Hello Dear Reader!

Welcome to American Basics with your host, Consuelo (Connie) T. Tution.

So the election has you mad as hell and you won’t take it. You’ve been marching, tweeting, sending money to causes, talking to friends, venting like hell against El Cheetolini, the Hair Fuhrer, you know, @POTUS, @realDonaldTrump.

You’ve been hearing the word “states’ rights” and how Governors and State Attorneys General are going to do everything in their power to stop Fearless Leader’s actions and you’re scratching your head understanding the meaning of those concepts. Well, Dear Reader, welcome to the oldest debate in American politics, where the power of the federal government ends and where does the power of the states begin.

Barely after the ink dried on the Constitution, that this fateful debate began. In fact one of America’s oldest parties was called the Federalists, showing how quickly the balance between the federal and state powers had become central in the American political debate. Sometimes that debate turned bloody, with the claim that slavery was a states’ right issue which eventually led to the Civil War, being one of the most notable examples.

So what is federalism? Worry not, dear reader! Connie T. Tution is here to help.

The United States has one federal government and fifty state governments. Although the federal government has a whole swath of power, states retain some within their borders, and shares it with the feds in some cases. Two concepts you’ll have to keep in mind are The Supremacy Clause of the Constitution and states’ rights.

The Supremacy Clause 

(or Uncle Sam is Boss)

Before we begin, t he Federal Government’s powers are clearly supreme in these areas:

  • Make war and peace
  • Coin money
  • Regulate commerce amongst states
  • Conduct foreign policy
  • Regulate international trade
  • Raise an Army and a Navy

So what is The Supremacy Clause? Article is a section of the Constitution of the United States that reads as follows:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and theJudges in every State shall be bound thereby, any Thing in the Constitution or Lawsof any state to the Contrary notwithstanding.”

Now what does that mean? That has been the subject of much debate, but basically federal laws and decisions supersede and preempt state laws in areas where both apply. For example, The 1906 Food and Drugs Act and the Food and Drug Administration regulations supersede state food and drug safety regulations.

Finally, there is a section of The Constitution that allows Congress “ To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This “necessary and proper” clause allows Congress to establish things such as Medicare, food safety laws, and Social Security.

So there! The Federal Government rules and the states drool!

States’ Rights

(or “Hold On, I’ve Got Some Powah!”)

Yes indeed, Hold on Uncle Sam! Because somewhere else in the Constitution, namely that little section we call the Bill of Rights, we have something called the Tenth Amendment. It reads like this:

“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.” There we have it, my Dear Reader, the basis of the fight over where the power between the states and the federal government. One part of the Constitution says that the powers of the federal government are supreme and Congress can use any “necessary and proper” powers to pass laws that can supersede states laws.

Another says that if the Constitution doesn’t give the feds the power, the states keep it. Who’s right?

Sometimes the debate tilted towards more federal power like Jefferson’s decision to complete the Louisiana Purchase in 1803 or Washington’s Proclamation of Neutrality in 1793. At other times, it tilted towards more states’ rights like the so-called Bank War in 1833.

Although the rise of the New Deal led to an increase in the size of the federal government after the end of World War II, the states have broad powers in the following areas:

  • Election and voting laws
  • Building codes
  • Criminal law
  • Civil and judicial procedures
  • Access to credit laws
  • Land, water, and mineral extraction laws.

 

  • Property, estate, and inheritance laws
  • Labor and licensing requirement laws
  • Education
  • Family law (including marriage, divorce, and child support)
  • Public health and quarantine laws

  • Morals laws (yes, those still exist in the 21st Century)
  • Ratify amendments to the Constitution
  • Cannot be combined with another state or split into two except if mutually agreed upon by the populations in the affected areas

There is one final point on the issue of states’ rights, Article 4, Section 1 establishes that the records, licenses, judicial decisions, and even laws of one state have the full faith and credit in other states. Therefore if you commit a crime in Pennsylvania, Florida is required to recognize that this law was broken and must send you back to stand trial in Pennsylvania. Additionally, if you get a degree in a school or university in Maine, Arizona has to recognize it. Congress can limit the scope of that clause through a federal law, but again the “Full Faith and Credit” clause adds an additional level of power to the states as their laws do not automatically end at the state line.

Can We Share Some Powers?

Yes, Dear Reader, the Feds and the states do share some powers. The limits of those powers is another matter for debate, but the these powers are common to both the federal and state governments:

  • Collect taxes
  • Build roads
  • Borrow money
  • Establish courts
  • Make and enforce laws
  • Establish banks and corporations
  • Spend money in programs affecting the general welfare of citizens
  • Eminent domain (fancypants for buying property for public purposes and provide just compensation

The debate between where the limits between the federal and state governments lie is one that has gone on for over two hundred years and will hopefully continue as long as there is a United States of America. That debate, although sometimes bitter and can lead to a policy that goes two steps forwards and one back; has brought us stability and ways in which ideas percolate from different direction in our quest for that “more perfect Union” we strive in our Constitution.

So there you go, Dear Reader, the basics of federalism. Next time we’ll discuss how a bill becomes a law.

See you next time on American Basics.

Remember, knowing is half the battle.

by Rafael C.