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United States Edit

Federalism is a system of governance adopted by the framers of the U.S. Constitution that divides power between the state and federal governments. In the United States, federalism is marked by:

  • a union of autonomous political entities for common purposes;
  • divided powers, with the federal government having enumerated powers and the States retaining residual power;
  • operation of each of these governments within its assigned sphere upon all persons and property within its territorial limits;
  • law enforcement powers for each level of government;
  • supremacy for the national government within its assigned sphere in any conflict with state power;
  • a dual system of State and Federal courts; and
  • dual citizenship, national and state.

Since the Civil War, federal power has been in the ascendancy, and the same trends that are now challenging national sovereignty — expanding markets and centers of production, telecommunications networks, a mobile citizenry, and the homogenization of culture across boundaries — have contributed to the shrinkage in the role and authority of State governments.

Transportation and communications systems, tying the United States together physically, also tied the country together economically and politically, requiring an interdependence and cooperation that could only come from national action. Autonomous States could not coordinate the commercial development of navigable waterways, interstate roads, railways, and airports. The lack of uniformity in laws and the competition among State interests has led to federal government preemption of many areas of commerce, and precluded State control of nationwide systems necessary to ensure orderly and efficient economic development. Today, as a practical matter, the government of commerce is national and not local. Many technological problems need cooperation between the States and leadership, refereeing, and adjudication by the federal government.

This does not mean that federalism is thwarted or that there is no major role for State government. The criminal justice system, particularly as it relates to violent crime, remains within State control. Property ownership, the law of descent and distribution, and family relations are largely the province of State or local law. Fundamental government services — fire, police, water, zoning — by and large are provided by State or local government. Technological change will however influence how the States will govern in these respects and how the Constitution will guide that governing.

Moreover, new information and telecommunications technologies may again operate to change the balance within federalism by enhancing the ability of States to act independently or cooperatively, reducing the need for national solutions to problems. Information systems, for example, have allowed States to cooperate much more effectively in the areas of civil and criminal justice and public health. Future technologies will, as they have in the past, most likely cut both ways; concentrating some powers in the Federal Government and enabling the States to retain and expand others. While the use of information systems and computerized databases provides additional power to the States, additional federal regulation may be required to protect individuals’ privacy rights in an era of nearly unlimited surveillance ability and ability to combine information. This tension, too, presents challenges to constitutional interpretation.

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