Where is federalism located in the constitution

Other articles in Governmental Entities and Activities. Want to support the Free Speech Center? Donate Now. The First American Constitutions. Lanham, Md. Burnham, James. Congress and the American Tradition. Washington, D. Elazar, Daniel J. Exploring Federalism.

Tuscaloosa: University of Alabama Press, About the Encyclopedia. Interested in First Amendment current events? The Eleventh Amendment, the first amendment to the Constitution after the adoption of the Bill of Rights, was passed as a response to the case of Chisholm v.

One of these, Chisholm , was a diversity suit filed by two citizens of South Carolina against the State of Georgia to recover a Revolutionary War debt. In Chisholm, the Supreme Court noted that Article III of the Constitution specifically grants the federal courts diversity jurisdiction over suits "between a State and citizens of another State.

The states were outraged that such a suit could be brought in federal court, protesting that the drafters of the Constitution had promised the states they would not be sued by their debtors in federal courts. Almost immediately after the decision of the Chisholm cases, resolutions were introduced in Congress to overturn it, the end result being the Eleventh Amendment.

The amendment ensured that a citizen of one state could not sue another state in federal court—in other words, a citizen could not sue under federal diversity jurisdiction without a state's permission. However, even after the Eleventh Amendment was passed, a number of cases were filed against states by private citizens, with jurisdiction based on federal question rather than diversity.

Under this reasoning, if a citizen of a state sued his or her own state in federal court, the prohibition of the Eleventh Amendment would not apply. Consequently, for a number of years after the passage of the Eleventh Amendment, this type of case was entertained by the federal courts. However, this line of cases was ended by the case of Hans v. In Hans v. Louisiana , the Court provided for an interpretation of the Eleventh Amendment that allowed the Court to move beyond the literal text of that amendment.

Under the reasoning of the Court, the Eleventh Amendment was not so much an amendment to the original structure of the Constitution as it was an attempt to overturn a specific court decision that had misinterpreted this structure.

According to this line of reasoning, the Eleventh Amendment was not an amendment, but a restoration of the original constitutional design. Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent cases was not the Eleventh Amendment, but the issue of state sovereign immunity. State sovereign immunity means that a state must consent to be sued in its own court system. This concept is based on early English law, which provided that the Crown could not be sued in English courts without its consent.

The doctrine of sovereign immunity was in effect in the states that were in existence at the time of the drafting of the Constitution. Further, various writings by the founding fathers seemed to support the concept.

Although the Hans Court answered the issue of whether adoption of Article III of the Constitution had waived state sovereign immunity in federal courts, it left a number of questions unanswered.

For instance, the question as to whether there are any instances where Congress could, by statute, abrogate a state's sovereign immunity, so that a citizen could sue a state under federal law.

In Seminole Tribe of Florida v. Florida, the Court seemed to answer that in most cases, such suits would not be accepted. The Seminole case involved the Indian Gaming Regulatory Act of , which provided Indian tribes with an opportunity to establish gambling operations. However, to establish such gambling, the Indian tribes had to enter into a compact with the state in which they were located.

The states, in turn, were obligated to negotiate with the Indian tribes in good faith, and this requirement was made enforceable in federal court. Thus, the question arose as to whether the tribes could sue the states under the Eleventh Amendment.

The Court in Seminole found it important to establish what constitutional authority was being exercised by the passage of the Indian Gaming Law. The Court had found previously in Pennsylvania v. Union Gas , that the Commerce Power, as a plenary power, was so broad that of necessity it required the ability to abrogate state sovereign immunity. In Seminole , however, the Court overturned Union Gas , holding that as the Eleventh Amendment was ratified after the passage of the Constitution and Article I, it was a limitation on Congress's authority to waive a state's sovereign immunity under that Article.

The Court did indicate, however, that Congress can abrogate state sovereignty under the Fourteenth Amendment. While the logic behind this distinction is unclear, it means that in many cases, litigants suing states will try to find a Fourteenth Amendment basis for federal legislation to defeat an Eleventh Amendment defense. A question left unanswered by the Hans decision was whether the Eleventh Amendment, which prohibited Congress from abrogating a state's sovereign immunity in federal court, extended to a state's own courts.

In Alden v. Maine , the Supreme Court found that the same principles of sovereign immunity identified in Hans would prevent Congress from authorizing a state to be sued in its own courts without permission. As in Hans , the Court acknowledged that the literal text of the Eleventh Amendment does not prohibit such suits, as its language addresses only suits brought in federal courts. Consequently, the Court relied instead on the proposition that sovereign immunity is a "fundamental postulate" of the constitutional design, and is not amenable to congressional abrogation.

The same reasoning that prohibited these suits from being brought in federal court, a deference to the "respect and dignity" of state sovereignty, led the Court to conclude that it would be anomalous to allow such cases to be brought instead in state court. In Federal Maritime Comm'n v. South Carolina State Ports Authority , the Court addressed the issue of whether state sovereign immunity extended to proceedings before federal agencies. The cruise ship company, Maritime Services, filed a claim with the Federal Maritime Commission FMC arguing that South Carolina had discriminated against it in violation of the Shipping Act of and sought, among other things, damages for loss of profits.

In reviewing the case, the Court analogized between the FMC's quasi-judicial proceedings and traditional judicial proceedings, while noting that "[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. Thus, while an agency remains capable of enforcement actions against states in federal court, it cannot use its own adjudicative process to determine whether to do so, but must rely on its investigatory powers.

It should be noted that in many instances, the federal government still has the ability to influence state behavior despite the constitutional limits discussed above.

Considering the large amount of funds provided to states by the federal government, this represents a significant power for Congress to exercise. Further, as the concept of grant conditioning can involve waiver by the states of Tenth Amendment rights, these grant conditions may allow Congress to indirectly achieve compliance by a state in a way that could not be achieved directly. The question of whether a state can be required to perform or refrain from certain actions was addressed in the Supreme Court case of South Dakota v.

The state of South Dakota, which permitted year-olds to purchase beer, brought suit arguing that the law was an invalid exercise of Congress's power under the Spending Clause to provide for the "general welfare. The Court noted that the grant condition did not implicate an independent constitutional bar i. Further, the court noted that the grant condition was not a violation of the Tenth Amendment, which generally prevents Congress from "commandeering" state legislatures and executive branch officials to implement federal programs.

The Court did suggest, however, that there were limits to Congress's power under the Spending Clause. First, a grant condition must be related to the particular national projects or programs to which the money was being directed.

Second, the Court suggested that, in some circumstances, the financial inducements offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion," which would suggest a violation of the Tenth Amendment.

In Dole , however, the percentage of highway funds that were to be withheld from a state with a drinking age below 21 was relatively small, so that Congress's program did not coerce the states to enact higher minimum drinking ages than they would otherwise choose. Sebelius , however, seemed to suggest that an alternative line of analysis might apply in some grant condition cases. Following the enactment of the ACA, state attorneys general and others brought several lawsuits challenging various provisions of the act on constitutional grounds.

As noted in Dole , the loss of federal funds associated with a grant condition cannot be so large that the withholding of such funds is coercive. Justice Roberts's opinion in NFIB , however, addressed the slightly different question of whether a grant condition attached to a "new and independent" program here, the Medicaid expansion that threatened the funding of an existing program here, Medicaid violated the Tenth Amendment.

It is unclear, therefore, whether the NFIB decision was an application of the Dole analysis, or whether the combination of factors presented in NFIB suggests an alternate line of reasoning. Justice Roberts's opinion in NFIB held that, in the case of existing program funding being conditioned on the adoption of a "new and independent" program, the amount of federal funds at issue cannot represent a significant portion of a state's budget or its withdrawal will be found to be unconstitutionally coercive under the Tenth Amendment.

Justice Roberts did not identify a standard to determine what level of withholding funds would be coercive, or specify what kind of distinguishing factors were necessary to such analysis.

It is not clear, however, whether the confluence of factors at issue in the NFIB case is likely to be present in future cases. Few federal programs, for instance, even approach the level of state funding as does Medicaid; nor do there appear to be significant examples of grant conditions requiring creation of "new and independent" programs in order to retain funding for a separate program. Consequently, the NFIB case may have minimal effect on the validity of existing or future federal grant conditions.

It would appear that the status of the state in the federal system has been strengthened by recent Supreme Court opinions. Although the Court has not scaled back the federal government's substantive jurisdiction significantly, it has to some extent prevented the expansion of Congress's power under the Commerce Clause and under Section 5 of the Fourteenth Amendment.

Further it has created a variety of obstacles as to how these powers can be executed, forbidding Congress under the Tenth Amendment from commandeering the authority of state legislative and executive branches, and limiting the authority of Congress to abrogate state sovereign immunity. Ultimately, however, Congress retains significant powers to influence state behavior, such as through the Spending Clause, and, under the Supremacy Clause, Congress may require the enforcement of its laws in both state and federal court.

See, e. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. This "Full Faith and Credit Clause" gives Congress what amounts to enforcement authority over the required recognition by each state of the judgments, records, and legislation of other states.

Article I, Section 1, of the Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States. Maryland, 17 U. To establish an uniform Rule of Naturalization.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

While the Fifteenth Amendment and the other voting rights guarantees noted above protect only against state action, congressional authority under this clause includes protection of the electoral process against private interference. A variety of enactments can be traced to this authority, including campaign finance laws and the Hatch Act insofar as it applies to federal elections.

The House and the Senate act as judicial tribunals in resolving contested election cases. To exercise exclusive Legislation in all Cases whatsoever, over such District Implicit in the Fifth Amendment's requirement that just compensation be paid for private property that is taken for a public use is the existence of the government's power to take private property for public use.

Those materials which do address congressional control over commerce focus on the necessity of uniformity in matters of foreign commerce, although the drafters clearly intended domestic commerce to be regulated as well.

Lerner, The Founder's Constitution Alexander Hamilton, Continentalist, No. Lerner, supra note 32 "The vesting of the power of regulating trade ought to have been a principal object of the confederation for a variety of reasons.

It is as necessary for the purposes of commerce as of revenue. United States v. Darby, U. See Heart of Atlanta Motel v. United States, U. McClung, U. The Court failed to note that to some extent, the three categories are intertwined. For instance, the first category, the regulation of "streams" or "channels" of commerce, allows regulation of the creation, movement, sale and consumption of merchandise or services. But the initial extension of the "streams" of commerce analysis by the Court to intrastate trade was justified by the "effect" of these other activities on commerce.

See NLRB v. Similarly, the second category, which allows the regulation of such instrumentalities of commerce as planes, trains or trucks, is also based on the theory that a threat to these instrumentalities "affects" commerce, even if the effect is local in nature. Southern Railway Company v. Thus, the final category identified by the Court appears to be a catch-all for all other activities which "substantially affect" commerce. The Court rejected arguments that possession of guns in school affected the national economy by its negative impact on education.

The Court has reiterated its concern over extending Commerce Clause powers to Congress in areas of the law traditionally reserved to the states. Army Corps of Engineers, U. The requirement that a commerce clause regulation be economic or commercial has been influential in a number of subsequent statutory interpretation cases.

In Jones v. Section i , which, in part, makes it a crime to destroy by fire or explosive a building "used" in interstate commerce. Applying the statutory canon that one should interpret a statute to avoid constitutional doubt, Jones v. No thank you. LII Wex Federalism. Federalism Primary tabs Overview Federalism is a system of government in which the same territory is controlled by two levels of government. Article I, Section 8 Article I , Section 8 of the Constitution describes specific powers which belong to the federal government.

Tenth Amendment The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. For a comparison of the two different strategies the Court has used to cut back on the expansive view of federal power that emerged from the New Deal, see Heather K. Gerken, Slipping the Bonds of Federalism , Harv. To learn more about what these scholars of different perspectives agree upon , and what they disagree about, go to our Interactive Constitution section page about these provisions.

These experts were selected with the guidance of leaders of two prominent constitutional law organizations—The American Constitution Society and The Federalist Society. This project is sponsored by a generous grant from the John Templeton Foundation. Toggle navigation. In this discussion, Randy E. In practice, federalism has waxed and waned since the founding, and federal-state relations have always been contested.

Nonetheless, federalism underwent four distinct phases during four different eras in our constitutional history: post-Founding, post-Civil War, post-New Deal, and from the Rehnquist Court to today. Enumerated Powers Federalism In , the Constitution replaced the Articles of Confederation—which was essentially a treaty among sovereign states—with a new constitution ratified by the people themselves in state conventions rather than by state legislatures.

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