The balance of power between the Federal government

When we think of a ‘balance of power’ we think of a weighing of interests between two entities, in this case the federal and state governments of the United States, both of which have vested interests in the powers which control and shape the nation. These powers are clearly shown in the United States Constitution at a federal level (enumerated), and have been reinforced by the Supreme Court in numerous cases. This essay will show how the powers of both federal and state governments are balanced under the Constitution of The United States of America (the constitution). To enable an assessment as to how the balance is achieved there is a need to understand the historical context in which it was created; this shall only be brief by highlight the start of the road towards a balancing of government. This shall cover how the balance is created by the Constitution, and why. The second part will discuss the establishment of the balance, showing what was established by the delegates in order to provide a shared measure of authority which remains today between state and federal government. Finally a discussion as to how this ‘relationship’ is evolving from the original ideals to something the founders would never have thought would happen. This will be demonstrated in a contemporary light through case law illustrations both recent and historical, congressional enactments and the intervention of the Supreme Court.

II Historical development

To fully understand the current position with respect to the balance of power in the United States, it is necessary to understand the historical developments which lead to the formation of the Constitution, and subsequent federal and state division of powers.

The formation of the Constitution of The United States of America was a direct result of the peoples ‘dissolution [1] ’ with their imperial maters the United Kingdom, which later lead to the American War of Independence (1775-1783), and subsequent freedom for self-governance by the colonies [2] .

The American people sort to fill a need in government, with a willingness to unite the colonies under one government clearly evident via the preamble ‘We the People of the United States, in Order to form a more perfect Union... [3] ’. The American people [4] came together in Philadelphia [5] (1774) under a cloud of ‘distrust’ in ‘big’ or ‘centralised’ government, fearing a creation of a bigger tyrannical government then the one they already had. It became clear in the conventions, over some twelve years that the states would be willing to surrender some, but not all of their powers to a centralised government due to the above mentioned fear. They wished to maintain some form of autonomy.

Federalismwas seen by the founders as a safe move, only giving so much power as was needed ‘to get the job done [6] ’ to the new federal government, and keeping back all the remaining power, thus preventing corruption, or a abuse of power.

Having established a willingness by all of the thirteen colonies to join under a ‘union’, the delegates would now need to establish how the division of power was to work, what powers would they be willing to give up for the establishment of federalism [7] , and which they would retain.

III Establishing the balance

The balance of power which would be established under the Constitution has been branded as ‘unique [8] ’ compared to other democratic nations around the world today, with the balance in favour of the states (the people) and their independence against the federal government, but this balance is shifting as will be shown below. This is ‘unique’ in the sense that most nations like Australia have the inverse with favour towards a national government away from the states.

In building a balance between the interests of the states and federal government, the framers enumerated the powers under Art. I – VII of the Constitution and more specifically article one, section eight. This section outlines the powers and areas for which the new federal government can legislate [9] leaving the ‘remainder [10] ’ with the states. The federal government is limited to only these powers and any legislation outside would amount to ‘over-reach [11] ’.

The remainder powers of the states are very wide allowing the states almost unlimited ‘plenary power [12] ’, so long as any law created does not conflict with federal legislation, or the constitutional powers [13] . For example a state could make laws regarding ‘same sex’ marriage as it does not fall within the purview of Congress [14] .

In order for the effective administration of the new national government there was a need to establish a law making body in which the enumerated powers could be used for the good of the nation. This new body was established under article one, section one of the constitution and would be known as ‘Congress [15] ’. Congress shall ‘make all laws which shall be necessary and proper for carrying into execution [16] ’ any of the enumerated powers, alongside state legislatures [17] . This new Congress would give the people the right of ‘representation’ under the new government, lacking under the old imperial system [18] .

This representation in the new Congress would involve the election [19] of members from each state into either one of the two houses. These two houses are known as House of Representatives [20] and the Senate [21] . The idea behind having two houses was to act as a check and balance on each other, and to provide equal representation to each of the states. The House of Representatives is made up of elected members based on the population of the state in question (some may have more than others), were as the senate was devised to provide a ‘protection’ as such to this disparity by giving each state two members, not reliant on population [22] .

Whilst the ground work had been laid in which both the states and federal government would balance their new found powers to, make laws and provide for representation by the states in the new federal government, there was still the question of, what if the new government was acting outside their power, what redress would the states have? This was answered by delegates with the formation of The Supreme Court of the United States of America [23] and other lower (subordinate) courts that Congress seen fit from time to time [24] . The Supreme Court was established as the ‘guard’ of the new federal Constitution, and the highest court in the country.

While each state would maintain their legal system including Constitutions, courts [25] and the Legislature they would now have to contend with a federal law making body, Congress and its powers as given under the Constitution. This new court would give the ability for the states to object to new laws passed by Congress if a state felt it to be unconstitutional, and a violation of their rights in a form of judicial review [26] .

This new court would have the power not only to review an act of Congress, but also would have the right to strike it down if so required, due to Congress enacting a law which was outside of their powers. This power of review was set into stone by the court in Marbury v Madison (1803) [27] .

IV My, how you have grown...

While the founders of the Constitution had an idea of a well balanced union in which state and federal governments confined their law making to their powers. One of the other creations of federation, the Supreme Court in a number of rulings had other ideas. While Congress has eighteen areas in which they have the power to legislate, with a little help from the Supreme Court some of which will be examined here, they have managed a ‘shift’ or ‘evolution’ in the balance of power from states, towards the federal government.

These cases revolve around one main clause in article one, section eight of the Constitution, being ‘the Commerce Clause’.

The Commerce Clause allows Congress to ‘...regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes. [28] ’ this power has been used widely over the years in many areas from farming [29] to firearms control [30] . This clause has allowed for Congress to make laws into areas which would normally be under state residual powers, by showing a connection between the ‘thing’ being controlled and commerce. For example firearms control and the Gun Free School Zone Act [31] , normally covered by states ‘police’ powers.

The first case on the road to change, is that of Wickard v Filburn (1945) [32] were the Supreme Court held that personal wheat usage by a farmer within his/her own state would amount to an effect on commerce as it may put a stop to the buying of wheat from external sources (interstate). Thus this ruling has allowed for Congress to apply regulation to activity that ‘might [33] ’ have an effect on interstate trade or commerce.

The second case is Gonzales v Raich (2005) [34] this case allowed for a reaffirming that Congress may place any regulation on an ‘class of activity [35] ’ which could have a clear effect on interstate trade or commerce, even when it was confined within one state, in this case the use of a controlled substance on medical health grounds.

While the commerce clause has the ability for Congress to pass a law to regulate a ‘class of activity’ that ‘might’ have a detrimental effect on trade between states, this clause does have an twin sister, the ‘Dormant Commerce Clause [36] ’ which can have effect even without Congressional legislation. The dormant commerce clause has to ability to strike down any law passed by the state which would discriminate against another ‘sister state [37] ’. The view is taken that if such discrimination was sound public policy, then Congress would have regulated in this area.

These cases clearly illustrate that Congress has and does exercise the power to regulate into state residual powers territory, slowly yet surely shifting the balance of power more towards the ‘centralised’ government that the people so surly feared in the first place, even at times without direct Congressional intervention.

This extension of power could very well explain the rise of the ‘American Tea Party’ in the current political climate, along with other issues that party has taken to heart. As these Congressional laws and court rulings show there is a direct shift away from the independence of the states to control their own activity, which was so heavily sort from the formation of the union, towards centralised government.

Another way in which federal powers have been extended, tipping the balance towards federal government away from the states is via the Fourteenth Amendment, Due Process Clause and Selective Incorporation [38] . This has extended protections enshrined under the Bill of Rights onto states, thus in effect preventing any legislation being enacted by the states which would interfere with these ‘fundamental’ protections. The most recent example of this Selective Incorporation has taken place in McDonald v Chicago (2010) [39] where the Supreme Court extended the ‘right to bear arms [40] ’ towards the states, finding the amendment applied to states by the Due Process Clause.

While this type of extension by the federal government law into the states’ rights is not seen as a negative, but clearly a positive step towards the protection of fundamental rights to all citizens, it is never the less a tipping of the balance of power from the states.

V Conclusion

In this essay we have discussed three topics each having importance in demonstrating the balance of power between the federal and state governments. These topics covered the areas of historical context, where it was shown that the American balance of power was established out of disenfranchisement with the imperial government at the time, leading to a war and finally independence, but this disenfranchisement had left a deep scar on the nations psyche, a fear, of big, centralised government. Even with this deeply rooted fear there was a willingness by the people to work to build a nation for the people, even if it meant a leap of faith handing over some power to a new, unknown federal government under a new document called the Constitution of the United States of America.

The area of establishing the balance was the second to be covered which showed like most things American they had created a unique system which placed the power of the people at the forefront and the power of the nation second. To do this they established an order, a way to get things done and a way to give the people what they wanted representation. There was the establishment of a Congress, with enumerated powers in which to foster the new nation, while states maintained a wide mandate in which they could state law unique to their needs. They gave the people the representation they had craved in their new government in hopes to lessen the deep scar left years before, not only into Congress, but as a right of judicial review in the Supreme Court of the United States, while leaving the current judicial and legislative systems intact.

Finally there was the discussion as to how the federal government powers have grown over the years, with a continual shift away from the states towards, big, centralised government so feared at the birth of the nation. This shift has taken place with the help of the very document in which the people placed their hope of protection in, the constitution. This shift has taken place by enactments of Congress under such powers as the Commerce Clause, and enabled by the interpretations of the Supreme Court to the point of tipping the scales in favour of the federal government by allowing the overt enumerated encroachment into states residual powers. It has come to the point where rights are given with the one hand, and taken from the states with the other.

It is now clear that the nation was founded on a notion that people should have the power and the federal government just enough to allow for the effective administration of the union, but clearly this is no longer the case, with the United States following the lead of other nations like Australia in moving rights from the states and the people towards the federal government. It is no wonder that over the last few years we have seen the rise of such political revolts as ‘the tea party’, with such a continual shift that does not look like slowing anytime soon, maybe it is the ‘revolution’ the nation needs to bring it back to the ideals it was founded on?