Federalism

"Federalism is a geopolitical device for dealing with basic differences among a set of states associated under a common government. Voluntary federal structures necessarily involve negotiating an acceptable balance of power among the member states."
David Meinig, The Shaping of America: A Geographical Perspective on 500 Years of History (Vol 2: Continental America: 1800-1867) p 489

Meinig's definition is perhaps colored by its context: it occurs in a passage about the events and developments leading up to the Civil War (1861-1865), a period characterized by ever-more intense frictions and disagreements, which the parties involved would certainly not have hesitated to call "basic differences", between the states, over the issue of slavery.

The expresssion "basic differences" might, however, also apply to other problems in the relations between states, such as differences of wealth, geographic area, population size, not to mention of institutions. Indeed, one of the objectives of a federation is beyond doubt to create a mechanism that provides for every sort of legal difference, A federation unquestionably needs to deal with such issues, even when there is no source of conflict such as there was in the US in the first two thirds of the nineteenth century. Meinig seems to take for granted one of the important features of the federation, at least of the United States: it must find an acceptable balance of power not only among the member states, but also between the states and the federal, federating government. One of the ways the authors of the Constitution found for accomplishing this was by establishing a list of "enumerated powers", which was intended to be an exhaustive catalog of all the powers of the federal government; the other powers of government remain with the states (or, according to the Tenth Amendment [1791], the people).

The Constitution is not very explicit regarding the relations between the states (read it here). Article IV establishes a few general principles that the states are supposed to respect in their relations with one another, but does so in terms that have never been easy to interpret. The "full faith and credit" clause, for example, is often explained in terms of marriage law: all the states must recognize marriages celebrated in any state, but recent developments regarding, for example, same-sex marriage, have called some aspects of this principle into question.
More important, perhaps, are the powers the states give up: diplomacy, for example, is the exclusive domain of the federal government, as is war. The states do not have the power to coin money, or to impose customs duties on goods imported from outside the state. In other words, part of federalism involves surrendering some of the powers of a genuinely sovereign state.

For purposes of the course, the notion of federalism will also cover state institutions and powers. To begin with, a schematic comparison of the three branches of government at the federal and state levels can be found here.

States have authority in a vast number of areas, including, but not limited to the following:

• The regulation of political organizations and parties
• One of the areas of government authority that is not mentioned in the Constitution is the organization of elections, which thus remains in the purview of the individual states. One characteristic of American politics is the large number of elections: far more public officials are chosen by election than is the case in France, and the people are called upon frequently in many states to make decisions about public policy through referenda, initiatives and recall. (For more about the elections in 2003 & 2005 in California, look here; for more about the mid-term elections in 2006, look here.)
• The incorporation & regulation of businesses and industries. Companies receive their charters from states, not from the federal government. One example of problems that may arise in regulating industries can be observed in the electricity crisis that shook California in 2003, and ultimately brought Arnold Schwarzenegger to the governorship.
• The regulation of professions, such as medical doctors (MDs). Since doctors are licenced to practice by states, a doctor who decides to move from one state to another may have to take examinations in the new state in order to be licensed there.
• A great of legislation regarding minority rights. For example, during the last part of the nineteenth century and the first half of the twentieth, racial discrimination and segregation were imposed by law, by the so-called "Jim Crow" laws. Typically, they were state laws (although the federal government also required racial segregation of its employees, including in the armed forces, between World War I and 1948, when President Truman put and end to the practice), and as such only existed in certain states. Subsequently, the states were charged with putting into effect many of the measures grouped under the heading of "affirmative action". (Click here for a few thoughts about the term "minority").
• Marriage and divorce are classic examples of areas of state authority. In addition to establishing rules about what constitutes a marriage (who is empowered to celebrated a marriage, for example) and what grounds are sufficient for divorce, states also determine who can marry. Today, that authority typically includes mimimum age requirements, which vary from one state to another. In the early twentieth century, the "Jim Crow" states prohibited marriages between people of different races. Those constraints no longer exist, but some defenders of gay rights hold that prohibiting same-sex marriages is similar, in that the state is interfering in an area of personal choice in which it has no particular vested interest. Whatever one may think of the parallel, prohibiting or authorizing same-sex marriages is unquestionably an example of state regulation of marriage.
• Many areas of public health are under state authority; the states often use this authority to regulate questions which are relatively uncontroversial (hygiene standards for restaurants, for example) but also others which have been sources of enormous controversy (abortion rights and regulations, such as conditions required for authorizing abortion, whether parents must be consulted in the case of minors, whether a married woman should be required to obtain her husband's consent, etc.)
• A great deal of criminal law is state law, and each state decides what acts constitute crimes and what penalties the crimes carry. Some states, for example, include the death penalty are part of their arsenal of possible punishments, while others do not. Not all of the thirty eight states which might theoretically apply the death penalty have condemned people on their "death rows", but the possibility exists there. The criminal codes of twelve states do not include capital punishment.
• The creation of many kinds of what in French are called "collectivités locales" is a state power. City charters are granted by states, and states create the counties, special districts and so on that bring government closer to the people.
• Highway construction is largely a state affair, and driving regulations are determined by the states. For example, in some states, young drivers must be eighteen years old, but in others sixteen.
• A final example is that of education. Education was a relatively minor concern of public authorities in the eighteenth century, which explains in part why education is not mentioned in the Constitution. However, from the early nineteenth century on, the role of government in providing education has steadily grown, and is today one of government's most important functions.