Federalism

Federalism is the system of co-sovereignty current in the United States, and various other nations such that a national or federal government shares power along with state governments over the same territory and citizenry. More specifically, federalism involves dual sovereignty, or the allocation of power between the federal government and the states under the U.S. Constitution, with overlapping authority.

In the United States the states "surrendered many of their powers to the new Federal Government," but retained "'a residuary and inviolable sovereignty.'" Printz v. United States, 521 U.S.98, 918-19 (quoting The Federalist, No. 39, at 245, James Madison). This dual sovereignty is "reflected throughout the Constitution's text." Id. at 919. The continued existence of state sovereignty is "implicit . . . in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones." Id.

When the national government was young, federalism stood for a stronger federal government. After the federal government became very strong, however, federalism has stood for keeping the federal government out of matters traditionally within the domain of state government, such as education, family law, medical care, and local law enforcement.

Chief Justice William Rehnquist was a proponent of (modern) federalism and curbing the overreaching of the federal government. His leading decision was a 5-4 ruling in United States v. Lopez, 514 U.S. 549 (1995), which invalidated on federalism grounds a federal law prohibiting the carrying of firearms within 1,000 feet of the grounds of a public, parochial or private school. The leading Supreme Court decisions in favor of federalism, nearly all written by Justice or Chief Justice William Rehnquist, are:

• United States v. Morrison (2000)
• Alden v. Maine (1999) (opinion by Justice Anthony Kennedy)
• Seminole Tribe v. Fla. (1996)
• United States v. Lopez (1995)
• National League of Cities v. Usery (1975)

Justice Kennedy, who as of 1997 was the pivotal fifth or "swing" vote on the U.S. Supreme Court, has also embraced federalism. "[F]ederalism was the unique contribution of the Framers to political science and political theory. Though on the surface the idea may seem counter-intuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one."

Since that ruling, there have been many decisions by the Supreme Court and lower courts limiting federal power to interfere with state sovereignty in fields of traditional state control. For example, The Fifth Circuit held that "[w]here Congress aims to change the usual constitutional balance between the states and the federal government, it must make unmistakably clear its intention to do so in the statute’s language." Premiere Network Servs. v. SBC Comm., 440 F.3d 683, 690 n.8 (5th Cir. 2006) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) and Gonzales v. Oregon, 546 U.S. 243 (2006), emphasis added).

See Also

• Tenth Amendment
• States' rights