Let’s take another look at some key examples of federalism in the Constitution’s text. Remember, federalism is the word used to describe the Constitution’s system of dividing political power between the national government and the states.
Explore the following parts of the Constitution, and learn how the Constitution shapes the scope of national and state power.
- Article I, Section 4: The Elections Clause
In our federal system, the states retain a lot of power in running our elections—even elections to decide national officeholders. These powers are set out in Article I, Section 4:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Both the state and national governments have a role to play, but state legislatures have wide latitude to determine the time, place, and manner of elections. Most election rules are defined by state, not national, laws.
- Article I, Section 3: The Original Senate
Thanks to the Seventeenth Amendment, we now directly elect our U.S. Senators from each state. But the original Senate, set forth in Article I, Section 3, shows how the Founders wove federalism throughout the constitutional order.
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
Under the original Constitution, the state legislatures selected the two U.S. Senators from each state. This original plan for the Senate preserved a version of federalism by allowing state governments to decide who would represent them in national debates in the U.S. Congress.
Though the Seventeenth Amendment changed this system, the new system still protects federalism. Because each state has the same number of senators, regardless of size, our current Senate still highly values state voices. It is organized on the principle of equal state representation, not population. All states, regardless of population, wealth, or resources, have the same number of votes in the Senate. This design protects federalism by boosting the power of smaller states, continuing to give them strong influence in the national government.
- Article I, Section 8 (the powers of Congress)
Article I, Section 8, provides a long list of Congress’s powers. It’s one of the most important parts of the Constitution. It helps define Congress’s role in our government. Some of the examples of congressional powers listed in Section 8 include:
- The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
- To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; . . .
- To establish Post Offices and post Roads;
- To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
- To constitute Tribunals inferior to the supreme Court;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies . . .
- To provide and maintain a Navy;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Article I, Section 9 (limitations on the powers of Congress)
Article I, Section 9, sets out some specific limits to Congress’s power. Some of the “no”s in Section 9 protect rights and liberties.
For instance, take a look at the following clauses from Article I, Section 9:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed. . . .
No Title of Nobility shall be granted by the United States . . . .
The first item, protecting the writ of habeas corpus, is an important right protecting people from being arrested and imprisoned by the government without just cause. Even so, notice that even Article I, Section 9, allows Congress to suspend habeas corpus in times of emergency; Congress did so during the Civil War and Reconstruction.
The second clause listed, forbidding Bills of Attainder and ex post facto laws, prevents Congress from passing certain types of laws that punish people, including those written to apply to a specific person (a bill of attainder) and those that apply retroactively—meaning that Congress cannot punish people for actions that were legal when they occurred (an ex post facto law).
However, not all of the “no”s in Section 9 represent the protection of rights and liberties. The third clause listed above prevented Congress from granting titles of nobility in the United States. The Constitution made it clear that in America, we would have no formal aristocracy.
Finally, as we discussed in Unit #3, one of the tragic compromises in the Constitution was a clause that prevented Congress from abolishing the international slave trade until at least 1808. That compromise made its way into Article I, Section 9:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
- Article I, Section 10 (limitations on the powers of the states)
Article I, Section 10, also provides a list of “no”s—but this time, it’s a list of powers denied to the state governments.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
This is another example of the Constitution’s system of federalism. The Constitution defines, limits, and divides powers between the national and state governments.
- Article V (Amendment Process)
Think back to Unit #1, and to the idea that each generation has the power to amend the Constitution. Article V of the Constitution explains how this process works—and it gives state governments a vital role to play in amending the US Constitution.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Congress can propose new amendments through 2/3 votes in both Houses of Congress, but then it must send those proposed amendments to the states for ratification. In addition, the states themselves can bypass Congress and call for a new constitutional convention to propose new amendments. This hasn’t happened yet in U.S. history, but it’s a formal power that the states have at their disposal.
- Article VI (Supremacy Clause)
Even as the Constitution allocated different powers to the states and the national government, the Founders wanted to make clear that the national government was supreme over the state governments:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This doesn’t make the states less important or give the national government unlimited powers. But it does mean that when there is a conflict between national and state laws, the national government wins as long as its actions are constitutional.
The text of the Tenth Amendment also clarifies our federal system:
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 key provision shows that our constitutional order allocates some powers to the national government, and leaves the rest of the powers to the states. The Tenth Amendment clarifies that powers not found in the Constitution are powers for the states. It reaffirms the central role of the states in our constitutional system.
- Enforcement Clauses of Various Amendments (including the Reconstruction Amendments–the Thirteenth, Fourteenth, and Fifteenth Amendments)
Let’s take a look at the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) ratified after the Civil War. These amendments abolished slavery, wrote new promises of freedom and equality into the Constitution, and pledged to end racial discrimination in voting.
However, the Reconstruction Amendments also changed the balance of power between the national government and the states, carving out an expanded role for the national government in protecting certain civil and political rights. Each of the Reconstruction Amendments ends with an Enforcement Clause.
For instance, here’s the relevant language in Section 5 of the Fourteenth Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Reconstruction Amendments were the first amendments to the Constitution that expanded the powers of the national government.
