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Summer Workshop Readings 2021

DAY 1:

1. CLE Federalism Curriculum

About the Video: The Utah Federalism Commission has partnered with Utah Valley University's Center for Constitutional Studies to produce an online curriculum to help provide students, citizens, and state and local leaders with a better understanding of America's unique Constitutional system. It is taught by constitutional law professors and federalism scholars from some of the most prestigious institutions of higher education in the country.

Main Ideas:

  • Federalism is a defining part of the U.S. Constitution

  • Once passed, federal law is still shaped differently in each state.

  • American federalism is unusual because it involves the idea that the states and national government have limited sovereign powers split between one another. However the ultimate sovereign is the people.

  • Structure of government influences conduct and directs behavior

  • States retain authority over police powers, heath, welfare and education which helps to avoid tyrannical government from the national level.

  • Madison and the federalists gave a new definition to federalism with the idea of a compound republic

  • The Fourteenth Amendment gave the national government a constitutional basis for intervening in affairs within the states.

  • The federal government only has those powers which are explicitly stated in the Constitution, all other powers (stated or not) are given to the states unless specifically withheld in the Constitution.

2. M. Diamond, "The Ends of Federalism" (1973)

About the Text: However ambiguous may have been the founders’ view of the federal elements in their Constitution, other prominent commentators on American government subsequently came to appreciate the utility of those elements for sustaining a decent, democratic regime. In this essay, which appeared in Publius: The Journal of Federalism in 1973, Diamond explores Alexis de Tocqueville’s view that American federalism was crucial for cultivating citizenly activity, public-spiritedness, and republican virtue within the framework of the large, commercial republic.

Main Ideas:

  • Federalism is the tension or balance between the units being small and autonomous or large and consolidated.

  • In ancient Greece federalism meant a "voluntary association of equal political communities for minimal central purposes"

  • American federalism combined elements from both traditional federalism and decentralization

  • Administrative decentralization holds that policies made by the central powers are locally administered, thus the power to carry out the policies lies with the localities.

  • Tocqueville advocated for the training of citizens, politicians, and statesmen.

Diamond-The Ends of Federalism
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3. Kincaid, "Federalism in American History" (2016)

About the Text: "Federalism has deep roots in North America, Canada, Mexico, and the United States; each has a federal form of government whereby powers are constitutionally divided and shared between a national government and state or provincial governments. The United States is the world's oldest federal country, and the institutions of federalism established by the US Constitution have been durable despite substantial centralization since 1789."

Main Ideas:

  • American Federalism was influenced by the Puritan's covenant (federal) theology. Because of the confederation's weakness, there was a call for a more powerful national government, which became embodied in our current constitution.

  • An important part of the Constitution was that it allowed Congress to legislate for individuals. This reflected the current idea of federalism where both the national and state governments have the power to concurrently legislate for individuals within their constitutional sphere of influence.

  • There are four different classifications of federalism: dual, cooperative, regulatory, and coercive.

  • Dual federalism was used in the U.S. from 1789-1886

  • There was a transition towards cooperative federalism from 1887-1932, with cooperative federalism being used from 1933-1968.

  • Cooperative federalism brought with it expansion of the national government's fiscal and regulatory power.

  • Regulatory/coercive federalism was prominent from 1969-1989 with the acceleration of federal power expansion and centralization.

  • From the 1990's to the current era, the trends in regulatory federalism became more normalized with the federal government being the predominant policymaker.

  • Rising party polarization has partially revived dual federalism.

“Federalism in Americam History” Kincaid in American Governance
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4. Kincaid, "Federalism, Theory of" (2016)

About the Text: "Federalism, as first created in the United States in 1789, is a mode of governance that establishes unity while preserving diversity by constitutionally uniting separate political communities into a limited but encompassing political community. Public powers are divided and shared between a general government that is granted certain powers of nationwide scope and constituent governments that have reserved local powers and also make up parts of the general government (e.g., equal representation of the fifty states in the US Senate). Both the general and constituent governments can legislate for individuals within their respective constitutional spheres (e.g., independently levy taxes and enact criminal statutes)."

Main Ideas:

  • "The word 'federal' comes from the Latin foedus, meaning agreement, alliance, compact, contract, covenant, and treaty. Preceding the United States were many alliances, leagues, and confederations that might be termed federal but are usually called 'confederal.'"

  • Events following the Revolutionary War led to calls to amend the Articles of Confederation to strengthen the national government.

  • The formation of modern federalism began with the formation of the U.S. Constitution.

  • The ratification campaign produced two groups: the Federalists who supported the new Constitution and the Anti-federalists who opposed it.

  • The Constitution divided sovereignty so that both the federal and state governments could legislate within their respective spheres of influence.

  • "The creation of concurrent sovereignty was the US Constitution's principal innovation in the theory of federalism."

  • The New Deal in the 1930's brought the idea of a "cooperative federalism" where all levels of government work together in governing the country, which led to an intensification of intergovernmental relations.

  • One of the main values of federalism today is that it enables individual states to act as "laboratories of democracy."

“Federalism, Theory of” Kincaid in American Governance
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5. Bill of Rights Institute, "Federalism"

About the Video: This video is from the Bill of Rights Institute's homework series which explores the history of the founding of the United States and the reasons why federalism was created as an important part of our constitutional system.

Main Ideas:

  • Under the Articles of Confederation, there was too little power/authority in the national government which rendered it unable to successfully handle various challenges such as Shay's Rebellion or trade wars between the different states.

  • The Articles of Confederation also lacked separation of powers and checks and balances.

  • Our current system allows for the states to be unified as well as balancing federal, state, and local interests.

  • Debates over the correct balance of powers between federal and state government has continued to the present.

6. Cole & Kincaid, "Is Federalism Still the "Dark Continent" of Political Science Teaching?" (2014)

About the Text: Federalism is a core principle of American government; yet, how much attention is given to federalism beyond introductory courses? A 1969 study described American federalism as the “dark continent” of political science teaching. Based on surveys of chairs of US departments of political science and members of the APSA’s section on federalism and intergovernmental relations in 2013, the authors found that these course offerings have increased markedly since 1969, that the courses cover a range of topics, and that many department chairs are interested in offering these courses in the future. However, the teaching of comparative federalism lags far behind American federalism. Thus, comparative federalism remains a “dark continent” of federalism teaching.

Main Ideas:

  • The percentage of American federalism courses being taught has increased since 1969, with interest also increasing among those departments who do not currently offer a course.

  • There are fewer comparative federalism courses being taught than American federalism courses despite an increased emphasis on globalism and multiculturalism in many universities.

  • Public schools are more likely to offer federalism courses than private schools. Most educators agree that federalism continues to have relevance in current events and to students.

  • The topics most often taught in federalism courses are: policy issues, vertical relations, theories and models, fiscal matters, political concerns, historical developments, and legal and constitutional issues.

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7. Barnett, "Why Federalism Matters"

About the Text: Some people are “fair weather federalists” who only assert the virtues of federalism when they lack the votes in Congress for the national policies they prefer. I think this is a mistake. The federalism of our constitutional order has yielded some enormous advantages for protecting the rights retained by the people.

Main Ideas:

  • The majority of the laws which affect the liberties of the people will be made/carried out at the state level.

  • States are able to be "laboratories of experimentation" with social and economic policies.

  • Foot voting empowers individual citizens

  • It is best to have a wide range of communities that individuals can choose from in order to satisfy the broad spectrum of individual preferences, tastes, moral commitments, etc.

  • Federalism can help to avoid a war of all against all.

Barnett- Why Federalism Matters
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8. Gerken, "Beyond Sovereignty, Beyond Autonomy" (2016)

About the Text: "Federalism cases have always posed a dilemma for judges. The federal government is supposed to be a government of limited powers. But whenever the Supreme Court tries to cabin Congress’s reach, the odds are that the analysis in the dissent will be sounder than that in the majority opinion. If the Justices don’t act, on the other hand, they end up ignoring what most agree to be true — the federal government isn’t supposed to be able to do anything it wants. As every law student learns, facts on the ground have outpaced the Founders’ vision, as our interconnected system now leaves room for the federal government to regulate virtually everything the states can. That’s why the Court’s Commerce Clause decisions, in particular, are so easy to dismantle. It’s a commonplace among lawyers that those decisions are trying to limit the limitless. Legal doctrine, in sharp contrast, has its limits, and it has failed the Court time and time again. So therein lies the tragic choice of federalism doctrine: do nothing or do something . . . silly."

Main Ideas:

  • The federal government is supposed to be a government of limited powers.

  • Federalism decisions in the Court can either begin with the states in determining federal power, or federal power can be demarcated without looking to the states (externally vs. internally derived powers).

  • "In these integrated regulatory regimes, the states and federal government have forged vibrant, interactive relationships that involve both cooperation and conflict. If the Court is going to generate doctrine that is not only enduring but worth preserving, the case law must reflect these realities."

  • The Court needs to find a balance between the sovereignty account and the relational account.

Gerken-Beyond Sovereignty Beyond Autonomy
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9. Nivola, "Why Federalism Matters" (2005)

About the Text: "What do we want from federalism?” asked the late Martin Diamond in a famous essay written thirty years ago. His answer was that federalism—a political system permitting a large measure of regional self-rule—presumably gives the rulers and the ruled a “school of their citizenship,” “a preserver of their liberties,” and “a vehicle for flexible response to their problems.” These features, broadly construed, are said to reduce conflict between diverse communities, even as a federated polity affords inter-jurisdictional competition that encourages innovations and constrains the overall growth of government. Alas, as Professor Diamond and just about anyone else who has studied the subject would readily acknowledge, the promise and practice of federalism are frequently at odds. A federal republic does not always train citizens and their elected officials better than does a unitary democratic state. Nor are federations always better at preserving liberties, managing conflicts, innovating, or curbing “big” government. Whatever else it is supposed to do, however, a federal system should offer government a division of labor. Perhaps the first to fully appreciate that benefit was Alexis de Tocqueville. He admired the decentralized regime of the United States because, among other virtues, it enabled its national government to focus on primary public obligations (“a small number of objects,” he stressed, “sufficiently prominent to attract its attention”), leaving what he called society’s countless “secondary affairs” to lower levels of administration. Such a system, in other words, could help the central government keep its priorities straight. Federalism’s several supposed advantages are weighed in this first of two Brookings Policy Briefs. A subsequent one will delve more deeply into the facet of particular interest to de Tocqueville: a sound allocation of competences among levels of government. For arguably, it is this matter above all that warrants renewed emphasis today, because America’s central government with its vast global security responsibilities is overburdened."

Main Ideas:

  • A federal system should provide a government where there is a division of labor. "Where truly profound regional linguistic, religious, or cultural differences persist, however, federating is by no means a guarantee of national harmony."

  • By having thousands of state and local elected officials creates a large market for professional politicians, and can often act as a springboard to obtaining federal positions.

  • It is significant that the states can serve as laboratories for experimentation in several areas.

  • The political structure in the United States has a restraining effect - rather than letting states govern unchecked.

  • Devolution does not cause big government to shrink.

  • “For the often indiscriminate preoccupation of national policymakers with the details of local administration is not just wasteful; it can be irresponsible."

Nivola-Why Federalism Matters
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10. Brown, "Why Federalism Still Matters" (2019)

About the Text: "We live in a country divided. And contrary to what pundits may say, this is the way it is meant to be. The United States is a large country with a geographically-dispersed population containing a diverse set of religious and ethnic groups. To say that such a population should be – or even could be – governed under a unitary government implies a certain amount of historical revisionism. The name says it all: this is a country of United States, rather than one controlled by a homogenous governmental unit. Unfortunately, much of the public has forgotten the reason why this division of power between federal and state governments exists, letting state governments atrophy, while handing the federal government power over our daily lives. Through this perspective, many of the ills facing the country today are not grounded in irreconcilable divisions between left and right. They come from our willingness to permit one entity (the federal government) to use its substantial powers to infringe on the rights of those who did not elect the ruling majority of the day. Our political divisions are not permanently intractable: by resurrecting the ideal of a federalist system, we could solve many of our contemporary problems in a manner satisfying those of all political stripes."

Main Ideas:

  • The federal government was meant to have delegated and enumerated powers, while the states would have a general jurisdiction governance.

  • "Executive power has replaced state legislative power as the primary means of drafting rules, with federal agencies (under the auspices of the Executive Branch) creating the bulk of regulations governing healthcare, welfare, and public safety."

  • "While having a Supreme Court is necessary to give a final opinion on claims relating to federal jurisdiction, it alone should not be tasked with preserving the rights of minorities, nor providing a final ruling on matters of “general jurisdiction” that are constitutionally delegated to the states."

  • A federalist system can actually be anti-majoritarian as it allows minorities to exert more influence/power than they could in a unitary system.

  • Giving more power back to state and local governments would help to reduce polarization and a "winner take all" mentality.

Brown-Why Federalism Still Matters.docx
Download PDF • 131KB

11. Federalism on Trial: Lessons from COVID-19

About the Video: The Coronavirus has put American Federalism in the national and international spotlight. In these conference videos, the Federalism Index Project and their partners explore the Constitutional, legal, and social challenges of COVID-19.

12. Leckrone & Kincaid, "Partisan Fractures in U.S. Federalism's COVID-19 Policy Responses" (2021)

About the Text: The comparatively poor U.S. response to COVID-19 was not due to federal inaction or a flawed federal system per se but to party polarization and presidential and gubernatorial preferences that frustrated federalism’s capacity to respond more effectively. The U.S. response is examined in terms of four models: coercive or regulatory federalism, nationalist cooperative federalism, non-centralized cooperative federalism, and dual federalism–finding that state-led dual federalism was the predominant response. The crisis also raised questions about interpretations of “federal inaction” because party divisions led some to regard the federal government’s response as inadequate while others viewed it as appropriate.

Main Ideas:

  • "Trump’s insistence that state and local governments be the pandemic’s first responders was consistent with past practices. However, the president did not generate robust federal support on matters outside the reach of state and local governments."

  • While there was a burst of bipartisanship at the beginning of the pandemic, after a while Congress became gridlocked over ideas on exactly what response relief should entail.

  • "Needs for dispatch during crises often trigger more executive than legislative or judicial action."

  • "In addressing federal inaction, it is important, therefore, to account for constitutional limits and consider whether breaching those limits to trigger national action during emergencies is desirable."

  • "The nationalist federalism model comes closest to full national action by defining cooperative federalism as states’ willingness to follow national directives"

  • "Centralization has shrunk state autonomy, making states, in many respects, administrative arms of the federal government, but COVID-19 showed that state sovereignty is not yet a vacuum."

  • "A national response can also rest on reciprocal federal-state-local cooperation and coordination. In this model, the federal system is non-centralized rather than decentralized, and cooperation is rooted in federal-state-local partnerships.

  • "The dual federalist response to COVID-19 coheres with past pandemic practices in which the federal government played small roles, usually confined to interstate and foreign commerce matters"

Kincaid-Partisan Fractures
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13. Schechter, "How Well Does the American Federal System Respond to Public Health Crisis?" (2020)

About the Text: "How a country responds to a national crisis reveals a lot about its people and their governments. American responses to public health crises provide just such a window. However, that window opens to a specific view of the American political landscape because different types of crises invoke different responses in different historical contexts. That is to say, the arrangements for managing a public health crisis are different from those for managing, for example, an environmental crisis or a national security crisis. What are the main characteristics of managing public health crises in the American system?"

Main Ideas:

  • Historically, public health crises have been handled by a governmental arrangement known as cooperative federalism.

  • The Covid-19 pandemic became a unique crisis in that it became a "wake up call" in the public health sector in how to (or how not to) deal with serious threats.

  • "The massive and widespread level of federal, state, local response to a pandemic increases public attention and curiosity about federalism and public health policy. It can also increase public scrutiny of state and local government powers and their constitutional limits."

  • "Teachers must once again become the social conscience of their community and keep public health on the radar as they look to keep students informed of the next crisis"

  • "American public responses have not been fatalist or centrist; rather, they have been active and federalist from colonial times to the present."

KSU-Federalism-Corona-History lecture for UVU
Download DOCX • 55KB


1. Lutz, "The Articles of Confederations as the Background to the Federal Republic" (1990)

About the Text: The Articles of Confederation, usually neglected by those studying the American founding, formed an important part of the background to the 1787 Constitution. The Articles functioned as the first national constitution of the United States and, as such, reflected American political theory as it emerged during the Revolution. Equally important, a textual analysis reveals the extent to which the 1787 Constitution was a logical extension of the Articles of Confederation. Most of the Articles were incorporated in the U.S. Constitution, and several key changes found in the later document were present in embryo in the Articles of Confederation.

Main Ideas:

  • The Antifederalists, formerly known as the Whigs (1760s- 1787), had ideas central to American political theory today but are not fully focused on as the Federalists given the lack of works we have pertaining to their ideas.

  • In colonial America, charters were created in which colonies split into local governments and a colony-wide one that functioned as federal polities forming a relationship between England and colonies that were federal in operation.

  • Until the Constitutional Convention in 1787 several plans were used throughout the colonies to try and form confederations to exercise national politics.

  • Benjamin Franklin wrote plans that were adopted at a conference in 1754. The congress adopted the Albany Plan of Union which was similar to other American colonization with an executive and a legislative group. However, this plan was rejected by the crown.

  • There were several proposals on how many votes each state should have. John Adams, a leader of the Whig party, believed that proportional representation is viewed as a way to represent the commonwealth and reflects the interests of the community.

  • The Articles of Confederation, which were agreed upon by the Continental Congress, are explained to show how there are differences and similarities echoed between it and the Constitution.

  • While some may say the 1787 Constitution replaced the Articles of Confederation it rather could be seen that that 1787 Constitution was “generally wrapped around an amended Articles of Confederation” (65) as we see that, even though there are differences, there are articles in the Constitution that are echoes of the earlier founding document’s ideas as well.

Lutz-Articles of Confederation
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2. Lutz, "The Fundamental Orders of Connecticut" (1990)

About the Text: "Connecticut began as two colonies- each a cluster of towns. The Colony of Connecticut was in the center of what is now the state and consisted in 1639 of three towns-Hartford, Windsor, and Wethersfield. To the south, along the coast, the Colony of New Haven was composed of the towns of New Haven, Guilford, Milford, Stamford, Branford, and Southold. The last town was across Long Island Sound and on Long Island, which is now part of the State of New York. Each town in these two colonies had its own government, based upon a document much like the Mayflower Compact. In 1639, the three towns in the Colony of Connecticut decided to form a common government while at the same time preserving each town government. When several independent governments agree to form a common government with certain powers binding on all of them, yet at the same time retain certain powers for exclusive use by the constituent governments upon which the common government is based, the relationship between general and local governments is one based upon the principle of federalism. We could examine anyone of over 100 colonial documents to learn about the basic origins of American constitutionalism. The Fundamental Orders of Connecticut, however, is a good place to start because not only was it the first constitution in America; it also created the first federal political system of colony-wide proportions, thereby extending the principles set out a generation earlier in the Mayflower Compact."

Main Ideas:

  • In 1639 the state of Connecticut, which was split into several towns decided to form a common government while maintaining local leadership thus demonstrating principles of federalism before the nation was formed. This arrangement showed that when new parts arose, through the federal concept, they could join as equal partners. Ex. States would be equal partners with other states.

  • The Fundamental Orders was both a compact (like the Mayflower compact) and a constitution. It established four main things. 1) created a new people, 2) created a new government, 3) laid out basic values shared by people in Connecticut, and 4) laid out the basic political institutions.

  • The Fundamental Orders created a system of government. Five observations are 1) the general court, which consisted of a governor, at least six magistrates, and four deputies from each town, would assemble together and meet as a legislative body, 2) each town kept their own government, 3) towns though linked by a common government maintained town governments, 4) the powers of the general government were limited and consisted of granting levies, make and repel laws, settle land disputes between towns and punish crimes, 5) there was a supremacy clause, and 6) the government rested on popular sovereignty.

Schechter-Roots pg 25-33
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3. Burke, "The Albany Plan of Union" (1990)

About the Text: "At Albany, New York, during the summer of 1754, representatives from seven northern colonies turned their inventive political minds to the task of creating a plan of union which would serve to join the colonies of England's North American empire for the purpose of defense against France and its Indian allies without sacrificing the balance of local interests. In the years after 1690, England fought three wars with its European opponents. In a fourth conflict, the Seven Years' War (1756-63), known in the colonies as the French and Indian War, America was the central theater of war. The immediate cause of the Seven Years' War sprang from a series of clashes between French troops trying to secure the Ohio River Valley and soldiers from Virginia which claimed the territory based on its original seventeenth-century charter. The French built Fort Duquesne at the junction of the Ohio, Allegheny, and Monongahela rivers. A small force under Major George Washington failed to dislodge them. Anticipating a scale of conflict greater than that of any of the previous wars, delegates of seven colonies met at Albany in 1754, in an effort to coordinate defense plans among themselves and with their Indian allies."

Main Ideas:

  • In order to prepare for major conflicts, representatives from seven northern colonies gathered in Albany to form a plan of union and coordinate defense plans in 1754. Part of the arrangement was to re-establish a friendly relationship with the Iroquois. After several meetings there were official negotiations made and the Iroquois proclaimed loyalty to the English.

  • Throughout the late 1600s and up to the middle of the 1700s, there were moments of war and rebellion when it was necessary to have inter-colonial cooperation, which further opened the ideas of a union.

  • In 1751, Benjamin Franklin produced an early rough draft of plans for colonial union and many ideas within it were used when drafting the 1754 plan that he titled, “Short Hints toward a Scheme for Uniting the Northern Colonies.”

  • Benjamin Franklin’s ideas, combined with Thomas Hutchinson’s plans found in “A Plan for a General Union of the British Colonies of North America”, were used in the final draft of the Plan of Union under which a president general would be selected along with a grand council. However, this plan was rejected almost unanimously.

  • Ideas from the Albany Plan of Union were used at the first and second Continental Congress meetings such as setting up a system of checks and balances and limits on legislative authority.

  • “The Albany Congress produced a document which, although failing to receive acceptance at the time, foreshadowed the adjustment of power, authority, and interest represented in the constitutional compact achieved at Philadelphia over three decades later.”

Schechter-Roots pg 106-117
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4. Lutz, "The Articles of Confederation 1781" (1990)

About the Text: "The second continental congress resolved on June II, 1776, to create a committee to draft articles of confederation. The debate on the proposal continued intermittently in Congress as the committee from time to time presented pieces of its work. The overall proposal was approved by Congress on November 15, 1777; and on June 26, 1778, a form for ratification by the states was finally presented. Eight states signed it almost immediately, but other ratifications dribbled in until March I, 1781, when Maryland became the last to ratify. The next day, Congress assembled for the first time under the Articles of Confederation, America's first national constitution."

Main Ideas:

  • From 1776 to 1781 the Second Continental Congress formed a committee forming America’s first national constitution, after ratification the United States formed the Articles of Confederation which echoed language from the Mayflower Compact, the Declaration of Independence

  • “Without the Articles of Confederation, and thus without dual citizenship, there was no certainty that the United States Constitution would have taken its present form” (230).

  • The Articles of Confederation set up an extended republic which would previously be considered untested and allowed Americans to learn that power was needed to be applied directly to individual citizens and that the federal government should have limited power.

Schechter-Roots pg 227-248
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5. Lutz, "The United States Constitution" (1990)

About the Text: "In a sense the Constitution is both a simple, straightforward document and a vague, complicated set of principles that can be and has been interpreted differently at various times. The Constitution is really composed of two parts: an outline for a plan of government and a theoretical blueprint setting forth basic principles for that government. The intricate plan of government delineated in the Constitution is understood relatively easily; the theoretical basis for this government, however, is more complex. Four organizing principles of the Constitution, taken together, form a coherent theory of politics. These four constitutional principles are federalism, the extended republic, separation of powers, and checks and balances."

Main Ideas:

  • The Constitution, though short, was made to be accessible and understandable to the public. Thus the document is simple and straightforward but holds vague and complex principles that can be interpreted differently throughout time.

  • Federalism rests upon three concepts: popular sovereignty, limited government and dual citizenship. Popular sovereignty means the people hold the ultimate power due to popular consent, elections/voting and they have the final say in political matters.

  • Limited government stems from popular sovereignty as the national and state governments have checks and balances on their powers. Dual citizenship is when a person can be a citizen of a state, but also of the United States.

  • Federalism underlies most of the Constitution as any power that does not go to the national government listed in the document goes to the states or the people.

  • In order to avoid majority tyranny in a nation, a large and expanded republic was needed so there wouldn’t be a natural majority because there would be a diverse population and that those elected would be done directly by the people to represent them in Congress to make the laws.

  • When it came to stopping governmental tyranny, powers were distributed among the three branches of government meaning no one had a majority of power and each branch would have to work together to govern the people. There was thus a separation of powers or, more accurately phrased, “separation of functions with shared powers” (272).

  • All three branches of government have checks and balances over one another and powers are mixed. Even the legislative branch, when split between the House of Representatives and the Senate, has checks on itself.

Lutz in Schechter-the United States Constitution
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6. Tocqueville, "How Both the Feelings and the Thoughts of Democratic Nations are in Accord in Concentrating Political Power"

About the Text: "If it is true that in ages of equality men readily adopted the notion of a great central power, it cannot be doubted, on the other hand, that their habits and sentiments predispose them to recognize such a power and to give it to their support. This may be demonstrated in a few words, as the greater part of the reasons to which the fact may be attributed have been previously stated."

Main Ideas:

  • Public tranquility is one thing that is highly sought after and focused upon, which leads to giving more power/responsibilities to the central government.

  • "Everyone is at once independent and powerless" which leads them to turn to support from a higher level of government.

  • Over time, democracies increasingly shift towards centralization.

  • "Every central power, which follows its natural tendencies, courts and encourages the principle of equality; for equality singularly facilitates, extends, and secures the influence of a central power."

  • In democratic nations, common sentiments between the government and the people create unity and establish sympathy between them.

  • "Democratic nations often hate those in whose hands the central power is vested, but they always love that power itself."

  • "I am of the opinion that, in the democratic ages which are opening upon us, individual independence and local liberties will ever be the products of art; that centralization will be the natural government."

Alexis de Tocqueville “How Both the Feelings and the Thoughts of Democratic Nations are in
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7. Nichols, "The Promise of Progressivism: Herbert Croly and the Progressive Rejection of Individual Rights" (1987)

About the Text: Herbert Croly's Promise of American Life provides the theoretical foundations for many of America's twentieth-century political reform movements. Croly called for the adoption of Hamiltonian means to achieve Jeffersonian ends. To achieve this synthesis, however, Croly rejected Hamilton's arguments for institutional checks on a pure national democracy, and Jefferson's arguments for limited government. Croly rejected these elements in Hamilton's and Jefferson's thought because they are tied to the liberal doctrine of individual rights. Croly wanted to transcend the doctrine of individual rights in order to create a national political community one that would be forged by a strong but democratic national government. However, Croly failed to see the connection between Jefferson's belief in democracy and his belief in limited government, and he failed to see the connection between Hamilton's belief in a strong national government and his call for institutional checks on democracy. Thus, although many American reform movements have their roots in the rhetoric of Croly's progressivism, to be effective they have had to accommodate the principles of liberal individualism that Croly wished to eradicate.

Main Ideas:

  • Herbert Croly, a Progressive thinker, wanted a more democratic political system with the Hamiltonian tradition of nationalism and Jeffersonian democratic principles. “The belief that Americans should pursue Jeffersonian ends by Hamiltonian means is the greatest tribute to Croly’s influence” (28).

  • America needed united actions, under authoritative leadership, for economic growth. To first address this and with the rise of large corporations it became clear that specialized leadership and associated actions were needed under a local political machine to address popular needs. This however led to political corruption and more social disintegration.

  • “The key to reconciling political power and political responsibility was the rejection of the traditional emphasis on rights. As long as political discourse was carried on in the language of rights, Croly thought, the system would be incapable of authoritative national action” (31).

  • Croly believed that people were not sovereigns as individuals but only when liberty and equality were united in a moral, and positive majority.

  • Part of Croly’s ideas to reform were with the goal to transform the idea of people pursuing their individual rights and instead seeking their national duty.

  • In order to move towards a centralized federal system, one of Croly’s ideas was to have more reforms and decentralization in the states so this would be emulated on a national level. Another idea was to turn the legislature into an ‘administrative council’ that would work between governors and the people. Thus part of Croly’s plan was to increase the governor’s influence and ability to be part of the legislative system.

  • Croly’s progressive ideas failed in making virtue the foundation of America’s political system instead of individual rights, but when groups like the Antifederalists or Federalists moved away from the doctrine of natural rights they could not survive.

  • To Croly, healthy individualism, where one casts off self-interest, needed to be pursued by the American people instead of individual rights and looked at the Constitution through a Social Darwinist lens.

Nichols-The Promise of Progressivism
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8. T. Roosevelt, "The New Nationalism" (1910)

About the Text: "We come here today to commemorate one of the epoch-making events of the long struggle for the rights of man--the long struggle for the uplift of humanity. Our country--this great Republic-means nothing unless it means the triumph of a real democracy, the triumph of popular government, and, in the long run, of an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him. That is why the history of America is now the central feature of the history of the world; for the world has set its face hopefully toward our democracy; and, O my fellow citizens, each one of you carries on your shoulders not only the burden of doing well for the sake of your country, but the burden of doing well and of seeing that this nation does well for the sake of mankind."

Main Ideas:

  • At the time of his address Theodore Roosevelt believed America faced two great crises the first when America was formed and second the Civil War.

  • In view of the Civil War, Roosevelt saw that while great good and bad had been done the struggle was overcome and something that made the existence of the “mightiest nation” and not one of divided commonwealths.

  • Roosevelt greatly valued Lincoln saying, “Lincoln took substantially the attitude that we ought to take; he showed the proper sense of proportion in his relative estimates of capital and labor, of human rights and property rights. Above all, in this speech, as in many others, he taught a lesson in wise kindliness and charity; an indispensable lesson to us of today” and in whose ideas Roosevelt believed they could better humankind and the nation.

  • There was the want to reach practical equality for opportunity where anyone could fairly get a chance to elevate himself to what was deserved and every citizen in the commonwealth would give the highest amount of service they were capable to produce for the nation.

  • Roosevelt believed in the square deal and that both national and state governments should be freed from special interests. Thus corporations should be exempt in political activity and not use funds, directly or indirectly, for political purposes. Therefore, corporations should be supervised and held personally accountable for when they break the law.

  • Part of the way to help in making sure money earned was money deserved was setting up an expert tariff commission who would not be influenced by businesses or political pressure. Another way was to revise the currency and the financial system in America.

  • Another feature of America that Roosevelt wanted was friendly international relations where the United States was respected, in part, by having a strong army and navy. Conservation of land is important in both development and protection.

  • Human rights are not secondary to profit.

  • The terms and conditions of labor should help men to be good citizens and help the common good of the nation.

  • Roosevelt did not want over centralization but believed that the betterment of the nation and the interests of the people could be accomplished through the national government.

  • “This New Nationalism regards the executive power as the steward of the public welfare. It demands of the judiciary that it shall be interested primarily in human welfare rather than in property, just as it demands that the representative body shall represent all the people rather than any one class or section of the people.”

  • Representatives in government should not be paid by interstate corporations or influenced by special interests, but rather they should represent the people who elected them.

Roosevelt-New Nationalism
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9. Robertson, "Progressive Reform"

About the Text: "Progressive efforts to make American government more active and professional had to overcome the hurdles of American federalism. Nineteenth-century federalism put formidable obstacles in the path of reform: state governments with limited powers and diverse. interests, a national government with very limited authority to police behavior, a Supreme Court that protected market freedoms from national and state government interference, a Democratic Party that protected white supremacy in the South, and powerful economic interests with the motive and the means to use federalism to defend their prerogatives. But federalism also created many different sites for change, and progressives adapted to the constraints of federalism by using the states to construct a springboard for national reforms."

Main Ideas:

  • The Progressive movement strengthened government at all levels, opening up politics and producing a host of innovative policies.

  • Federalism provided different sites for change, and progressives used the states as a springboard for creating national reforms.

  • "The Progressive Era left a legacy of institutional innovations layered on top of an existing federal system that enhanced state power even as it enhanced national power."

  • Spending, employment, and taxes in state and local governments outpaced their federal counterpart during the Progressive Era.

  • "While political reforms made the states more open to reformers' ideas, then, the states' willingness to respond to the problems of industrialization remained uneven and limited."

  • "Interstate economic competition, in turn, deeply influenced the way policy experts designed American proposals to mitigate the impact of industrialization."

  • Two powerful forces during the Progressive Era were calls for reform regarding trade unions and women, federalism helped to shape the strategies of how these were carried out.

  • In some cases, federalism helped reform to progress, while with others it stymied progress.

  • The spending power of the Federal government served as a powerful motivator for state action/reform, which led to the utilization of grants-in-aid.

Robertson ch 6 Progressive Reform
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10. Robertson, "The New Deal"

About the Text: "Growing urgency for government action swamped the nation's governments during the catastrophic Great Depression. Democratic President Franklin Roosevelt's 'New Deal' triggered an energetic and far-reaching Federal response to the crisis...The New Deal changed federalism by elevating the Federal government to leadership in mitigating the problems of American industrial society. But while the New Deal energized the national government, it also energized and strengthened the states and intergovernmental networks of policy experts."

Main Ideas:

  • The New Deal fought for national activism on two fronts: to expand the scope of government and to expand the power of the federal government relative to state governments.

  • "The New Deal designed most of its enduring national initiatives around grants and financial incentives for the states, layering new responsibilities on top of established ones."

  • Federalism was changed during this era as the federal government was elevated to a more prominent leadership position as well as energizing states and intergovernmental networks of policy experts.

  • The Great Depression quickly overwhelmed state and local government's ability to respond and help to the crisis.

  • Because of the restraints placed upon state and local governments, calls for action soon became directed at the national government.

  • "In the first "Hundred Days" of the Roosevelt administration, the New Deal put in place fifteen major laws addressing banking, agriculture, industrial stabilization, relief and public works, home foreclosures, and the development of the Tennessee River valley.

  • The New Deal decisively and permanently transformed the relationships among governments in the United States, creating one of the most important and durable political changes in American history."

  • Within under a decade, federal spending had tripled and exceeded state and local spending for the first time in U.S. history.

  • The northern and southern wings of the democratic party was one of the biggest challenges to the New Deal.

  • "By 1938, Democratic political success was beginning to fade. Even in the most progressive states, leaders fought to retain their political independence of the New Deal."

  • "Given the fragmentation and intransigence of state and local elements of the Democratic Party, professionally-minded interest groups seemed a particularly progressive and nationalizing force for improved policy, at least for tackling specific problems in their areas of expertise."

  • Grant-in-aid programs allowed for leveraging national activism while at the same time they protected states' rights.

  • Cooperative federalism emerged during this time with examples of this in agriculture, relief and public works, social security, and organized labor.

  • "The New Deal changed the United States, vaulting the national government into a lasting preeminence in American domestic policy."

Robertson ch 7 The New Deal
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11. Council of State Governments, "The Declaration of Interdependence" (1937)

About the Text: "Although it is today only in its beginning, incomplete and inadequate, when compared to the responsibilities which will devolve upon it, the Council has nevertheless demonstrated the truth that intergovernmental cooperation is necessary, valuable, and practical. As a demonstration project it has secured private philanthropic support; and more recently states which have participated in, and derived benefit from, the work of the Council have made appropriations for the continuation of its activities. Through the State Commissions on Interstate Cooperation it is endeavoring to establish a pattern for organized cooperation in a spirit of interdependence in order to form a more perfect union. The spirit of the movement is embodied in the Declaration of Interdependence read at the Third General Assembly of the Council of State Governments, January 22, 1937."

Main Ideas:

  • "A heritage in American political philosophy is the belief that it is desirable to have every function handled by the most localized unit of government which can do the work adequately."

  • It is important to have a framework of cooperation for the states. With the progression of technology, commerce, and technology a "no man's land" jurisdiction has been created.

  • "All officials should conduct their own governments properly. But we hold that they must act with earnest regard also to the other units of government. The bonds of good will and the lines, of communication which connect our mainly interdependent governments must be, immeasurably strengthened."

  • Intergovernmental relations can be strengthened through cooperative agencies, uniform and reciprocal legislation, compacts, informal collaboration, etc.

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12. Rozell, "The Evolution of Federalism in Law"

About the Text: Debates over the relative power of the national and state governments have typically hinged on constitutional provisions. Early in US history, some leaders assumed that the national government's powers were limited only to those listed in the Constitution, and thus most uncertainty regarding federal authority hinged on what kinds of laws and programs were "necessary and proper" to carry out the enumerated powers.

Main Ideas:

  • The U.S. Supreme Court played (and plays) a key role in defining the powers, role, and scope of the various levels of government.

  • Some important cases for federalism are: Ware v. Hilton (1796), Marbury v. Madison (1803), Fletcher v. Peck (1810), Martin v. Hunter's Lessee (1816), McCulloch v. Maryland (1819), Cohens v. Virginia (1821), Gibbons v. Ogden (1824), Wabash, St. Louis and Pacific Railroad v. Illinois (1886), Texas v. White (1869), National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937), United States v. Darby Labor Co. (1941), Wickard v. Filburn (1942), United States v. Lopez (1995), United States v. Morrison (2000), Brown v. Board of Education of Topeka, Kansas (1954), Cooper v. Aaron (1958), Loving v. Virginia (1967), Obergefell v. Hodges (2015), South Dakota v. Dole (1987).

  • Over much of the first century following the ratification of Constitution, the Supreme court tried to differentiate between business activity that took place primarily within a single state versus multiple states.

  • Judicial cases of the 21st century continued to expand federal power, though some important cases did favor the states.

  • "Although the national government has many tools to influence state policymaking and to enact federal policy, states retain important powers in the United States. For many Americans, the actions of state and local governments have a bigger impact on their lives than the actions of the national government."

Rozell, The Evolution of Federalism in Law p33
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13. Kincaid, "Dynamic De/Centralization in the United State, 1790-2010" (2019)

About the Text: Part of a project measuring dynamic de/centralization across twenty-two policy fields and five fiscal indicators in six federations from their founding to 2010, this study finds slow but continual U.S. centralization in all fields followed by a mild centralization spurt during the 1930s and substantial acceleration during the 1960s and 1970s. Little fiscal centralization is found, except for increased conditions attached to federal aid. The principal instruments of centralization have been Congress and the Supreme Court; the principal political agents have been political parties and interest groups responding to opportunities created by exogenous forces such as market integration and technological change.

Main Ideas:

  • "Although ratification [of the Constitution] was centralizing when compared with the Articles of Confederation of 1781, the federation was operationally non-centralized except for external affairs and defense."

  • "Centralization is evident across the twenty-two policy fields, from almost exclusively state in 1790 to predominantly federal on the legislative side and equally federal and state on the administrative side."

  • There was a spike in centralization during the New Deal.

  • "Many federal policies have asymmetric impacts by affecting only some states or some states more deeply than others."

  • "Political agency—especially interactions between interest groups and the parties—appears to have been the most important centralization driver....Parties have long been seen as crucial agents for de/centralization in federal systems."

Kincaid-Dynamic De-Centralization in the United States 1790-2010
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14. Rozell, "Advantages and Disadvantages of Federalism"

About the Text: The US federal system has advantages and disadvantages over a unitary system and over other types of federal systems. As much as the federal system is the preferred option of Americans, who historically have had a skeptical view of centralized power, not many would say it is perfect system or even that it comes close. Despite its many virtues, shortcomings inherent in the US federal system lead many observers to question whether it is adequate to meet the needs of increasingly complex social and economic problems.

Main Ideas:

  • By establishing minimal standards at the national level, it leaves the option open for states to establish stricter standards according to the various needs/situations, allowing for regulatory flexibility.

  • By giving state and local governments some discretion regarding moral issues, it provides some flexibility which can help to avoid religious based conflicts.

  • Sometimes a successful state policy can become a model for future national programs.

  • Federalism provides a way for various groups and citizens to influence the policy process at multiple levels.

  • "Public support for the legitimacy of governmental institutions and policy decisions is enhanced when citizens perceive that they have a direct role."

  • "Demographers report that increasingly Americans are sorting themselves into communities of like-minded people, a phenomenon that reflects one of the main virtues of decentralized government-its ability to promote laws that are consistent with peoples' values."

  • While competition among the states has its advantages, it can also be destructive as well.

  • Centralized or more authoritarian-style governmental systems can be more efficient and responsive during crisis or emergencies than multi-layered systems. Compared to other systems of government, the U.S. system allows for a great deal of inequality.

  • In a federal system it can be hard to determine who is responsible for policy success or failure, which in turn makes it hard to determine accountability.

Rozell-Advantages and Disadvantages of Federalism pg 74
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15. Robertson, "Federalism's Virtues Revisted"

About the Text: How does the historical record of American federalism reflect on the arguments for federalism described in Chapter 1? Proponents have suggested that federalism supports rights and democracy, that it makes government more responsive, that it fosters innovation, that it promotes efficiency, and that it nurtures economic prosperity. The historical record is mixed.

Main Ideas:

  • "Federalism compels an ongoing political conversation."

  • Decentralized power can help government to be more responsive to its citizens.

  • Decentralized policy-making can often be advantageous for minority interests.

  • The states are more likely to experiment with economic policy or business regulation than with social welfare/equal opportunity policies.

  • "Undoubtedly, there are limits on Federal efficiency and effectiveness. The states' practical experience, and their more immediate knowledge of local conditions, can facilitate policy efficiency and effectiveness."

  • There is a range of efficiency among the 50 state governments.

  • American federalism has been beneficial for market-driven economic growth.

  • There are many important areas/questions of federalism that still need exploration/examination.

  • Federalism provides a "safe harbor for a democratic opposition."

  • Federalism was an important part of America's history and will continue to play an important part in the future.

Robertson pg171-78
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Suggested Readings

1. IDEA, "What is Federalism?"

About the Text: "Federalism is a constitutional mechanism for dividing power between different levels of government so that federated units can enjoy substantial, constitutionally guaranteed autonomy over certain policy areas while sharing power in accordance with agreed rules over other areas. Thus, federalism combines partial self-government with partial shared government (Elazar 1987). Federal systems are usually associated with culturally diverse or territorially large countries. Notable examples of federal countries (or countries with federal-like characteristics, sometimes referred to as ‘quasi-federations’) include Argentina, Belgium, Brazil, Canada, Germany, India, Malaysia, Nigeria, Pakistan, Spain, South Africa and the United States."

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2. Gerstle, "The New Federalism" (2020)

About the Text: In a crisis defined by erratic leadership in Washington, D.C., the states, as much out of desperation as by design, find themselves asserting long-dormant powers.

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3. Longley, "What is Federalism? Definition and How It Works in the US" (2020)

About the text: "Federalism is a hierarchical system of government under which two levels of government exercise a range of control over the same geographic area. This system of exclusive and shared powers is the opposite of "centralized" forms of governments, such as those in England and France, under which the national government maintains exclusive power over all geographic areas. In the case of the United States, the U.S. Constitution establishes federalism as the sharing of powers between the U.S. federal government and the individual state governments. The concept of federalism represented a solution to functional problems with the Articles of Confederation which failed to grant several essential powers to the national government."

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4. Blumstein, "Federalism and Civil Rights: Complementary and Competing Paradigms" (1994)

About the Text: "Until the Nixon Administration, federalism was not talked about much in the United States in the post-New Deal period and was not taken seriously as an intellectual matter. Increasingly, however, federalism has become an important domestic' and a critical worldwide issue. It may not be an exaggeration to say that federalism has indeed become the pervasive legal/political issue around the world."

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5. Robertson, "Federalism and Race"

About the text: "Federalism's powerful influence on American political development is most clear in the enduring political battles about race and the government's role in the economy. These two issues have been the most basic, persistent, far-reaching, and passionate conflicts in American life. In turn, the relentless use of federalism in these conflicts legitimized it as a weapon in all other major conflicts."

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6. Schechter, "The Federalist on Federalism" (1990)

About the Text: Essential to understanding the purpose of a masterpiece like The Federalist is that it is actually three documents in one. It is a campaign document, designed to win popular approval among the voters of New York State for the proposed Constitution; a serious work of political thought, analyzing the nature of free societies; and the authoritative commentary on the Constitution, reflecting the intent of the Framers of the Constitution. The multifaceted character of The Federalist is what makes it such a challenge to read with comprehension. To understand The Federalist, one must understand its historical context, the rhetoric (i.e., political language of that time), the political theory of The Federalist, the place of that theory in the history of political thought, and how these elements can reinforce one another on the printed page. Based on these criteria, it is difficult to fully understand The Federalist; but one can apply these criteria to improve one's understanding of it.

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7. Kesler, "The Founder's Constitutions"

About the Text: "The great accomplishment of The Federalist (popularly known as The Federalist Papers) was to show that the Constitution was both coherent and republican. Suppressing their private doubts and disappointments, Hamilton and Madison, joined by John Jay, undertook the series of essays in order to expound the merits of the new Constitution and to answer the objections to it that had already begun to appear in newspaper columns in New York and across the United States. More than any other speech or writing in defense of the new plan of government, The Federalist showed that the Constitution contained an inherent constitutionalism, which gave a purpose to the whole document and to each of its parts. To put it differently, the Federalist aticulated the over-all integrity of the Constitution, showing how it fit the requirements of republican government as a whole. Without denying the plan's origin in political give-and-take, The Federalist thus interpreted the Federal Convention as having been a forum not for (at least not mostly for) self-interested bargaining, but for public-spirited deliberation. The product of those deliberations was a 'fundamental law,' sufficiently rational and coherent to be regarded almost as the product of a single wise mind or legislator."

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8. Beer, "The Modernization of American Federalism" (1974)

About the Text: "The purpose of this essay is to present a theoretical model of the development of intergovernmental relations in a modernizing society. This model will, I trust, shed some light on the broad causes of centralization and decentralization in modern political systems. It is sufficiently general to be relevant to any advanced country and to be used in comparative study. In this essay, however, it will be applied only to the United States. My object will be to outline a scheme for describing and explaining what has happened and especially what is happening to intergovernmental relations in the American political system. The main task is to understand that general, but not exclusive, trend toward centralization that has characterized the history of Federal-state relations."

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