Later On

A blog written for those whose interests more or less match mine.

Federalism today

with one comment

Very interesting article by Michael Dorf. It begins:

Last week, California became the first State in the Union to ban trans fats in foods sold in restaurants. With the ban, which is set to go into effect in 2010, California joins New York City and a handful of other jurisdictions that forbid trans fats.

Critics of the ban will no doubt decry it as one more example of “nanny state” excesses. Proponents, by contrast, will point to the positive health effects for the millions of people—including minors, who cannot be expected to make responsible nutrition choices—in the nation’s most populous state.

In this column, however, I will put to one side the question of whether the trans fat ban is wise social policy, in order to consider a broader phenomenon that the ban represents: the impossibility of following the Framers’ original vision of federalism in a highly-integrated national economy.

American Federalism, From Thomas Jefferson to Clarence Thomas

To understand how California’s trans fat ban challenges traditional notions of federalism, we must begin with those traditional notions. Article I, Section 8 of the U.S. Constitution enumerates most of the powers of Congress, while the Tenth Amendment reserves to the States those powers not enumerated. This division of labor has sometimes been called “dual sovereignty” to express the idea that, depending on the subject matter, sovereignty will reside either in the national government, or the state governments.

Yet from the very earliest days of the Republic, federal power threatened to swallow that of the States. President George Washington asked two of his ministers, Alexander Hamilton and Thomas Jefferson, to prepare competing memoranda on the constitutionality of a proposed Bank of the United States. Hamilton, an ardent nationalist, thought that the power to create the Bank could be inferred from the powers enumerated in Article I, Section 8, even though no express power to create a national Bank was included in the Constitution. Jefferson, in contrast, thought the Bank was unconstitutional. He foresaw that permitting implied powers in the way that Hamilton favored would logically lead to a virtually omnipotent federal government.

Hamilton won the argument in the Washington Administration and, ultimately, in the Supreme Court. When the issue finally reached the Court in 1823, Chief Justice John Marshall repeated most of Hamilton’s analysis en route to upholding the Second Bank of the United States in McCulloch v. Maryland.

Yet Jefferson’s anxieties were never fully expurgated. …

Continue reading.

Written by LeisureGuy

29 July 2008 at 3:41 pm

Posted in Daily life, Government

One Response

Subscribe to comments with RSS.

  1. See if you think I’ve got it right in how I depict federalism. I had several replies to my posts so I wrote another in defense of the governmance system. If you are interested in having a look, here is the link.


    29 October 2009 at 8:05 am

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.