of state attorneys general that yielded a weighty legal settlement with the tobacco industry in 1998, the widening assault on improprieties in corporate governance, and increasingly aggressive measures to curb air pollution (including greenhouse gases), among other bold activities emanating from the states, suggest that, like it or not, much of the locus of vigorous government in recent years has shifted to state capitals.

In fact, so active have been the statehouses in the past decade that conservatives now frequently seem of two minds about federalism. They champion decentralization (when it suits them). But because decentralized government is not smaller, only situated differently, they also dissent. Confronting the surge of state activism, Republicans increasingly have favored national preemption of state powers in areas as diverse as tort law, land use regulation, and family policy. The proposed constitutional amendment barring marriages among gays is the latest case in point. Much as Roe v. Wade nationalized in a sweeping stroke the rules for abortions, the same-sex marriage amendment would toss into the scrap heap another traditional prerogative of the states: their control of matrimonial law.

When Washington Does It All

Opinions are bound to differ on which level of government should have the last word about marriages or abortions. More puzzling is how the central government has come to meddle incessantly in matters that are ordinarily much more mundane, often meeting little or no resistance. Contemporary American federalism badly needs a realignment here. For the often indiscriminate preoccupation of national policymakers with the details of local administration is not just wasteful; it can be irresponsible.

Let us glance at a small sample of local functions now monitored by federal agencies and courts. Federal law these days is effectively in the business of determining the minimum drinking age for motorists, setting the licensing standards for bus and truck drivers, judging the fitness tests for recruits of local police or fire departments, overseeing spillages from thousands of city storm sewers, requiring asbestos inspections in classrooms, enforcing child support payments, establishing quality standards for nursing homes, removing lead paint from housing units, replacing water coolers in school buildings, ordering sidewalk ramps on streets, deciding how long some unruly students in public schools can be suspended, purifying county water supplies, arresting carjackers, mandating special education programs for preschoolers, influencing how much a community has to pay its snowplow operators or transit workers, planning athletic facilities at state universities, supplying communities with public works and reimbursements for nearly any kind of natural disaster, telling localities in some states how to deploy firefighters at burning buildings, instructing passengers where to stand when riding municipal buses, and so on.

Several of these illustrations may sound farcical, but none is apocryphal. The directives for firefighters, for example, are among the many fastidious standards formulated by the Occupational Safety and Health Administration. The pettifogging about where to stand in buses is a Department of Transportation regulation, which, believe it or not, reads as follows:

  • Every bus, which is designed and constructed so as to allow standees, shall be plainly marked with a line of contrasting color at least 2 inches wide or equipped with some other means so as to indicate to any person that he/she is prohibited from occupying a space forward of a perpendicular plane drawn through the rear of the driver’s seat and perpendicular to the longitudinal axis of the bus. Every bus shall have clearly posted at or near the front, a sign with letters at least one inch high stating that it is a violation of the Federal Highway Administration’s regulations for a bus to be operated with persons occupying the prohibited area.

Tangents like these are baffling. Why should a national cabinet department or regulatory bureaucracy be bothered with how “standees” ride local buses or how a town’s firefighters do their jobs? If municipal transit authorities or fire departments cannot be left to decide such particulars, what, if anything, are local governments for? Surely, most of the matters in question—putting out a fire, taking a bus ride, disciplining a troublemaker in school, removing hazards like asbestos or lead from a school or a house—rarely spill across jurisdictions and so do not justify intervention by a higher order of government.

Nor can a plausible case be made that central overseers are needed for each of these assignments because communities would otherwise “race to the bottom.” How many states and localities, if left to their own devices, would practice fire prevention so ineptly that they require tutelage from a federally approved manual? Before Congress acted to rid the Republic of asbestos, the great majority of states already had programs to find and remove the potentially hazardous substance. Long before the U.S. Environmental Protection Agency promulgated expensive new rules to curb lead poisoning, state and municipal code enforcement departments were also working to eliminate this danger to the public health.

Why the paternalists in Washington cannot resist dabbling in the quotidian tasks that need to be performed by state and local officials would require a lengthy treatise on bureaucratic behavior, congressional politics, and judicial activism. Suffice it to say that the propensity, whatever its source, poses at least two fundamental problems.

The first is that some state and local governments may become sloppier about fulfilling their basic obligations. The Hurricane Katrina debacle revealed how ill-prepared the city of New Orleans and the state of Louisiana were for a potent tropical storm that could inundate the region. There were multiple explanations for this error, but one may well have been habitual dependence of state and local officials on direction, and deliverance, by Uncle Sam. In Louisiana, a state that was receiving more federal aid than any other for Army Corps of Engineers projects, the expectation seemed to be that shoring up the local defenses against floods was chiefly the responsibility of Congress and the Corps, and that if the defenses failed, bureaucrats in the Federal Emergency Management Agency would instantly ride to the rescue. That assumption proved fatal. Relentlessly pressured to spend money on other local projects, and unable to plan centrally for every possible calamity that might occur somewhere in this huge country, the federal government botched its role in the Katrina crisis every step of the way—the flood prevention, the response, and the recovery. The local authorities in this tragedy should have known better, and taken greater precautions.

Apart from creating confusion and complacency in local communities, a second sort of disorder begot by a national government too immersed in their day-to-day minutia is that it may become less mindful of its own paramount priorities.

Consider an obvious one: the security threat presented by Islamic extremism. This should have been the U.S. government’s first concern, starting from at least the early 1990s. The prelude to September 11, 2001 was eventful and ominous. Fanatics with ties to Osama bin Laden had bombed the World Trade Center in 1993. Muslim militants had tried to hijack an airliner and crash it into the Eiffel Tower in 1994. U.S. military barracks in Dhahran, Saudi Arabia, were blown up, killing nearly a score of American servicemen in 1996. Courtesy of Al Qaeda, truck bombings at the American embassies in Tanzania and Kenya in 1998 caused thousands of casualties. Al Qaeda operatives attacked the USS Cole in 2000.

And so it went, year after year. What is remarkable was not that the jihadists successfully struck the Twin Towers again in the fall of 2001 but that the United States and its allies threw no forceful counterpunches during the preceding decade, and that practically nothing was done to prepare the American people for the epic struggle they would have to wage. Instead, the Clinton administration and both parties in Congress mostly remained engrossed in domestic issues, no matter how picayune or petty. Neither of the presidential candidates in the 2000 election seemed attentive to the fact that the country and the world were menaced by terrorism. On the day of reckoning, when word reached President George W. Bush that United Airlines flight 175 had slammed into a New York skyscraper, he was busy visiting a second-grade classroom at an elementary school in Sarasota, Florida.

The government’s missteps leading up to September 11th, in short, had to do with more than bureaucratic lapses of the kind identified in the 9/11 Commission’s detailed litany. The failure was also rooted in a kind of systemic attention deficit disorder. Diverting too much time and energy to what de Tocqueville had termed “secondary affairs,” the nation’s public servants from top to bottom grew distracted and overextended.

To be sure, the past four years have brought some notable changes. Fortifying the nation’s security and foreign policy, for instance, remains a problematic work in progress, but is at least no longer an item relegated to the hind sections of newspapers and presidential speeches. Nonetheless, distraction and overextension are old habits that the government in Washington hasn’t kicked. Controversies of the most local, indeed sub-local, sort—like the case of Terri Schiavo—still make their way to the top, transfixing Congress and even the White House.

The sensible way to disencumber the federal government and sharpen its focus is to take federalism seriously—which is to say, desist from fussing with the management of local public schools, municipal staffing practices, sanitation standards, routine criminal justice, family end-of-life disputes, and countless other chores customarily in the ambit of state and local governance. Engineering such a disengagement on a full scale, however, implies reopening a large and unsettled debate: What are the proper spheres of national and local authority?

How to think through that dilemma will be the subject of my next Policy Brief .

Governance Studies

The Brookings Institution, Washington DC

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Angela Stent

February 16, 2024

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Foundations of U.S. Federalism

by Lee Rosenthal and Gregory P. Joseph

essay on federalism and development

What precisely is American federalism? In their seminal work on federal jurisdiction, Felix Frankfurter and Wilber Katz allude to a “dynamic struggle” between federal and state power, the ebb and flow of competing, sometimes conflicting, spheres of federal and state power and influence. In many respects, the story of American government is the story of how that struggle has been resolved.

The antecedents of American federalism trace to colonial days, when the concept of divided sovereign power began to take shape. At the beginning of the Revolutionary War, the thirteen colonies declared themselves to be free and independent states. During the hostilities and at the War’s end, the newly formed states recognized that they needed to operate together to function adequately on the new national stage and to enter the world stage.

America’s first attempt to codify federalism — the Articles of Confederation of 1781 — failed. Replaced by the Constitution of 1787, this sturdy document and the government it established have survived the tenuous early days of the Republic, a Civil War, serious economic depressions, America’s involvement in two World Wars, and 227 years of innumerable internal and external challenges. This paper briefly outlines how American federalism developed and how it serves as the basic organizing principle of American government.

American Federalism: Prerevolutionary Underpinnings

Reflecting on America’s early political development, Alexis de Tocqueville commented that “[i]n America . . . it may be said that the township was organized before the county, the county before the state, the state before the union.” 1 America’s earliest political associations were forged at a local level. Early colonists found themselves separated from their sovereign’s authority and protection by a vast ocean and from their fellow colonists by a vast geographic expanse. As a consequence, they organized and largely governed their day-to-day lives independently and locally.

In 1643, the first American effort to create a political union among the colonies began in Boston. Faced with the need to defend and maintain security over a large territory — and with little hope of receiving aid from England due to the “sad distractions” of the English Civil War — the New England settlers found themselves “convinced . . . of the necessity of banding together to resist destruction. . . .” 2  Delegates from Massachusetts, New Plymouth, Connecticut, and New Haven formed the New England Confederation, “a firm and perpetual league of friendship and amity for offense and defense, mutual advice and succor upon all just occasions, both for preserving and propagating the truth and liberties of the Gospel and for their own mutual safety and welfare.” 3  Their union lasted four decades, until James II folded these colonies into the new Dominion of New England in 1684. 4

Approximately a century after forming the New England Confederation, the colonies again found the need to confederate due to mutual pressing concerns, including relations with Native Americans and each other and the possibility of a French attack. Representatives from the British North American Colonies adopted the Albany Plan of Union on July 10, 1754. The Plan provided that each colony would select members of a Grand Council and the British government would appoint a “president General.” 5   One of the most prominent Plan supporters was Benjamin Franklin. His well-known “Join, or Die” political sketch, first published in Franklin’s Pennsylvania Gazette on May 9, 1754, shows a snake cut into eight pieces. Each piece is labeled with the initials of one of the colonies, except that the four New England colonies are represented by “N.E.” at the snake’s head. 6 “Join, or Die” later became a rallying cry for the Revolutionary War and is perhaps the earliest pictorial representation of the nation’s budding federalism. Neither the New England Confederation nor the Albany Plan of Union sought to sever or even to weaken ties with England. To the contrary, Franklin hoped that the Albany Plan would increase the British participation in the colonies. “Britain and her Colonies should be considered as one Whole, and not as different States with separate Interests.” 7  The New England Confederation, and the Albany Plan of Union — even though it failed — formed precedent for the idea that the colonies could join together to pursue mutual interests, while simultaneously retaining individual power over day-to-day political activities.

The Impact of the Revolutionary War: An Impetus to Federalism and the Failure of the Articles of Confederation

The need for some degree of centralization among the various colonies became clear during the Revolutionary War. The demands of raising the army, putting it under a central command, supplying it, and raising funds for it exceeded state and local government capabilities. The revolutionaries recognized that some confederation was needed, but they remained deeply suspicious of centralized power. 8  The implications of failure were not lost on the revolutionaries. In 1775, Silas Dean wrote to Patrick Henry that, “[i]f a reconciliation with G Britain take place, it will be obtained on the best terms, by the Colonies being united, and be the more like to be preserved, on just and equal Terms; if no reconciliation is to be had without a Confederation We are ruined to all intents and purposes.” 9 The wartime urgency and the necessity of union, combined with the fear of a new overarching sovereign, led the revolutionaries to ratify the Articles of Confederation on March 1, 1781. The Articles left the states as the source of sovereign power but created a new central government with its powers derived from the consent of the states. 10

Americans were cautious in creating this new centralized government. “Whatever their collective commitments to new government, the revolutionaries were in no mood to issue blank checks in the form of another strong central government that could become as harmful as the one they fought to remove.” 11  The central government under the Articles was relatively feeble. The states delegated the central government limited powers and even more limited resources. That government was unable to levy taxes or regulate commerce and depended on the states for revenue; there was no executive and no independent judiciary; there were no standing land or sea forces; and any change to the Articles required the states’ unanimous vote. Exercising the limited powers the new government did have, including making treaties and coining money, often required a majority or supermajority vote.

Postrevolutionary Needs

The Articles proved unworkable. Disputes among states were difficult to resolve, and the central government was underfunded and unable to compel delinquent states to pay their shares of common expenditures. By 1784, a disagreement over the use of the Potomac River highlighted these problems:

First, all the other States were asked to agree to send delegates to the meeting, and all the States hardly ever agreed to do anything; second, if the meeting did take place it must agree upon a report to the States, and there was no reason to expect greater harmony in this assemblage than there was in the Continental Congress, where discord reigned; third, if a plan should be agreed upon, under the terms of the call of the meeting every State must accept it before it could become effective, and it seemed preposterous to expect such unanimity from such antagonistic elements. But affairs were rushing to a crisis, and it was clear that something must be done to save the Union from disintegration and America from disgrace. Far-seeing men began seriously to apprehend that soon the people who had won a glorious victory against Great Britain would fall back under the yoke of that or some other foreign power. The most dangerous and demoralizing inclinations of weak human nature were becoming more and more in the ascendancy in the State governments — a tendency to pass law by which the fulfillment of contracts might be avoided, to stamp paper with figures and promises and call it money, to repudiate debts and avoid obligations of honest men. 12 The challenge was to preserve state sovereignty within a national polity that could operate on a world stage, resolve interstate differences, and facilitate common interests. Fears that a central government would accumulate too much power and erode state sovereignty persisted, along with the fear that no central authority could govern such a huge expanse of territory.

The solution the Framers posited and the states adopted was the federalism embodied in the Constitution. “The Framers split the atom of sovereignty. The genius of their idea was that American citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” 13   One scholar has described this federalism “as a new-modeled creation cobbled together out of a mix of necessity (the existence of the states) and theory (the belief that republics could not be easily maintained across a large territory).” 14   The basic structural characteristics of this “more perfect union” formed the basis of the system of American government that continues to the present.

Developing “A More Perfect Union”

Between May and September of 1787, the Constitutional Convention met in Philadelphia to address and try to remedy the failures of the Articles of Confederation. Although the word “federalism” appears nowhere in the Constitution, it pervades the structure of the government the document creates.

Article I, Section 8 specifically enumerates the powers of Congress. At the time of the founding, there was little controversy that many of these powers were best suited for national regulation, including the power to provide for a common defense, declare war, raise an army and maintain a navy, regulate naturalization, coin money, regulate international commerce, and punish piracy and violations of international law. 15 Other powers in Article I, Section 8, however, have proved controversial and have been interpreted to permit the expansion of the federal government and restrictions on powers of the states. The Commerce Clause, which empowers Congress to “regulate commerce . . . among the several states . . . ,” 16  is among the most controversial. “Commerce” can be read restrictively, to refer to a category of activities distinct from, for example, manufacturing, farming, or mining, preventing the federal government from using the Commerce Clause to regulate these and similar activities. This narrow reading is consistent with the Supreme Court’s interpretation for the first century after ratification, and with current scholarship on the original meaning of the Clause. 17 The Commerce Clause can also be, and has been, read to allow Congress to regulate any activity that in the aggregate has an effect on a national market, even if the conduct is purely intrastate. 18 The Constitution’s Taxation Clause, which provides Congress with the power to tax and spend to “provide for the . . . general Welfare of the United States,” 19 similarly has been “controversial since it first saw the light of day.” 20  Does this phrase mean that Congress can spend only in connection with the powers otherwise granted to Congress or for any good purpose? Does it permit Congress to regulate through spending? These questions have been the subject of heated debate, 21 and the answers have had a substantial impact on the balance of federal and state power. 22

Finally, the Necessary and Proper Clause, which grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” its other enumerated powers, 23 has profound federalism implications, depending on how broadly or narrowly the term “necessary” is interpreted. 24   In addition to Article I, Section 8, other parts of the Constitution provide key features of the federalist system. Article I, Section 10 prohibits states from regulating in certain areas. Article VI makes the “Constitution, and the Laws of the United States . . . and all Treaties made . . . the supreme Law of the Land.” Under the constitutional structure, all powers the Constitution neither delegated to the federal government nor prohibited to the states are reserved to the states or to the people. This structure was later made explicit in the Tenth Amendment.

In their Federalist Papers , Alexander Hamilton, James Madison, and John Jay promoted state ratification of the Constitution. In Federalist No. 9, Hamilton attempted to assuage the concerns that the states would lose sovereignty under the new Constitution:

So long as the separate organization of the members be not abolished . . . though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty . . . and leaves in their possession certain exclusive and very important portions of sovereign power. 25

In Federalist No. 51, Hamilton argued that federalism would help limit the ability of the proposed new central government to abuse its powers:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. 26 The Federalist Papers repeatedly address concerns that the proposed federal government would run roughshod over the states. 27   Federalist No. 39 focused on the limited powers of the federal government and the continuing sovereignty of the states:

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. . . .

[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact . . . . 28 Federalist No. 39 maintained that there must be some arbiter to resolve disputes among the states and that this limited sacrifice of state sovereignty was preferable to resolution by “the sword and a dissolution of the compact.” Equally noteworthy is the distinction drawn between a national and federal government, the former indicative of a boundless overarching power, the latter representing a government of limited enumerated powers.

While the Federalist Papers emphasized that the states retained their sovereignty, the authors stressed that some limits on state sovereignty were essential for the welfare of the American people:

[I]f, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? 29

There was fervent opposition to the federalism built into the Constitution. Robert Yates and John Lansing, New York’s delegates to the Constitutional Convention, wrote to New York Governor George Clinton on Dec. 21, 1787, that, in addition to lacking authority to consider the idea of a new government, a central authority would also oppress faraway citizens:

[W]e entertained an opinion that a general government, however guarded by declarations of rights, or cautionary provisions, must unavoidably, in a short time, be productive of the destruction of the civil liberty of such citizens who could be effectually coerced by it, by reason of the extensive territory of the United States, the dispersed situation of its inhabitants, and the insuperable difficulty of controlling or counteracting the views of a set of men (however unconstitutional and oppressive their acts might be) possessed of all the powers of government, and who, from their remoteness from their constituents, and necessary permanency of office, could not be supposed to be uniformly actuated by an attention to their welfare and happiness . . . . 30

They were also concerned that “the expense of supporting” the new government “would become intolerably burdensome” and that many citizens would be “necessarily . . . unknown” to the national representatives given the size of the new country. 31

The antifederalists were well aware that the stakes were high:

If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. . . . But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty — if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory. 32

Many antifederalists, fearful of a powerful central government, demanded a Bill of Rights, which, in 1791, became the first ten amendments to the Constitution.

The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Writing in 1833, Justice Joseph Story noted that the Ninth Amendment “was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others . . . .” 33 The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment made explicit that “what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty.” 34

On June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and it became effective. 35  According to one scholarly view, federalism was “the greatest of American contributions to the art of government.” 36  Alexis de Tocqueville celebrated this singular achievement: “This Constitution . . . rests upon a novel theory, which may be considered as a great invention in modern political science . . . . [A] form of government has been found out which is neither exactly national nor federal . . . . [T]he new word which will one day designate this novel invention does not yet exist.” 37

Federalism In Practice: The Early Precedents

The federal courts quickly became the arbiter of federalism, defining the relative powers of the federal and state governments. In 1810, the Supreme Court, then a young institution still establishing its authority, ruled in Fletcher v. Peck 38  that Georgia’s legislature could not invalidate a contract because the federal Constitution did not permit bills of attainder or ex post facto laws. Chief Justice John Marshall carefully noted that the Court did not intend any “disrespect of the legislature of Georgia, or of its acts.” 39  Despite this deferential tone, Fletcher v. Peck established the principle that the Supreme Court has the power to strike down an unconstitutional state law.

In 1816, the Supreme Court ruled that it could also override state courts in Martin v. Hunter’s Lessee . 40  Four years earlier, the Supreme Court had ruled in Fairfax’s Devisee v. Hunter’s Lessee 41  that the Jay Treaty between the United States and Britain precluded Virginia from appropriating the property of a loyalist. The Virginia Supreme Court ruled that it was not bound by the Supreme Court’s ruling, stating: “The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court . . . .” 42  In Martin , the Supreme Court reemphasized that it walked carefully when it reviewed state-court judgments. “The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us.” 43  The Supreme Court again balanced this respect and deference with the recognition that “[t] he constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’” 44  The Supreme Court ruled that state courts were subject to its appellate jurisdiction on constitutional matters. By 1816, the Supreme Court had declared that it could overrule state courts and invalidate unconstitutional state laws.

That same year, Congress chartered the Second Bank of the United States, a private corporation that handled all fiscal transactions for the federal government. Two years later, Maryland passed legislation to impose a tax on the Bank, which Bank employee James M’Culloch refused to pay. The Maryland state courts upheld the legality of the tax. In M’Culloch v. Maryland , 45  the Supreme Court made two critical rulings. First, it declared that the Necessary and Proper Clause of Article I, Section 8 of the Constitution granted Congress discretion in choosing the means by which to execute its enumerated powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 46 Despite the absence of an enumerated power to incorporate, the Supreme Court held that creating the Bank was constitutional under Article I, Section 8 as “necessary and proper” to carry out Congress’s other enumerated powers. Second, the Court concluded that while Article I, Section 8 gave Congress the power to create the Bank, Article VI’s Supremacy Clause meant that Maryland lacked the power to tax that Bank. “The government of the Union, though limited in its powers, is supreme within its sphere of action . . . and its laws, when made in pursuance of the constitution, form the supreme law of the land.” 47

In 1824, one of the most significant cases on congressional powers came before the Supreme Court. Gibbons v. Ogden 48  involved competing steamboat ferry owners whose vessels operated in the waters between New York and New Jersey. Ogden obtained an exclusive license from the State of New York authorizing him to operate along the contested route and sought an injunction to stop Gibbons from operating along the same route. In response, Gibbons argued that a 1793 act of Congress regulating coastal commerce allowed him to compete with Ogden. He lost in the trial and appellate courts in New York, but the Supreme Court reversed. The Court’s decision for Gibbons rested on its first interpretation of the Commerce Clause, which provides that “Congress shall have power . . . [t]o regulate commerce . . . among the several States . . . .” 49

The Court found that the word “commerce” included navigation among the states, and the word “among” before the phrase “the several States” meant that Congress’s commerce power did not “stop at the external boundary line of each State, but may be introduced into the interior.” 50 The New York law granting Ogden an exclusive license was a “nullity” in light of Congress’s conflicting act and the Constitution’s Supremacy Clause. 51 Gibbons significantly expanded the authority of the federal government by recognizing Congress’s broad power to regulate commercial activity. By the Civil War, the federal courts had established several key principles of federalism, including the power of federal courts to invalidate unconstitutional state laws, to nullify conflicting state-court rulings, and to ensure the supremacy of federal law enacted within the enumerated powers the Constitution delegated to the federal government. Nonetheless, during this period, the federal government remained small and had little impact on the lives of most citizens. Most Americans identified more with their states than with the nation.

The Civil War and Reconstruction

Civil war: federalism in crisis.

The Civil War threatened the survival of the American experiment. Could states legitimately claim a right to secede from the nation? President Lincoln vehemently opposed the idea. “Plainly, the central idea of secession, is the essence of anarchy.” 52   There was the bond of geography: “Physically speaking, we cannot separate.” 53 And there was the bond of the constitution itself: “[N]o State, upon its own mere motion, can lawfully get out of the Union.” 54 Secessionists strongly disagreed. Future Confederate President Jefferson Davis, announcing his departure from the United States Senate following Mississippi’s decision to secede, declared: “I have for many years advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union.” 55

  He explained:

Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever. 56

The South’s defeat in the Civil War greatly expanded the power of the federal government and “destroyed the doctrine that the Constitution was a compact among sovereign states, each with the right to interpose or nullify an act of Congress, and each with the ultimate right to secede legally from the Union.” 57   Under modern conceptions of federalism, states retain sovereignty. The Civil War, however, removed any doubt that the federal government — which derives its sovereign power from “the People,” not the states — is supreme when acting within the scope of its enumerated powers. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals, and for other constitutional ends.” 58

Post Civil War: Reconstructing Federalism

When the Civil War ended, the country entered “Reconstruction,” a period that included rebuilding the roles of the federal and state governments. There was significant disagreement in the country about how to treat the former Confederate states, implicating whether the basic relationship between the federal and state governments that existed before the War was to be restored, or whether it was necessary to make fundamental alternations in that relationship to prevent the continuation of the causes of the conflict.

Ultimately, three constitutional amendments, commonly referred to as the Reconstruction Amendments, were ratified in the five years after the Civil War ended, altering the balance of federalism in America. The Thirteenth Amendment abolished slavery 59   and the Fifteenth Amendment guaranteed African Americans the right to vote. 60   The Fourteenth Amendment imposed substantial restrictions on state power and expanded the power of the federal government. 61

Section 1 of the Fourteenth Amendment, which overruled the Supreme Court’s 1857 ruling in Dred Scott v. Sandford 62  holding that African Americans were not entitled to any of the rights of citizenship, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” and prohibits states from passing any law that abridges “the privileges or immunities of citizens of the United States.” 63  The breadth and meaning of the phrase “privileges or immunities” remains uncertain. One theory is that the phrase was intended to be limited to certain natural rights, such as property ownership. Others argue that the phrase was intended to extend to all positive law, whether provided by state law or the Bill of Rights. 64  However, “the standard view of the effect intended by the drafters of the Privileges or Immunities Clause seems to be that it ‘has been a mystery since its adoption.’” 65

Section 1 of the Fourteenth Amendment also prohibits the states from depriving “any person of life, liberty, or property, without due process of law,” or “deny[ing] to any person within its jurisdiction the equal protection of the laws.” 66 The Due Process Clause has since been interpreted to incorporate almost all of the provisions of the Bill of Rights against the states, 67 and the Due Process and Equal Protection Clauses have since been interpreted to restrict or bar state regulation in diverse areas, including contraception, 68  abortion, 69  and same-sex marriage. 70 Significantly, Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Fourteenth Amendment, providing a potentially broad grant of federal power.

The restriction of state sovereignty was a principal basis for the opposition to the Fourteenth Amendment, as reflected in a published letter of Interior Secretary Orville Browning that President Andrew Johnson — a Reconstruction opponent — reportedly approved:

The object and purpose are manifest. It is to subordinate the State judiciaries in all things to Federal supervision and control; to totally annihilate the independence and sovereignty of State judiciaries in the administration of State laws, and the authority and control of the States over matters of purely domestic and local concern. . . . [I]f adopted, every matter of judicial investigation, civil or criminal, however insignificant, may be drawn into the vortex of the Federal judiciary. 71

Supporters of the Fourteenth Amendment found Browning’s attack to be little more than the same states’ rights argument that had led to, and been defeated by the Union’s victory in, the Civil War:

In a few words the great fear of Mr. Browning is that this amendment in its operation will do away with State sovereignty, legislative and judicial, and will put the legislatures and courts of the several States under Congress and the federal courts . . . . We hold that this old Southern theory of our government was demolished at Petersburg and surrendered at Appomattox Court House with Lee’s army; and so we dismiss this branch of the argument. 72 The Fourteenth Amendment was ratified in July 1868. By 1870, however, support for a very strong version of Reconstruction had begun to wane. As part of this trend, the Supreme Court narrowly interpreted the Privileges or Immunities Clause when it first addressed the Fourteenth Amendment in the Slaughter-House Cases . 73  These cases concerned a Louisiana law permitting only one slaughterhouse in the New Orleans area, ostensibly to promote health and safety. Competing butchers were allowed to slaughter, but only at the approved slaughterhouse. Critics contended that the state law unconstitutionally deprived the other butchers of the “privilege” of practicing their profession, violating their “privileges or immunities” under the Fourteenth Amendment.

The Supreme Court ruled that the Privileges or Immunities Clause protected the privileges of United States citizenship but did not require the states to grant its citizens any particular privileges. The Court stressed that it considered these questions as vital to federalism and therefore to the nation:

No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. 74 The Court analyzed the historical underpinnings of the Fourteenth Amendment, emphasizing the “pervading purpose” of the Reconstruction Amendments as freeing the slaves, securing that freedom, and protecting the new freemen from oppression. The Court refused to interpret the Privileges or Immunities Clause as a dramatic general reworking of the federal-state balance:

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights — the rights of person and of property — was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. 75 The Equal Protection Clause of Section 1 of the Fourteenth Amendment was effectively nullified when the Supreme Court ruled in 1896 that “separate, but equal facilities” were constitutional in Plessy v. Ferguson , authorizing state-sanctioned segregation. 76  It was not until 1954 that the Supreme Court reversed that decision in Brown v. Board of Education , ruling that “separate educational facilities are inherently unequal.” 77

Progressive Era: Federalism Grows

Rapid industrialization in the late nineteenth and early twentieth centuries raised a variety of economic and social issues that in turn produced a series of political reforms. This period has been described as characterized by a “growing conviction that government at all levels ought to intervene in the socioeconomic order to enact antitrust and regulatory legislation, labor and welfare measures, and tax reform.” 78   The nation adopted several constitutional amendments, including the Sixteenth, which authorized direct federal income taxes, and the Seventeenth, which provided for the citizens in each state to elect their senators directly rather than through their state legislatures. Federal power continued to expand and become entrenched.

The Sixteenth Amendment: Taxation

The Sixteenth Amendment, ratified on Feb. 3, 1913, is considered the first Progressive Era constitutional amendment. In 1895, in Pollock v. Farmers’ Loan & Trust Company , 79   the Supreme Court had invalidated a federal income tax as an unconstitutional direct tax because it was not apportioned to the states based on their respective populations. The Sixteenth Amendment overturned this ruling. 80 Some opponents saw this as a federal “power grab” designed to further weaken the states:

A hand from Washington will be stretched out and placed upon every man’s business; the eye of the federal inspector will be in every man’s counting house. . . . An army of Federal inspectors, spies and detectives will descend upon the state. . . . I do not hesitate to say that the adoption of this amendment will be such a surrender to imperialism that has not been since the Northern states in their blindness forced the fourteenth and fifteenth amendments upon the entire sisterhood of the Commonwealth. 81 Following the Sixteenth Amendment, the federal government began using its expanded resources to pass legislation approving federal funding for social welfare programs, including the 1921 Sheppard Towner Act to fund child and maternity care, described as the “first venture of the federal government into social security legislation.” 82   Over time, the Sixteenth Amendment significantly impacted the balance of federal-state power. Together with an expansive interpretation of the congressional spending power, the taxing power permitted the substantial growth of the federal government in myriad areas it previously had not occupied or regulated.

The Seventeenth Amendment: Direct Election of Senators

The Seventeenth Amendment, adopted on May 31, 1913, provided for the voters of each state to elect their Senators directly, rather than having state legislatures select them. This abrogated one of the original, fundamental structural protections for the states by affording direct state influence over the operations of the federal government.

Incorporating the Bill of Rights

The Reconstruction Amendments profoundly impacted the federal-state balance by applying the Bill of Rights through the Fourteenth Amendment (“incorporating” the Bill of Rights in the Fourteenth Amendment) to limit or invalidate state action. Before the Civil War, the Supreme Court held that the Bill of Rights did not apply to the states. In 1833 the Supreme Court ruled in Barron v. City of Baltimore 83   that the Constitution’s Fifth Amendment prohibition against government confiscation of property without just compensation was a limit only on the power of the federal government. “Had the people of the several States, or any of them, required changes in their Constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.” 84   Years after the Civil War, in 1875, the Court ruled that the First Amendment right to free assembly and the Second Amendment right to bear arms did not apply to the states. 85

  In so holding, the Court emphasized the existence of more than one sovereign in the federal system:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. 86

This changed over time, as the Supreme Court slowly applied specific protections afforded by the Bill of Rights to the states. The Court relied on the commandment in the Fourteenth Amendment’s Due Process Clause that no state may “deprive any person of life, liberty or property, without due process of law.” In 1925, the Supreme Court used the Clause to apply the First Amendment to the states. In Gitlow v. New York , 87   the Court stated: “For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” 88   In 1931, the Supreme Court relied on the Clause to remove any doubt that the First Amendment rights of freedom of the press applied to the states 89   and, in another case, to recognize that a defendant’s right to legal representation in capital cases applied to the states. 90 As recently as 2010, the Court recognized that the Second Amendment applies to the states through the Fourteenth Amendment, restricting the states’ ability to regulate gun ownership. 91

Expanding Federal Power: The New Deal

After his election in 1933, President Franklin Roosevelt initiated a series of economic and regulatory programs to address the Great Depression. Congress passed the National Industrial Recovery Act, authorizing the promulgation of fair competition codes. The Roosevelt administration adopted a series of these codes, including one governing the poultry industry. That led to the Schechter Poultry Corporation case, invalidating the legislation as exceeding constitutional limits on federal powers.

The Schechter Poultry Corporation was charged with violating the Live Poultry Code. Schechter sued, claiming that the federal government had exceeded its authority by issuing the code. The Supreme Court agreed, holding that Article I of the Constitution vested the Congress, not the President, with the power to legislate, and the National Industrial Recovery Act unconstitutionally authorized the President to do so. The Court also held that the Code regulated intrastate commerce, making the Code unconstitutional because the Commerce Clause authorized Congress to regulate only interstate commerce. 92 Between 1933 and 1936, the Supreme Court invalidated other pieces of New Deal legislation. In 1936, buoyed by his landslide reelection, President Roosevelt proposed a plan that would reshape the Court, allowing him to select additional justices who would approve his policies. Dubbed “court packing” by his critics, his plan was opposed even by some of his fervent supporters. It was never enacted, in part because the Supreme Court began approving Roosevelt’s New Deal legislation. 93   A series of decisions gradually recognized the Commerce Clause as providing constitutional authorization for expanding federal government power.

In 1937, the Supreme Court ruled in NLRB v. Jones & Laughlin Steel Corporation 94   that Congress may regulate isolated economic activities, like labor relations, under the Commerce Clause, because that activity has a “close and substantial relationship” to interstate commerce. In United States v. Darby , 95   the Court found the Fair Labor Standards Act constitutional under the Commerce Clause, barring states from enacting lower standards to obtain a commercial advantage over other states. In Wickard v. Filburn , 96   the Supreme Court declared that the Commerce Clause empowered federal regulation of wheat grown by a farmer for his own use, on his own farm, that never crossed state lines, because of its effect on interstate commerce. “A new era of judicial construction had been launched” and “[a]reas of authoritative action that previously had been left to the states’ sphere of sovereignty or to the private sector now fell within the powers of Congress.” 97

Federalism Today

How America interprets the balance of federal and state power has changed over two hundred years. Those changes reflect, and helped us survive, challenges that almost destroyed the nation. How best to strike that balance continues to pervade critical aspects of modern American government, including healthcare, race, civil liberties, the environment, and foreign policy. 98 Federalism also directly affects tax policy, 99   elections, 100 and domestic relations. 101 Yet more than 200 years after the nation’s founding, fundamental questions implicating federalism remain unsettled. That is nowhere more apparent than in the Supreme Court’s June 2015 decision on same-sex marriage, Obergefell v. Hodges . 102

Historically, the view had been that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the States and not the laws of the United States.” 103   Over time, Supreme Court decisions began to recognize limitations on the states’ traditional power to regulate marriage. In Loving v. Virginia , 104   for example, the Supreme Court applied the Fourteenth Amendment to overturn a Virginia prohibition on interracial marriage. In Kirchberg v. Feenstra , 105   the Court similarly applied the Fourteenth Amendment to strike down state laws deeming the husband “head and master” of the household.

The Supreme Court initially declined to apply Fourteenth Amendment principles to state restrictions on same-sex marriage. The first time the Supreme Court addressed same-sex marriage, it issued a “one-line summary decision . . . in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.” 106 As recently as two years ago, in United States v. Windsor , 107 the Supreme Court relied on the states’ primacy in domestic relations to strike down a congressional attempt to define marriage as “a legal union between one man and one woman as husband and wife” for purposes of federal statutory law. 108   This year, however, the Court held in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” 109   The definition of marriage is no longer the exclusive province of the states. 110 Recent jurisprudence under the Second Amendment, addressing the right to bear arms, presents another example of the fluid nature of American federalism. For years, states were thought to have virtually unbridled authority to regulate the ownership, possession and use of firearms within their borders. That understanding changed dramatically in a short period. In 2008, the Supreme Court held in District of Columbia v. Heller 111   that the Second Amendment conferred an individual right to keep and bear arms, precluding the District of Columbia from banning handguns in the home and requiring firearms to be kept inoperable at all times. Subsequently, in McDonald v. City of Chicago , 112   the Court ruled that the Second Amendment applies to the states through the doctrine of incorporation. Together, Heller and McDonald dramatically altered firearms regulation by prohibiting the states from banning handgun possession outright, and by circumscribing the states’ ability to regulate firearms to an extent that remains to be determined.

In addition to these examples, Commerce Clause jurisprudence continues to present a source of contested but expansive federal power, with uncertain scope. In 2000, for example, the Supreme Court ruled in United States v. Morrison 113   that the federal Violence Against Women Act’s civil remedy for victims of gender-motivated violence exceeded congressional power under the Commerce Clause. By contrast, in 2005, the Court concluded in Gonzales v. Raich 114   that federal criminalization of intrastate marijuana growers and users did not violate the Commerce Clause. Perhaps most notably, in National Federation of Independent Business v. Sebelius , 115   the Court held that the Patient Protection and Affordable Care Act was constitutional under Congress’s power to tax, but was not a proper use of the Commerce Clause power because although the federal government can regulate interstate commerce, it cannot compel it. 116 Recent interpretations of the Supremacy Clause also illustrate some of the shifting contours of federalism. Under the preemption doctrine, when Congress acts within the scope of its enumerated powers, or a federal agency acts within the scope of its statutory mandate, their action may preempt conflicting state laws or, if federal action is sufficiently pervasive, may even bar state regulation within that field. 117   Over the past decade, state laws have been held preempted under this doctrine in such divergent areas as aviation, 118   food and drug regulation, 119   immigration, 120   trucking 121   and locomotive equipment, 122   arbitration agreements, 123   regulation of emissions, 124   state age-verification requirements for the shipment and delivery of tobacco, 125   and even the treatment and processing nonambulatory animals in a slaughterhouse. 126   At the same time, preemption has been denied in multiple other contexts. 127

As this discussion suggests, the only safe prediction about the future of American federalism is that none can be made with certainty. But while the interpretation of the balance of federal and state power has changed from the colonial period to the present, federalism continues to be a foundational principle defining America and a principal tool used to build its government.

The Supreme Court continues to look to the Framers for guidance in resolving important questions raising federalism issues or implicating federalism concerns. In District of Columbia v. Heller , 128   for example, the Court noted that “[d]uring the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” 129   The Court echoed the concerns America’s founders had over 200 years ago about the danger to democracy posed by the new federal government. “But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.” 130

As the nation has grown and become established, so have both federal and state power. That path has been neither smooth nor linear. Dispute and even armed conflict have marked the way. But throughout, the Constitution has served as the source of federal and state government powers and their limits. The courts continue to be the first, and often last, arbiters of the struggle to define both. That has worked so far, although far from perfectly or, at times, even well. But no one has devised an alternative approach, much less a better way.

The problems of federalism, like many aspects of the work judges across legal systems confront, are real. A great judge and legal scholar, Benjamin Kaplan of Massachusetts, described one aspect of why judges’ work is so difficult and so compelling. Rules and principles, however long established and seemingly clear, cannot “solve [the] problems fully and forever. If the problems are real ones, they can never be solved. We are merely under the duty of trying continually to solve them.” 131

The judiciary has many grave responsibilities. Shaping and protecting federalism continue to be among the most important and enduring of those obligations. It is a responsibility and a joy that we in the United States and the United Kingdom share.

Related Reading: The Emergence of the American Constitutional Law Tradition

  • Alexis de Tocqueville, Democracy in America ch. II (Henry Reeve trans., Bantam Classics 2004) (1835).
  • Alison L. LaCroix, The Ideological Origins of American Federalism 21 (2011).
  • Articles of Confederation of the New England Confederation of 1643.
  • LaCroix,  supra  note 2, at 21–22.
  • Albany Plan of Union of 1754, http://avalon.law.yale.edu/18th_century/albany.asp
  • Georgia and Delaware (then part of Pennsylvania) were also omitted.
  • Letter from Benjamin Franklin to Peter Collinson, The Papers of Benjamin Franklin (May 28, 1754), http://franklinpapers.org .
  • John Witherspoon made this point succinctly in a July 30, 1776, debate with Benjamin Franklin: “We all agree that there must and shall be a Confederation, for this War. It will diminish the Glory of our Object, and depreciate our Hope. It will damp the Ardor of the People. The greatest danger We have is of Disunion among ourselves.” Notes of Debates in Congress (1776),  in  1 Classics of American Political and Constitutional Thought: Origins through the Civil War 303 (Scott J. Hammond et al. eds., 2007).
  • LaCroix,  supra  note 2, at 128.
  • See  Articles of Confederation and Perpetual Union of 1777 (ratified Mar. 1, 1781), http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=127.
  • Larry N. Gerston, American Federalism: A Concise Introduction 24 (2007).
  • Gaillard Hunt, The Life of James Madison 93–94 (1902).
  • U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
  • Alison L. LaCroix,  The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology , 28 L. & Hist. Rev. 451, 452 (2010).
  • See  U.S. Const. art. I, § 8, cl. 1, 3, 4, 10–13.
  • U.S. Const. art. I, § 8, cl. 3.
  • See United States v. Lopez , 514 U.S. 549, 553–54 (1995); Randy E. Barnett,  The Original Meaning of the Commerce Clause , 68 U. Chi. L. Rev. 101 (2001).
  •   See, e.g. ,  Gonzales v. Raich , 545 U.S. 1, 15–21 (2005) (“Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”).
  • U.S. Const. art. I, § 8, cl. 1.
  • Robert G. Natelson,  The General Welfare Clause and the Public Trust: An Essay in Original Understanding , 52 U. Kan. L. Rev. 1, 3 (2003).
  • Id . at 3–10.
  • See infra  p. 28 (discussion of the Patient Protection and Affordable Care Act).
  • U.S. Const. art. I, § 8, cl. 18.
  • The Federalist No. 9 (Alexander Hamilton).
  • The Federalist No. 51 (Alexander Hamilton).
  • The Federalist Nos. 26, 31 (Alexander Hamilton).
  • The Federalist No. 39 (James Madison).
  • The Federalist No. 45 (James Madison).
  • Letter from Robert Yates and John Lansing to George Clinton, Governor of New York (Dec. 21, 1787), http://www.constitution.org/afp/yatesltr.htm.
  • Letter from Brutus to the Citizens of the State of New York (Oct. 18, 1787), http://www.constitution.org/afp/brutus01.htm.
  • Joseph Story, Commentaries on the Constitution 3:§ 1898 (1833), http://press-pubs.uchicago.edu/founders/documents/amendIXs9.html.
  •   Id . at § 1900.
  • See  U.S. Const. art. VII. The remaining four of the original thirteen states completed ratification of the Constitution by May 29, 1790.
  • Gerston,  supra  note 11, at 6 (quoting Leslie Lipson, The Democratic Civilization 143 (1964)).
  • Tocqueville,  supra  note 1, at ch. VIII.
  • 10 U.S. 87 (1810).
  • Id.  at 134.
  • 14 U.S. 304 (1816).
  • 11 U.S. 603 (1812).
  • Martin , 14 U.S. at 323.
  • Id.  at 324.
  • 17 U.S. 316 (1819).
  • Id.  at 421.
  •   Id.  at 405–06.
  • 22 U.S. 1 (1824).
  • U.S. Const. art. I, § 8.
  • Gibbons , 22 U.S. at 194.
  • Id.  at 210.
  • Abraham Lincoln Inaugural Address (Mar. 4, 1861), http://www.abrahamlincolnonline.org/lincoln/speeches/1inaug.htm.
  • Letter from Jefferson Davison to the United States Senate (Jan. 21, 1861), http://jeffersondavis.rice.edu/Content.aspx?id=87.
  • David B. Walker, The Rebirth of Federalism: Slouching toward Washington 74 (2d ed. 2000).
  • New York v. United States , 505 U.S. 144, 181 (1992).
  • U.S. Const. amend. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”).
  • U.S. Const. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”).
  • U.S. Const. amend. XIV.
  • 60 U.S. 393 (1857).
  • U.S. Const. amend. XIV, § 1.
  • See  Note,  Congress’s Power to Define the Privileges and Immunities of Citizenship , 128 Harv. L. Rev. 1206, 1207 (2015) (citations omitted).
  • John Harrison,  Reconstructing the Privileges or Immunities Clause , 101 Yale L.J. 1385, 1387 n.5 (1992) (citing Robert H. Bork, The Tempting of America 166 (1989)).
  • See, e.g. ,  McDonald v. City of Chicago , 561 U.S. 742, 750 (2010).
  • Griswold v. Connecticut , 381 U.S. 479 (1965);  Eisenstadt v. Baird , 405 U.S. 438 (1972).
  • Roe v. Wade , 410 U.S. 113, 164 (1973);  Planned Parenthood v. Casey , 505 U.S. 833 (1992).
  • Obergefell v. Hodges , 135 S. Ct. 2584 (2015).
  • John E. Nowak,  The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments , 75 Colum. L. Rev. 1413, 1457–58 (1975) (citing The Cincinnati Commercial, Oct. 26, 1866, at 2, col. 4).
  • Id.  at 1462–63 (citing New York Herald, Oct. 25, 1866, at 6, col. 4).
  • 83 U.S. 36 (1872).
  • Id.  at 67.
  • Id.  at 82.
  • 163 U.S. 537 (1896).
  • 347 U.S. 483, 495 (1954).
  • John D. Buenker,  The Ratification of the Federal Income Tax Amendment , 1 Cato J. 183, 184 (1981).
  • 57 U.S. 429 (1895).
  • Buenker,  supra  note 78, at 185.
  • Roy G. Blakey & Gladys C. Blakey, The Federal Income Tax 70 (The Lawbook Exchange Ltd., 2006) (quoting Richmond Times-Dispatch, Mar. 3, 1910).
  • J. Stanley Lemons,  The Sheppard-Towner Act: Progressivism in the 1920s , 55 J. Am. Hist. 776, 776 (1969).
  • 32 U.S. 243 (1833).
  • Id.  at 249.
  • United States v. Cruikshank , 92 U.S. 542 (1875).
  • Id.  at 549.
  • 268 U.S. 652 (1925).
  • Id.  at 666.
  • Near v. Minnesota , 283 U.S. 697, 707 (1931) (“It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”).
  • Powell v. Alabama , 287 U.S. 45 (1932).
  • McDonald v. City of Chicago , 561 U.S. 742 (2010).
  • A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495 (1935).
  • Walker,  supra  note 57, at 92.
  • 301 U.S. 1, 37 (1937).
  • 312 U.S. 100 (1941).
  • 317 U.S. 111 (1942).
  • In 2011, the Supreme Court held that the federal government’s attempt to prosecute a woman who tried to poison her husband’s mistress pursuant to the Chemical Weapons Treaty could be challenged on the grounds that it violated the Tenth Amendment and basic principles of federalism: “States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . . Fidelity to principles of federalism is not for the States alone to vindicate.”  Bond v. United States , 131 S. Ct. 2355, 2364 (2011).
  • Neb. Dep’t of Revenue v. Loewenstein , 513 U.S. 123 (1994).
  • Perry v. Perez , 132 S. Ct. 934 (2012).
  • Rose v. Rose , 481 U.S. 619 (1987).
  • 135 S. Ct. 2584 (2015).
  • In re Burrus , 136 U.S. 586, 593–94 (1890).
  • 388 U.S. 1 (1967).
  • 450 U.S. 455 (1981).
  • Obergefell , 135 S. Ct. at 2598 (citing  Baker v. Nelson , 409 U.S. 810 (1972)).
  • 133 S. Ct. 2675 (2013).
  • Id.  at 2683, 2691–92.
  • Obergefell , 135 S. Ct. at 2604.
  • The dissents in  Obergefell  emphasized the federalism implications of the Court’s decision.  See id.  at 2611 (Roberts, J., dissenting) (“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”);  id.  at 2643 (Alito, J., dissenting) (“The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not . . . . The majority today makes that impossible.”).
  • 554 U.S. 570 (2008).
  • 561 U.S. 742 (2010).
  • 529 U.S. 598 (2000).
  • 545 U.S. 1 (2005).
  • 132 S. Ct. 2566 (2012).
  • In dissent, four justices maintained that the Commerce Clause supplied the necessary Congressional power, emphasizing federalism issues.  See id.  at 2615 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“The Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’ . . . Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable . . . . The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation ‘in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.’”) (citations omitted);  see also id.  at 2609 (“Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm . . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”).
  • See Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1594–95 (2015).
  • See Northwest, Inc. v. Ginsberg , 134 S. Ct. 1422 (2014).
  • See PLIVA, Inc. v. Mensing , 131 S. Ct. 2567 (2011).
  • See Arizona v. United States , 132 S. Ct. 2492 (2012).
  • See Am. Trucking Ass’ns, Inc. v. City of Los Angeles , 133 S. Ct. 2096 (2013).
  • See Kurns v. R.R. Friction Prods. Corp. , 132 S. Ct. 1261 (2012).
  •   See Marmet Health Care Ctr., Inc. v. Brown , 132 S. Ct. 1201 (2012).
  • See Am. Elec. Power Co. v. Connecticut , 131 S. Ct. 2527 (2011).
  • See Rowe v. N.H. Motor Transport Ass’n. , 552 U.S. 364 (2012).
  • See Nat’l Meat Ass’n v. Harris , 132 S. Ct. 965 (2012).
  • See, e.g., Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1591 (2015) (state antitrust claims arising from natural gas pricing);  CTS Corp. v. Waldburger , 134 S. Ct. 2175 (2014) (state statutes of repose in certain environmental cases);  Chadbourne & Parke LLP v. Troice , 134 S. Ct. 1058 (2013) (state law class action arising from bank certificates of deposit).
  • Id.  at 598.
  • Id.  at 599.
  • Benjamin Kaplan,  A Prefatory Note , 10 B.C. Indus. & Com. L. Rev. 497, 500 (1969).

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  • Cain questions court funding, highlights best practices for proportionality
  • Saving Our Profession: It’s Up to Us
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  • As I See It: Updates from the Center for Judicial Studies
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  • Editor’s Note: Relentlessly Relevant

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About Lee Rosenthal

Lee Rosenthal is chief judge of the U.S. District Court for the Southern District of Texas. She serves as vice president of the American Law Institute and as a member of the Bolch Judicial Institute Advisory Board.

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About Gregory P. Joseph

Gregory P. Joseph, partner at Joseph Hage Aaronson LLC, is a past president of the American College of Trial Lawyers; former chair of the American Bar Association Section of Litigation; and a former member of the Advisory Committee on the Federal Rules of Evidence.

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Federalism is the theory or advocacy of federal principles for dividing powers between member units and common institutions. Unlike in a unitary state, sovereignty in federal political orders is non-centralized, often constitutionally, between at least two levels so that units at each level have final authority and can be self governing in some issue area. Citizens thus have political obligations to, or have their rights secured by, two authorities. The division of power between the member unit and center may vary, typically the center has powers regarding defense and foreign policy, but member units may also have international roles. The decision-making bodies of member units may also participate in central decision-making bodies. Much recent philosophical attention is spurred by renewed political interest in federalism and backlashes against particular instances, coupled with empirical findings concerning the requisite and legitimate basis for stability and trust among citizens in federal political orders. Philosophical contributions have addressed the dilemmas and opportunities facing Canada, Australia, Europe, Russia, Iraq, Nepal, Ethiopia and Nigeria, to mention just a few areas where federal arrangements are seen as interesting solutions to accommodate differences among populations divided by ethnic or cultural cleavages yet seeking a common, often democratic, political order.

1. Taxonomy

2.1 some global perspectives, 2.2 western contributions, 3.1 reasons for a federal order rather than separate states or secession, 3.2 reasons to prefer federal orders over a unitary state, 4.1 sovereignty or federalism, 4.2 issues of constitutional and institutional design, 4.3 sources of stability, 4.4 division of power, 4.5 distributive justice, 4.6 democratic theory, 4.7 politics of recognition, contemporary, other internet resources, related entries.

Much valuable scholarship explicates the central terms ‘federalism’, ‘federation’ and ‘federal systems’ (cf. Wheare 1964, King 1982, Elazar 1987, Elazar 1987a, Riker 1993, Watts 1998).

A federal political order is here taken to be “the genus of political organization that is marked by the combination of shared rule and self-rule” (Watts 1998, 120). Federalism is the descriptive theory or normative advocacy of such an order, including principles for dividing final authority between member units and the common institutions.

A federation is one species of such a federal order; other species are unions, confederations, leagues and decentralised unions—and hybrids such as the present European Union (Elazar 1987, Watts 1998). A federation in this sense involves a territorial division of power between constituent units—sometimes called ‘provinces’, ‘cantons’, possibly ‘cities’, or confusingly ‘states’—and a common government. This division of power is typically entrenched in a constitution which neither a member unit nor the common government can alter unilaterally. The member unit and the common government both have direct effect on the citizenry—the common government operates “on the individual citizens composing the nation” (Federalist Paper 39)—and the authorities of both are directly elected (Watts 1998, 121). In comparison, decentralized authority in unitary states can typically be revoked by the central legislature at will. Many multilevel forms of governance may also be revised by units at one level without consent by bodies at other levels. Such entrenchments notwithstanding, some centralization often occurs owing to the constitutional interpretations by a federal level court in charge of settling conflicts regarding the scopes of final legislative and/or judicial authority.

In contrast, ‘confederation’ has come to mean a political order with a weaker center than a federation, often dependent on the constituent units (Watts 1998, 121). Typically, in a confederation a) member units may legally exit, b) the center only exercises authority delegated by member units, c) the center is subject to member unit veto on many issues, d) center decisions bind member units but not citizens directly, e) the center lacks an independent fiscal or electoral base, and/or f) the member units do not cede authority permanently to the center. Confederations are often based on agreements for specific tasks, and the common government may be completely exercised by delegates of the member unit governments. Thus many would count as confederations the North American states during 1776–1787, Switzerland 1291–1847, and the present European Union—though it has several elements typical of federations.

In symmetric ( con ) federations the member units have the same bundles of powers, while in asymmetric ( con ) federations such as Russia, Canada, the European Union, Spain, or India the bundles may be different among member units; some member units may for instance have special rights regarding language or culture. Some asymmetric arrangements involve one smaller state and a larger, where the smaller partakes in governing the larger while retaining sovereignty on some issues (Elazar 1987, Watts 1998).

A helpful categorisation among federal arrangements concerns the relationship between the central unit, member units and individuals. If the decisions made centrally do not involve member units at all, we may speak of separate ( split or compact ) federalism. Some issues may be the responsibility of the central unit, others belonging to the member units, where citizens vote their representatives directly to both bodies (U.S. Constitution Art. II Section 1; cf. Dahl 2001). Federations can involve member units in central decision-making in at least two different ways in various forms of interlocking (or cooperative ) federalism. Member unit representatives can participate within central bodies—in cabinets or legislatures—( collective agency compositional arrangement). Or they constitute one central body that interacts with other central bodies, for instance where member unit government representatives form an Upper House with power to veto or postpone decisions by majority or qualified majority vote ( divided agency / relational arrangements). These legal arrangements give rise to varieties of multi-level governance: continuous negotiations among authorities at different territorial levels (Marks 1993, Hooghe and Marks 2003, Scharpf 1983). Responsiveness to individuals may benefit from interlocking federalism, but often at the cost of transparency and accountability.

Several authors identify two quite distinct processes that lead to a federal political order (Friedrich 1968, Buchanan 1995, Stepan 1999 and others). Independent states may aggregate by ceding or pooling sovereign powers in certain domains for the sake of goods otherwise unattainable, such as security or economic prosperity. Such coming together federal political orders are typically arranged to constrain the center and prevent majorities from overriding a member unit. Examples include the present USA, Canada, Switzerland, and Australia. Holding together federal political orders develop from unitary states, as governments devolve authority to alleviate threats of unrest or secession by territorially clustered minorities. Such federal political orders often grant some member units particular domains of sovereignty e.g. over language and cultural rights in an asymmetric federation, while maintaining broad scope of action for the central government and majorities. Examples include India, Belgium and Spain.

In addition to territorially organized federal political orders, other interesting alternatives to unitary states occur when non-territorial member units are constituted by groups sharing ethnic, religious or other characteristics. These systems are sometimes referred to as ‘non-territorial’ federations. Karl Renner and Otto Bauer explored such arrangements for geographically dispersed cultural minorities, allowing them some cultural and “personal” autonomy without territorial self rule (Bauer 1903; Renner 1907; Bottomore and Goode 1978; cf. Tamir 1993 and Nimni 2005). Consociations consist of somewhat insulated groups in member units who in addition are represented in central institutions often governing by unanimity rather than by majority (Lijphart 1977).

2. History of Federalism

A wide-spread interest among political philosophers in topics concerning the centralised nation state have fuelled attention to historical contributions on unitary sovereignty. However, we can also identify a steady stream of contributions to the philosophy of federalism, also by those more well known for their arguments concerning centralised power (cf. Karmis and Norman 2005 for such readings). Much of the Western literature on federalism has focused on the unit of states. To underscore this bias, consider first some non-Western practices and theories of federal features.

We find federal modes of political organisation on many continents, and contributions to theories about federalism in written sources across philosophical traditions. A range of philosophical contributions underscore that federal perspectives can apply to a wide range of units other than the sovereign states central in European and U.S. thought.

The tribal organisation of the Māori in what is now New Zealand included family groups ( whanau ), who would work together and collaborate for defense as a clan ( hapū ). The tribe ( iwi ) would in turn operate as a federation among several hapū for common defense (Ballara 1998, 19).

Several extinct African societies had federal elements. Edward Wamala describes what we recognise as federal features in pre-14th century Ganda society, in what later became the kingdom of the Baganda, now part of Uganda. The power structures between the chief ( ssabataka ) and heads of tribes ( mutaka ) was one of primus inter pares . The tribes enjoyed immunity, in that the higher units should no usurp the responsibilities of the lower units of power but only promote the well-being of the lower units (Wamala 2004: 436–437)

Nahua (Aztek) culture illustrates multi-level federalism: Tlaxilacalli - badly translated and understood as “neighbourhoods” - would submit to the authority of the sovereign local polity, or altepetl , which then scaled up to autonomous mega-provinces ( huei altepetl ) and finally to the entire empire. At each level, submission was traded for autonomy, undercutting any attempt at direct centralising rule (Johnson 2017). In the 1428 triple alliance for military purposes among the three city-states ( altepeme ) of Tenochtitlan, Texcoco and Totoquihuatzin, each of these rules over their dependent altepetl without interference by the other two (Lockhart 1992).

The Confucian political philosopher Mencius (379–298 BC) laid out a three level ‘familial’ order (Chan 2003). The family had primary responsibility for those unable to care for themselves, and rulers should be the parents of the people. (Mencius 2003, 1B.13). When the family could not assist, the community network should provide support. Only when the community was unable would what we might call the state have an obligation to aid.

We find expressions of federalism in the third pillar of Islam: Obligatory charity in the form of zakat provided to certain needy persons outside one’s own household (Qur’an 9: 103). Every able Muslim must provide a fixed proportion of their net wealth—2.5%—to support others in need. The role of the state may vary when it comes to assess, collect and distribute zakat. In some states, the collection or distribution of zakat is the responsibility of civil society organisations or mosques. In other states, it is the government’s responsibility to either ensure that zakat is managed if Muslims fail to pay; or the whole system may be managed by the state (Bilo and Mechado 2018).

The sub-Saharan philosophy of Ubuntu has federal features that have also contributed to legal theory. The term ‘Ubuntu’ stems from the Nguni phrase “Umuntu ngumuntu ngabantu” meaning a person is a person through other persons. Ubuntu emphasises the harmonious relationships between persons as constitutive of the individual, underscoring compassion and commitment to one another’s growth (Mbiti 1969, Gädeke 2019, Metz 2011). The task of governments at various territorial levels is to promote harmonious flourishing and community of the constituent parts (Shutte 2001). Ubuntu was included in the epilogue of the 1993 Interim Constitution of South Africa, but not explicitly in its 1996 Constitution.

The confederacy among five (later six) Haudenosaunee (Iroquois) nations dates back to between the 12th and 15th century. The oral constitution—The Great Law of Peace—specified that each nation elected delegates, or sachems , who dealt with internal affairs. The confederacy’s Grand Council could not interfere with the internal affairs of each tribe, but would discuss particular matters of common concern such as war, peace, and treaty making. The Haudenosaunee practice of granting the member units immunity apparently influenced Benjamin Franklin’s and others’ call for a union among the English colonies (Fenton 1998). Iris Marion Young explored this tradition to develop a theory of federalism that would secure immunity and redress power imbalances (Young 2000; Levy 2008).

Aristotle (384–322 BC) provides an early Western example of federal thought, where some of the member units are not political. The tasks of households and villages is to secure individuals’ necessities of life. The city-state ( polis ) is a self-sufficient community of such households, clans and villages, for protection and fulfilment (Politics, III.9, 1280b).

Several of the early European contributors to federalist thought explored the rationale and weaknesses of centralised states as they emerged and developed in the 17th and 18th century. Johannes Althusius (1557–1630) is often regarded as the father of modern federalist thought. He argued in Politica Methodice Digesta (Althusius 1603) for autonomy of his city Emden, both against its Lutheran provincial Lord and against the Catholic Emperor. Althusius was strongly influenced by French Huguenots and Calvinism. As a permanent minority in several states, Calvinists developed a doctrine of resistance as the right and duty of “natural leaders” to resist tyranny. Orthodox Calvinists insisted on sovereignty in the social circles subordinate only to God’s laws. The French Protestant Huguenots developed a theory of legitimacy further, presented 1579 by an author with the telling pseudonym “Junius Brutus” in Vindiciae Contra Tyrannos . The people, regarded as a corporate body in territorial hierarchical communities, has a God-granted right to resist rulers without rightful claim. Rejecting theocracy, Althusius developed a non-sectarian, non-religious contractualist political theory of federations that prohibited state intervention even for purposes of promoting the right faith. Accommodation of dissent and diversity prevailed over any interest in subordinating political powers to religion or vice versa.

Since humans are fundamentally dependent on others for the reliable provision of requirements of a comfortable and holy life, we require communities and associations that are both instrumentally and intrinsically important for supporting [ subsidia ] our needs. Althusius, like Aristotle, included non-political units in his federal theory. Families, guilds, cities, provinces, states and other associations owe their legitimacy and claims to political power to their various roles in enabling a holy life, rather than to individuals’ interest in autonomy. Each association claims autonomy within its own sphere against intervention by other associations. Borrowing a term originally used for the alliance between God and men, Althusius holds that associations enter into secular agreements— pactum foederis —to live together in mutual benevolence.

Several early contributors explored what we may now regard as various species of federal political orders, partly with an eye to resolving inter-state conflicts.

Ludolph Hugo (ca. 1630–1704) was the first to distinguish confederations based on alliances, decentralized unitary states such as the Roman Empire, and federations, characterized by ‘double governments’ with territorial division of powers, in De Statu Regionum Germanie (1661) (cf. Elazar 1998; Riley 1976).

A recurring concern was tensions between federalism and conceptions of sovereignty. Samuel Pufendorf (1632–1684) maintained that sovereign states could at most “agree to intertwine for all time” in a confederation deciding by unanimity. Move to majority rule turned the legal order into an ‘irregular system’ closer to a state. If sovereignty is a unique site of final and independent authority, federations are no more than voluntary treaties among fundamentally independent states, argued Emmerik Vattel (1714–1767). Later thinkers challenged this understanding of sovereignty, in debates continuing to this day concerning the European Union. (MacCormick 1999, Schütze 2009).

In The Spirit of Laws (1748) Charles de Secondat, Baron de Montesquieu (1689–1755) argued for confederal arrangements as combining the best of small and large political units, without the disadvantages of either. On the one hand they could provide the advantages of small states such as republican participation and liberty understood as non-domination—that is, security against abuse of power. At the same time confederal orders secure the benefits of larger states such as military security, without the risks of small and large states. A ‘confederate republic’ with separation of powers allows sufficient homogeneity and identification within sufficiently small member units. The member units in turn pool powers sufficient to secure external security, reserving the right to secede (Book 9, 1). Member units serve as checks on each other, since other member units may intervene to quell insurrection and power abuse in one member unit. These themes reoccur in later contributions, up to and including discussions concerning the European Union (cf. Levy 2004, 2005, 2007).

David Hume (1711–1776) disagreed with Montesquieu that smaller size is better. Instead, “in a large democracy … there is compass and room enough to refine the democracy.” In “Idea of a Perfect Commonwealth” (Hume 1752) Hume recommended a federal arrangement for deliberation of laws involving both member unit and central legislatures. Member units enjoy several powers and partake in central decisions, but their laws and court judgments can always be overruled by the central bodies, hence it seems that Hume’s model is not federal as the term is used here. He held that such a numerous and geographically large system would do better than small cities in preventing decisions based on “intrigue, prejudice or passion” against the public interest.

Several 18th century peace plans for Europe recommended confederal arrangements. The 1713 Peace Plan of Abbé Charles de Saint-Pierre (1658–1743) would allow intervention in member units to quell rebellion and wars on non-members to force them to join an established confederation, and required unanimity for changes to the agreement.

Jean-Jacques Rousseau (1712–1778) presented and critiqued Saint-Pierre’s proposal, listing several conditions including that all major powers must be members, that the joint legislation must be binding, that the joint forces must be stronger than any single state, and that secession must be illegal. Again, unanimity was required for changes to the agreement.

Immanuel Kant (1724–1804) defended a confederation for peace in On Perpetual Peace (1796). His Second Definite Article of a Perpetual Peace holds that the right of nations shall be based on a pacific federation among free states rather than a peace treaty or an international state: “This federation does not aim to acquire any power like that of a state, but merely to preserve and secure the freedom of each state in itself, along with that of the other confederated states, although this does not mean that they need to submit to public laws and to a coercive power which enforces them, as do men in a state of nature.”

The discussions surrounding the U.S. Constitutional Convention of 1787 marks a clear development in federal thought, also as regards the tensions between unitary sovereignty and divided authority. One central feature is that federations were seen as uniting not only member units as in confederations, but also the citizenry directly.

The Articles of Confederation of 1781 among the 13 American states fighting British rule had established a center too weak for law enforcement, defense and for securing interstate commerce. What has become known as the U.S. Constitutional Convention met May 25–September 17, 1787. It was explicitly restricted to revise the Articles, but ended up recommending more fundamental changes. The proposed constitution prompted widespread debate and arguments addressing the benefits and risks of federalism versus confederal arrangements, leading eventually to the Constitution that took effect in 1789.

The “Anti-federalists” were fearful of undue centralization. They worried that the powers of central authorities were not sufficiently constrained e.g., by a bill of rights (John DeWitt 1787) that was eventually ratified in 1791. They also feared that the center might gradually usurp the member units’ powers. Citing Montesquieu, another pseudonymous ‘Brutus’ doubted whether a republic of such geographical size with so many inhabitants with conflicting interests could avoid tyranny and would allow common deliberation and decision based on local knowledge (Brutus (Robert Yates?) 1787).

In The Federalist Papers , James Madison (1751–1836), Alexander Hamilton (1755–1804) and John Jay (1745–1829) argued vigorously for the suggested model of interlocking federal arrangements (Federalist 10, 45, 51, 62). Madison and Hamilton agreed with Hume that the risk of tyranny by passionate majorities was reduced in larger republics where member units of shared interest could and would check each other: “A rage for paper money, for an abolition of debts, for an equal division of property, or for any improper or wicked project, will be less likely to pervade the whole body of the Union than a particular member of it.” (Federalist 10). Splitting sovereignty between member unit and center would also protect individuals’ rights against abuse by authorities at either level, or so believed Hamilton, quoting Montesquieu at length to this effect (Federalist 9).

Noting the problems of allocating powers correctly, Madison supported placing some authority with member units since they would be best fit to address “local circumstances and lesser interests” otherwise neglected by the center (Federalist 37).

Madison and Hamilton urged centralized powers of defense and interstate commerce (Federalist 11, 23), and argued for the need to solve coordination and assurance problems of partial compliance, through two new means: Centralized enforcement and direct applicability of central decisions to individuals (Federalist 16, also noted by Tocqueville 1835–40). They were wary of granting member units veto power typical of confederal arrangements, since that would render the center weak and cause “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” (Madison and Hamilton, Federalist 22; and cf. 20).

They were particularly concerned to address worries of undue centralization, arguing that such worries should be addressed not by constraining the extent of power in the relevant fields, such as defense, but instead by the composition of the central authority (Federalist 31). They also claimed that the people would maintain stronger “affection, esteem, and reverence” towards the member unit government owing to its public visibility in the day-to-day administration of criminal and civil justice (Federalist 17).

John Stuart Mill (1806–1873), in chapter 17 of Considerations on Representative Government (1861), recommended federations among “portions of mankind” not disposed to live under a common government, to prevent wars among themselves and protect against aggression. He would also allow the center sufficient powers so as to ensure all benefits of union—including powers to prevent frontier duties to facilitate commerce. He listed three necessary conditions for a federation: sufficient mutual sympathy “of race, language, religion, and, above all, of political institutions, as conducing most to a feeling of identity of political interest”; no member unit so powerful as to not require union for defense nor tempt unduly to secession; and rough equality of strength among member units to prevent internal domination by one or two. Mill also claimed among the benefits of federations that they reduce the number of weak states hence reduce temptation to aggression, ending wars and restrictions on commence among member units; and that federations are less aggressive, only using their power defensively. Further benefits from federations—and from decentralized authority in general—might include learning from ‘experiments in living’.

Pierre-Joseph Proudhon (1809–1865), in Du Principe fédératif (1863) defended federalism as the best way to retain individual liberty within ‘natural’ communities such as families and guilds who enter pacts among themselves for necessary and specific purposes. The state is only one of several non-sovereign agents in charge of coordinating, without final authority.

While Proudhon was wary of centralisation, authors such as Harold Laski warned of ‘The Obsolesence of Federalism’ (1939). The important problems, such as those wrought by ‘giant capitalism,’ require more centralised responses than federal arrangements can muster.

Philosophical reflections on federalism were invigorated during and after the Second World War, for several reasons. Altiero Spinelli and Ernesto Rossi called for a European federal state in the Ventotene Manifesto , published 1944. They condemned totalitarian, centralised states and the never ending conflicts among them. Instead there should be enough shared control over military and economic power, yet “each State will retain the autonomy it needs for a plastic articulation and development of political life according to the particular characteristics of the various peoples.” Many explain and justify the European Union along precisely these lines, while others are more critical.

Hannah Arendt (1906–1975) traced both totalitarianism and industrialized mass murder to flaws in the sovereign nation-state model. Skeptical both of liberal internationalism and political realism, she instead urged a Republican federal model or ideal type wherein “the federated units mutually check and control their powers” (Arendt 1972).

The exit of colonial powers also left multi-ethnic states that required creative solutions to combine self rule and shared rule (Karmis and Norman 2005). In addition, globalisation has prompted not only integration and harmonisation, but also—partly in response—explorations of ways to still maintain some local self rule (Watts 1998).

Developments of the European Union and backlash against its particular forms of political and legal integration is one major cause of renewed attention to the philosophy of federalism. Recent philosophical discussions have addressed several issues, including centrally the reasons for federalism, and attention to the sources of stability and instability; the legitimate division of power between member unit and center; distributive justice, challenges to received democratic theory, and concerns about the politics of recognition.

3. Reasons for Federalism

Many arguments for federalism have traditionally been put in terms of promoting various forms of liberty in the form of non-domination, immunity or enhanced opportunity sets (Elazar 1987a). When considering reasons offered in the literature for federal political orders, many appear to be in favor of decentralization without requiring constitutional entrenchment of split authority. Two sets of arguments can be distinguished: Arguments favoring federal orders compared with secession and completely independent sovereign states; and arguments supporting federal arrangements rather than a (further) centralized unitary state. They occur in different forms and from different starting points, in defense of ‘coming together’ federalism, and in favor of ‘holding together’ federalism.

There are several suggested reasons for a federal order rather than separate states or secession.

  • Federations can facilitate some objectives of sovereign states, such as credible commitments, certain kinds of coordination to secure ‘public goods’ of various sorts, and to control externalities that affect other parties, by transferring some powers to a common body. Since cooperation in some areas can ‘spill over’ and create demands for further coordination in other sectors, federations often exhibit creeping centralisation. Note that several of these objectives require getting the allocation of competences and veto points right within the federal order. For some complex common objectives such as environmental problems, federal features otherwise risk becoming part of the problem (Adler 2005, Dalmazzone 2006).

Federations may foster peace, in the senses of preventing wars and preventing fears of war, in several ways. States can join a (con)federation to become jointly powerful enough to dissuade external aggressors, and/or to prevent aggressive and preemptive wars among themselves. The European federalists Altieri Spinelli, Ernesto Rossi and Eugenio Colorni argued the latter in the 1941 Ventotene Manifesto: Only a European federation could prevent war between totalitarian, aggressive states. Such arguments assume, of course, that the (con)federation will not become more aggressive than each state separately, a point Mill argued.

Federations can promote economic prosperity by removing internal barriers to trade, through economies of scale, by establishing and maintaining inter-member unit trade agreements, or by becoming a sufficiently large global player to affect international trade regimes (for the latter regarding the EU, cf. Keohane and Nye 2001, 260).

Federal arrangements may protect individuals against political authorities by constraining state sovereignty, placing some powers with the center. By entrusting the center with authority to intervene in member units, the federal arrangements can protect minorities’ human rights against member unit authorities (Federalist, Watts 1999). Such arguments assume, of course, that abuse by the center is less likely.

Federal arrangements may enhance the political influence of formerly sovereign governments, both by facilitating coordination, and—particularly for small states—by giving these member units influence or even veto over policy making, rather than remaining mere policy takers.

Federal political orders can be preferred as the appropriate form of nested organizations, for instance in ‘organic’ conceptions of the political and social order. The federation may promote cooperation, justice or other values among and within member units as well as among and within their constituent units, for instance by monitoring, legislating, enforcing or funding agreements, human rights, immunity from interference, or development. Starting with the family, each larger unit responsible for facilitating the flourishing of member units and securing common goods beyond their reach without a common authority. Such arguments have been offered by such otherwise divergent authors as Althusius, the Catholic traditions of subsidiarity as expressed by popes Leo XIII (1891) and Pius XI (1931), and Proudhon.

There are several arguments that may apply in favor of federal orders over a unitary state. Among the challenges for some of these arguments is how to allocate authority when there are conflicting claims to provide different benefits for partly overlapping groups; and how to construct overrides in cases of emergencies such as pandemics (Steytler 2021). Who has the power to decide what are exceptions is important, even if we may disagree with Schmitt that it defines who is sovereign (Schmitt 1985).

Federal arrangements may protect against central authorities by securing immunity and non-domination for minority groups or nations. Constitutional allocation of powers to a member unit protects individuals from the center, while interlocking arrangements provide influence on central decisions via member unit bodies (Madison, Hume, Goodin 1996). Member units may thus check central authorities and prevent undue action contrary to the will of minorities: “A great democracy must either sacrifice self-government to unity or preserve it by federalism. The coexistence of several nations under the same State is a test, as well as the best security of its freedom … The combination of different nations in one State is as necessary a condition of civilized life as the combination of men in society” (Acton 1907, 277).

More specifically, federal arrangements can accommodate minority nations who aspire to self determination, political expressions of their sense of shared identity and belonging, and the preservation of their culture, language or religion (Carla 2012). Such autonomy and immunity arrangements are clearly preferable to the political conflicts that might result from such groups’ attempts at secession. Central authorities may respond with human rights abuses, civil wars or ethnic cleansing to prevent such secessionist movements.

Federal orders may increase the opportunities for citizen participation in public decision-making; through deliberation and offices in both member unit and central bodies that ensures character formation through political participation among more citizens (Mill 1861, ch. 15).

Federal orders may facilitate learning by fostering alternative solutions to similar problems and sharing lessons from such a laboratory of ‘experiments in living’ (Rose-Ackerman 1980).

Federations may facilitate efficient preference maximization more generally, as formalized in the literature on economic and fiscal federalism—though many such arguments support decentralization rather than federalism proper. Research on ‘fiscal federalism’ addresses the optimal allocation of authority, typically recommending central redistribution but local provision of public goods. Federal arrangements may allow more optimal matching of the authority to create public goods to specific affected subsets of the populations. If individuals’ preferences vary systematically by territory according to external or internal parameters such as geography or shared tastes and values, federal—or decentralized—arrangements that allow local variation may be well suited for several reasons. Local decisions prevent overload of centralised decision-making, and local decision-makers may also have a better grasp of affected preferences and alternatives, making for better service than would be provided by a central government that tends to ignore local preference variations (Smith 1776, 680). Granting powers to population subsets that share preferences regarding public services may also increase efficiency by allowing these subsets to create such ‘internalities’ and ‘club goods’ at costs borne only by them (Musgrave 1959, 179–80, Olson 1969, Oates’ 1972 ‘Decentralization Theorem’).

Federal arrangements can also shelter territorially based groups with preferences that diverge from the majority population, such as ethnic or cultural minorities, so that they are not subject to majority decisions severely or systematically contrary to their preferences. Non-unitary arrangements may thus minimize coercion and be responsive to as many citizens as possible (Mill 1861 ch. 15, Elazar 1968; Lijphart 1999). Such considerations of economic efficiency and majority decisions may favor federal solutions, with “only indivisibilities, economies of scale, externalities, and strategic requirements … acceptable as efficiency arguments in favor of allocating powers to higher levels of government” (Padou-Schioppa 1995, 155).

Federal arrangements may not only protect existing clusters of individuals with shared values or preferences, but may also promote mobility and hence territorial clustering of individuals with similar preferences. Member unit autonomy to experiment may foster competition for individuals who are free to move where their preferences are best met. Such mobility towards member units with like-minded individuals may add to the benefits of local autonomy over the provision of public services—absent economies of scale and externalities (Tiebout 1956, Buchanan 2001)—though the result may be that those with costly needs and who are less mobile are left worse off.

4. Further Philosophical Issues

Much recent attention has focused on philosophical issues arising from empirical findings concerning federalism (for an overview of such empirical research, cf. Burris 2015), and has been spurred by quite different dilemmas facing—inter alia—Canada, Australia, Nepal, Ethiopia, several European states and the European Union.

The tensions between sovereignty and federalism still pose puzzles, reflected in ‘international’ and ‘national’ understandings of the latter (Schütze 2009). If sovereignty is a unique site of final and independent authority, federal orders cannot be sovereign, since no one has the ‘last word’ on all political matters (Friedrich 1968), and “authority and power are dispersed among a network of arenas” (Elazar 1994, xiii). Another tradition, including Madison (Federalist Paper 39), and more recently Beaud (2009) and Schütze (2009), seeks to square the circle allowing dual sovereignty. Several contributions to the political and legal theory of the European Union resolve these issues in different directions (Bellamy 2019; Schütze 2020).

Federal political orders require attention to several constitutional and other institutional issues. The great variation and how the features interact require careful comparative studies to understand their impact on law and politics (Palermo and Kössler 2017). The design of federal orders raise peculiar and intriguing issues of normative political theory (Watts 1998; Norman 2006).

Composition: How to determine the boundaries of the member units, e.g., along geographical, ethnic or cultural lines; whether establishment of new member units from old should require constitutional changes, whether to allow secession and if so how, etc.

Distribution of Power: The allocation of legislative, executive, judicial and constitution-amending power between the member units and the central institutions. In asymmetric arrangements some of these may differ among member units.

Power Sharing: The form of influence by member units in central decision-making bodies within the interlocking political systems.

These tasks must be resolved taking due account of several important considerations noted below.

As political orders go, federal political arrangements pose peculiar problems concerning stability and trust. Federations tend to drift toward disintegration in the form of secession, or toward centralization in the direction of a unitary state.

Such instability should come as no surprise given the tensions typically giving rise to federal political orders in the first place, such as tensions between majority and minority national communities in multinational federations. Federal political orders are therefore often marked by a high level of ‘constitutional contestation’. The details of their constitutions and other institutions may affect these conflicts and their outcomes in drastic ways. Political parties often disagree on constitutional issues regarding the appropriate areas of member unit autonomy, the forms of cooperation and how to prevent fragmentation. Such sampling bias among states that federalize to hold together makes it difficult to assess often heard claims that federal responses such as granting some local autonomy perpetuate cleavages and fuel rather than quell secessionist movements. Some nevertheless argue that democratic, interlocking federations alleviate such tendencies (Simeon 1998, Simeon and Conway 2001, Linz 1997; cf. McKay 2001, Filippov, Ordeshook and Shvetsova 2004).

Many authors note that the challenges of stability must be addressed not only by institutional design, but also by ensuring that citizens have an ‘overarching loyalty’ or ‘federal spirit’ to the federation as whole in addition to loyalty toward their own member unit (Franck 1968, Linz 1997, Burgess 2012). The legitimate bases, content and division of such a public dual allegiance are central topics of political philosophies of federalism (Norman 1995a, Choudhry 2001). Some accept (limited) appeals to considerations such as shared history, practices, culture, or ethnicity for delineating member units and placing certain powers with them, even if such ‘communitarian’ features are regarded as more problematic bases for (unitary) political orders (Kymlicka 1995, Habermas 1996, 500). Debates about the existence of a ‘European demos’ and the need for a common ‘European identity’ merit more careful scrutiny (Habermas 1992). The appropriate consideration that voters and their member unit politicians should give to the interests of others in the federation in interlocking arrangements must be clarified if the notion of citizen of two commonwealths is to be coherent and durable. Several of these challenges are especially acute for ‘ethnic federalism’ when the member units are delineated along ethnic lines: Any ‘internal minorities’ of other ethnicity risk persecution, the prospects of an overarching loyalty are dimmer, and ethnic nationalism may fuel secessionist movements (Selassie 2003)

Another and related central philosophical topic is the critical assessment of alleged grounds for federal arrangements in general, and the division of power between member units and central bodies in particular, indicated in the preceding sections. Recent contributions include Knop et al . 1995, Kymlicka 2001, Kymlicka and Norman 2000, Nicolaidis and Howse 2001, Norman 2006. Among the important issues, especially due to the risks of instability, are:

How the powers should be allocated, given that they should be used—but may be abused—by political entrepreneurs at several levels to affect their claims. The concerns about stability require careful attention to the impact of these powers on the ability to create and maintain ‘dual loyalties’ among the citizenry.

How to ensure that neither member units nor the central authorities overstep their jurisdiction. As Mill noted, “the power to decide between them in any case of dispute should not reside in either of the governments, or in any functionary subject to it, but in an umpire independent of both.” (1861) Such a court must be sufficiently independent, yet not utterly unaccountable. Many scholars seem to detect a centralising tendency among such courts (Watts 1998).

How to maintain sufficient democratic control over central bodies when these are composed by representatives of the executive branch of member units? The chains of accountability may be too long for adequate responsiveness. This is part of the core concerns about a ‘democratic deficit’ in the European Union (Watts 1998, Føllesdal and Hix 2006).

Who shall have the authority to revise the constitutionally embedded division of power? Some hold that a significant shift in national sovereignty occurs when such changes may occur without the unanimity characteristic of treaties.

The “Principle of Subsidiarity” has often been used to guide the decisions about allocation of power. This principle has recently received attention owing to its inclusion in European Union treaties. It holds that authority should rest with the member units unless allocating them to a central unit would ensure higher comparative efficiency or effectiveness in achieving certain goals. This principle can be specified in several ways, for instance concerning which units are included, which goals are to be achieved, and who has the authority to apply it. The principle has multiple pedigrees, and came to recent political prominence largely through its role in quelling fears of centralization in Europe—a contested role which the principle has not quite filled (Fleiner and Schmitt 1996, Burgess and Gagnon 1993, Føllesdal 1998).

Regarding distributive justice, federal political orders must manage tensions between ensuring member unit autonomy and securing the requisite redistribution within and among the member units. Indeed, the Federalists regarded federal arrangements as an important safeguard against “the equal division of property” (Federalist 10). The political scientists Linz and Stepan may be seen as finding support for the Federalists’ hypothesis: Compared to unitary states in the OECD, the ‘coming together’ federations tend to have higher child poverty rate in solo mother households and a higher percentage of population over-sixty living in poverty. Linz and Stepan explain this inequality as stemming from the ‘demos constraining’ arrangements of these federations, seeking to protect individuals and member units from central authorities, combined with a weak party system. By comparison, the Constitution of Germany (not a ‘coming together’ federation) explicitly requires equalization of living conditions among the member units (Art. 72.2). Presbey argues that ethnic federalism further exacerbates unfair distribution of resources among individuals of different ethnic groups in Africa (Presbey 2003). Normative arguments may also support some distributive significance of federal arrangements, for instance owing to trade-offs between member unit autonomy and redistributive claims among member units (Føllesdal 2001), or the relevance of a shared ‘identity‘ (Grégoire and Jewkes 2015, de Schutter 2011). A central normative issue is to what extent a shared culture and bonds among citizens within a historically sovereign state reduce the claims on redistribution among the member units.

Federalism may increase citizens’ control over matters important to them but also raises several challenges to democratic theory, especially as developed for unitary states. Federal arrangements are often more complex, thereby challenging standards of transparency, accountability and public deliberation (Habermas 2001). The restricted political agendas of each center of authority also require defense (Dahl 1983; Braybrooke 1983). One of several sets of issues concern the standing of member units. Challenging puzzles concern federal orders where some or all units are not internally democratic (for further issues, cf., Norman 2006, 144–150).

The power that member units wield in federations often restricts or violates majority rule, in ways that merit careful scrutiny. Democratic theory has long been concerned with how to prevent domination of minorities, and many federal political orders do so by granting member units some influence over common decisions. Federal political orders typically influence individuals’ political influence by skewing their voting weight in favor of citizens of small member units, or by granting member unit representatives veto rights on central decisions. Minorities thus exercise control in apparent violation of principles of political equality and one-person-one-vote—more so when member units are of different size. These features raises fundamental normative questions concerning why member units should matter for the allocation of political power among individuals who live in different member units. Some of these puzzles are addressed in terms of ‘demoicracy’, especially regarding the European Union (van Parijs 1997, Nicolaidis 2012, Schütze 2020). Thus theorists disagree about whether every EU member state should maintain sovereignty in the sense of enjoying a veto for all decisions (Bellamy 2019, Cheneval et al 2015).

Many federal political orders accommodate minority groups in two ways discussed above: both through a division of power, and by granting them influence over common decisions. These measures of identity politics can be valuable ways to give public acknowledgment and recognition to groups and their members, sometimes on the very basis of previous domination. But identity politics also create challenges (Gutman 1994), especially in federal arrangements that face greater risks of instability and must maintain citizens’ dual political loyalties. Self-government arrangements may threaten the federal political order: “demands for self-government reflect a desire to weaken the bonds with the larger community and, indeed, question its very nature, authority and permanence” (Kymlicka and Norman 1994, 375). The emphasis on “recognition and institutionalization of difference could undermine the conditions that make a sense of common identification and thus mutuality possible” (Carens 2000, 193).

Federations are often thought to be sui generis , one-of-a-kind deviations from the ideal-type unitary sovereign state familiar from the Westphalian world order. Indeed, every federation may well be federal in its very own way, and not easy to summarize and assess as an ideal-type political order. Yet the phenomenon of non-unitary sovereignty is not new, and federal accommodation of differences may well be better than the alternatives. When and why this is so has long been the subject of philosophical, theoretical and normative analysis and reflection. Such public arguments may themselves contribute to develop the overarching loyalty required among citizens of stable, legitimate federations, who must understand themselves as members of two commonwealths.

Several of the historical writings—those marked ‘*’ below and others—are reprinted in part or full in Theories of Federalism: A Reader , Dimitrios Karmis and Wayne Norman (eds.), New York: Palgrave, 2005.

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  • Arendt, Hannah, 1972, “Thoughts on Politics and Revolution,” in Crises of the Republic , New York: Harcourt Brace, 199–233.
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  • Saint-Pierre, Abbé Charles, 1713, Projet pour rendre la paix perpêtuelle en Europe (Project to make peace perpetual in Europe), Paris: Fayard, 1986.
  • *Montesquieu, Baron de, 1748, The Spirit of Laws , Amherst, NY: Prometheus Books, 2002.
  • *Rousseau, Jean-Jacques, 1761, A Lasting Peace Through the Federation of Europe , C.E. Vaughan (trans.), London: Constable, 1917.
  • *–––, 1761, “Summary and Critique of Abbé Saint-Pierre’s Project for Perpetual Peace,” in Grace G. Roosevelt (ed.), Reading Rousseau in the Nuclear Age , Philadelphia: Temple University Press, 1990.
  • Hume, David, 1752, “Idea of a Perfect Commonwealth,” in T.H. Green and T.H. Grose (eds.), Essays moral, political and literary , London: Longmans, Green, 1882
  • Smith, Adam, 1776, An Inquiry into the Nature and Causes of the Wealth of Nations , London: Dent, 1954.
  • Storing, Herbert, and Murray Dry (eds.), 1981, The Complete Anti-Federalist (7 Volumes), Chicago: University of Chicago Press.
  • *Hamilton, Alexander, James Madison, and John Jay, 1787–88, The Federalist Papers , Jacob E. Cooke (ed.), Middletown, CT: Wesleyan University Press, 1961.
  • Kant, Immanuel, 1784, “An Answer to the Question: ‘What Is Enlightenment?’” in Hans Reiss (ed.), Kant’s Political Writings , Cambridge: Cambridge University Press, 1970, 54–60.
  • *–––, 1796, “Perpetual Peace: A Philosophical Sketch,” in Hans Reiss (ed.), Kant’s Political Writings , Cambridge: Cambridge University Press, 1970, 93–130.
  • *de Tocqueville, Alexis, 1835–40, Democracy in America , P. Bradley (ed.), New York: Vintage, 1945 [ Text available online ].
  • *Mill, John Stuart, 1861, Considerations on Representative Government , New York: Liberal Arts Press, 1958 [ Text available online ].
  • *Proudhon, Pierre Joseph, 1863, Du Principe Federatif , J.-L. Puech and Th. Ruyssen (eds.), Paris: M. Riviere, 1959.
  • Leo XIII, 1891, “Rerum Novarum,” in The Papal Encyclicals 1903–1939 , Raleigh: Mcgrath, 1981.
  • Renner, Karl, 1899, Staat und Nation , Vienna. Reprinted as “State and Nation” in Ephraim Nimni (ed.), National Cultural Autonomy and Its Contemporary Critics , London: Routledge, 2005, 64–82.
  • Pius XI, 1931. “Quadragesimo Anno,” in The Papal Encyclicals 1903–1939 , Raleigh: Mcgrath, 1981.
  • *Spinelli, Altiero, and Ernesto Rossi, 1944, Il manifesto di Ventotene ( The Ventotene Manifesto ), Naples: Guida, 1982; reprinted in Karmis and Norman 2005. [ Text available online ]
  • Vattel, Emmerich, 1758 (2008), “The Law of Nations (Le Droit Des Gens),” in The Classics of International Law, edited by Bela Kapossy and Richard Whatmore , Indianapolis: Liberty Fund.

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  • Musgrave, Robert A., 1959, The Theory of Public Finance: a Study in Political Economy , New York: Mcgraw-Hill.
  • Metz, Thaddeus, 2011, “Ubuntu as a Moral Theory and Human Rights in South Africa,” African Human Rights Law Journal , 11: 532–59.
  • Nicolaidis, Calypso, 2012, “The Idea of European Demoicracy,” in Philosophical Foundations of European Union Law , edited by J. Dickson and Pavlos Eleftheriadis, 247–74, Oxford: Oxford University Press.
  • Norman, Wayne J., 1994, “Towards a Philosophy of Federalism,” in Judith Baker (ed.), Group Rights , Toronto: University of Toronto Press, 79–100.
  • –––, 1995a, “The Ideology of Shared Values: A Myopic Vision of Unity in the Multi-Nation State,” in Joseph Carens (ed.), Is Quebec Nationalism Just? Perspectives From Anglophone Canada , Montreal: McGill-Queens University Press, 137–59.
  • –––, 1995b, “The Morality of Federalism and the Evolution of the European Union,” Archiv für Rechts- und Sozialphilosophie , 59: 202–211.
  • –––, 2006, Negotiating Nationalism: Nation-building, Federalism and Secession in the Multinational State , Oxford: Oxford University Press.
  • Oates, Wallace, 1972, Fiscal Federalism , New York: Harcourt Brace Jovanovich.
  • Olson, Mancur, 1969, “Strategic Theory and Its Applications: the Principle of ‘Fiscal Equivalence’: the Division of Responsibility Among Different Levels of Government,” American Economic Review , 59(2): 479–532.
  • Padou-Schioppa, Tommaso, 1995, “Economic Federalism and the European Union,” in Knop et al . 1995, 154–65.
  • Palermo, F. and K. Kössler (2017). Comparative federalism: Constitutional arrangements and case law, Hart.
  • van Parijs, Philippe, 1997, “Should the European Union Become More Democratic?” In Democracy and the European Union , edited by Andreas Follesdal and Peter Koslowski, 287–301. Berlin: Springer.
  • Presbey, Gail M. (2003) “Unfair Distribution of Resources in Africa: What Should Be Done About the Ethnicity Factor?” Human Studies 26: 21–40.
  • Renner, Karl, 1917, “The Development of the National Idea,” in Bottomore and Goode 1978, 118–25.
  • Riker, William H., with Andreas Føllesdal, 2007, “Federalism,” in Robert E. Goodin, Philip Pettit and Thomas Pogge (eds.), A Companion to Contemporary Political Philosophy , Oxford: Blackwell.
  • Rose-Ackerman, Susan, 1980, “Risk Taking and Reelection: Does Federalism Promote Innovation?,” The Journal of Legal Studies , 9(3): 593–616
  • Sbragia, Alberta M., 1992, “Thinking about the European future: the uses of comparison,” in Alberta M. Sbragia (ed.), Euro-Politics: Institutions and policymaking in the ‘new’ European Community , Washington, DC: The Brookings Institution, 257–90.
  • Scharpf, Fritz W., 1988, “The Joint Decision Trap: Lessons from German Federalism and European Integration,” Public Administration 66, 3: 239–78.
  • Schmitt, Carl, 1985, Political theology. Chicago, The University of Chicago Press.
  • Schütze, Robert, 2009, From Dual to Cooperative Federalism: The Changing Structure of European Law. Oxford, Oxford University Press.
  • –––, 2020, “Models of Demoicracy: Some Preliminary Thoughts,” EUI Law no. 8. [ Schütze 2020 available online ]
  • Selassie, Alemante, 2003, “Ethnic Federalism: Its Promise and Pitfalls for Africa,” Yale Journal of International Law 28: 51–107.
  • Shepsle, Kenneth A., 1986, “Institutional equilibrium and Equilibrium institutions,” in Herbert Weisberg (ed.), Political Science: The science of politics , New York: Agathon Press, 51–81.
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  • Simeon, Richard, and Daniel-Patrick Conway, 2001, “Federalism and the Management of Conflict in Multinational Societies,” in Gagnon and Tully 2001, 338–65.
  • Stepan, Alfred, 1999, “Federalism and Democracy: Beyond the U.S. Model,” Journal of Democracy , 10: 19–34; reprinted in Karmis and Norman 2005.
  • Tamir, Yael, 1993, Liberal Nationalism , Princeton: Princeton University Press.
  • Taylor, Charles, 1993, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism , Montreal: McGill-Queen’s Press.
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  • Tully, James, 1995, Strange Multiplicity: Constitutionalism in an Age of Diversity , Cambridge: Cambridge University Press.
  • Tushnet, Mark, 1996, “Federalism and Liberalism,” Cardozo Journal of International and Comparative Law , 4: 329–44.
  • Voyenne, Bernard, 1975, Histoire De L’idée Fédéraliste . Paris: Presses d’Europe.
  • Wamala, Edward. “Government by Consensus: An Analysis of a Traditional Form of Democracy,” in A Companion to African Philosophy , edited by Kwasi Wiredu, 435–42, Oxford: Blackwell.
  • Watts, Ronald L., 1998, “Federalism, Federal Political Systems, and Federations,” Annual Review of Political Science , 1: 117–37.
  • –––, 1999, Comparing Federal Systems , Montreal: McGill-Queens University Press.
  • Weinstock, Daniel, 2011, “Self-Determination for (some) cities?” in Axel Gosseries and Yannick Vanderborght (eds.), Arguing About Justice: Essays for Philippe Van Parijs , Louvain: Presses universitaires de Louvain, 377–86.
  • Wheare, Kenneth C., 1964, Federal Government (4th edition), Oxford: Oxford University Press.
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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.
  • Liberty Library of Constitutional Classics [Contains many e-texts of primary sources] (maintained by the Constitution Society at constitution.org)
  • Daniel J. Elazar’s writings on federalism (maintained at the Jerusalem Center for Public Affairs)

Arendt, Hannah | authority | citizenship | Hume, David | identity politics | Kant, Immanuel | liberty: positive and negative | Mill, John Stuart | Montesquieu, Charles-Louis de Secondat, Baron de | -->Proudhon, Pierre --> | Rousseau, Jean Jacques | sovereignty


This entry has benefited from suggestions by Andrea Carla, Federica Cittadino, Philippe Crignon, Dorothea Gädeke, Douglas Klusmeyer, Silje Langvatn, Petra Malfertheiner, Thaddeus Metz, Francesco Palermo, Antoinette Scherz, Robert Schütze, and Katja Stoppenbrink, and from exchanges at a Conference on Federalism 2022 at EHESS, Paris, and at the Eurac institutes for minority rights and for federalism, Bolzano, 2022.

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Course: US history   >   Unit 3

  • The Articles of Confederation
  • What was the Articles of Confederation?
  • Shays's Rebellion
  • The Constitutional Convention
  • The US Constitution

The Federalist Papers

  • The Bill of Rights
  • Social consequences of revolutionary ideals
  • The presidency of George Washington
  • Why was George Washington the first president?
  • The presidency of John Adams
  • Regional attitudes about slavery, 1754-1800
  • Continuity and change in American society, 1754-1800
  • Creating a nation
  • The Federalist Papers was a collection of essays written by John Jay, James Madison, and Alexander Hamilton in 1788.
  • The essays urged the ratification of the United States Constitution, which had been debated and drafted at the Constitutional Convention in Philadelphia in 1787.
  • The Federalist Papers is considered one of the most significant American contributions to the field of political philosophy and theory and is still widely considered to be the most authoritative source for determining the original intent of the framers of the US Constitution.

The Articles of Confederation and Constitutional Convention

  • In Federalist No. 10 , Madison reflects on how to prevent rule by majority faction and advocates the expansion of the United States into a large, commercial republic.
  • In Federalist No. 39 and Federalist 51 , Madison seeks to “lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty,” emphasizing the need for checks and balances through the separation of powers into three branches of the federal government and the division of powers between the federal government and the states. 4 ‍  
  • In Federalist No. 84 , Hamilton advances the case against the Bill of Rights, expressing the fear that explicitly enumerated rights could too easily be construed as comprising the only rights to which American citizens were entitled.

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4.3: Reading: Federalism As a Structure for Power

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Learning Objectives

After reading this section, you should be able to answer the following questions:

  • What is federalism?
  • What powers does the Constitution grant to the national government?
  • What powers does the Constitution grant to state governments?

State vs. National Powers

The Constitution and its amendments outline distinct powers and tasks for national and state governments. Some of these constitutional provisions enhance the power of the national government; others boost the power of the states. Checks and balances protect each level of government against encroachment by the others.

National Powers

The Constitution gives the national government three types of power. In particular, Article I authorizes Congress to act in certain enumerated domains.

Exclusive Powers

The Constitution gives exclusive powers to the national government that states may not exercise. These are foreign relations, the military, war and peace, trade across national and state borders, and the monetary system. States may not make treaties with other countries or with other states, issue money, levy duties on imports or exports, maintain a standing army or navy, or make war.

Concurrent Powers

The Constitution accords some powers to the national government without barring them from the states. These concurrent powers include regulating elections, taxing and borrowing money, and establishing courts. National and state governments both regulate commercial activity. In its commerce clause, the Constitution gives the national government broad power to “regulate Commerce with foreign Nations, and among the several States and with the Indian tribes.” This clause allowed the federal government to establish a national highway system that traverses the states. A state may regulate any and all commerce that is entirely within its borders. National and state governments alike make and enforce laws and choose their own leaders. They have their own constitutions and court systems. A state’s Supreme Court decision may be appealed to the US Supreme Court provided that it raises a “federal question,” such as an interpretation of the US Constitution or of national law.

Implied Powers

The Constitution authorizes Congress to enact all laws “necessary and proper” to execute its enumerated powers. This necessary and proper clause allows the national government to claim implied powers, logical extensions of the powers explicitly granted to it. For example, national laws can and do outlaw discrimination in employment under Congress’s power to regulate interstate commerce.

States’ Powers

The states existed before the Constitution, so the founders said little about their powers until the Tenth Amendment was added in 1791. It holds that “powers not delegated to the United States…nor prohibited by it [the Constitution] to the States, are reserved to the States…or to the people.” States maintain inherent powers that do not conflict with the Constitution. Notably, in the mid-nineteenth century, the Supreme Court recognized that states could exercise police powers to protect the public’s health, safety, order, and morals.

Reserved Powers

Some powers are reserved to the states, such as ratifying proposed amendments to the Constitution and deciding how to elect Congress and the president. National officials are chosen by state elections. Congressional districts are drawn within states. Their boundaries are reset by state officials after the decennial census. So the party that controls a state’s legislature and governorship is able to manipulate districts in its favor. Republicans, having taken over many state governments in the 2010 elections, benefited from this opportunity.

National Government’s Responsibilities to the States


The pillars of Federalism, Republicanism, and Democracy made up the foundation of the Federalist party in early American government.

The Constitution lists responsibilities the national government has to the states. The Constitution cannot be amended to deny the equal representation of each state in the Senate. A state’s borders cannot be altered without its consent. The national government must guarantee each state “a republican form of government” and defend any state, upon its request, from invasion or domestic upheaval.

States’ Responsibilities to Each Other

Article IV lists responsibilities states have to each other: each state must give “full faith and credit” to acts of other states. For instance, a driver’s license issued by one state must be recognized as legal and binding by another. No state may deny “privileges and immunities” to citizens of other states by refusing their fundamental rights. States can, however, deny benefits to out-of-staters if they do not involve fundamental rights. Courts have held that a state may require newly arrived residents to live in the state for a year before being eligible for in-state (thus lower) tuition for public universities, but may not force them to wait as long before being able to vote or receive medical care. Officials of one state must extradite persons upon request to another state where they are suspected of a crime. States dispute whether and how to meet these responsibilities. Conflicts sometimes are resolved by national authority. In 2003, several states wanted to try John Muhammad, accused of being the sniper who killed people in and around Washington, DC. The US attorney general, John Ashcroft, had to decide which jurisdiction would be first to put him on trial. Ashcroft, a proponent of capital punishment, chose the state with the toughest death-penalty law, Virginia.

“The Supreme Law of the Land” and Its Limits

Article VI’s supremacy clause holds that the Constitution and all national laws are “the supreme law of the land.” State judges and officials pledge to abide by the US Constitution. In any clash between national laws and state laws, the latter must give way. However, as we shall see, boundaries are fuzzy between the powers national and state governments may and may not wield. Implied powers of the national government, and those reserved to the states by the Tenth Amendment, are unclear and contested. The Constitution leaves much about the relative powers of national and state governments to be shaped by day-to-day politics in which both levels have a strong voice.

A Land of Many Governments

“Disliking government, Americans nonetheless seem to like governments, for they have so many of them.” [1]  Table 3.1 “Governments in the United States” catalogs the 87,576 distinct governments in the fifty states. They employ over eighteen million full-time workers. These numbers would be higher if we included territories, Native American reservations, and private substitutes for local governments such as gated developments’ community associations.

Governments in the United States

In one sense, all fifty states are equal: each has two votes in the US Senate. The states also have similar governmental structures to the national government: three branches—executive, legislative, and judicial (only Nebraska has a one chamber—unicameral—legislature). Otherwise, the states differ from each other in numerous ways. These include size, diversity of inhabitants, economic development, and levels of education. Differences in population are politically important as they are the basis of each state’s number of seats in the House of Representatives, over and above the minimum of one seat per state. States get less attention in the news than national and local governments. Many state events interest national news organizations only if they reflect national trends, such as a story about states passing laws regulating or restricting abortions. [2]  A study of Philadelphia local television news in the early 1990s found that only 10 percent of the news time concerned state occurrences, well behind the 18 percent accorded to suburbs, 21 percent to the region, and 37 percent to the central city. [3]  Since then, the commitment of local news outlets to state news has waned further. [4]

Native American Reservations

In principle, Native American tribes enjoy more independence than states but less than foreign countries. Yet the Supreme Court, in 1831, rejected the Cherokee tribe’s claim that it had the right as a foreign country to sue the state of Georgia. The justices said that the tribe was a “domestic dependent nation.” [5]  As wards of the national government, the Cherokee were forcibly removed from land east of the Mississippi in ensuing years.

Native Americans have slowly gained self-government. Starting in the 1850s, presidents’ executive orders set aside public lands for reservations directly administered by the national  Bureau of Indian Affairs  (BIA). During World War II, Native Americans working for the BIA organized to gain legal autonomy for tribes. Buttressed by Supreme Court decisions recognizing tribal rights, national policy now encourages Native American nations on reservations to draft constitutions and elect governments. [6]

Local Governments

All but two states are divided into administrative units known as counties. [9] States also contain municipalities, whether huge cities or tiny hamlets. They differ from counties by being established by local residents, but their powers are determined by the state. Cutting across these borders are thousands of school districts as well as special districts for drainage and flood control, soil and water conservation, libraries, parks and recreation, housing and community development, sewerage, water supply, cemeteries, and fire protection. [10]

Key Takeaways

Federalism is the American political system’s arrangement of powers and responsibilities among—and ensuing relations between—national, state, and local governments. The US Constitution specifies exclusive and concurrent powers for the national and state governments. Other powers are implied and determined by day-to-day politics.

  • Martha Derthick,  Keeping the Compound Republic: Essays on American Federalism  (Washington, DC: Brookings, 2001), 83.  ↵
  • John Leland, “Abortion Foes Advance Cause at State Level,”  New York Times , June 3, 2010, A1, 16.  ↵
  • Phyllis Kaniss,  Making Local News  (Chicago: University of Chicago Press, 1991), table 4.4.  ↵
  • A survey of state capitol news coverage in 2002 revealed that thirty-one state capitols had fewer newspaper reporters than in 2000.Charles Layton and Jennifer Dorroh, “ Sad State ,” American Journalism Review , June 2002.  ↵
  • Cherokee Nation v. Georgia , 30 US 1 (1831).  ↵
  • See Charles F. Wilkinson,  American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy  (New Haven, CT: Yale University Press, 1987); George Pierre Castile,  To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960–1975 (Tucson: University of Arizona Press, 1998); and Kenneth R. Philp,  Termination Revisited: American Indians on the Trail to Self-Determination, 1933–1953  (Lincoln: University of Nebraska Press, 1999).  ↵
  • Worcester v. Georgia , 31 US 515 (1832).  ↵
  • Montana v. Blackfeet Tribe of Indians , 471 US 759 (1985);  California v. Cabazon Band of Indians , 480 US 202 (1987);  Seminole Tribe of Florida v. Florida , 517 US 44 (1996).  ↵
  • The two exceptions are Alaska, which has boroughs that do not cover the entire area of the state, and Louisiana, where the equivalents of counties are parishes.  ↵
  • The US Bureau of the Census categorizes those entities that are organized (usually chosen by election) with a governmental character and substantial autonomy. US Census Bureau,  Government Organization: 2002 Census of Governments  1 , no. 1: 6.  ↵
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The U.S. Constitution: A Very Short Introduction

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2 (page 22) p. 22 Federalism

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Federalism, the division of power between state and central governments, was the most novel doctrine to emerge from the Constitutional Convention. ‘Federalism’ explains how it embraced a contradiction, imperium in imperio , a sovereignty within a sovereignty. This logical inconsistency—classical theory assumed that governmental sovereignty was indivisible—could be explained only by another innovation, popular sovereignty, which vested ultimate power in the people. Federalism has proven to be a highly malleable scheme for accommodating the demands of a diverse society and a dynamic economy. What began in 1787 as a partnership of equal governments became a powerful national government two centuries later, with widespread authority to safeguard (or threaten) liberty for its citizens.

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Profile image of Ibaba Samuel Ibaba

2020, Zelon Integrated Services

The book joins the federalism, democracy and development debate in Nigeria

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Tersoo Nande

In principle, Nigeria is said to be practicing Federalism since 1951. In fact, evidence on ground points to the opposite direction. As long as state governments lack control of the resources within their territories, and as long as the National Government controls law enforcement, the ultimate power of distributive and coercive politics will be concentrated at the center but under a de facto 'unitary' system. Nigeria's Federal structure is construed as a bad marriage that all parties involved dislike but dare not leave, yet there remain possibilities that could disrupt the precarious equilibrium in Abuja. It is widely believed that democracy offers a better framework than authoritarian rule, within which Federalism could be adequately utilized. However, democratic experience in Nigeria contradicts its notion of being a universal ideal. Although scholars argue that democratization is more likely to endure and succeed when it is propelled and owned by local forces than when foisted by powerful external forces. The paper concludes that efforts should be made towards blending the various communities in Nigeria into one nation in order to create a truly National Identity. This will enhance the practice of democracy and reposition Nigeria's Federalism. The paper also recommends that institutions which are rigid enough to endure the forces of change at the same time sufficiently flexible to absorb changing and often conflicting demands must be produced.

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The practice of federalism in Nigeria has come a long way. In its chequered history that has spanned through some six decades, Nigerian federalism has thrived amidst problems and prospects. Although the system has been sustained over the years despite obvious contradictions and challenges, there is no gainsaying the platitude that it is has been so for everything but true federalism. In this study, an attempt is made to reexamine the practice of federalism in Nigeria from the standpoint of some of its observable historical, structural and operational specificities with the view to proffering refreshing understanding on the essence of the practice. The paper recommends, among other things, urgent convocation of supreme national conference as an avenue to addressing and resolving nagging federalist questions in the interest of the nation.

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Essay on Federalism

Students are often asked to write an essay on Federalism in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Federalism

What is federalism.

Federalism is a system of government where power is divided between a central authority and various regional units. This system is found in countries like the United States, Australia, and India. It allows regions to have their laws while still being part of a larger nation.

Types of Federalism

There are two main types of federalism: dual and cooperative. In dual federalism, the national and state governments are seen as equals. In cooperative federalism, they work together to solve problems. Both types aim to balance power.

Benefits of Federalism

Federalism has many benefits. It allows for local control and representation, which can lead to more effective governance. It also encourages competition and innovation among states. Plus, it can help maintain unity in diverse nations.

Challenges of Federalism

Despite its benefits, federalism can also present challenges. It can lead to conflicts between the central and regional governments. There can also be inequalities between regions. Understanding these challenges is important in managing federalism effectively.

In conclusion, federalism is a unique system of government that balances power between the central and regional units. It has both benefits and challenges, making it a complex but interesting topic to study.

Also check:

  • Advantages and Disadvantages of Federalism

250 Words Essay on Federalism

Federalism is a type of government where power is split between a central government and smaller, regional governments. This system is used in countries like the United States, Australia, and India. It helps to manage large nations by spreading out the power.

How Does Federalism Work?

In a federal system, the central government makes laws for the whole country. It takes care of things that affect everyone, like defense and foreign policy. The regional governments look after local matters, like education and healthcare. This way, all areas of the country can have their unique needs met.

The Benefits of Federalism

Federalism has many benefits. It allows different regions to make their own laws based on their unique needs and cultures. It also spreads out power, so no single group can control everything. This can help to protect people’s rights and freedoms.

The Challenges of Federalism

Despite its benefits, federalism can also bring challenges. Sometimes, it can be hard to decide which level of government should handle a certain issue. This can lead to disagreements and conflicts. Also, having many different laws can make things complex and confusing.

In conclusion, federalism is a system of government that divides power between a central government and regional governments. It has both benefits and challenges. By understanding federalism, we can better understand how our country is run and how we can contribute to its success.

500 Words Essay on Federalism

Federalism is a type of government system. In this system, power is divided between a central authority and individual states or provinces. This means that both the central government and the state governments have their own areas of responsibility.

Where is Federalism Used?

Many countries around the world use federalism. Some examples include the United States, Canada, and Australia. In these countries, the central government handles things like defense and foreign policy. The state or provincial governments handle things like education and healthcare.

Why is Federalism Important?

Federalism is important for a few reasons. First, it allows for a balance of power. This means that no one group or person has too much control. Second, it allows for more local control. This means that states or provinces can make decisions that are best for their specific needs.

There are many benefits to federalism. One of the biggest is that it allows for experimentation. Since each state or province can make its own decisions, they can try out different ideas. If an idea works well, other states or provinces can choose to adopt it. This can lead to better policies and programs.

Another benefit is that it can lead to more citizen participation. Since decisions are made at a local level, people may feel more connected to their government. This can lead to higher levels of involvement and engagement.

While federalism has many benefits, it also has some challenges. One challenge is that it can lead to inequality. Since each state or province can make its own decisions, some may have better programs or policies than others. This can lead to differences in things like healthcare or education quality.

Another challenge is that it can be complex. Having multiple levels of government can sometimes lead to confusion. It can be hard to know who is responsible for what.

In conclusion, federalism is a type of government system where power is divided between a central authority and individual states or provinces. It is used in many countries around the world and has both benefits and challenges. It allows for a balance of power, more local control, and the ability to experiment with different policies and programs. However, it can also lead to inequality and complexity. Despite these challenges, federalism remains a popular and effective form of government.

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Federalism in the United States Essay

Federalism is a government political system, which has both local units and states and national government. The system has powers to come up with final decisions based on some governmental practices. It is a government system with the national as well as state levels sharing political supremacy. The local units or states and the national government function autonomously.

The power assignments of the national government comprises of both implied and expressed powers. Article I, Section 8 presents the majority of the expressed authorities. The Implied powers permit the central government to come up with decisions, which are not part of the expressed powers.

There is also the Necessary and Proper Clause in Article I, Section 8. Inherent Powers clause under Article I, Section 8 gives powers, which are acknowledged by every sovereign nation. State Governments powers clause was delegated to the national government through the Tenth Amendment. Through this, the national government has extended the capacity of governmental activities on a grand scale (Gerston 234).

There are other clauses under Article I, Section 8, like the Concurrent Powers clause, which provide powers shared by the national government with state governments. These include; the power to generate and implement laws, the police power, the power to levy tax, and the power to establish courts with limitation of extent.

Prohibited Powers at the same time concerns both the state and national governments. For example, there is a prohibition of export taxation for national government. On the other hand, the State governments are restricted from carrying out foreign policy as well as from coining money (Ginsberg, Theodore, Lowi &Weir 337).

The Supremacy Clause of Article VI authorizes the national government activities to be supreme. It also gives provision that any conflict involving legitimate practices of the national government with a state ought to be resolved in support of the national government. Similarly, the Interstate Relations under Article IV tries to resolve possible problems among states by specifying some clauses.

These clauses include full faith and credit clause, which ensure that the states ought to honor activities of other states. There are also the Privileges and immunities that require citizens of one state not to treat those from other states as aliens. For example, it gives a provision that when a citizen of a given state visits another state, he or she should get reception as a citizen of the state. The clause also plays a crucial role in interstate extradition.

It ensures that when a person is suspected to have done a crime in a given state and escape to another state, he should be extradited to the alleged crime scene state. In addition, the Article plays another role under Interstate compacts. It ensures the compacts between states to be permitted by Congress. This occurs when the compact changes the power connection between the national government and states (Zavodnyik, 108).

The McCulloch v. Maryland Supreme Court decision was necessary in expansion of national government powers. This case advanced a constitutional issue relevant to the national government powers. In this case, the Chief Justice John Marshall’s verdict confirmed national authority. The Congress power is not firmly restricted towards expressed powers. For example, Marshall held there were implied powers for Congress to execute the expressed powers.

Additionally, Marshall upheld the doctrine of supremacy through the decision that states would not override federal practices by taxing them. Gibbons v. Ogden case provides the national government precedent to control various economic activities. There was expanded explanation of what would be taken as interstate trade. Eventually, this description would permit Congress the authority to control broader economic activities compared to the past (LaCroix, 213).

The New Deal, as well as Cooperative Federalism, emphasized an extended duty for the national government. It encouraged the cooperation between the states and national government. The New Deal for instance responded to the Great Depression. This was through Franklin D. Roosevelt’s social-welfare programs intended to ease the unfavorable economic period. However, Dual federalism directed that programs like aid for the poor were completely not the federal duty (Gerston 187).

Works Cited

Gerston, Larry. American Federalism: A Concise Introduction Armonk. New York, United States: M.E. Sharp, 2007. Print.

Ginsberg, Benjamin, Theodore J. Lowi, and Weir, Margaret. We the People: An Introduction to American Politics. New York: W.W. Norton & Co Press, 2009. Print.

LaCroix, Alison. The Ideological Origins of American Federalism . Cambridge, Massachusetts, United States: Harvard University Press, 2010. Print.

Zavodnyik, Peter. The Rise of the Federal Colossus: The Growth of Federal Power from Lincoln to F.D.R. California: Santa Barbara Press, 2011. Print.

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  • 12 February 2024

China conducts first nationwide review of retractions and research misconduct

  • Smriti Mallapaty

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The reputation of Chinese science has been "adversely affected" by the number of retractions in recent years, according to a government notice. Credit: Qilai Shen/Bloomberg/Getty

Chinese universities are days away from the deadline to complete a nationwide audit of retracted research papers and probe of research misconduct. By 15 February, universities must submit to the government a comprehensive list of all academic articles retracted from English- and Chinese-language journals in the past three years. They need to clarify why the papers were retracted and investigate cases involving misconduct, according to a 20 November notice from the Ministry of Education’s Department of Science, Technology and Informatization.

The government launched the nationwide self-review in response to Hindawi, a London-based subsidiary of the publisher Wiley, retracting a large number of papers by Chinese authors. These retractions, along with those from other publishers, “have adversely affected our country’s academic reputation and academic environment”, the notice states.

A Nature analysis shows that last year, Hindawi issued more than 9,600 retractions, of which the vast majority — about 8,200 — had a co-author in China. Nearly 14,000 retraction notices, of which some three-quarters involved a Chinese co-author, were issued by all publishers in 2023.

This is “the first time we’ve seen such a national operation on retraction investigations”, says Xiaotian Chen, a library and information scientist at Bradley University in Peoria, Illinois, who has studied retractions and research misconduct in China. Previous investigations have largely been carried out on a case-by-case basis — but this time, all institutions have to conduct their investigations simultaneously, says Chen.

Tight deadline

The ministry’s notice set off a chain of alerts, cascading to individual university departments. Bulletins posted on university websites required researchers to submit their retractions by a range of dates, mostly in January — leaving time for universities to collate and present the data.

Although the alerts included lists of retractions that the ministry or the universities were aware of, they also called for unlisted retractions to be added.

essay on federalism and development

More than 10,000 research papers were retracted in 2023 — a new record

According to Nature ’s analysis, which includes only English-language journals, more than 17,000 retraction notices for papers published by Chinese co-authors have been issued since 1 January 2021, which is the start of the period of review specified in the notice. The analysis, an update of one conducted in December , used the Retraction Watch database, augmented with retraction notices collated from the Dimensions database, and involved assistance from Guillaume Cabanac, a computer scientist at the University of Toulouse in France. It is unclear whether the official lists contain the same number of retracted papers.

Regardless, the timing to submit the information will be tight, says Shu Fei, a bibliometrics scientist at Hangzhou Dianzi University in China. The ministry gave universities less than three months to complete their self-review — and this was cut shorter by the academic winter break, which typically starts in mid-January and concludes after the Chinese New Year, which fell this year on 10 February.

“The timing is not good,” he says. Shu expects that universities are most likely to submit only a preliminary report of their researchers’ retracted papers included on the official lists.

But Wang Fei, who studies research-integrity policy at Dalian University of Technology in China, says that because the ministry has set a deadline, universities will work hard to submit their findings on time.

Researchers with retracted papers will have to explain whether the retraction was owing to misconduct, such as image manipulation, or an honest mistake, such as authors identifying errors in their own work, says Chen: “In other words, they may have to defend themselves.” Universities then must investigate and penalize misconduct. If a researcher fails to declare their retracted paper and it is later uncovered, they will be punished, according to the ministry notice. The cost of not reporting is high, says Chen. “This is a very serious measure.”

It is not known what form punishment might take, but in 2021, China’s National Health Commission posted the results of its investigations into a batch of retracted papers. Punishments included salary cuts, withdrawal of bonuses, demotions and timed suspensions from applying for research grants and rewards.

The notice states explicitly that the first corresponding author of a paper is responsible for submitting the response. This requirement will largely address the problem of researchers shirking responsibility for collaborative work, says Li Tang, a science- and innovation-policy researcher at Fudan University in Shanghai, China. The notice also emphasizes due process, says Tang. Researchers alleged to have committed misconduct have a right to appeal during the investigation.

The notice is a good approach for addressing misconduct, says Wang. Previous efforts by the Chinese government have stopped at issuing new research-integrity guidelines that were poorly implemented, she says. And when government bodies did launch self-investigations of published literature, they were narrower in scope and lacked clear objectives. This time, the target is clear — retractions — and the scope is broad, involving the entire university research community, she says.

“Cultivating research integrity takes time, but China is on the right track,” says Tang.

It is not clear what the ministry will do with the flurry of submissions. Wang says that, because the retraction notices are already freely available, publicizing the collated lists and underlying reasons for retraction could be useful. She hopes that a similar review will be conducted every year “to put more pressure” on authors and universities to monitor research integrity.

What happens next will reveal how seriously the ministry regards research misconduct, says Shu. He suggests that, if the ministry does not take further action after the Chinese New Year, the notice could be an attempt to respond to the reputational damage caused by the mass retractions last year.

The ministry did not respond to Nature ’s questions about the misconduct investigation.

Chen says that, regardless of what the ministry does with the information, the reporting process itself will help to curb misconduct because it is “embarrassing to the people in the report”.

But it might primarily affect researchers publishing in English-language journals. Retraction notices in Chinese-language journals are rare.

doi: https://doi.org/10.1038/d41586-024-00397-x

Data analysis by Richard Van Noorden.

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How technology is reinventing education

Stanford Graduate School of Education Dean Dan Schwartz and other education scholars weigh in on what's next for some of the technology trends taking center stage in the classroom.

essay on federalism and development

Image credit: Claire Scully

New advances in technology are upending education, from the recent debut of new artificial intelligence (AI) chatbots like ChatGPT to the growing accessibility of virtual-reality tools that expand the boundaries of the classroom. For educators, at the heart of it all is the hope that every learner gets an equal chance to develop the skills they need to succeed. But that promise is not without its pitfalls.

“Technology is a game-changer for education – it offers the prospect of universal access to high-quality learning experiences, and it creates fundamentally new ways of teaching,” said Dan Schwartz, dean of Stanford Graduate School of Education (GSE), who is also a professor of educational technology at the GSE and faculty director of the Stanford Accelerator for Learning . “But there are a lot of ways we teach that aren’t great, and a big fear with AI in particular is that we just get more efficient at teaching badly. This is a moment to pay attention, to do things differently.”

For K-12 schools, this year also marks the end of the Elementary and Secondary School Emergency Relief (ESSER) funding program, which has provided pandemic recovery funds that many districts used to invest in educational software and systems. With these funds running out in September 2024, schools are trying to determine their best use of technology as they face the prospect of diminishing resources.

Here, Schwartz and other Stanford education scholars weigh in on some of the technology trends taking center stage in the classroom this year.

AI in the classroom

In 2023, the big story in technology and education was generative AI, following the introduction of ChatGPT and other chatbots that produce text seemingly written by a human in response to a question or prompt. Educators immediately worried that students would use the chatbot to cheat by trying to pass its writing off as their own. As schools move to adopt policies around students’ use of the tool, many are also beginning to explore potential opportunities – for example, to generate reading assignments or coach students during the writing process.

AI can also help automate tasks like grading and lesson planning, freeing teachers to do the human work that drew them into the profession in the first place, said Victor Lee, an associate professor at the GSE and faculty lead for the AI + Education initiative at the Stanford Accelerator for Learning. “I’m heartened to see some movement toward creating AI tools that make teachers’ lives better – not to replace them, but to give them the time to do the work that only teachers are able to do,” he said. “I hope to see more on that front.”

He also emphasized the need to teach students now to begin questioning and critiquing the development and use of AI. “AI is not going away,” said Lee, who is also director of CRAFT (Classroom-Ready Resources about AI for Teaching), which provides free resources to help teach AI literacy to high school students across subject areas. “We need to teach students how to understand and think critically about this technology.”

Immersive environments

The use of immersive technologies like augmented reality, virtual reality, and mixed reality is also expected to surge in the classroom, especially as new high-profile devices integrating these realities hit the marketplace in 2024.

The educational possibilities now go beyond putting on a headset and experiencing life in a distant location. With new technologies, students can create their own local interactive 360-degree scenarios, using just a cell phone or inexpensive camera and simple online tools.

“This is an area that’s really going to explode over the next couple of years,” said Kristen Pilner Blair, director of research for the Digital Learning initiative at the Stanford Accelerator for Learning, which runs a program exploring the use of virtual field trips to promote learning. “Students can learn about the effects of climate change, say, by virtually experiencing the impact on a particular environment. But they can also become creators, documenting and sharing immersive media that shows the effects where they live.”

Integrating AI into virtual simulations could also soon take the experience to another level, Schwartz said. “If your VR experience brings me to a redwood tree, you could have a window pop up that allows me to ask questions about the tree, and AI can deliver the answers.”


Another trend expected to intensify this year is the gamification of learning activities, often featuring dynamic videos with interactive elements to engage and hold students’ attention.

“Gamification is a good motivator, because one key aspect is reward, which is very powerful,” said Schwartz. The downside? Rewards are specific to the activity at hand, which may not extend to learning more generally. “If I get rewarded for doing math in a space-age video game, it doesn’t mean I’m going to be motivated to do math anywhere else.”

Gamification sometimes tries to make “chocolate-covered broccoli,” Schwartz said, by adding art and rewards to make speeded response tasks involving single-answer, factual questions more fun. He hopes to see more creative play patterns that give students points for rethinking an approach or adapting their strategy, rather than only rewarding them for quickly producing a correct response.

Data-gathering and analysis

The growing use of technology in schools is producing massive amounts of data on students’ activities in the classroom and online. “We’re now able to capture moment-to-moment data, every keystroke a kid makes,” said Schwartz – data that can reveal areas of struggle and different learning opportunities, from solving a math problem to approaching a writing assignment.

But outside of research settings, he said, that type of granular data – now owned by tech companies – is more likely used to refine the design of the software than to provide teachers with actionable information.

The promise of personalized learning is being able to generate content aligned with students’ interests and skill levels, and making lessons more accessible for multilingual learners and students with disabilities. Realizing that promise requires that educators can make sense of the data that’s being collected, said Schwartz – and while advances in AI are making it easier to identify patterns and findings, the data also needs to be in a system and form educators can access and analyze for decision-making. Developing a usable infrastructure for that data, Schwartz said, is an important next step.

With the accumulation of student data comes privacy concerns: How is the data being collected? Are there regulations or guidelines around its use in decision-making? What steps are being taken to prevent unauthorized access? In 2023 K-12 schools experienced a rise in cyberattacks, underscoring the need to implement strong systems to safeguard student data.

Technology is “requiring people to check their assumptions about education,” said Schwartz, noting that AI in particular is very efficient at replicating biases and automating the way things have been done in the past, including poor models of instruction. “But it’s also opening up new possibilities for students producing material, and for being able to identify children who are not average so we can customize toward them. It’s an opportunity to think of entirely new ways of teaching – this is the path I hope to see.”


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