Sharing power
The United States is a federal system. Under federalism, power is divided between the national (federal) government and the 50 state governments. Both can make laws that apply directly to citizens.
The founders chose federalism to balance two fears: a central government that was too weak, as under the Articles of Confederation, and one that was too powerful, like the British monarchy.
How the Constitution divides power
| Type | Who holds it | Examples |
|---|---|---|
| Enumerated powers (Article I, Section 8) | federal | coin money, declare war, regulate interstate commerce, run the postal service, make treaties |
| Implied powers | federal | powers "necessary and proper" to carry out enumerated powers, such as creating a national bank |
| Reserved powers (10th Amendment) | states | education, police, marriage laws, running elections, most criminal law |
| Concurrent powers | both | collect taxes, borrow money, make and enforce laws, build roads |
| Denied powers | neither or one | states cannot coin money or make treaties; neither can pass ex post facto laws |
The Supremacy Clause (Article VI) says the Constitution and federal laws made under it are "the supreme Law of the Land." When a valid federal law conflicts with a state law, the federal law wins.
Changing balance over time
The balance of power between states and the federal government has shifted.
- Dual federalism ("layer cake"): until the 1930s, each level was seen as having separate spheres.
- Cooperative federalism ("marble cake"): from the New Deal in the 1930s onward, federal and state governments increasingly worked together, with federal funding for state programs.
- Grants and conditions: the federal government often uses money to influence states, such as attaching conditions to highway or education funding.
The Supreme Court as referee
The Supreme Court decides disputes between the federal government and states, and interprets the Constitution. Its decisions create precedent that guides future cases, although the Court can overturn its own precedents.
| Case | Year | Federalism significance |
|---|---|---|
| McCulloch v. Maryland | 1819 | upheld implied powers; states cannot tax the federal government |
| Gibbons v. Ogden | 1824 | broad federal power over interstate commerce |
| Brown v. Board of Education | 1954 | state school segregation violates the 14th Amendment |
| United States v. Lopez | 1995 | limited the Commerce Clause: guns in school zones were not interstate commerce |
| NFIB v. Sebelius | 2012 | upheld much of the Affordable Care Act but limited federal pressure on states over Medicaid |
| Obergefell v. Hodges | 2015 | states must license and recognize same-sex marriages |
| Dobbs v. Jackson Women’s Health Organization | 2022 | returned abortion regulation to the states |
How the Supreme Court works
- Nine justices, appointed by the president and confirmed by the Senate, serve for life.
- The Court receives thousands of petitions each year but hears only a small number, often fewer than 100, usually cases involving important constitutional questions or conflicts between lower courts.
- Lawyers submit written briefs and present oral arguments.
- Justices vote; a majority opinion explains the decision. Justices may write concurring or dissenting opinions.
The 14th Amendment and rights
The 14th Amendment (1868) says no state may deny any person "equal protection of the laws" or deprive them of life, liberty or property without "due process." Through incorporation, the Supreme Court has applied most of the Bill of Rights to state governments, which greatly expanded federal protection of individual rights.
Debates about federalism
- States’ rights arguments emphasize local control and policy experiments; states are often called "laboratories of democracy."
- National standards arguments emphasize protecting equal rights and addressing problems that cross state lines.
- The phrase "states’ rights" was historically used to defend slavery and segregation, which shapes how many people view it today.
Try it yourself
- Sort these powers: print money, issue driver’s licences, declare war, set school curriculum, collect taxes.
- Explain the Supremacy Clause using an example.
- Choose one case from the table and summarize the facts, decision and impact on federalism.
- Debate: "Should education policy be set mainly by states or by the federal government?"
Quick recap
- Federalism divides power between the federal government and the states.
- The federal government has enumerated and implied powers; states have reserved powers.
- The Supremacy Clause makes valid federal law supreme.
- The Supreme Court referees federalism disputes and sets precedent.
- The balance of power has shifted over time and is still debated.