Date of Award

2019

Document Type

Thesis

Department

Political Science

First Advisor

Dr. Doug Reed

Second Advisor

Dr. Tully Borland

Third Advisor

Dr. Jay Curlin

Abstract

One of the greatest tenets of what American founders called this "experiment in democracy" is the Constitutional standard of federalism. Those in the Continental Congress labored over the proper relationship of a people to its government and, thus, the proper size of government that this relationship implies.

The tyranny from which the young republic sought independence just thirteen years before the drafting of the Constitution was a pervasive and seemingly omniscient one. The hand of the British Crown into the affairs of the common man was an instrument of autocratic control, rather than that of guiding protection. According to Constitutional scholar Craig R. Ducat, "The centralization of governmental power breeds tyranny, where tyranny is essentially defined as the systematic exploitation of most of the populace by a narrow, self-serving few." It was this struggle that fostered the ideas of a limited and distant government. Quite plainly, the role of the American government was to protect the free exercise of liberty of its people, while keeping a safe distance. As long as taxes were collected by April 15, then there should be no cause for interference.

Because of these founding sentiments of limited government, congressmen of the day felt it necessary to create a Constitutional standard for smaller institutions such as municipal and state-level government. These smaller institutions were to be left to the discretion of popularly elected state representatives in each geographically bound state, allowed to enforce its own laws and standards of social behavior. All the while, these states were to be subservient to the supremacy of the federal American Government. While exercising the freedom of self-government, states must also recognize the over-arching national supremacy.

Some scholars note shifts between different eras of American jurisprudence, mostly seen in the differences of the Warren, Burger, and Rehnquist Courts from those of decades past. Specifically, constitutional academics note the distinction between two primary, competing practices of federalism. The first is dual federalism. More the Jeffersonian model, this "layercake" practice would consist of two equally powerful, mutually exclusive levels of government, the state and the national level. Using the textualist approach to Constitutional interpretation, many would argue in favor of a stronger reading of 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." A stricter application of this text would imply very little use of the elastic clause (i.e. necessary and proper clause) to expand powers of the national government. As some would say, "If, in the exercise of its enumerated powers, the national government happened to touch upon the functions reserved to the states, then the action of the national government was unconstitutional." Furthermore, the diffusion of power into lower-level systems allows the citizen greater opportunity for participation, and thus, a greater adherence to the republican ideal of self-government.

The competing view - and what many would consider the dominant view of the last 70 to 80 years- is cooperative federalism. Focusing more on the urbanized, industrial society of the Hamiltonian model, cooperative federalism features more of a partnership between the national and state levels of government, which finds its strength in the supreme power of the centralized national government. In Ducat's estimation, the nation's growth out of Jefferson's agrarian society necessitated a stronger national government to regulate a vast and trade-centered economy. Taking a nationalist approach, scholars argue that federalism in this sense is not a "contract among states," but rather a means in which to form a more perfect union, composed of"only one- the ultimate sovereign- the people." Comparable to the dualist's limited use of the elastic clause, cooperative federalists tend to enlist a looser application of Article I, Section 8, in conjunction with a heavy reliance upon the supremacy clause (i.e. Article VI, Paragraph 2).

Ducat asserts that a sort of "pendular swing" characterizes the last several decades of Court rulings on federalism, but he further asserts that while there have been "recent dualist stirrings," he finds the dual-federalism argument to be "obsolete" and "inappropriate."

At issue in this analysis is the current standing of the notion of federalism in the American government. Research compiled here will use historical views of federalism decisions to determine what the modem context entails. Evaluating two recent cases, we can make an assumption about the future of American federalism. In essence, with the recent changes to those seated on the bench and shifts to domestic politics, what is to be expected of the current relationship of states' rights versus federal supremacy? Could we expect a shift back toward more trust in the state system during this new era of the Roberts Court?

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