If you pay any attention to the political arena today you'll likely hear a lot of chatter from the political elites about the constitution establishing a system of federalism. But it is often unclear exactly what is meant by the term and many political elites confuse or conflate it with the idea of states rights. My goal here is to explain what the system created by the founding fathers is and is not as well as breaking the false link between the two concepts.
First, we must ask 'what exactly is federalism'? The word does not appear in the constitution itself, nor in the writings known as the Federalist Papers authored by James Madison, John Jay, and Alexander Hamilton to persuade New York to ratify the constitution. The word federalism has taken on many meanings since 1787 and continues to mean different things to different people today. People on both ends (and in the middle) of the political spectrum claim to believe in federalism and often defer to state and local governments to make many decisions. In a nutshell, a federal system is one in which formerly sovereign entities, in our case the several states, voluntarily surrender some of their sovereign power to a different entity, relinquishing all claim to that power in the future. An example of such a surrender of power is seen in the constitution that authorizes the federal government, not the states, to raise an army or coin money or regulate interstate commerce. In other areas, however, the states retain their sovereignty. We see this through the issuance of driver's licenses, marriage certificates, and regulation of intrastate commerce. The federal government has no say in these areas unless the states consent to a constitutional amendment. In some other areas the states empower the federal government but also retain some power as well. This is most commonly seen in the taxing power. The states granted the federal government the power to levy an income tax directly upon citizens by approving the 16th amendment in 1913. Prior to that time only the states could tax income, if permitted by their own constitutions. Even today, there are a handful of states that have no state income tax.
Second, does the constitution establish a fixed form of federalism or is it one that changes as the nation changes? Many conservatives today would argue the former while many liberals argue for the latter form. Historians have identified two primary strands of federalism that have alternately shaped the nation we know and love today, dual federalism and cooperative federalism. In a system of dual federalism each entity has separate and distinct powers that are mutually exclusive. Any attempt by one or the other to breach the barrier between the two entities is viewed as unconstitutional. In a cooperative federalist system both the federal government and state governments work together to solve national problems. Both of these differ from a purely national system of government in which all power rests with the central government but may then be delegated to the states or local governments.
Third, the type of federalist system one prefers often transcends partisanship or ideological conviction and depends upon the issue. One recent example of this is the debate about what powers states have in controlling illegal immigration. The issue came to the forefront when Arizona passed a strict anti-immigration law allowing law enforcement officers to request proof of legal right to be in the U.S. if they were stopped for an unrelated offense. The constitution, however, grants the power to regulate immigration to the federal government alone. Thus, liberal judges have struck down those portions of Arizona law believed to violate that barrier. On other matters it has been conservative judges striking down state or federal actions seen to breach the federalism wall, such as the Gun Free School Zones Act passed by Congress in the 1990's. Schools, the court argued, do not engage in interstate commerce and so Congress had no authority over them or the surrounding area. Another issue that has traditionally fallen into the purview of the states is marriage. Yet, there has been much discussion about regulating who can marry whom by amending the constitution or strengthening the Defense of Marriage Act (DOMA).
Finally, what does any of this have to do with states rights? Not much really. States rights is more of a political phrase bandied about by those who disapprove of some action taken by the federal government regardless of whether it legally possesses the power to take that action. A generation ago states rights meant that states should have the right to discriminate against citizens on the basis of race, religion, or gender. Today it means discrimination on the basis of immigration status, sexual orientation, or marital preference. So the next time we hear a candidate say they believe in 'states rights' perhaps we should ask exactly what 'right' is meant. We should also refuse to allow our political leaders to conflate federalism and states rights. The former is a valid debate for our great nation as we move forward. The latter is a thinly veiled form of demagoguery.