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State and Local Government

Federalism, the sharing of powers between the states and the national government, is one of the most important structural features of the United States constitutional order. Properly arranged, the national government will secure the rights of the people. As Madison noted in Federalist No. 51 (1788), “the different governments will control each other, at the same time that each will be controlled by itself.” However, controversy has existed since the Founding about exactly how to divide these powers. Although the Continental Congress had administered the Revolutionary War, in 1787 the states considered themselves sovereign. They were thus hesitant to relinquish much of their power and independence to the national government. Indeed, the first version of a governing document for the new United States of America, the Articles of Confederation, respected the “sovereignty, freedom and independence” of the states. This made a truly national government unworkable.

Unease about national power as opposed to state sovereignty permeated the Constitutional Convention, the Constitution itself, and the ratification process. During the Convention, the delegates vigorously debated how to give the national government sufficient energy to defend and manage the country while leaving important powers with the states. The Constitution, in Article IV, addresses the states as separate political entities. In state ratifying conventions, there were significant disagreements about the amount of power that the states should retain. These disputes contributed to what would become the Tenth Amendment:

“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” (The United States Constitution, Tenth Amendment, 1791).

These concerns about national versus state powers came about, in part, because in colonial America, most people had contact with government only through local officials. Americans were accustomed to viewing their government on a small, local level. Even today, the level of government that predominantly affects citizens’ day-to-day lives – through their public schools, roads, and police and fire departments – is local.

In the Constitution, the separation of duties and distribution of power was not new; rather, it was a reflection of what the Framers had already practiced at the local level. The structure of the national government mirrors that of state and local governments. Municipalities generally have mayors, city councils, and municipal courts. Likewise, states have governors, legislative assemblies, and judiciaries.

According to Articles I, II, and IV of the Constitution, as well as the Tenth Amendment, the states retain considerable power to correlate with important state responsibilities.

Although state and national government have parallel structures, their powers are divided and intended to serve as a check on each other. According to Articles I, II, III, and IV of the Constitution, as well as the Tenth Amendment, the states retain considerable power to correlate with important state responsibilities. The states are entrusted with the authority to protect the health, safety, and welfare of the people. In addition, elections for national office are administered through state regulations and local precincts.

Elections are also an area in which the Framers aimed to counter the dangers of a pure democracy. In a pure democracy, insufficient attention might be given to the rights of the minority. The Constitution was designed to protect states from these dangers both through the makeup of the Senate and through the Electoral College. In the national legislature, each state has two senators. In this way, the Senate provides a way for states with small populations to protect their interests more effectively than in the House, where representation is determined proportionally by population. Similarly, in the case of election of the president, if only the popular vote (a single vote by each person) were counted, then residents of those states with the heaviest population would frequently determine the outcome of presidential elections. This could leave the people of less populated states with little voice in their own government. Instead, with the Electoral College, each state’s electoral vote is determined by the number of its members in the House of Representatives plus two for its senators. Even the states with the smallest population have three electors. This helps to mitigate the Founders’ concerns about “tyranny of the majority.”

The principle of federalism guarantees that, while some power rests with the national government, state and local governments still retain considerable power, especially over their local concerns.

Ideally, this structure motivates citizens’ interest and involvement in public affairs and promotes among the American people civic competence and responsiveness. In addition, federalism fosters local and regional policy experimentation due to local and regional influences. As a result, regulations vary from state to state, and individual states can serve as testing grounds for new solutions to citizens’ concerns. Because state-based policy reform adapts to local circumstances and preferences, innovative state programs can pave the way for policy recommendations in other states.

At the Constitutional Convention of 1787, James Madison unsuccessfully argued that the United States Congress should have the power to veto state laws. Today, both Madison and his critics might be surprised by the degree to which the federal government can check or influence actions at the state and local level. Among the factors that have contributed to the expansion of federal influence are the Fourteenth Amendment, which explicitly limits state powers, and the Supreme Court’s interpretation of both the Necessary and Proper and the Commerce Clauses in landmark Supreme Court cases such as McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Wickard v. Filburn (1942).

In the nineteenth century, debate raged over two doctrines, interposition and nullification, that held that states can declare federal laws unconstitutional. Nullification goes further than interposition by declaring that the law in question will not be enforced in the state. These doctrines ultimately were doomed by their unconstitutionality. In an 1833 letter, Madison explained that secession was a violation of the compact formed by the states in joining the union:

“Many seem to have lost sight of the great principle that compact is the basis and essence of free Govt. and that no right to disregard it belongs to a party till released from it by causes of which the other parties have an equal right to judge”(James Madison to Nicholas P. Trist, January 18, 1833).

Regarding nullification, Madison wrote in an 1834 letter, that it “has the effect of putting powder under the Constitution and Union, and a match in the hand of every party to blow them up at pleasure” (James Madison to Edward Coles, August 28, 1834). Nearly thirty years before the Civil War, Madison had prophetically warned that implementation of either secession or nullification would lead to “disastrous consequences.”

While warning of the dangers of the nullification doctrine, the Founders held that the people and the states have a responsibility to be vigilant against federal overreach. This vigilance requires them to employ petitions, protests, and instructions to political representatives, even seeking the revision of the Constitution itself, when the federal government exceeds its rightful powers. In Federalist No. 26 (1787), Alexander Hamilton wrote that in instances when the national government abuses its power, state legislatures should “sound the alarm to the people,” to serve as “jealous guardians of the rights of the citizens.” Later, Madison and Thomas Jefferson protested against the limitations on speech and press included in the Alien and Sedition Acts of 1798 when they wrote the Virginia and Kentucky Resolutions. They urged that these states call on other states to dispute – through the legislative process – the laws’ restrictions on essential liberties.

Controversy continues regarding the appropriate division of power between state and national government. However, that the Founders agreed on was the wisdom of dividing power both among and within governments. They considered the federal system to be a critical part of the American constitutional order. This is the “essence of free government” to which leading Founders dedicated their lives.