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Federalism Comparison

Federalism Comparison Diego Ochoa PSCI 499 5/29/00 Second Midterm The Constitution of the United States was drafted at a time when our country was in dire need of many answers to political and social questions. In addition to many other things, the drafters of the Constitution were concerned with solidifying our central government and the Constitution was intended to provide a solid structure from which our burgeoning nation could grow. The Constitution gave explicit powers to the federal government and provided the states with the Tenth Amendment which states ,”Powers not delegated to the United States, nor prohibited to the states, are reserved to the states respectively .. ” Of the enumerated powers given to the federal government by the Constitution, the interpretation of the Commerce Clause as prescribed in Article I, section 8, has caused political and legal controversy known to our nation. In part, Article I, section 8, gives Congress the power to regulate commerce between states, with other nations and with Indian Tribes. Two competing theories about federalism inform the political and legal debates that deal with the Commerce Clause provided to the Congress by the Constitution.

Dual Federalism, a political theory that purports states rights, champions the view that federal and state powers, as prescribed by the Constitution, are “mutually exclusive, conflicting, and antagonistic.” (Ducat,p.271) This view suggests that the Constitution created dual sovereigns and that both levels of government had their own responsibilities. In order to understand what the legal ramification of dualist theory, one must first understand its interpretations of the Constitution. The dualist approach requires an exact and strict interpretation of the enumerated powers given to the national government by the Constitution and rejects the idea that the Necessary and Proper Clause should be used to enhance or augment the enumerated powers granted by the Constitution. Dual Federalism also relies on the notion that in a court of law, the Tenth Amendment gives the states enough support to declare unconstitutional any act of the national government that infringes on the reserved powers given to the states. Cooperative Federalism provides an entirely different view of the relationship between the federal and state governments.

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Federal supremacy is the hallmark of this ideology. Supporters of the cooperative federalist view prefer to employ a broad interpretation of the Constitution. The legal basis on which cooperative federalism has been argued is threefold: (1) Enumerated powers (e.g. Commerce Clause) should be interpreted in light of an expansive Necessary and Proper Clause (2) The Supremacy Clause, as prescribed in Article 6, paragraph 2, gives federal actions supremacy over state laws when made in pursuance of the Constitution and when they are made using implied and enumerated powers (3) The Tenth Amendment does not give states the power to contest federal laws. To suggest that that these two ideologies are contradictory is an understatement. To understand which theory best identifies with the correct interpretation of the Constitution, it is necessary to understand the circumstances that created the necessity for a Constitution and the political circumstances that motivated decisions contrary to the correct interpretation of the Constitution. The Constitution was drafted as a response to the perils of the weak central government created by the Articles of Confederation.

The drafters instituted a system that was meant to empower the national government to make laws. Furthermore, the Constitution reinforced the supremacy of the national government by including the Necessary and Proper Clause. The Constitution merely provided states with reserved powers, a distinction that suggests a passive rather than active right. Supreme Court decisions that challenge the supremacy of the national government, when an action by the national government is made in pursuance of the Constitution, are merely attempts to curb the power of the national government and are based on weak legal arguments. Ultimately, the theory that best reflects the needs of our country at the time of the Constitutional Convention and still does now is that of cooperative federalism.

Gibbons v Ogden, 22 U.S. 1, illustrates perfectly the ideological beliefs held by cooperative federalists. The case involves the issue of federal authority versus state authority. New York State legislature passed a statute giving exclusive rights to use steam vessels in its territory to two men who later received payment from Ogden in order to have exclusivity to navigate a certain route. Thomas Gibbons sailed the waters with a federal license and Ogden successfully petitioned the courts for an injunction that would prohibit Gibbons from sailing the route.

The Supreme Court made several remarks in its reversal of the injunction that directly support the ideas behind cooperative federalism. “It has been said that these powers (enumerated) ought to be construed strictly .. Congress is authorized to make all laws which shall be necessary and proper .. this limitation on the means which may be used is not extended to the powers which are conferred; nor is there one sentence in the constitution .. that prescribes this rule. That narrow construction would cripple the government ..

we cannot perceive the propriety of this strict construction, nor adopt it.”(Ducat,pp.277-278) As evidenced by this statement, the decision rejected the primary tenet of the dualist theory, which requires a strict reading of the Constitution. The decision gave an expanded meaning to the word commerce, an issue that would gain relevance in future cases (i.e. Lottery Case). The decision also cemented that completely internal commerce, which does not affect other states, was an area reserved for the state itself. This remark created a particularly pro-cooperative federalism effect. In order for states to claim the right to regulate under the Tenth Amendment, it would be necessary for the state to prove that the issue, whatever it may be, did not affect the commerce of another state, a test that has proven difficult to pass.

Meanwhile, the political effects of the Gibbons v Ogden case was evident in subsequent decisions. One such example is that of the United States v E.C. Knight Co. 156 U.S. 1.

The case involved the Sherman Antitrust Act, which intended to restrain monopolies. In this case, the United States argued that the consolidation of 98% of all the sugar refined in America constituted a monopoly. Seventy years after Gibbons v Ogden, the Supreme Court now led by dual federalists erroneously, the began making it difficult for Congress to apply anti-trust laws. Prior to this decision there was no legal precedent on national intervention in the area of production. This case laid the foundation for future cases that would limit the jurisdiction of the national government to areas of economic distribution.

A strict reading of the enumerated power given to Congress and an outright neglect of the Necessary and Proper Clause informed this decision. The decision in the case was more about a political desire to check the power of the national government rather than a close interpretation of the Constitution as it related to congressional powers. In Hammer v Dagenhart, 247 U.S. 251, the Supreme Court relied on the dualist approach used in its decision in the E.C. Knight Co. case.

Here the Supreme Court began to separate economic functions between what was under state control. Using a narrow approach, the court ruled that mining, agriculture and manufacturing were out of federal jurisdiction and that any law made in reference to these methods would be unconstitutional. As such, the 1916 …


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