The United States is a constitution-based federal system, meaning power is distributed between a national (federal) government and local (state) governments.
Although the Supremacy Clause states that the Constitution, federal laws, and treaties are the “supreme law of the land,” according to the Supreme Court, it is clear that the Constitution created a federal government of limited powers. The Supreme Court has noted that “every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”
These limited powers are set forth as what are termed “enumerated powers” in Article I, Section 8 of the Constitution. These enumerated powers include, among other things, the power to levy taxes, regulate commerce, establish a uniform law of naturalization, establish federal courts (subordinate to the Supreme Court), establish and maintain a military, and declare war.
In addition, the Necessary and Proper Clause has been interpreted by the Supreme Court to define “implied powers,” those which are necessary to carry out those powers enumerated in the Constitution. In McCulloch v. Maryland, Justice John Marshall set forth the doctrine of implied powers, stating, that a government entrusted with great powers must also be entrusted with the power to execute them.
While the Constitution thus grants broad powers to the federal government, they are limited by the 10th Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As James Madison explained, “[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
These reserved powers have generally been referred to as “police powers,” such as those required for public safety, health, and welfare.
Finally, certain powers are called concurrent powers, which the states and the federal government both may exercise. These can include, for example, setting up courts, levying taxes, and spending and borrowing money. Typically, these are powers necessary for maintenance of public facilities.
As can be appreciated, one of the difficulties in the federal system is determining which entity, if any, has the power to legislate in a particular realm. In general, the problem of conflicting laws between the states and the federal government has given rise to what is called the doctrine of preemption.
Under this doctrine, based on the Supremacy Clause, if a state or local law conflicts with a federal law, the state or local law must give way (unless the federal law is itself unconstitutional, in other words, it exceeds the power of the federal government). As Justice Marshall put it in McCulloch v. Maryland, “[s]tates have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government.”
Under this doctrine, the Supreme Court has indicated that the Supremacy Clause may entail preemption of state law either by express provision, by implication, or by a conflict between federal and state law. If there is an express provision in the legislation, or if there is an explicit conflict between the state law at issue and the federal law, the state law provision is immediately invalid. Field preemption occurs when Congress legislates in a way that is comprehensive to an entire field of an issue. Impossibility preemption occurs when it would be impossible for someone to comply with both state and federal laws. Purposes and objectives preemption occurs when the purposes and objectives of the federal law would be thwarted by the state law.
Essential Purpose
The federal system provides numerous opportunities for citizens to participate in their own governance. The system reflects the principle of popular sovereignty, and it enables citizens to hold their governments accountable. Citizens who understand the reasons for this system of dispersed power, design, and students who keep current on public policy questions are in a good position to evaluate, to monitor, and to influence it effectively.
Preamble to the ConstitutionThis module provides an opportunity for students to understand what federalism is, why the framers adopted it, and why there has been controversy over how federalism should be applied in specific cases. Students will learn how federalism is set forth in the United States Constitution, how it has changed over time and especially how it was modified by the activist government of Franklin Delano Roosevelt, and how it remains a subject of controversy today, especially since the 1980s when efforts have been made to move some powers of the federal government back to the states and people in a devolution revolution known as the New Federalism.
Additional Information
National Civics Standards
Standard 3. How does the government established by the Constitution embody the purposes, values, and principles of American Democracy?
- Standard 3A. How are power and responsibility distributed, shared, and limited in the government established by the United States Constitution?
- The American federal system. Students should be able to evaluate, take, and defend positions on issues regarding the distribution of powers and responsibilities within the federal system.
- Describe historical conflicts over the respective roles of national and state governments and the importance of the Tenth Amendment.
- Evaluate the respective roles of national and state governments in the contemporary federal system.
State/Local Standards
States should align this module to their own state/local standards as appropriate.
Essential Questions
- How are federal and state powers and responsibilities distributed, shared, and limited by the United States Constitution?
- How has the relative power of federal versus state governments changed over time?
- Why will federalism continue to be a source of controversy in the United States?
Essential Content
- In nations, the relationship between central and regional governments may be organized in one of three ways:
- as confederations
- as unitary systems
- as federal systems
- The Framers of the U.S. Constitution adopted a federal system.
- In federal systems, power and responsibility are divided and shared between a national government, having certain nationwide responsibilities, and state governments having certain state and local responsibilities.
- The U.S. Constitutions overall design and specific features identify powers of the national and state governments and also place limitations on their powers (i.e., some powers are given to the federal government, some are reserved for state governments, some are shared by both governments, and some are denied to either or both governments).
- The U.S. federal system provides numerous opportunities for citizens to participate in and hold their governments accountable.
- Controversies have accompanied the U.S. federal system from past to present.
- The federal system at times has enabled states to deny the rights to some of the people dwelling within their boundaries.
- There have been frequent controversies related to the question of how much power should be in the hands of the federal government versus how much power should be in the hands of state governments.
Essential Skills
According to the Center for Civic Education, which produced the National Civics Standards, The content standards in… [the National Civics Standards] document specify not only the content to be mastered in civics and government, but also what students should be able to do in relation to that content. These standards include, either explicitly or implicitly, a specification of the intellectual and participatory skills students should acquire.
Following are examples of the intellectual skills from the National Civics Standards, which are used in this module:
- Identify. To identify things that are tangible (ones representative) or intangible (justice). To identify something may involve being able to (1) distinguish it from something else, (2) classify or catalog something with other items with similar attributes or, in some cases, (3) determine its origin.
- Describe. To describe tangible or intangible objects, processes, institutions, functions, purposes, means and ends, qualities. To describe something is to be able to give a verbal or written account of its basic attributes or characteristics.
- Explain. To identify, describe, clarify, or interpret something. One may explain (1) causes of events, (2) the meaning or significance of events or ideas, (3) reasons for various acts or positions.
- Evaluate a position. To use criteria or standards to make judgments about the (1) strengths and weaknesses of a position on a particular issue, (2) goals promoted by the position, or (3) means advocated to attain the goals.
- Take a position. To use criteria or standards to arrive at a position one can support (1) one may select from alternative positions, or (2) create a novel position.
- Defend a position. To (1) advance arguments in favor of ones position and (2) respond to or take into account arguments opposed to ones position
In addition, the activities call on students to use these additional, complementary skills:
- Interpret, organize, and communicate information and ideas
- Apply concepts and other ideas to new situations thoughtfully and appropriately
- Identify cause-effect relationships and evaluate claims regarding them
- Analyze issues and solve problems
- Conduct productive research into the workings of governments and issues of governments and governance systems
- Communicate clearly and convincingly
- Participate with classmates in collaborative efforts
Summative Assessment
This summative assessment and scoring guide should be reviewed with students prior to using the activities in the module. Students should do the assessment after the activities have been completed.
Essential Questions Addressed by the Summative Assessment
- How are federal and state powers and responsibilities distributed, shared, and limited by the United States Constitution?
- How has the relative power of federal versus state governments changed over time?
- Why will federalism continue to be a source of controversy in the United States?
Printable Student View
Prior Knowledge Problem Perspective Product Criteria | Now that you have learned how federal and state powers are distributed and shared; and how federalism continues to evolve over time, you are ready to think about whether the federal government has overextended its powers and is involved in areas beyond its jurisdiction as defined by the U. S. Constitution. Your brother who is in the fifth grade is getting ready to take the state test in math and reading. He says that his school has to do well on this test or their school will get a bad reputation and be labeled as a failing school by the national government. You have even read in the paper that some schools across the country are in danger of losing federal funds because of low test scores. As a high-school student your government class has talked extensively about the distribution of power between the federal government and the states and you are sure you heard that education is primarily a state responsibility. In fact, you checked the Constitution and found out that the responsibility for education is not even specifically mentioned in the Constitution. You are now wondering why your brother is taking a test required by the national government and having such consequences for your school if the students do poorly on it. You have decided to send an e-mail to the Secretary of Education in Washington, D.C. asking for more information. Before you write your email, you decide to meet with your teacher to clarify the questions you want the Secretary to answer. Your questions need to relate to:
Now compose your email, starting each paragraph with one of your questions and providing background information from your class discussion which:
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Scoring Guide