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Good morning.

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Today, we are going to start a
more detailed analysis of the American

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system of federalism.

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The first idea to remember is that
federalism must be differentiated

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from both confederacies and unitary 
systems.

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A confederacy refers to a system
with a weak central government,

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which derives its power, but no
independent sovereignty, from powerful

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sovereign units, as was the case
under the Articles of Confederation

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before the U.S.

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Constitution was ratified,
as we saw last week.

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Pursuant to the Articles of
Confederation, the States alone

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were sovereign, not the Confederacy.

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Conversely, a unitary system is
a system in which there is a strong,

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centralized national government,
which is the sovereign,

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and which delegates some of its
powers and powers to subunit,

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as is the case in France where
région and département are granted

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power but no independent sovereignty
by the central government.

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American federalism is a hybrid
between a confederacy and a unitary

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system because each level of
government, state and federal,

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exists independently of the other,
and neither can abolish the other.

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History shows constant tensions
around the question of how much

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power should be granted to the
Federal Government.

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Keep in mind that issues related
to those tensions are not raised

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in the same way as they would in
France because the sub-units

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that States are have kept a lot
of power and powers and quite strongly

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defend them against federal
interference even today.

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Racial segregation is a possible
example of the power of the States.

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Indeed, segregation in public schools
continued even after it was considered

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unconstitutional in 1954 in the U.S.

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Supreme Court's decision Brown v.

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Board of Education as many schools
were only integrated years later.

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This shows that States did not
apply the decision of the U.S.

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Supreme Court straight away.

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Another different example is marijuana,
which is allowed in some States

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but forbidden at federal level.

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To give you an idea of how important
the issue of the power of the States

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is, I would like now to talk a
little about the issue of

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nullification.

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Supporters of States' rights and
powers, even today, think that

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a State should be allowed to nullify
federal laws, that is, to declare

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them unconstitutional within the
boundaries of the State.

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That is against the text of the
Constitution, which clearly states

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that federal laws and the U.S.

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Constitution prevail over state laws.

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If you look at history,
a party, the Nullifier Party,

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was created in 1828 by Joseph Calhoun,

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who was Vice-President of the U.S.

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at that time, to promote that idea,
among others, and was considered

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at that time to be a third American
political party.

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The nullification crisis started
when Congress passed laws imposing

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tariffs on goods from outside markets
which aimed to protect the American

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industry, but left aside the Southern
industries of cotton and tobacco.

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Supporters of nullification in
South Carolina adopted an Ordinance

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of Nullification at State level,
declaring the tariffs null and void,

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and threatened secession if the
Federal Government did not lower

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the controversial tariffs.

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Senator Hayne, from South Carolina,
is famous for declaring that State

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sovereignty allowed the nullification
of federal laws which violated

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States' rights.

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Fortunately, the U.S.

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Congress found a compromise, again,
which allowed both sides to claim

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they had prevailed in the conflict.

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Nonetheless, that crisis was a
crucial moment in American history

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since it was the first time that
tensions around the issue of state

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and federal authority almost triggered
a civil war.

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Apart from the historical reasons,
there are also constitutional reasons

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why States are still so powerful.

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The first reason is that one of
the pillars of federalism is popular

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sovereignty.

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Each government, state and federal,
is elected by the People,

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which is the sovereign.

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As a consequence, neither the States
nor the Federal Government can

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abolish the other.

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That is why there is no real hierarchy
between the States and the Federal

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Government, even though one speaks
of two "levels" of government,

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and federal laws prevail over state
laws, as we shall see later.

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Moreover, like the Federal Government,
each State has an elected leader

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of the executive, the governor,
an elected legislature,

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which is bicameral except in Nebraska,
where there is only one chamber,

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and a court system with one
(and in some states two)

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supreme court at its apex.

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Each State has its own constitution,
passes its own laws,

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levies its own taxes,
and has its own budget and educational

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system.

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In addition, state power is
specifically described in the 10th

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Amendment to the U.S.

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Constitution, which reads,
"The powers not delegated

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to the United States by the
Constitution, nor prohibited by

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it to the States, are reserved
to the States respectively,

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or to the People".

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Here, it is obvious that the powers
of the Federal Government are defined

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and limited, whereas the powers
of the States are residual,

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which means that what has not been
delegated remains with the States,

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and ultimately the People,
which is the real sovereign.

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The residual nature of the powers
of the States is of course due

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to the history of the building
of the United States,

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since States pre-existed the Union,
as we have seen, but it is also

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a constitutional notion.

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Now, what powers exactly have been
delegated by the States to the

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Federal Government?

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Well, what is necessary for a group
of States to become one country.

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Mainly, first, relationships with
foreign countries, either in times

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of peace, through foreign affairs,
diplomacy, immigration,

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or in times of war, with the army
and war powers that have been granted

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to the Federal Government to defend
the country against foreign invaders.

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Second, the power to facilitate
commercial relationships among

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States with the coining and printing
of money, which means uniformity

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of currency, and the enactment
of federal laws governing interstate

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commerce.

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However, there are powers that
are shared by the two levels of

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government, and that sharing of
powers is the second pillar of

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federalism.

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For example, both States and the
Federal Government levy their own

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taxes, pass laws, and set up their
own courts.

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That creates tensions,
and the US Constitution provides

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for some remedies, especially in
Articles IV and VI, which will be

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examined next week in more detail.

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Over time, there has been an evolution
of the relationships between the

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Federal Government and the States.

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One could divide the American history
and that aspect into three main

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periods.

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The first one, until 1857,
was a period of expansion of the

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powers of the Federal Government
to the detriment of those of the

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States.

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This was based on two clauses of
the US Constitution.

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Article I, Section 8,
called the Necessary and Proper Clause,

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because it grants Congress the power to
3make all laws which shall

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be necessary and proper for carrying
into execution the foregoing powers,

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and all other powers vested by
this Constitution in the Government

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of the United States,
or in any department or officer

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thereof;

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And the Supremacy Clause,
which established that federal

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law is above state law,
and that the US Constitution is

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the highest law of the land.

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The US Supreme Court played an
important role by deciding to grant

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itself the power of judicial review,
that is, the power to decide whether

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a law, state or federal,
is constitutional, and to strike

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it then when it is not.

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In the case Mabury v Madison, decided
in 1803, Chief Justice Marshall said

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3It is emphatically the province
and duty of the judicial department

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to say what the law is.

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The second period, from 1857 to 1937,
was a period of dual federalism,

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during which the USSC supported
States' interests more by more

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clearly restricting federal power.

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Today's period is one of cooperative
federalism in which the Federal

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Government and States cooperate,
often with the Federal Government

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giving States money to implement
policies that have been decided

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at federal level.

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Overall, however, since the US
Constitution was ratified,

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the Federal Government has managed
to extend its power.

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In the 20th and 21st centuries,
the main examples of that expansion

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are related to social security.

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With the New Deal under President
Roosevelt in the 1930s,

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Medicare and Medicaid in the mid-1960s
under President Johnson,

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and in 2010 under President Obama,
the Affordable Care Act,

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also known as the Obamacare.

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That's it for today.