“A federal system checks the growth of tyranny, allows unity without uniformity, encourages experimentation, and keeps government closer to the people. Alternatives to federal systems are unitary systems in which all constitutional power is vested in the central government and loose compacts among sovereign states” . In the twenty first century there are continued debates about the necessity of ‘federalism’ especially in the light of greater autonomy being demanded by ethnic groups and others when the nations are uniting with each other like in the case of European Union.
In the United States the Constitution has provided the authority to the national government which stems primarily from the article of national supremacy, from the powers of the national government to tax, to spend and to regulate commerce among all the states. This power is further accentuated by the ability of the national government to declare and pursue wars, to accomplish what the Congress thinks is necessary to safeguard the interests of the citizens and to take care of their welfare and also to provide for the common defense of the country.
The functions of the federal government have been extended to a large extent because of the provision of these enormous Constitutional powers. It is the responsibility of the federal courts to umpire the distribution of power between the federal and state governments. The present day debates about federalism are directed more towards the authority from where the actions should stem – whether from the national, or state and local level – to take care of the welfare and other state issues rather than questioning the Constitutional structure of the federalism.
It is evident from the recent Supreme Court decisions that the courts prefer a decentralist position and they may press for a major shift in the court’s interpretation of the constitutional nature of the federal system. This implies that the American federalism is slowly going outdated but still it can be pursued in certain broad categories of powers to be retained at the federal level.
It may be noted that the major instruments of federal intervention in the state programs have been found to be the financial grants and the national governments also imposes several mandates for controlling the activities of state and local governments by direct orders and other controlling measures. Over the past two centuries the power to the national government had drifted along without clear policies about the sharing of the powers with the states. This has made American Federalism rather outdated requiring a complete overhaul to identify areas of complete demarcation for a fair distribution of power.
This is also evidenced by the pressure on the Congress to reduce the size and scope of national programs and make the states to maintain some existing programs. However while the responsibility for the welfare of the people has been shunted back to the states the national government has secured additional authority in some cases. Those who claim that the American Federalism has become outdated claim that the states rights in the United States are getting dominated by the concepts and precepts of commerce and the spending clauses of federal approach.
However it is to be understood that the tradition, thinking and terminology of commerce, lending and economics have not led themselves to the debates on Federalism as being argued today. Some other observers and commentators argue that in order to make the federalism more effective the domains like land-use, law-enforcement, courts and private law with specific reference to the family law should be left to the states to administer or at best these areas can be under concurrent powers of both state and federal.
They also contend that even the area of interstate commerce must be exercised by federal only when there is special jurisdiction to deal with any issues. However, again this argument is substantiated by the point that, uniform family law, educational, land-use, and law enforcement standards can not be considered really practical while there may be uniform environmental policies. Although Federalism sometimes seemed to be outdated and fashionable federalism could serve many conservative and liberal values.
However the federal system of government is basically designed to accomplish a populist value . Hence it is seen as outdated and it is more so since anchors law in context and uses the techniques of political pressure and open conflicts which are rough methods to civilize the government. Thus national authority can be seen as less powerful because congressional policies are made constitutionally discretionary.
However when it comes to the question of implementing the Gun free School Zones Act or the protection of the school districts from federal authority claims of sexual harassment the states are unlikely to favor substantive policies that oppose congressional policies. Hence when the national congressional policy is related to the specific state institutions the authoritativeness of national regulatory policy is not significantly diminished. Hence in my opinion the federal government can be given the powers where the policies do not counter the interests of the states.