Federalism

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For theological federalism, see Covenant Theology.

Political federalism is a political philosophy in which a group or body of members are bound together (Latin: foedus, covenant) with a governing representative head. The term federalism is also used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). Federalism is the system in which the power to govern is shared between the national & state governments, creating what is often called a federation. Proponents are often called federalists.

In Canada, federalism means opposition to sovereigntist movements (usually that of Quebec). In parts of Europe, "federalist" is often used to describe those who favor a stronger federal government (or European Union government) and weaker provincial governments. The same is historically true in the United States, with those who generally favor a confederation, or weaker federal government and stronger state governments, being called "anti-federalists". In federal nations of Europe (such as Germany, Austria and Switzerland), the term "strong federalism" means sub-national states having more power than the national government, in contrast with a centralist system.

The state or regional governments strive to cooperate with all the nations. The old statement of this position can be found in The Federalist, that argued that federalism helps enshrine the principle of due process, limiting arbitrary action by the state. First, federalism can limit government power to infringe rights, since it creates the possibility that a legislature wishing to restrict liberties will lack the constitutional power, while the level of government that possesses the power lacks the desire. Second, the legalistic decision-making processes of federal systems limit the speed with which governments can act.

The argument that federalism helps to secure democracy and human rights has been influenced by the contemporary public choice theory. It has been argued that in smaller political units, individuals can participate more directly than in a monolithic unitary government. Moreover, individuals dissatisfied with conditions in one State have the option of moving to another. Of course, this argument assumes that a freedom of movement between States is necessarily secured by a federal system.

The capacity of a federal system to protect civil liberties has been disputed. Often there is confusion between the rights of individuals with those of states. In Australia, for example, some of the major intergovernmental conflicts in recent decades have been the direct result of federal intervention to secure the rights of minority groups, and required limitations on the powers of state governments. It is also essential to avoid confusion between the constraints set by judicial review, the constitutional power of the courts to overrule the legislature and the executive, and federalism itself.

On one hand, some countries have bad habits of denying civil liberties to people based on race, gender, class, or other differentiating factor. On the other hand, the laws and constitutions of some states have protected such minorities with legal rights and protections that exceed those of the U.S. Constitution and the U.S. Bill of Rights.

Constitutional Law of the United States of America

The constitutional structure
Civil Rights · Federalism
Executive branch · Separation of powers
Legislative branch · Judiciary
Famous Cases
Marbury v. Madison
McCulloch v. Maryland · Roe v. Wade
Dred Scott v. Sanford · Lochner v. New York
Freedoms
Free speech · Free exercise
Freedom of the press · Right to privacy
Theory
Constitutional theory · Judicial review

1 The U.S. Constitution
2 Europe
3 Canada
4 Christian Church
5 See also
- 5.1 External Links

The U.S. Constitution

In the U.S., Federalism is the system of government in which power is divided between a central government and states government. Before the U.S. Constitution was written, each American state was essentially sovereign. The U.S. Constitution created a federal government with sufficient powers to both represent and unite the states, but did not supplant state governments. This federal arrangement, by which the central federal government exercises delegated power over some issues and the state governments exercise power over other issues, is one of the basic characteristics of the U.S. Constitution that checks governmental power. Other such characteristics are the separation of powers among the three branches of government--the legislative, executive, and judicial. The authors of the Federalist Papers (Alexander Hamilton, James Madison and John Jay) explained in essays number 45 and 46 how they expected state governments to exercise checks and balances on the national government to maintain limited government over time.

Because the states were preexisting political entities, the U.S. Constitution did not need to define or explain federalism in any one section. However, it contains numerous mentions of the rights and responsibilities of state governments and state officials vis-à-vis the federal government. The federal government has certain expressed powers (also called enumerated powers), including the right to levy taxes, declare war, and regulate interstate and foreign commerce. In addition, the so-called elastic clause gives the federal government the implied power to pass any law "necessary and proper" for the execution of its express powers. Powers that the Constitution does not delegate to the federal government or forbid to the states—the reserved powers—are reserved to the people or the states[1]. The power delegated to the federal government was significantly expanded by amendments to the Constitution following the Civil War, and by some later amendments-- as well as the overall claim of the Civil War, that the states were legally subject to the final dictates of the federal government.

After this, the federal government has increased greatly in size and influence, both in terms of its influence on everyday life and relative to the state governments. There are several reasons for this, including the need to regulate businesses and industries that span state borders, attempts to secure civil rights, and the provision of social services. Although many people believe that the federal government has grown beyond the bounds permitted by the express powers, from 1938 until 1995, the U.S. Supreme Court did not invalidate any federal statute as exceeding Congress' power under the Commerce Clause (see United States v. Lopez, challenging the Gun-Free School Zones Act). However, most actions by the federal government can find some legal support among the express powers, such as the commerce clause.

"Dual federalism" holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted very narrowly, such as the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. In this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution[2].

However this theory also holds the federal government as the final judge of its own powers-- which many people fear holds potential for abuse. Understanding the constitutional role of Native American governments (Indian country), separate and distinct from state and federal governments, exercising limited powers of Tribal sovereignty, has given rise to the concept of "tri-federalism." [3]

Europe

Several Federal systems exist in Europe, such as in Switzerland, Austria, Germany, and Belgium. In Germany during the first part of the twentieth century, Adolf Hitler viewed federalism as an obstacle, and he wrote in Mein Kampf as follows: "National Socialism must claim the right to impose its principles on the whole German nation, without regard to what were hitherto the confines of federal states."

After World War II, several movements began advocating a European Federation, such as the Union of European Federalists or the European Movement, founded in 1948. Those organizations were influential in the European unification process, but never in a decisive way. Europe remains far from being a federation, although the European Union includes some characteristics of federalism. The European federalists have been campaigning in favor of a directly elected European Parliament, and were among the first to put a European Constitution on the agenda. Their opponents are both those in favor of a lesser role for the Union and those who wish the Union to be ruled by national governments rather than by an elected European government. Although federalism was mentioned both in the drafts of the Maastricht treaty and the Treaty establishing a Constitution for Europe, it was never accepted by the representatives of the member countries.

Governments in favor of a more federalist European Union are usually the German, Belgian and Italian governments. Those traditionally opposed to this idea are the British and French governments. Today, the Poles and Austrians are also increasingly noted for their opposition to a more federal union.

The proposed creation of a European Defence Community can be considered a step towards creating a more federalised Europe.

Canada

Main article: Canadian federalism

In Canada, the system of Federalism is delineated by the division of powers between the federal parliament and the nation's several provincial governments. Under the Constitution Act (previously known as the British North America Act) of 1867, specific powers of legislation are allotted. Section 91 of the Constitution gives rise to Federal authority for legislation, whereas section 92 gives rise to provincial powers. Conflict between which level of government has legislative jurisdiction over various matters has been a longstanding and evolving issue. Areas of contest include legislation with respect to criminal law, regulation of the economy and taxation.

Christian Church

Federalism also finds expression in ecclesiology (the doctrine of the church). For example, presbyterian church governance resembles parliamentary republicanism (a form of political federalism) to a large extent. In Presbyterian denominations, the local church is ruled by elected elders, some of which are ministerial. Each church then sends representatives or commissioners to presbyteries and further to a general assembly. Each greater level of assembly has ruling authority over its constituent members. In this governmental structure, each component has some level of sovereignty over itself. As in political federalism, in presbyterian ecclesiology there is shared sovereignty.

Other ecclesiologies also have significant representational and federalistic components, including the more democratic congregational ecclesiology, and even in more hierarchical episcopal ecclesiology.

Some Christians argue that the earliest source of political federalism (or federalism in human institutions; in contrast to theological federalism) is the ecclesiastical federalism found in the Bible. They point to the structure of the early Christian Church as described (and to many, prescribed) in the New Testament. This is particularly demonstrated in the Council of Jerusalem, described in Acts chapter 15, where the Apostles and elders gathered together to govern the Church; the Apostles being representatives of the universal Church, and elders being such for the local church. To this day, elements of federalism can be found in every Christian denomination, some more than others.

Federalism

Contents

The U.S. Constitution

Europe

Canada

Christian Church

See also

External Links