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Federalism: the Separation of Powers between the Federal Government and the States

When our forefathers wrote the U.S. Constitution, they gave us what is called federalism.  Federalism is about the distribution power; what powers did the Constitution give to the federal government vs what powers would remain within the individual states.

We learn from James Madison in Federalist Paper #39:

“That [the US Constitution] will be a federal and not a national act… Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.”

This begs the question, what is the difference between a federal and national government? Federalist Paper #39 tells us:

“The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature.”

“…indefinite supremacy over all persons and things…” Not a single state ratification convention would have adopted the US Constitution if it mandated a centralized, top down national government. Had they not just fought a war to be released from such a form of government?

So how is the power divided? In Federalist Paper #45 Madison writes: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”  Think about that, the federal government only has few and defined powers.

Madison goes on the say, “…the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty…” So the states have extensive and active sovereignty.  Again Madison defines the states as sovereign. According to the Merriam-Webster’s online Dictionary the definition of sovereignty is, “unlimited power over a country; a country’s independent authority and the right to govern itself.”  The Founders still saw states as independent and sovereign from the federal government. Yes, the US Constitution gave the federal government certain powers, but as we just learned, they are few and defined, not numerous and indefinite as the states. Only the few enumerated powers of the federal government can trump a state’s sovereignty.

Let’s now look at the Bill of Rights.  From its preamble we learn:

“The conventions of a number of the states… expressed a desire, in order to prevent misconstruction or abuse of [the federal government’s] power, that further declaratory and restrictive clauses should be added.”

Recognizing that the Bill of Rights is to restrict the federal government and to keep it from abusing its powers, Amendment X declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This means that everything outside the delegated powers of the US Constitution to the federal government remains with the states (unless the US Constitution prohibits it) or us, the people.

Federalist #45 continues by explaining the difference between state & federal sovereignty:

“The [federal government] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

A self-governing people always govern at the lowest possible level of government for this is where we have the greatest influence. The purpose of federalism is that the States (dealing with our “ordinary course of affairs”) would play a more major role of governance in our lives than the federal government (only dealing with “external objects, as war, peace, negotiation, and foreign commerce”).

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I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.  Thomas Jefferson