The U.S. Constitution provides a framework for our national government. Power is divided between the federal government and states (federalism). Certain powers are assigned (delegated), some are shared (concurrent authority), and the rest are reserved (kept by) to the states and the people. And, overall, there are limits put on all powers as well.
The U.S. Constitution provides a basic framework for governing the country. The basics are all there, including three branches of government, rules about states, and various rights.
The national government was given additional power because the more limited form provided by the Articles of Confederation was found to be insufficient to address our needs.
Nonetheless, the U.S. Constitution still provides for a division of power between the federal (national) government and the states. The division of power is known as federalism and the proper line drawing has been a major subject of debate from 1787 until the current day.
Three Types of Power
The 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.X Amendment of the United States
The Constitution divides power between the federal and state governments in various ways. This is recognized by the Tenth Amendment, which states (ha) a principle that recognizes the federal government is limited in reach.
There are certain powers given (delegated) to the federal government. Some power, such as the power to enslave people, is denied to everyone. Some powers are denied specifically to the states such as those listed in Article I, sec. 10 (for instance, Utah cannot have its own money).
The rest of the powers are reserved (kept) for the states or the people themselves. Well, not quite. Some powers (concurrent) are shared by everyone!
Confused a bit? Let’s examine things a bit more closely.
If someone “delegates,” they are assigning responsibility or authority to another person in some fashion. This is a common thing. For instance, if you are part of a committee planning a party, perhaps the group will “delegate” you the responsibility to handle food and drinks.
The U.S. Constitution does the same thing. It carefully delegates, assigns responsibility, to different people (such as the president), institutions, or states themselves.
Therefore, Congress is delegated the power to regulate interstate commerce and the post office. Congress alone has this power and is given some leeway (“necessary and proper”) to carry it out. See, for example, McCulloch v. Maryland, involving a national bank.
The Constitution also delegates certain power, certain authority to do things, to the states. States, for instance, are given the authority to select electors that are used to select the president (the Electoral College). Again, that is their job. Not for anyone else.
And, “the people” also are delegated certain powers. For instance, the Seventeenth Amendment gives the people the power to choose U.S. senators. The amendment carefully deals with a special case – when there is a vacancy – since the rules here should be carefully spelled out.
The U.S. Constitution provided the national government more discretion than found previously allowed. The Articles of Confederation stated:
Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Congress can charter a bank, even though there is no crystal clear authority to do so. The federal government has powers not “expressly” delegated. Some powers are more implied, including such things as control of the national borders.
Nonetheless, there are clear limits. The principle of limited government is upheld. Powers not delegated to the federal government are reserved for the states and the people themselves.
You might “reserve” a library book, which is saved specifically for you. Likewise, any power not delegated to the federal government is reserved for the states and the people themselves.
Again, the Constitution already delegates certain powers to the states and the people. Also, the Constitution denies the states and people from doing certain things. States cannot abridge the freedom of speech. The powers that remain, however, are retained for state and popular use.
A basic example here is control over state government. Nebraska, for instance, only has one branch in its state legislature. Congress cannot force them to have two.
Nebraska can also allow the people to vote directly (by “referendum”) to decide if they want a cardinal as a state bird. This would be an example of “the people” directly having certain powers. The people have the authority over a public matter, not just a “right” to do something.
Nebraska, however, has limits when regulating such matters. For instance, when determining who gets to vote for a member of the legislature, Nebraska cannot discriminate by race.
Nebraska also might give up some power here in return for something. The federal government provides funding for state education with various “strings” such as providing handicap services.
For a few years, the country lived under Prohibition, which by constitutional amendment banned the manufacture, transportation, and sale of “intoxicating liquors.”
The amendment in part declared:
Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Congress and the states had “concurrent power” to enforce Prohibition. They had shared authority to do so, even when liquor was sold across state lines. Therefore, “concurrent power” is when power is shared among different people or sovereign institutions.
Anyone who has filed taxes knows that both state and federal governments have the authority to tax. Citizens also have to pay local sales taxes, since the state also allows local areas the discretion to tax themselves. Taxation is a concurrent power.
Some things that seem rather local are in practice concurrent powers. States have broad power to regulate roads, including speed limits. But, roads are part of an overall interstate system. The federal government has concurrent power over the roads to regulate it.
Sometimes, there is a conflict between concurrent state and federal power.
Federal law is the “law of the land” (Article VI of the Constitution). So, when there is a conflict, the federal law wins. The term used is that the local law is “pre-empted,” and the federal rule is supreme. If power is not reserved, the feds win out when there is a conflict.
New York recently allowed the sale of marijuana. New York has the power to regulate local commerce. But, the federal government also has the power to do so as part of its power over interstate commerce. The federal government can determine allowing the sale of marijuana threatens interstate commerce and set in place a complete ban.
The framers of the Constitution recognized that we need the government to secure our well-being but that power still is always potentially dangerous. So, they carefully divided power in a variety of ways. And, no matter who has power, there are also limits in place to protect our rights. The result is a bit complicated, but hopefully in the end works to our benefit.
QUESTIONS TO CONSIDER:
- Why is it important that interstate commerce and printing money be delegated to the national government?
- What is the role of federalism in the United States?
- How does federalism impact decision-making in America?
- How has federalism helped shape U.S. history and politics?
- What is the significance of balancing powers between states and the central government?