Federalism is famously regarded as a very difficult subject for beginning government students to understand. Your teacher thinks this is nonsense. It's a simple concept, but a critical one.

Where does power lie?

In the United States, we have an intentionally complex, but not hard to understand, answer. The answer is: in many places.

The complexity was not born at the Constitutional Convention, but modified there. It began with our British heritage.

King George III was a monarch, but not an absolute one. He had to contend with Parliament - a bicameral one, with the House of Commons and the House of Lords - a an entrenched court system dedicated to upholding the rights of Englishmen. What does this have to do with federalism? Essentially nothing, but it had a serious influence on the separation of powers - legislative, executive, and judicial - in our own systems of government.

The important word in the preceding paragraph is systems. The British Crown was too busy, and too wise, to try to govern the minutiae of activities in Virginia, for example, from London. So they granted a limited degree of self government to the colonies. Virginia created the House of Burgesses (the first American legislature) to aid the royal governor in governing the colony, still under the British Crown.

So, even as colonies, Americans were familiar with two types of power divisions:

• a horizontal separation of powers at the same level - King, parliament, and courts, and

• a vertical division of powers - national (the government in London) and colonial (the government in Jamestown)

 It is a form of this vertical division of governmental power that is called federalism.

"Federalism refers to a political system in which there are local (territorial, regional, provincial, state, or municipal) units of government, as well as a national government, that can make final decisions with respect to at least some governmental activities and whose existence is specially protected. Almost every nation in the world has local units of government of some kind, if for no other reason than to decentralize the administrative burdens of government. But these governments are not federal unless the local units exist independent of the preferences of the national government and can make decisions on at least some matters without regard to those preferences." Wilson, American Government (2001), 50.

Notice the last sentence in the quotation from Wilson. The government in the colonial period was not federal because the colonial governments served at the discretion of the Crown.

When the colonies declared independence, however, they became (in the language of the Declaration) "free and independent states." These states retained their sovereignty when they entered into a "firm league of friendship" under the Articles of Confederation.

When Madison authored the Virginia Plan he proposed a truly national government because that's what he favored. After the modifications to the Virginia Plan in the Convention, however, the system became truly federal. The national government created is one of limited powers. The 10th Amendment makes manifest what was already clear - that other powers were reserved by the states. The Convention unanimously changed the wording of the Virginia Plan from "national government" to "government of the United States." Still, the "supremacy clause" of the Constitution (Art. VI, cl.2) makes it clear where supreme power lies:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

A Living Constitution?

Your teacher hates that term. As Justice Antonin Scalia said recently, the Constitution is not a living thing, it's a legal document. However, there's no doubt that it is one, in the words of Justice John Marshall "intended to endure for ages to come and consequently to be adapted to the various crises of human affairs." [McCulloch v. Maryland]

The greatest crisis in our history was a fight over federalism itself. Even the names illustrate the divide. Was it a "civil war" or a "war between the states?" Northerners perceived a rebellion against the Constitutional order and the natural rights of men. Southerners (more properly, white southerners) perceived a defense against a national government that had perverted the Constitutional order. The issue was decided - primarily - with the 53,000 lives spent at Gettysburg.

Over the years since the national government has greatly expanded in size and power, partly at the expense of the states. More recently some Americans have attempted to reverse this trend, perceiving a national government out of its proper sphere. Robert Dole - the Republican presidential nominee in 1996 - campaigned, he said, "to restore the 10th Amendment." Even his opponent - President Clinton - had proclaimed that "the era of big government is over."

But then came September 11th. The national response was led by a President even more dubious about national power than Dole. Yet this crisis prompted another tremendous expansion of the national role - the Patriot Act and the Department of Homeland Security. So federalism continues to evolve.

Notes:

A government in which all power belongs to the central government is called, these days, a unitary system.

Powers belonging only to the national government are called delegated powers or enumerated powers. Many are listed in Art.I, §8. They include

• printing money
• regulating interstate and international commerce
• making treaties
• declaring war

Powers that belong only to the states are called reserved powers. They include issuing licenses and regulating intrastate commerce.

Powers shared by the national and state governments are called concurrent powers. They include taxation, operating courts, and borrowing money.