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Modern Federalism and the Power Struggle

From the 1790s to the 1930s, the United States government operated under what is called Dual Federalism since the Articles of Confederation (1781-89) failed to provide a federal form of government. To this day, our government still operates under a form of federalism that was initially introduced by the founding fathers to maintain power between the layers of government. However, this balance of power is not permanent but evolving. As seen in landmark cases such as United States v. Lopez (1995) and McCulloch v. Maryland (1819), the power shifts between the federal and state governments are what keep our government checked and balanced.

First, federalism is—currently—the most successful form of governing system that divides the powers between the federal and state governments. This system of government emerged in the 1790s; after the separation from the British, the colonists were no longer being governed by another governing body. Therefore, the colonists had to develop some form of government to protect the liberties of their citizens. Initially, the colonists drafted the Articles of Confederation, ratified in 1781 in response to a need for government. However, it was quickly abolished in 1789 due to the lack of a unified central government as it was merely a "firm league of friendship" that had hardly any powers. As a result, the founding fathers replaced the Articles of Confederation with the current U.S Constitution developed on the idea of federalism. The original type of federalism was Dual—layer cake—Federalism. This was introduced by the framers and lasted until the 1930s. It gives delegated powers to the federal government while maintaining reserved powers to the states. In other words, it provides both the national and the states governments distinct domains of authority that do not overlap or intrude with each other. For instance, delegated powers include enumerated, implied, and inherent powers for the federal government and reserved powers for the states as spelled out in the 10th Amendment. Also called layer cake federalism, this form of federalism portrayed that the government has distinct layers. The federal government makes up the icing on the cake, binding and separating the layers, representing the states. Currently, we are under a form of federalism called Cooperative—or marble cake—Federalism. This was evolved from Dual Federalism out of necessity due to the onset of the Great Depression in 1929. Cooperative Federalism is also called Marble Cake Federalism, where government layers are no longer distinct, but instead, the powers of both the federal and the state governments are mixed. The national government's role was more potent with cooperative federalism than dual federalism. For example, the local and state governments will work together on public policy; then, state governments will implement these public policies that the federal government will fund. Overall, as we can see from our past, federalism has evolved significantly, and it is, by far, the most successful system of government for the United States to this day.

Due to the evolution of federalism, the powers between the federal and state governments also evolved. For instance, devolution occurs in some cases, such as United States v. Lopez (1995), and the state gets more power. However, the federal government regains its power in others, such as McCulloch v. Maryland (1819). In the landmark Supreme Court case United States v. Lopez (1995), Alfonso Lopez, a high school senior, brought a gun to school and was arrested for violating a Texas law prohibiting firearm possession on school grounds. At first, he was charged with a state crime, but later, he broke the Gun-Free School Zones Act, a federal offense. At a closer look, in a precedent case McCulloch v. Maryland (1819), the Supreme Court ruled, in accordance with the Supremacy Clause (Article VI Clause 2), that the federal laws are the "supreme Law of the Land." The question is: if Congress passes a law that it does not have the right to, does that law still have authority over state law? Lopez appealed to the Supreme Court, arguing that the Gun-Free School Zones Act was an overreach of congressional power because schools were regulated at the state level, not federal. The federal government argued that the law was under the Interstate Commerce Clause (Article I, Section 8, Clause 3) of the Constitution, which gives Congress the power to regulate commerce with foreign nations and the several states. As it turns out, in a 5-4 decision supporting Lopez, the Supreme Court decided that the 1990 Gun-Free School Zones Act did, in fact, violate the Constitution because Congress overreached its powers under the Commerce Clause and infringed the states' rights. "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce." – Chief Justice William Rehnquist. In other words, although Congress was given the right to regulate interstate commerce, going to school is not considered an economic activity; therefore, Congress had no power over it. Instead, this matter should be handled at the state or local level. United States v. Lopez (1995) enforced the system of federalism and upheld the principle that states have reserved powers as stated in the 10th Amendment and control over local issues.

Apart from United States v. Lopez (1995), which limited federal power, the landmark court case McCulloch v. Maryland (1819) regained power to the federal government. In McCulloch v. Maryland (1819), the Supreme Court dealt with the issue of whether the state of Maryland had interfered with congressional powers by taxing the national bank and whether Congress even had the power to create a national bank. At a closer look, Alexander Hamilton was the first to develop a plan to create the Bank of the United States to create a national currency and absorb state debts from the war. Thomas Jefferson argued that creating a national bank was not within the federal government's explicit powers. Despite this, Congress passed the first charter of the national bank in 1791, granting it the ability to operate for twenty years. After the national bank was established, the government of Maryland did not want a national bank operating in Maryland, but nevertheless, the Baltimore branch opened in 1817. As a result, the state of Maryland decided to tax the Baltimore branch of the Bank of the United States. When the bank's cashier, James W. McCulloch, refused to pay the tax, the state of Maryland sued him, and the state supreme court ruled in favor of the state. McCulloch appealed to the US Supreme Court, which was heard in 1819. The Supreme Court ruled in favor of McCulloch and explained that even though the power to establish a national bank was not enumerated under the Constitution, it was an implied power. In other words, since the Constitution grants Congress the explicit authority to levy taxes and regulate currency, they need to do that by creating a national bank. "The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means . . . The power of creating a corporation is never used for its own sake, but for the purpose of affecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them." – Chief Justice Marshall. The Supreme Court also ruled that the Maryland law did indeed interfere with Congressional powers. Since the power of creating a national bank was granted to Congress, Maryland's attempt to tax the bank was unconstitutional and violated the Supremacy Clause. The federal law had supremacy over state laws, and states could not interfere with federal powers. "If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States. . ." – Chief Justice Marshall. Overall, McCulloch v. Maryland (1819) had significant effects on modern-day federalism in the United States. The decision from this case gained power for the federal government and reaffirmed that the United States has a strong central government and that federal law has supremacy over state law which is the basis of a strong central government.

In conclusion, as seen in the court cases McCulloch v. Maryland (1819) and United States v. Lopez (1995), the balance of power in the United States is constantly shifting and evolving. In United States v. Lopez (1995), the Supreme Court established that Congress was overreaching and infringing on the states' powers, therefore limiting federal power. In McCulloch v. Maryland (1819), the state was overreaching into congressional power, therefore limiting the state's power. Both of these cases dealt with the checks and balances system of the United States. They established that the United States has a strong central government, a crucial element for modern federalism.

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