The Theory, Practice and Current Trends in Federalism
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Federalism and Civil Rights: Complementary and Competing Paradigms
Vanderbilt Law Review Volume 47 Issue 5 Issue 5 - Symposium: Federalism's Article 3 Future 10-1994 Federalism and Civil Rights: Complementary and Competing Paradigms James F. Blumstein Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Civil Rights and Discrimination Commons Recommended Citation James F. Blumstein, Federalism and Civil Rights: Complementary and Competing Paradigms, 47 Vanderbilt Law Review 1251 (1994) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol47/iss5/3 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Federalism and Civil Rights: Complementary and Competing Paradigms James F. Blumstein* I. INTRODUCTION ................................................................... 1252 II. THE IMPORTANCE OF FEDERALISM AND THE FEDERALISM DEAL ...................................................... 1256 III. FEDERALISM AS A CIVIL RIGHTS PARADIGM ....................... 1259 A. The Nature of Federalism...................................... 1260 B. Federalismand Civil Rights: Voting Rights as a Case Study ...................................................... 1262 1. Voting Rights as Part of the Federalism Deal ......................................... 1262 2. The Tensions Between the Federalism and Civil Rights Paradigms: Voting Rights as an Example ............................... -
Federalism and Families
University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 143 JUNE 1995 No. 6 ARTICLES FEDERALISM AND FAMILIES ANNE C. DAILEYt TABLE OF CONTENTS INTRODUCTION ................................. 1788 I. THE LOCALIST STRAND IN CONSTITUTIONAL FEDERALISM 1794 A. Localism Under Dual Federalism ................. 1796 B. The Paradigm of Procedural Federalism: Process and InstitutionalModels .......................... 1805 C. The Reemergence of Substantive Federalism: United States v. Lopez ............................ 1816 D. Localism and Family Law ...................... 1821 II. FAMILIES AND THE DEVELOPMENT OF CIVIC CHARACTER . 1825 A. Families in Liberal Theory .................... 1826 t Associate Professor, University of Connecticut School of Law. B.A. 1983, Yale College;J.D. 1987, Harvard Law School. I would like to thank Matthew Adler, Steven Ecker, Richard Kay, Stephen Morse,Jeremy Paul,Judith Resnik, Tanina Rostain, Vicki Schultz, Nomi Stolzenberg, Kathleen A. Sullivan, and participants at the University of Pennsylvania Legal Studies Workshop for their helpful comments and criticisms. Heather Stuart and Marc Ubaldi provided valuable research assistance. (1787) 1788 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 143: 1787 B. Liberal Citizenship and Civic Character ............ 1835 C. Civic Characterand ParentalAuthority ............ 1850 1. The Relational View of the Situated Self ....... 1851 2. The Communal View of the Situated Self ..... 1856 III. A LOCALIST THEORY OF FAMILY LAW .............. 1860 A. The -
Qt00s4m9hv.Pdf
UC Berkeley Working Papers Title Federalism and public policy : a comparative view Permalink https://escholarship.org/uc/item/00s4m9hv Author Baldi, Brunetta Publication Date 1997 eScholarship.org Powered by the California Digital Library University of California AiM6^ Federalism and Public Policy: AComparative View BrunettaBaldt University of Bologna Working Paper 97-2 lIlSTlTuTE OP GOVERHMEMTAl STyOlES U&BARlf 9 199T UNIVERSITY QF CALIFORNIA IGS INSTITUTE OF GOVERNMENTAL STUDIES m UNIVERSITY OF CALIFORNIA AT BERKELEY Federalism and Public Policy: AComparative View Brunetta Baldl University of Bologna Working Roper 97-2 Workino Papers published by the Institute of Governmental Studies provide quick dissemination of draft reports and papers, preliminary analysis, and papers with alimited audience. The obiective is to assist authors in refining their ideas hy circulating research results and to stimulate discussion about public policy. Workino Papers are reproduced unedited directly from the author's pages. Federalism and public policy: a comparative view by Brunetta Baldi University ofBologna Working paper Institute ofGovernmental Studies University ofCalifornia, Berkeley June 1997 1. Federalism and public policy The relationship between federalism and public policy in contemporary federal systems is, on the one hand, very complex and multiform to be comprehensively analyzed and, on the other, often "forgotten" by public policy analysis. The two are connected: federalism is given a contextual role within policy models because it is perceived -
American Federalism and the Diffusion of Power: Historical and Contemporary Perspectives*
AMERICAN FEDERALISM AND THE DIFFUSION OF POWER: HISTORICAL AND CONTEMPORARY PERSPECTIVES* Harry N. Scheiber** For an historian whose ear is attuned to Madisonian rhetoric and logic, there are many strains in the current-day debate on federalism that are difficult to hear as anything but cacaphony. On a day in January 1978, for example, the President of the United States delivered a half-trillion dollar federal budget proposal to Congress. Apart from that remarkable magni- tude of proposed spending, it was noteworthy that for military and political intelligence activities alone the budget (openly and covertly) appeared to contain appropriations greater than for the judicial and legislative branches combined. The very newspaper' that carried the Budget, with its stress on increased "grants-in-aid" to state and local government, also offered two stories with.apparently contradictory ultimate meanings. The first article told how the Secretary of Housing and Urban Develop- ment was pleased to announce the allocation by Executive fiat of funds for revival of a mortgage-subsidy program for a specified number of uniden- tified (presumably-as-yet unchosen) middle-income potential house- holders - the amount of funds to exceed the proposed cut in school-lunch funds in the 1979 Budget. In the second article, the Sohio Corporation and the air pollution- control officials of the Los Angeles regional Air Quality Management District discussed with the press some of the complexities of their agree- * Copyright 0 1978 by Harry N. Scheiber. This article consists of material toappearina forthcoming study of American federalism to be published by Oxford University Press. ** Professor of American History, University of California, San Diego. -
US Constitution & Federalism
US Constitution & Federalism Shared Power Between National, State, & Local Gov’t Basics of the Constitution • Three Branches = Legislative, Executive, & Judicial • Separation of Powers • Checks & Balances • Bi-cameral legislature (House of Rep’s & Senate) • Enumerated Powers vs. Implied Powers • Bill of Rights (Amendments 1 thru 10) Unitary vs. Confederation • Unitary System = Central gov’t has supreme power over governing the nation • Confederation = The local provinces or state governments have most of the power. • Federalism = The national, state, and local governments all have a role in governing (shared power) Unitary Systems Confederate Systems American Federalism • Supremacy Clause (Article 4) vs. The 10th Amendment • Some powers given the Nat’l Gov and some powers give to the State Gov • Many areas of gov’t ~ shared powers between many levels of gov’t • Dual Federalism vs. Cooperative Federalism Dual Federalism • “layered cake model” ~ Fed’s & states have clearly defined roles Cooperative Federalism • “Marble Cake Model” ~ Fed’s and states share power Multi-layered Gov’t • Just like a “marble” cake • Cooperative Federalism (shared responsibility) • We live in many jurisdictions all at once • Local = school districts, fire districts, cities or counties • State = Washington gov’t (State Constitution) • National (Federal) = US Constitution (Congressional representation; federal court jurisdiction) • Numerous examples of Federalism Education Funding of public schools: • National gov’t allocates money based on student population (per -
What Can Federalism Teach Us About the European Union? the German Experience
What Can Federalism Teach Us About the European Union? The German Experience Tanja A. Börzel Universität Heidelberg Paper prepared for the Conference „Governing together in the New Europe“, Robinson College, Cambridge, 12-13 April 2003. Prof. Dr. Tanja A. Börzel Associate Professor of International Relations Institute for Political Science Ruprecht-Karls-Universität Heidelberg Marstallstr. 6 D-69117 Heidelberg Tel: +496221/5428-68 Fax: +496221/5428-96 Email: [email protected] or [email protected] Website: http://www2.hu-berlin.de/compliance/ © Royal Institute of International Affairs,,2003 Published in Great Britain in 2003 by the Royal Institute of International Affairs, Chatham House,10 St James ’s Square,London SW1Y 4LE (Charity Registration No.208223) All rights reserved. No part of this publication may be reproduced,stored in a retrieval system,or transmitted by any other means without the prior written permission of the copyright holder. Please direct all enquiries to the publishers. The Royal Institute of International Affairs (Chatham House)is an independent body which promotes the rigorous study of international questions and does not express opinions of its own. The opinions expressed in this publication are the responsibility of the author. A European Federation or a Federal Europe? In an attempt to re-launch the discussion on the future shape of the European order, Germany’s Foreign Minister, Joschka Fischer, described the European Union (EU) as a ‘European Federation’.1 His intervention provoked a heated political -
Dual Federalism Ii 1860-1930
DUAL FEDERALISM II 1860-1930 Kirsten, Adam, Calvin, Adina, Connie, Elizabeth, Hannah DUAL FEDERALISM • A political theory where two different governments (the national/federal government and the state government) share political power. • It’s a form of checks and balances that the US government utilized to ensure the federal government did not get too powerful. • The power generally favored the states (especially under the Jackson administration) until this era in US history (1860-1930) where the power gradually shifted. • This time period can be split into the Civil War, Reconstruction, Guilded Age, and Progressive Era. CIVIL WAR ART OF THE DISPUTES THAT LED TO THE CIVIL WAR (1861–1865) CONCERNED FEDERALISM. MANY SOUTHERNERS1861-1865 FELT THAT STATE GOVERNMENTS ALONE HAD THE RIGHT TO Part of the disputes that led to the Civil War concerned federalism. Many Southerners felt that state governments alone had the right to make important decisions, such as whether slavery should be legal. Advocates of states’ rights believed that the individual state governments had power over the federal government because the states had ratified the Constitution to create the federal government in the first place. Most Southern states eventually seceded from the Union because they felt that secession was the only way to protect their rights. NORTH V. SOUTH For the Union, defeating the South North South secured the future of the Union. For the Confederates, they wanted to • Large • Home-field protect their liberty by defending their way of life and maintaining STATES populations advantage RIGHTS. • resources • Strong will The Union Win of the Civil War meant weaker state power and stronger federal power. -
Administrative Federalism As Separation of Powers David S
Washington and Lee Law Review Volume 72 | Issue 1 Article 5 Winter 1-1-2015 Administrative Federalism as Separation of Powers David S. Rubenstein Washburn School of Law Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons Recommended Citation David S. Rubenstein, Administrative Federalism as Separation of Powers, 72 Wash. & Lee L. Rev. 171 (2015), https://scholarlycommons.law.wlu.edu/wlulr/vol72/iss1/5 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Administrative Federalism as Separation of Powers David S. Rubenstein Abstract Federal agencies are key players in our federalist system: they make front-line decisions about the scope of federal policy and whether such policy should preempt state law. How agencies perform these functions, and how they might fulfill them better, are questions at the heart of “administrative federalism.” Some academic proposals for administrative federalism work to enhance states’ ability to participate in federal agency decisionmaking. Other proposals work to protect state autonomy through adjustments to the Supreme Court’s administrative preemption doctrine. As jurists and scholars debate what these proposals entail for federalism, this Article doubles-down with a twist: it examines what these same proposals can do for separation of powers. As uncovered here, adjustments to the administrative system—although made in federalism’s name—will derivatively affect how national law is made and checked along the separation-of-powers dimension. -
The Eclipse of Dual Federalism by One-Way Cooperative Federalism
THE ECLIPSE OF DUAL FEDERALISM BY ONE- WAY COOPERATIVE FEDERALISM John Kincaid* INTRODUCTION Numerous and powerful political forces have vested interests in the contemporary idea of cooperative federalism, which prioritizes an obligation of states to cooperate with federal policy initiatives in a system that is essentially prefectorial administration.1 These forces make impossible any construction or reconstruction of dual federalism wherein states exercise substantial sovereignty.2 Even if the U.S. Supreme Court rendered more state- friendly rulings, those rulings would negligibly affect the balance of state- federal power. State and local cooperation with federal policy objectives is fostered by certain systemic factors, including the U.S. Constitution’s reservation of most domestic powers to the states, historical path dependence, public antipathy to centralization, federal tax savings, grants-in-aid as bridges across dual federalism, the multi-jurisdictional character of some policy matters, and policy interdependence and interaction. The federal government has eight key tools to induce one-way state and local cooperation: (1) grants-in-aid, (2) deficit spending, (3) minimum national-standards schemes, (4) waivers of federal law, (5) compliance-deadline extensions, (6) federal forbearance, (7) court orders and consent decrees, and (8) statutory and regulatory penalties. In turn, there are six important advocates of state and local cooperation with federal policies: (1) nongovernmental organizations, (2) state and local administrator lobbyists, (3) public sector union lobbyists and litigators, (4) interest-group lobbyists, (5) citizen lawsuits, and (6) congressional oversight. In turn, six social and political forces facilitate state and local administrative cooperation with federal policies: (1) professional norms, * Robert B. -
Stages of Federalism Stages of Federalism There Have Been Four Stages of Federalism Throughout American History
Chapter 3 Federalism and Separation of Powers AP Government The Separation of Powers If federalism separates • LEGISLATIVE government power – Congress between the national, – House and Senate state, and local governments, the • EXECUTIVE separation of powers – president divides government – bureaucracy power between the • JUDICIAL legislative, executive, and judicial branches. – Supreme Court – other federal courts Separation of Powers • Self enforcing by giving each branch of government the means to participate in and partially or temporarily obstruct the workings of each other. • This ability to influence the activities of other branches is the basis of Checks and Balances. Constitution • The framers provided for legislative supremacy by making Congress the preeminent branch. • Shown by the powers given to the Legislative branch in Article I of Constitution – Sole power of appropriations – Power to initiate all revenue bills – Divided against itself, House vs. Senate Powers of National Government • In the Constitution, Article • Supremacy Clause I, Section 8 – 18 Expressed – All national laws and powers to the national treaties the “Supreme Law government. of the Land”. – All other powers reserved for states • “Necessary and Proper Clause” – Also referred to as implied powers • Expansive interpretation of delegated powers Powers of State Government • Anti-federalists – Regulate the family via – Feared strong central marriage and divorce laws. government – License individuals – Wanted amendment to – Power to define private limit national power. property. – 10th Amendment became – Regulations of known as reserved powers fundamental matters amendment. known as police powers • States - Power of coercion • Concurrent Powers – Develop and enforce – Chartering banks, licensing criminal codes businesses, labor – Administer health and conditions, products. safety rules. -
Intergovernmental Councils in Federations Ronald L
Constructive and Co-operative Federalism? A Series of Commentaries on the Council of the Federation Intergovernmental Councils in Federations Ronald L. Watts* Foreword Introduction: Canadian Proposals Canada’s Provincial and Territorial Premiers At the Annual Premiers Conference in agreed in July 2003 to create a new Council of the Federation to better manage their relations Charlottetown, July 9-11, 2003, at the urging of and ultimately to build a more constructive and Premier Charest and as a first step, the premiers cooperative relationship with the federal announced the formation of a new formal inter- government. The Council’s first meeting takes provincial Council of the Federation. This is to place October 24, 2003 in Quebec hosted by be comprised of the 13 premiers of the ten Premier Jean Charest. provinces and three territories, and will meet on a regular basis. The first meeting will occur this This initiative holds some significant month on October 24, 2003, in Quebec City. At promise of establishing a renewed basis for more that time, the Premiers will finalize the mandate extensive collaboration among governments in and the structure of the Council. Earlier, the Canada, but many details have yet to be worked out and several important issues arise that merit Liberal Party of Quebec, now governing in that wider attention. province, had included in its program, Un plan d’action, first published in October 2001, a The Institute of Intergovernmental Relations proposal for facilitating both vertical and at Queen’s University and the Institute for horizontal intergovernmental co-operation by the Research on Public Policy in Montreal are jointly establishment of a formal permanent federal- publishing this series of commentaries to provincial Council of the Federation with its own encourage wider knowledge and discussion of the secretariat. -
The Puzzling Persistence of Dual Federalism
THE PUZZLING PERSISTENCE OF DUAL FEDERALISM ERNEST A. YOUNG It may seem strange that, more than sixty years after Edward Cor- win famously lamented "The Passing of Dual Federalism,"1 this essay is part of a panel organized under the title "Against Dual Federalism." Accusations that the Court was trying to revive fed eralism were commonplace in the early years of the Rehnquist Court's "federalist revival." I argued more than a decade ago that these charges were misplaced, and that the actual doctrines that the Court was articulating in cases like United States v. Lopez2 and Printz v. United States^ could not really fit into the rubric of dual federalism.4 It is not that I'm surprised to find that my counsel has not been universally heeded; I have, after all, two teenage chil dren. But I would think that by now the Court has made clear that it does not mean to impose particularly significant limits on the Commerce Clause,5 much less to bring back the entire dual feder alist regime. Dual federalism remains hardly less dead than it was the day after the Court decided Wickard v. Filburn6—a case that the Rehnquist Court repeatedly went out of its way to reaffirm and that the Roberts Court has not questioned. Part of the problem is that not everyone means the same thing by "dual federalism." The legal literature on federalism uses the term to describe a particular model of allocating functions be tween the national government and the states, characterized by an 34 The Puzzling Persistence of Dual Federalism 35 attempt to define separate and exclusive spheres for national and state action.7 That model, I shall argue, is largely dead insofar as it operates as a check on national action; it survives, in a somewhat softer form, as a check on state action.