Federalism in the US System
Article IV and the 10th Amendment of the US Constitution
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What is Federalism?
Federalism regards the separation between a central government and independent governmental sub-units. In the US system, federalism is the separation between the federal and state governments.
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Federalism and the US Constitution
Article IV of the US Constitution allows for the existence of states as self-governed units.
The Constitution, under the 10th Amendment, specifically reserves the power of self-governance to the states. This includes the authority to pass laws.
What is the power of a state to pass laws?
For the Federal Government to pass a law, it must be based on a specific power or authority granted under the Constitution. States pass laws pursuant to their state constitutions and the police power inferred from the 10th Amendment.
Police power is a state's authority to legislate for the public safety, health, general welfare, and morals of its citizens.
Discussion: Can you identify any conduct that is almost entirely regulated under State law? Federal law?
- Law affecting land or real property is almost entirely state law. Conduct regulated under federal law includes coining money, regulating the mail, immigration, and conducting foreign affairs. States law is mandated by the Constitution to conduct all the elections including the presidential elections. States law must also ratify constitutional amendments. The law regulated by both States and Federal law includes the power to tax, making and enforcing laws, charter banks, and borrow money. Federalism in the United States also referred to as doctrine or shared sovereignty, is the constitutional division of power between the US government and the Federal government of the US. Federal law is considered to be supreme over state law.
Academic Research on Federalism
- Dickinson, Gerald S., Federalism, Convergence, and Divergence in Constitutional Property (October 29, 2018). University of Miami Law Review, Vol. 73, p. 139, 2018; U. of Pittsburgh Legal Studies Research Paper No. 2018-33. Available at SSRN: https://ssrn.com/abstract=3274665. The court examines federalism in the context of Kelo v. City of New London and the convergence of state and federal takings doctrine.
- Mikos, Robert A., The Populist Safeguards of Federalism. Ohio State Law Journal, 2007; UC Davis Legal Studies Research Paper No. 109. Available at SSRN: https://ssrn.com/abstract=984264.
- Bach, George, Federalism and the State Police Power: Why Immigration and Customs Enforcement Must Stay Away from State Courthouses. Willamette Law Review, Vol. 54, No. 2, Spring 2018; UNM School of Law Research Paper No. 2107-07. Available at SSRN: https://ssrn.com/abstract=3010346. Follesdal, Andreas, Federalism (2007).
- R. E. Goodin, P. Pettit, T. Pogge, A COMPANION TO CONTEMPORARY POLITICAL PHILOSOPHY, Oxford, Blackwell, 2007. Available at SSRN: https://ssrn.com/abstract=1931487.