Every other Tuesday, Civics 101 hosts, Hannah McCarthy and Nick Capodice, join NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
This week, Hannah and Julia discuss federalism, what the rules are and whether it’s good for American democracy today.
You can listen to Civics 101 here, or wherever you get your podcasts.
Transcript
Federalism is a system of government in which the same territory is controlled by two levels of government—a complicated balance game between the powers of state and federal government. What are its rules?
So rule number one: federal law wins over state law if state law violates federal—for the most part. That is from the Supremacy Clause of the Constitution. Rule number two: states are your primary lawmakers. They make most of the laws that affect your daily life, so they can regulate areas that the federal government does not. That's things like criminal law, property law, marriage and divorce law, which is part of the reason [why] where you live makes such a huge difference in the United States. And finally, rule number three: states are constitutionally permitted to push back against federal regulation.
How much can a state push back?
I did say federal law trumps state law, so this is limited. But let's say, for example, a state criminal law disagrees with federal policy. It is within that state's constitutional right to push back. And even though the federal government has the power to enforce federal supremacy, often it will opt not to. I often point to the fact that marijuana is still what you call a ‘schedule one drug,’ but it's sold for recreation in states across the country.
And then, of course, Julia, we've got the all important 10th Amendment. That covers a lot here in the U.S. It says, ‘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.’
It seems like federalism is built-in conflict between state and federal governments. But as our nation becomes more and more polarized, is federalism good for the United States and American democracy?
Well, this is actually a question that people have asked in various ways for a long time. But as you say, the polarization right now is really strong. It's really significant.
I would argue that the preservation of the federalist model is absolutely essential to the preservation of the United States as we know it. It is what we are. It is the ability to disagree with power. People on one side of the spectrum are permitted to fundamentally disagree with or attempt to preserve their beliefs in the face of federal policy. People on the other side are permitted to do the same. We live in a country where that disagreement is constitutionally preserved and essential.
But I'm going to add that what is also essential is the preservation of the law of the land: the Constitution. But of course, what the Constitution says or does not say is up to the courts. We're just going to have to see how the Supreme Court is going to interpret the Constitution in the coming years to see basically how good or bad this is for lived experience in the U.S.
But is federalism on its face bad? I don't think so. The U.S. has always been about what people do with what they've got, right? The famous line, ‘A republic, if we [sic] can keep it.’ I would say, ‘a federated republic, if we can keep it.’
