In this chapter we will learn arguments for and against federalism, the structure of American federalism, what states cannot regulate, and those policy areas over which they do have primary authority.
5a.1 The Concept of Federalism
We saw in chapter 3 that Political scientists distinguish between different political systems based on how political authority is distributed: Unitary, confederal, and federal. True confederal systems are rare and tend to not last when tried because there is not enough power in the center to hold the constituent states together. Most of the world’s states have unitary governments; this includes all authoritarian governments, but almost most democratic governments as well. But while federal systems are only about 25% of the world’s democracies, they are found on all continents, are among the richest countries and the poorest, and among the largest countries and the smallest. Overall, about 40% of the world’s population lives in federalist countries (see table 5.1).
In a federal political system political authority is divided between a central government and regional governments. The key distinguishing factor is that the political authority exercised by the regional governments (in the U.S., the states) is sovereign, it is not “under” the authority of the central governments, but stands beside it. In the U.S., the states existed before the federal (central, also called national) government, so their authority existed before the federal government was created. Its power came from the powers they voluntarily transferred to it, but they kept much of their own power, and those reserved powers are not subordinate to the powers they voluntarily gave up. While central governments in federalist systems can use various means to influence the decisions the regional governments make within their own spheres of authority, they cannot directly control those decisions or revoke the regional government’s authority to make them. The flow of political authority in a federal system is shown in figure 5.1.
Confederal political systems In a confederal political system, the regional governments have the primary political authority, and the central government has only as much authority as those regional governments delegate to it. In short, the regional governments are dominant over the central government. This type of political system is rare, and tends to be unstable because the lack of a true central authority means it is hard to resolve conflicts between the states, and they may find it hard to resolve coordination and collective action problems. The flow of political authority in a confederal system is shown in figure 5.3
There is no one single style of federalism. Because there are so many different public policy issues that governments might address, and authority for managing those different policy areas can be distributed between a central government and regional governments in nearly any combination, federalism between different countries is very diverse. In fact one book on the varieties of federalism is titled, Federalism: Infinite Variety in Theory and Practice.
Why the United States is Federalist The Framers of the American Constitution did not adopt federalism for any grand theoretical reasons. It was a pragmatic choice of political structure – each of the delegates to the convention were deeply concerned about protecting their own state’s interests. They had only recently escape from British authority, and many were worried about the potential for tyranny if they created a very strong central government. They also did not have a strong political history of unity – much of their attitude was expressed by one delegate to the Constitutional Convention who said, “Gentlemen, I do not trust you.” Finally, if they were asked to surrender too much power, the people of the states could have refused to ratify the Constitution. In short, the Framers could not demand too much sacrifice of political power from the states, or the states would refuse to sacrifice any political power. In fact James Madison’s Virginia Plan originally included a provision to give the new central government veto power over state laws, but the delegates to the Convention were unwilling to allow it that much authority over the states, and the proposal was soundly defeated. But while the Framers did not choose federalism for any great reasons of political theory, there are theoretical arguments for and against federalism.
51.2 Arguments for and Against Federalism
Arguments for Federalism There are several arguments for federalism, which generally emphasize the size and diversity of the United States. One argument is simply that one-size-fits-all policies are like one-size-fits-all clothing: that is, they fit some of us much more poorly than they fit others. For example, clean air laws that may not be sufficient to protect air quality in California may provide more protection than desired in, say, Utah. This invokes the concept of subsidiarity, the idea that “higher level governments should not do anything that lower levels government can do as well or better.”[i] While policies should be made at a high enough level to include representation of all stakeholders (all people who are significantly affected by the policy), advocates of subsidiarity argue that it ought not be made at any level above that which includes all the stakeholders. As we’ll see in this chapter, sometimes that level is the local municipality, sometimes it’s the state, sometimes it’s regional (involving multiple state) and sometimes, but not always, it’s at the national level.
States may also act as “laboratories of democracy,” experimenting with different policies and giving us the ability to compare them to see what works. In contrast, if we have only one single national policy, we have no alternatives to compare it to and decide if we can do better. For example, the U.S. government distributes money to the states to provide welfare payments for people below the poverty line. Originally, the federal government required all states to follow the same rules, but in the 1990s states began seeking permission to experiment with devising their own rules for managing the programs, while still using the federal money. After some states demonstrated successes with reducing the number of people on welfare rolls, in 1995 the federal government changed the rules, allowing the states greater flexibility in designing their own programs.
Another advantage of federalism is that it allows like-minded people to cluster together and set their own rules for issues that matter more at the state or local level than nationally. Education policy, for example, does not necessarily have to be the same across the country, if the people of one state prefer a different educational model than people in another state. And some issues are localized enough that they are best handled as low as the municipal level, such as zoning regulations determining whether certain areas should be used as business districts or residential neighborhoods, whether there should be a limit on building heights, how closely together homes can be built, and so on. One thing this clustering does is allow people to “vote with their feet,” by moving from a political jurisdiction whose rules, taxes and political culture they do not like to one more to their liking.”
Arguments against Federalism There are also arguments against federalism. The primary arguments have to do with desiring greater national unity and uniformity of public policy. This is the coordination problem all over again, in this case the difficulty of getting all 50 states to agree on a common direction for public policy. But there is also, sometimes, a collective action problem involved. For example, if we want to tackle pollution problems, it is useful to have a uniform national policy, or else some states might free ride on the efforts of other states, letting them pay the costs of cutting down on pollution.
Critics of federalism also argue that states may engage in a “race to the bottom,” reducing environmental regulations, safety regulations, taxes, and minimum wage laws in order to attract businesses for economic development. For example, Nevada recently gave Tesla Motors $1.25 billion in economic incentives to build an electric car battery factory in the state, even though most studies show that such economic incentives do not help a state’s overall economic growth.
Finally, many people worry about citizen rights when states are left to their own devices, and we cannot dispute the history of civil rights violations by U.S. states. In the Jim Crow era, from the 1870s to the 1960s, states discriminated against many ethnic minorities, particularly African-Americans. They were forced into segregated schools that received little funding, denied access to public universities, denied the right to vote, and denied due process in the Courts. This all happened even though the 14th Amendment - ratified in 1868- - made such discrimination unconstitutional. Today, many states have recently passed voter identification laws that civil rights advocates argue are intended to discriminate against minorities by making it harder to vote. Whether the laws actually have that affect is still being debated, but given the history of state discrimination, minority suspicion is understandable.
Summary Ultimately, federalism cannot be proved to be either better or worse than unitary government, but it may work better or worse for particular countries. In the U.S., with one of the largest territories and largest populations in the world, allowing substantial independent authority to the states often works well, although over time there has been a distinct shift of power from the states to the federal government in the past century. Remember, though, that the men who wrote the Constitution did not choose to create a federalist system because they had a great vision of its advantages, but because they had to persuade each state to voluntarily agree to the Constitution, which few—perhaps none—would have done if they had been asked to give up too much of their own political authority; so American federalism was a political compromise, a pragmatic necessity rather than a theoretical vision. In the next section we will look at the structure of American federalism, and then at how American federalism began, and how, after two centuries of evolution, it works today.
5a.3 The Constitutional Structure of American Federalism
The word federalism is never mentioned in the Constitution, but its structure is created in Article 1 and in Amendment 10. In the original conception of American federalism, the states and the federal government were each sovereign in their area of authority and neither tried to interfere in the other’s sphere of power. The term for this approach is dual sovereignty, because there were separate sovereignties: each state’s sovereign power, pre-dating the creation of the federal government, and the federal government’s sovereign power, created by the states delegating some of their prior sovereign power to the new federal government in the creation of the Constitution.
Article 1, section 8 (see table 5.2) of the Constitution lists the powers delegated by the states to the federal government. Again, all federal power originally belonged to the states, and all its constitutionally authorized powers are specific powerss delegated to it by the states. Most of these powers were surrendered completely, like the power to coin money, set tariffs, and raise a military. Others are shared, like the power to tax. See table 5.3 for a list of powers held separately by the federal government and the states, and those shared.
Article 1, section 10 (see table 5.4) lists further powers that the states have agreed to surrender.
Finally, the 10th Amendment, added after the Constitution was adopted, reads, “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.” This is not an addition to federalism, but just a restatement of the meaning of Article 1, sections 8 and 10, and a clarification that states retain all the original sovereign powers they have not explicitly surrendered.
5a.4 What States Can’t Regulate:The Dormant Commerce Clause, Interstate Garbage, and Indian Casinos:
Although the Constitution gives the federal government authority to regulate interstate commerce, it doesn’t explicitly say states cannot do so also (except for the Article 1 §10 prohibition on any state setting tariffs on imports from other states or countries). But in a concept called the “dormant commerce clause,” we interpret the grant of authority as taking away that authority from the states. Three examples illustrate this limitation on state’s regulatory authority.
Gibbons v. Ogden The first important Supreme Court case dealing with the issue of state attempts to regulate interstate commerce was the case of Gibbons v. Ogden, concerning steamship navigation in New York harbor, between New York and New Jersey. In 1808 New York granted a monopoly on the operation of steamships on all waters within the jurisdiction of the state, including in New York harbor. This meant that any goods being shipped by steamship between New Jersey and New York could not be shipped by competitors, because they would be violating New York law. But ten years later a competitor received a license from the United States government to operate between the two states, and the holder of New York’s monopoly rights sued in New York to stop the competitor. The U.S. Supreme Court, ruled in 1824 that authority to regulate interstate commerce had been granted to the federal government by the Constitution (ratified only 36 years before), and therefore had been taken out of the hands of the states.
Trash as Interstate Commerce In 1976 the U.S. Supreme Court struck down a New Jersey law that banned the importation of out-of-state garbage. With New York city on one side, and Philadelphia, Pennsylvania on the other side, New Jersey became a major destination for trash destined for the state’s landfills. Not surprisingly, New Jersey didn’t like being their neighbor’s dumping site, and passed a ban on out-of-state trash. Philadelphia challenged the ban, and the Supreme Court struck down the New Jersey law, ruling that its purpose and effect was just to discriminate against a legitimate item of interstate commerce, which was beyond the state’s regulatory authority.
Regulating Indian Tribes: Cigarettes, Liquor, and Casinos The Interstate Commerce also gives the federal government authority to regulate commerce with the Indian tribes within the United States. Indian tribes have an anomalous position with the United States. They are considered nations of their own and have a limited degree of sovereignty to run their own affairs, but are not fully sovereign or independent; rather they are "domestic dependent nations." Consequently, while Indian reservations are located within particular states – such as the Pine Ridge Reservation in South Dakota, or the Saginaw Chippewa Indian Tribe in Michigan – states do not have authority over them.
This limitation on state authority has had several effects on commerce. While states often apply substantial taxes to tobacco and alcohol products, cigarettes and liquor sold on the reservations are not subject to the state taxes, leading many people who live in the state to drive to the reservation to buy these products in order to avoid state taxes.
More recently, as a way to bring more money to their tribes to support education and social services for their members, many Indian tribes began opening casinos. Not too many years ago most states banned casinos, which could only be found in Nevada and New Jersey. Several states made efforts to block the Indian casinos, but quickly learned that in this matter, too, they had no authority over the Indian tribes, nor could they tax the profits from the casinos. This had a significant effect on state policies in the U.S., as a number of states that had previously banned casinos decided that if they were going to have them in their state anyway they might as well legalize them, so they could have some from which they could benefit through tax revenues.
Interstate Compacts Sometimes states find it valuable to work together to solve political problems that are regional; affecting multiple states – or even multiple states and part of another country – but not the whole of the U.S. However, Article 1 §10 prohibits states from making compacts with other states or countries.
No state shall, without the consent of Congress…enter into any agreement or compact with another state, or with a foreign power
This is an important limitation on state’s sovereignty, which prevents states from making their own side agreements with each other, and which prevents individual states from undermining the foreign policy of the U.S. by making individual agreements with other countries. But some issues are important enough that Congress will give its consent to an interstate compact. Two important examples are the Colorado River Compact, which allows a group of states to manage water distribution across seven states, and the Great Lakes Compact, which allows eight U.S. states and two Canadian provinces to collaborate to protect water quality in the Great Lakes. Other congressionally-authorized interstate compacts include: the Atlantic States Marine Fisheries Commission, a 16 state agreement to manage and preserve the fisheries along the Atlantic ocean and its tributary rivers; the 4 state Connecticut River Valley Flood Control Commission; the Gulf States Marine Fisheries Commission (Florida, Alabama, Mississippi, Louisiana, and Texas); the Pacific States Marine Fisheries (Alaska, Washington, Oregon, Idaho, and California); the Washington Metropolitan Area Transit Commission (Maryland, Virginia and Washington, D.C.); and others. As you can see, many include waterways, because river and lake basins frequently include parts of multiple states, and public transportation in cases where a metropolitan area sprawls across state boundaries.
5a.4 What States Can't Regulate: The Dormant Commerce Clause, Interstate Garbage, and Indian Casinos
Although the Constitution gives the federal government authority to regulate interstate commerce, it doesn’t explicitly say states cannot do so also (although Article 1 §10 does prohibit states from setting tariffs on imports from other states or countries). But in a concept called the “dormant commerce clause,” we interpret the grant of authority as taking away that authority from the states. Three examples illustrate this limitation on state’s regulatory authority.
Gibbons v. Ogden. The first important Supreme Court case dealing with the issue of state attempts to regulate interstate commerce was the case of Gibbons v. Ogden, concerning steamship navigation in New York harbor, between New York and New Jersey. In 1808 New York granted a monopoly on the operation of steamships on all waters within the jurisdiction of the state, including in New York harbor. This meant that any goods being shipped by steamship between New Jersey and New York could not be shipped by competitors, because they would be violating New York law. But ten years later a competitor received a license from the United States government to operate between the two states, and the holder of New York’s monopoly rights sued in New York to stop the competitor. The case was first hear in a New York court, but as important cases often do, worked its way up to the U.S. Supreme Court, which ruled in 1824 that authority to regulate interstate commerce had been granted to the federal government by the Constitution (ratified only 36 years before), and therefore had been taken out of the hands of the states.
Trash as Interstate Commerce. In 1976 the U.S. Supreme Court struck down a New Jersey law that banned the importation of out-of-state garbage. With New York city on one side, and Philadelphia, Pennsylvania on the other side, New Jersey became a major destination for trash destined for the state’s landfills. Not surprisingly, New Jersey didn’t like being their neighbor’s dumping site, and passed a ban on out-of-state trash. Philadelphia challenged the ban, and the Supreme Court struck down the New Jersey law, ruling that its purpose and effect was just to discriminate against a legitimate item of interstate commerce, which was beyond the state’s regulatory authority.
Regulating Indian Tribes: Cigarettes, Fireworks and Casinos. The Interstate Commerce also gives the federal government authority to regulate commerce with the Indian tribes within the United States. Indian tribes have an anomalous position with the United States. They are considered nations of their own and have a limited degree of sovereignty to run their own affairs, but are not fully sovereign or independent; rather they are "domestic dependent nations." Consequently, while Indian reservations are located within particular states—such as the Pine Ridge Reservation in South Dakota, or the Saginaw Chippewa Indian Tribe in Michigan—states do not have authority over them.
This limitation on state authority has had several effects on commerce. While states often apply substantial taxes to tobacco products, cigarettes sold on the reservations are not subject to the state taxes, leading many people who live in the state to drive to the reservation to buy large quantities of cigarettes and other tobacco products while avoiding the state taxes. Similarly, while states can regulate the type of fireworks sold in their own state, for the purpose of ensuring safety, they cannot control what is sold on reservations. In some states, 4th of July is a time when many people drive to a reservation to “get the good stuff,” fireworks that are of greater explosive capacity than what their state allows. (Of course it is usually still illegal to actually detonate such fireworks.)
More recently, as a way to bring more money to their tribes to support education and social services for their members, many Indian tribes began opening casinos. Not too many years ago most states banned casinos, which could only be found in Nevada and New Jersey. Several states made efforts to block the Indian casinos, but quickly learned that in this matter, too, they had no authority over the Indian tribes, nor could they tax the profits from the casinos. This had a significant effect on state policies in the U.S., as a number of states that had previously banned casinos decided that if they were going to have them in their state anyway they might as well legalize them, so they could have some from which they could benefit through tax revenues.
Interstate Compacts Sometimes states find it valuable to work together to solve political problems that are regional; affecting multiple states—or even multiple states and part of another country—but not the whole of the U.S. However one of the limits put on states in Article 1 §10 is that they cannot make compacts with other states or countries.
No state shall, without the consent of Congress…enter into any agreement or compact with another state, or with a foreign power
This is an important limitation on state’s sovereignty, which prevents states from making their own side agreements with each other, and which prevents individual states from undermining the foreign policy of the U.S. by making individual agreements with other countries. But some issues are important enough that Congress will give its consent to an interstate compact. Two important examples are the Colorado River Compact and the Great Lakes Compact. 1. The Colorado River Compact: The Colorado River begins in Colorado and runs to Mexico, where it empties into the Gulf of California. As population grew in the West, demands for use of the Colorado River’s water grew, and downstream states were at risk of having too little water available because of upstream usage. In 1921 Congress authorized the seven states that touched on the River or had tributary rivers that flowed into the Colorado River to develop an agreement to divide the Colorado’s water amongst themselves. These states, Wyoming, Colorado, Utah, Nevada, Arizona, New Mexico and California—negotiated the contract—determining what share of the water each state was authorized to use—approved it, and received final Congressional approval the next year. (The reader should be able to recognize the problems of conflict and coordination in this issue, and how each of the states could potentially be a free rider.) 2. The Great Lakes Compact: The Great Lakes Compact includes 8 states and 2 Canadian provinces: Minnesota, Wisconsin, Illinois, Michigan, Indiana, Ohio, Pennsylvania, New York, Ontario and Quebec (which doesn’t border any of the lakes, but does border the St. Lawrence River which carries all the Great Lakes water to the ocean). Because of the size of the Great Lakes, no one state can manage them effectively by itself, and collectively the states and provinces were worried about water use and environmental degradation of the Lakes. Because the issue involves another country, the U.S. federal government could have negotiated directly with the Canadian federal government, but the affected states and provinces became aware of the problems before the federal governments took notice, and began discussing concerns informally. The Compact began with the Great Lakes Charter in 1985, and evolved through a series of revisions to the agreement into the Great Lakes-St. Lawrence River Basin Water Resources Compact (usually shortened to Great Lakes Compact), which was approved by Congress in 2008. Without Congressional approval, the Compact could have had no legally binding power on the states. They could have all kept to their commitments individually, but without the power of law to back the agreement, individual states might attempt to free ride on the efforts of the other states, each using a little more water than they are allowed, or providing a little less environmental protection than they agreed to. These two are not the only interstate compacts. They are just two examples (chosen because the author has a particular interest in water resources). Others include: the Atlantic States Marine Fisheries Commission, a 16 state agreement to manage and preserve the fisheries (fishing grounds and fish stock) along the Atlantic ocean and its tributary rivers; the 4 state Connecticut River Valley Flood Control Commission; the Driver License Compact, to send records of traffic violations by out-of-state drivers back to their home state (all but 5 states participate); the Gulf States Marine Fisheries Commission (Florida, Alabama, Mississippi, Louisiana, and Texas); the Pacific States Marine Fisheries (Alaska, Washington, Oregon, Idaho, and California); the Susquehanna River Basin Commission (Pennsylvania, New York and Maryland); the Washington Metropolitan Area Transit Commission (Maryland, Virginia and Washington, D.C.); the Bi-State Development Agency (Missouri and Illinois, managing a joint transit system for St. Louis and its suburbs); and others. As you can see, many include waterways, because river and lake basins frequently include parts of multiple states, and public transportation in cases where a metropolitan area sprawls across state boundaries.
5a.5 Areas of State Authority
Despite the Constitution’s limitations on state government, and despite the federal government’s greater role in state-level policy since the re-interpretation of the Interstate Commerce Clause, important areas of policymaking still remain primarily under state authority. A few important areas are discussed here:
Criminal Law. Most criminal law is state level law. Murder, rape, robbery, theft, burglary, trespassing, assault and battery, and most drug crimes, are predominantly handled by state or local police and state courts, as are nearly all moving vehicle crimes and violations. There are federal crimes, including most bank robberies (because many banks have a charter from the federal government), kidnapping (because kidnappers often take their victims across state lines), wire-fraud (because a person can be in any state, or even a foreign country, and defraud customers in multiple states), counterfeiting of U.S. currency, certain drug crimes, and any crime committed on federally owned property, or against a federal employee when acting in their role as federal employee. But despite the length of that federal crimes list (which is not a complete list), well over 90% of criminal cases involve state laws.
2. Marriage: The Constitution does not give the federal government authority over marriage issues, so these remain under the control of the states. Marriage laws vary across the country, with states choosing different minimum ages for marriage, differing degrees of allowable relatedness between spouses, and different waiting periods between receiving the license and getting married (between 0 and 6 days, depending on the state).
States are not entirely free in setting marriage laws. While some states once forbade interracial marriage, the Supreme Court ruled in 1967 (in Loving V. Virginia) that such laws violated the equal protection clause of the 14th Amendment.
Marriage is one of the "basic civil rights of man"... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law... Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
In recent years the issue of same-sex marriage has become a significant political and legal issue. At the time this chapter is written, some states allow same-sex marriage and some disallow it. Among those that allow it, most do so because their state supreme court read their own state constitution’s equal protection clause in the same way the Supreme Court read the federal Constitution’s equal protection clause in Loving v. Virginia, as requiring their state to give individuals freedom in their choice of whom to marry. In other states, same-sex marriage was legalized either through a vote of the state legislature or a vote of the public. At this time, many constitutional scholars expect the U.S. Supreme Court to accept a case challenging a state’s ban on same-sex marriage in the next year or two, and believe it is likely that the Court will rule that the 14th Amendment’s Equal Protection Clause forbids any state from banning same-sex marriage.
Education. Traditionally, states ran public universities, while Kindergarten through high-school education (K-12_n was primarily a local function, funded by local property taxes and governed by a local school board. In the past half century, state school boards have exerted more control over what is taught in K-12 schools, and some states have shifted to using state level funding for those schools, to reduce the disparity between wealthy school districts and poorer school districts. As we will see below, the federal government has become increasingly involved in K-12 education, but its authority over this issue is very limited, and states cannot be forced to comply with federal education goals.
2. Zoning Regulation. Zoning is the set of regulations controlling property use. These issues almost never make national news because they are so intensely local. Zoning involves such property use issues as:
What uses are allowed in a particular area: residential (single family, multi-family, or mixed), retail, industrial, agriculture, or mixed use: this matters greatly to people, because most people do not want the house next door to them to be replaced with a factory, and while some people want a purely residential neighborhood, others want to live in a neighborhood with a mixture of residential units and retail stores (including restaurants and bars).
How big or small a house you can build: a house that is very much larger than others around it can change the feel of a neighborhood, which other residents might dislike; some places also limit how small a house can be in an attempt to keep up property values (and therefore, property tax revenue), because small houses are of less value and can affect the value of neighboring houses.
How much setback from the property lines is required: Some places allow houses to be build immediately adjacent to each other and right up to the edge of the property lines, or near the sidewalk, while others require much larger setbacks in order to maintain a more open and spacious feel. Tastes differ among different people, and also the amount they can afford for a house—a mix of different zoning regulations for different neighborhoods can help everyone find a neighborhood that reasonably satisfies their taste and their wallet.
Some places also mandate height limits on buildings, preferring to avoid giant skyscrapers. And in a unique twist, Santa Fe, New Mexico, requires all buildings in the central part of the city to have an adobe look, to preserve the city’s cultural heritage and distinct—and tourist attracting—visual appeal.
This is not a complete list of areas of state authority. States and municipalities are also primarily responsible for adoption proceedings, road building and maintenance (although they do get funds from the federal government for maintaining roads designated as U.S. highways, as well as some federal grants for specific projects), firefighting, trash pickup, sewers and wastewater treatment, and assisting (or not assisting) homeless people, among other issues.
A related issue is that of policy leadership, which connects back to the concept of states as laboratories of democracy and to the importance of agenda-setting. On occasion a state will take the initiative to be a leader on a particular policy issue that is either important to a significant number of states or significant at the national level. As mentioned above, Wisconsin took the lead in experimenting with new, and potentially more effective, ways to manage welfare programs, thereby also becoming the agenda setter for an issue of national importance.
One state — California — stands out as the U.S.’s most important policy leader. For many decades now, issues that have first become prominent in California have influenced the actions of other states. Among the notable issues where California led the way is in property tax reform. As property values climbed rapidly in California, so did property taxes, because they were based on a percentage of the home’s market value. People on limited incomes found themselves at risk of having to sell their homes, just to cover the property taxes. In 1978 California voters approved Proposition 13, which rolled back property taxes and limited their increase until the home was sold. Although the new system has proved problematic in many way (California municipalities cannot collect enough property taxes to fund all the programs they are required to, or that their residents want), a number of other states followed suit, because in all states there are home owners who think their property taxes are too high.
More recently, California has been leading the way in air quality, pushing above and beyond the federal standards. This is in part because California has a tradition of pollution (particularly in Los Angeles), partly because a sizable number of California voters prioritize environmental concerns more highly than many other Americans, and partly because the state sees clean energy as an important source of future economic development. One of the most significant effects has been the state requirement that cars sold in the state produce less exhaust then the federal standards allow. Because the California car market is the largest n the U.S., and because auto makers find it more cost-effective to produce just one kind of exhaust system rather than multiple ones, the exhaust systems required to meet California standards will be installed on every automobile produced in the U.S. and sold in every state. To some extent, other state governments will be able to free ride on California’s effort, because they don’t need to create a similar policy. But while free riders are often despised by those who are contributing, in this case California is unconcerned, because their primary purpose was to advance their own state’s interests.
5a.6 The Full Faith and Credit Claus
Article 4 of the Constitution contains the Full Faith and Credit Clause:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
This means, for example, that a child custody order in one state normally needs to be treated as valid in another state (if one of the parents moves to that state), or that a person who has lost a lawsuit in one state cannot go to another state and their lawsuit again there. However, the U.S. Supreme Court has long recognized a “public policy” exception to this clause, which allows a state to ignore certain areas of other states’ acts, records, and judicial proceedings if they conflict with important public policy provisions. While much of this issue still remains vague and poorly developed as a matter of constitutional law, one notable area in which the public policy exception has applied is marriage. If, for example, a 15 year old living in a state with a minimum marriage age of 16 goes to another state to get married, his or her home state does not have to recognize this marriage. This exception has been hotly debated in the last decade or two as more and more states have allowed same-sex marriage. Some advocates of same-sex marriage argued that Full Faith and Credit required other states to accept same-sex marriages performed in any other state. Opponents of same-sex marriage worried that this might happen, but also argued—correctly—that Full Faith and Credit had never been applied to marriages before, so it ought not apply now. If, in a few years, the Supreme Court rules that states can’t ban same-sex marriage, this argument will become moot, but if it rules that states can choose to ban it, then the argument may continue for a long time.
What to Take Away from this Chapter (what you might get tested on)
What is a federal political system?
What percentage of the world's countries are federalist?
What are the arguments in favor of federalism?
What are the arguments against federalism?
What is the "dormant commerce clause"?
What can't states regulate?
In what areas do states have primary policy authority?
How do states work together to resolve multi-state issues when the Constitution prohibits them from making alliances with each other?
Questions to Discuss and Ponder
What do you think are the best arguments for federalism and the best against it?
What policy issues, if any, currently under state control do you think should be under federal control? What ones, if any, are currently dominated by the federal government but should be more under state control?
Three generations after the zombie apocalypse, new states have begun to form as people slowly recovers from the catastrophic political, technological, and population crash. You are sent to a convention of five of these new states , who have been having conflicts, as well as fighting off invaders from outside in the still wild and dangerous areas, to consider organizing for cooperation and mutual protection. Do you propose a confederation? A federal system? A unitary government that takes responsibility for all policy issues within a new union of states?