The Meaning of Federalism in The Federalist: A Critical Examiniation of the Diamond Theses

Language poses a serious problem in political discourse whenterms like federalism come to mean anything, everything, andnothing. An issue of some importance is how "confederation"was conceptualized in The Federalist, how that conceptualizationwas subject to critical analysis, especially in Federalist 15and 16, and how the resolution of that critique contributedto the conceptualization of a federal system of governance.This essay was written in response to a re-reading of MartinDiamon's essay on "The Federalist's View of Federalism." Theposition taken is that the theory of constitutional choice usedto articulate the arguments in The Federalist provides the appropriatelogic for construing the meaning of federalism despite the ambiguitiesof language contained in The Federalist.     

American Federalism on the Horizon

The American federal system took some unpredictable twists andturns during the twentieth century. As a new century—indeed,a new millennium—begins, which trends are likely to continue,which are likely to dissipate? What issues pose the greatestchallenges for the intergovernmental system? This article plotsseveral possible paths along which the federal system couldtravel over the next decade. The fundamental issue in Americanfederalism is a perennial one: How will the balance of powerbetween the federal government and the states change? Otherkey issues facing American federalism are identified and theirlikely impacts examined. The article concludes with an assessmentthat the next decade in American federalism may be surprisinglyrobust.     

The State of American Federalism, 2005: Federalism Resurfaces in the Political Debate

After several years during which federalism was rarely a prominentor explicit issue in political debates, it was in several waysthrust into the public consciousness in 2005. It was not thatthe president or Congress ceased sacrificing state and localinterests to substantive policy goals, as shown by the costlyREAL ID Act, stringent new federal requirements in the TemporaryAid to Needy Families reauthorization, and congressional interventionin the Terri Schiavo case. However, Hurricane Katrina, and particularlythe delayed and ineffective intergovernmental response, generatedsubstantial debate about the appropriate federal role in disasterrelief. In addition, state and local governmental oppositionto the No Child Left Behind Act intensified and generated significantattention during the year, particularly as a result of a Utahstatute asserting the precedence of state over federal law anda Connecticut lawsuit against the act. Meanwhile, state governmentscontinued to address a number of policy problems that federalofficials were unable or unwilling to confront, especially regardingenvironmental, health-care, and labor issues. Finally, althoughthe Supreme Court in 2005 continued its recent (2003–2004)trend of pulling back somewhat from its late-1990s Congress-curbingdecisions, federalism issues figured quite prominently in thesenate confirmation hearings for Chief Justice John Robertsand Justice Samuel Alito.     

American Federalism: From Johnson to Bush

Intergovernmental developments for more than twenty-five yearshave produced a nation-centered federalism—strongly sofrom 1964 to 1978, somewhat less so from 1969–1988, anda little more so during the past two years. The reasons forthis fundamental systemic transformation include: (1) the demiseof the earlier, 150-year old, confederative party system andthe rise of a new political system with weak federative parties,but other more powerful political actors; (2) an operationaland local representational renaissance of the states, but alsoa concomitant decline of state and local political influencein Washington; (3) a steadily centralizing Supreme Court, withonly a few pro-state decisions until 1989; and (4) a rapid risein national preemptions and of a "new social regulation" thatwas aimed at state and local governments as much as at the privatesector, even as the states were used to implement them. Theonly real constraint on national activism since 1982 has beenbudget-driven federalism, not planned reform efforts. The currentsystem then requires political, representational, judicial,and constitutional reforms if the centralizing, cooptive, andpermissive features of contemporary federalism are to be corrected.     

Conservative Perspectives on American Federalism: Introduction

Conservatives were regularly criticized by liberals and othersfor their approach to federalism throughout the twentieth century.This trend began during the Progressive era, when the justicesof the "Lochner Court" were vilified for using national judicialpower to strike down local regulations. Several decades later,conservative opposition to New Deal programs was seen as insensitiveand elitist. Arguments for constitutional limitations on executivepower in the 1930s were attributed to the greed of businessmenand corporations. During the 1950s and 1960s, the conservativedefense of states' rights was explained by other unpleasantmotivations. Opposition to national civil rights laws was, formany, analogous to fondness for Jim Crow and other forms ofracial subjugation. Since the 1980s, conservative members ofthe Rehnquist Court have been denounced from various quartersfor their federalist perspectives. According to the Court'scritics, specious arguments about state sovereignty have beenused to rescind national rights and benefits.     

Tocqueville on the Good of American Federalism

If Tocqueville emphasizes, at times, the tendency of Americanfederalism toward consolidation and, at other times, its tendencytoward disintegration, this is not because he is confused butbecause he is keenly aware of the difficulty of combining theadvantages of bigness with those of smallness. Americans havesucceeded in producing such a combination, not through a simpleaggregation of institutional mechanisms but through a synthesisthat reaches to the heart of American civilization–a fusionof dynamism with comfort, of the ideology of popular sovereigntywith the practice of responsible self-government, of calculatedself-interest with spontaneous public virtue, and of enlightenmentwith tradition. Because the Enlightenment, the embodiment ofthis synthesis, provides no ground in its pure form for humandignity, Tocqueville seeks to speak on behalf of those institutionsof federalism that root the idealism of citizens in the realexperience of responsible self-government.     

Federalism and Community in the American Context

The rise of modern federalism was shaped significantly by desiresto protect smaller, diverse communities against forces of imperialcentralization. The protection of community liberty was seenas a prerequisite for protecting individual liberty as well.As such, a federal polity was seen to be a limited self-governingcommunity of entrenched self-governing constituent communities.The rise of the idea of national community and the ideologyof the cosmopolitan nationstate, however, eroded the legitimacyand authority of local self-government and, thereby, federalism.Constituent communities also came to be seen as oppressive,especially of individual rights. Yet, desires for local self-governmenthave maintained a strong hold on public opinion, and recentextensions of individual rights, particularly voting rights,coupled with policy weaknesses of the national government andmodernization of state governments appear to be renewing possibilitiesfor revitalizing federalism as a self-governing community ofself-governing communities.     

The State of American Federalism, 2004: Is Federalism Still a Core Value?

Federalism as a political issue was conspicuously absent fromthe 2004 presidential contest. Unlike many previous campaigns,neither party's candidate made much mention of problems besettingstates and localities. The war against global terrorism andthe changing situation in Iraq shaped the election. Progresswas made on homeland security, but intergovernmental wranglingover federal grants continued unabated. Federal-state feudswere common in several policy areas, including education, environmentalprotection, and health care. State finances received a revenueboost as economic growth picked up, but rising costs for Medicaid,education, employee pensions, and prisons clouded states' financialforecasts. The U.S. Supreme Court decided several cases witha federalism dimension, and these decisions plus those of thepast several years suggest the Court has moved not so much togrant more power to the states but to prune back the power ofCongress. Much of what has happened during the first Bush administrationmust be seen against the larger background of changes in theAmerican political party system. Changes in party organizationand policy control, especially during the first Bush administration,reaffirm David Walker's assessment that over the past quartercentury American federalism has become more nationalized.     

American Federalism and the Search for Models of Management

Changes in the United States federal system mean that managers must operate by taking into account multiple interacting governments and nongovernmental organizations; dealing with numerous programs emanating from Washington and state capitols; and engaging in multiple intergovernmental transactions with an expanding number of intergovernmental instruments. Four models of management within this changing system are identified. The top-down model emphasizes executive-branch control and is embedded in enforcement and exchange related to the laws, regulations, funding rules, program standards, and guidelines associated with federal/state grant, procurement, and regulation programs. The donor-recipient model emphasizes mutual dependence or shared program administration, where two-party bargaining or reciprocal interactions among government officials is the norm. The jurisdiction-based model is defined by the initiated actions of local officials and managers who seek out program adjustments and other actors and resources to serve the strategic aims of their governments. The network model highlights the actions of multiple interdependent government and nongovernmental organizations pursuing joint action and intergovernmental adjustment. Although the first two models are long-standing and the latter two are emergent, all appear to be alive and well on the intergovernmental scene, posing complex challenges for public managers.     

Buchanan at the American Founding: the constitutional political economy of a republic of equals and unequals

Public Choice - James M. Buchanan cited the American Founding as an important inspiration for his constitutional vision. Buchanan and the Founders shared a belief in the moral equality of persons...     

States Divided: The Implications of American Federalism for COVID-19

The explosion of the coronavirus onto the global stage has posed unprecedented challenges for governance. In the United States, the question of how best to respond to these challenges has fractured along intergovernmental lines. The federal government left most of the decisions to the states, and the states went in very different directions. Some of those decisions naturally flowed from the disease's emerging patterns. But to a surprising degree, there were systematic variations in the governors’ decisions, and these variations were embedded in a subtle but growing pattern of differences among the states in a host of policy areas, ranging from decisions about embracing the Affordable Care Act to improving their infrastructure. These patterns raise fundamental questions about the role of the federal government's leadership in an issue that was truly national in scope, and whether such varied state reactions were in the public interest. The debate reinforces the emerging reality of an increasingly divided states of America.     

An Intellectual Crisis in American Federalism: The Meaning of Garcia

In National League of Cities v. Usery (1976), the U.S. SupremeCourt found that the Tenth Amendment requires the existenceof a set of essential state powers that remains beyond the reachof congressional regulation or preemption. The Court reverseditself in Garcia v. San Antonio Metropolitan Transit Authority(1985), holding that the Tenth Amendment provides the Courtno basis on which to limit the Congress in the exercise of itscommerce powers. We argue that, although contradictory, bothholdings can be inferred validly from the U.S. Constitution.This absurd result reveals profound inconsistencies in the constitutionaldesign of federalism, requiring a constitutional solution. Thearticle concludes with a discussion of a variety of constitutionalremedies, including constitutional amendments.     

Work Sharing Policy: Power Sharing and Stalemate in American Federalism

Work sharing benefits are partial unemployment benefits, andfederal policy related to them is in an administrative muddle.A lack of leadership by the federal government has stalled stateimplementation. During economic downturns when political voltageis high, policy makers look to work sharing as one way to managejob loss. Conversely, work sharing is often forgotten duringprosperous times. This article describes how federalism sometimesfacilitates state initiation of work sharing policy and at othertimes impedes it. The authors discuss work sharing through sixpolicy phases during a thirty-year era of devolving federalauthority to states for employment services and job training,and they make observations about the stalemate in federal policy.     

Federalism, the Bush Administration, and the Transformation of American Conservatism

Most recent Republican presidents have proposed signature federalisminitiatives intended to devolve power or sort out federal andstate functions. The Bush administration has not propoundedan explicit federalism policy of this sort, but its approachto federalism can be gleaned from analyzing presidential advocacyof legislation and constitutional amendments, fiscal policies,administrative actions, and judicial policies. What emergesfrom this analysis is an administration that has been surprisinglydismissive of federalism concerns and frequently an agent ofcentralization. In one sense, Bush is merely the latest in astring of presidents who have sacrificed federalism considerationsto specific policy goals when the two have come in conflict.However, the administration's behavior is somewhat surprising,given the president's background as a governor and the factthat he has been the first Republican president to enjoy Republicancontrol of Congress since 1954. Our explanation for the Bushapproach begins with the president's lack of any philosophicalcommitment to federalism and explores the changing status offederalism concerns within conservative ideology. Any explanationfor the Bush approach should account for this shifting politicaldynamic, which has seen Republicans in recent years become increasinglysupportive of exerting federal authority on behalf of theireconomic and social objectives, encouraging Democrats at timesto become more supportive of state authority.     

Extinguishing the Twin Relics of Barbaric Multiculturalism--Slavery and Polygamy--From American Federalism

Nineteenth-century America experienced fierce battles againsttwo expressions of territorially based multiculturalism: southernslavery and Mormon polygamy. Both the southern way of life andthe Mormon way of life were deemed barbaric, and considerablepressure was placed on the federal government to exterminatethese ways of life. The abolition of slavery required a civilwar, the aftermath of which transformed the federal Constitutionin ways that enhanced federal authority to intervene in theaffairs of the constituent states. The extermination of Mormonpolygamy did not require military intervention; instead, thefederal government deployed an array of increasingly coercivelegalweapons that set precedents for twentieth-century interventionsinto the affairs of the constituent states. The battles againstslavery and polygamy both reflected federal efforts to liberatepersons from the tyranny of places and, as such, signaled arejection of territorially based multiculturalism in the UnitedStates.     

The State of American Federalism, 1996-1997

Federalism enjoyed political and popular salience during theperiod 1996–1997 as the so-called "Devolution Revolution"began to be implemented and analyzed in the United States. Whilethere were a few examples of important Revolutionary efforts,the federal government continued to hold much of the power andsignificance it has achieved over the past sixty years. Evenin the area of welfare policy, where in 1996 there were historicreforms enacted to end the federal entitlement, the federalgovernment maintained a significant presence that made the ideaof devolution of welfare policy responsibility some what questionable.Nevertheless, states continued to lead in policy innovationin areas ranging from education to health, and the U.S. SupremeCourt continued to question the limits of federal power. Thepast year illustrated, once again, the complexity of our federalsystem and how difficult it is to reform federalism—particularlywhen it involves a shift in power and creates the perceptionof winners and losers.     

The State of American Federalism, 1997 - 1998

Although it was a relatively quiet year for the courts and congressionalaction, 1997–1998 saw several developments that may significantlydefine federalism in the coming years. The 1998 federal budgetis projected to show a surplus, ending decades of deficit financinginWashington, D.C., but also raising questions about the budget'sfiscal impact on federalism and intergovernmental relations.Devolution took a back seat in Washington, D.C., as concernsabout managed care, education, and internet access led to proposalsfor increased federal involvement in state and local affairs.The states continued their implementation of welfare reformand launched other programs in health, environment.     

The State of American Federalism, 1993-1994

National political energies in 1993–1994 were focusedon major initiatives promised by the Clinton administrationduring the 1992 presidential campaign, especially health-carereform and crime. From the perspective of the states, federalgovernment action in these (and other) policy areas raised seriousquestions about preemption and mandates. The administration'sofficial pronouncements on federalism have suggested a strategyof decongestion and decentralization. Thus far, its actionshave fallen short of empowerment, taking instead the path ofregulatory waivers. Frustrated with the federal government,states and localities continued to engage in policy experimentation.     

The State of American Federalism, 1994-1995

Federalism, as a concept and as a reality, received assistancefrom a variety of sources during 1994–1995. Opinion pollsrevealed a public strongly supportive of shifts in the balanceof power between federal and state governments. The new Republican-controlledCongress, bent on devolving authority to the states, busieditself with an ambitious legislative agenda. The DemocraticPresident pursued his principles of federalism and intergovernmentalrelations by supporting the unfunded mandates bill and by increasingthe use of the administrative waiver. The U.S. Supreme Courtbolstered federalism with its rulings in cases such as Lopez,a state challenge to the federal Gun-Free School Zones Act.The new mood in Washington, D.C. was complemented by state leadersanxious to take on the challenges of a rebalanced federal system