Key Concepts

Federalism and the Constitution 

Federalism is a system of government where the same territory is shared by different levels of government. In the United States, there is a sharing and division of power over the nation between the federal government and the state governments. The framers of the Constitution sought to create a strong, unified national government that held limited power, while the states retained much of their power, including police power to regulate and promote the health, safety, morals, and general welfare of their residents. Federalism is interwoven throughout the Constitution.

  • Commerce Clause: in Article I, Sec. 8, cl. 3, Congress holds the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This clause has been interpreted and used to expand the federal government’s regulatory and enforcement power.
  • Supremacy Clause: in Article VI, cl. 2, the Constitution, federal laws, and treaties “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby….” Under this clause, federal laws are superior and preempt state laws and states must abide by federal laws. 
  • Tenth Amendment: in Bill of Rights, “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 amendment defines the balance of power between the federal government and the states, where federal power is limited to power granted in the Constitution.

Types of Federalism

There are several types of federalism in the United States revealing the relationship/interaction between the federal government and the states.

  • Dual federalism (1788-1937): also referred to as “layer-cake” federalism, where government power is divided between the federal and state governments, the division is clear and defined, and the powers are distinct, outlined in the Constitution.
  • Cooperative federalism (since 1937): also referred to as “marble-cake” federalism, emerged during the New Deal, where the federal and state governments developed a flexible relationship with overlapping and shared power in cooperation to address specific issues or implement programs. Examples include: (1) grants-in-aid, where the federal government allocates funds to states to use for a specific purpose or a broader policy; and (2) regulated federalism, where the federal government sets mandated regulations and rules for states to follow, with or without federal funding. 
  • New federalism (since 1970s): a political philosophy of devolution, returning or transferring federal power to the states, where states enforce regulations and hold more autonomy and discretion. One example is block grants, funds from the federal government allocated to the states, with less federal oversight and control over how the states use the funds to address policies or implement programs.

New York State Focus

NY Slavery

NY Immigration

NY Reproductive Rights

Deeper Dive

This Historical Society of the New York Courts film deals with the history of slavery in New York State and the critical role New York courts played in freeing eight enslaved young women and children who sailed into New York harbor with their owners from the South, a ruling that was in direct conflict with the 1857 Supreme Court Dred Scott decision. Here is a Lemmon Slave Case lesson plan to use with the film or separately, and an article on the case by John D. Gordan, III, published in the Society’s journal Judicial Notice.

From CrashCourse (in collaboration with PBS Digital Studios). This video discusses Federalism and the division of power within the United States between the national government and state governments, as well as the various forms of federalism.

From the Annenberg Classroom. This video discusses Federalism and conflict between the national government and the states through an examination of the Supremacy Clause in Article VI of the Constitution and description of the landmark Supreme Court case McCulloch v. Maryland (1819). Here is a helpful lesson plan, from PBS LearningMedia, that teachers could use separately or in conjunction with students watching this video.

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