United States of America

G. Alan Tarr

The United States of America is the world's oldest, continuing, modern federal democracy. Indeed, the framers of the United States Constitution are widely regarded as the inventors of modern federalism, as distinct from ancient forms of federalism, especially confederalism. The US Constitution has been influential as a model of federal democracy, and key principles of the Constitution -- such as federalism, the separation of powers, an independent judiciary, and individual rights -- have gained acceptance worldwide. Americans believe that the nation's success owes much to the brilliance of the Constitution's drafters. Yet the Constitution, or the federal polity it created, has not remained static. Amendments adopted after the Civil War (1861-65) altered the federal-state balance, and the authorization of a federal income tax in the Sixteenth Amendment (1913) greatly augmented the fiscal power of the federal government. The Constitution has also both influenced and been influenced by political and social developments, including the transformation of the United States from a few states hugging the Atlantic Coast to a continental nation and also from a country recently liberated from colonial rule to an economic and military superpower.

The United States now encompasses 50 states, a federal district (Washington, DC) that serves as the capital, 11 island territories (e.g., Guam and Puerto Rico), and some 600 federally recognized Native American tribes that have the status of "domestic dependent nations."¹ The country spans the middle of the North American continent from east to west, with Alaska and Hawaii, the most recent additions to the union in 1959, separated from the contiguous 48 states. With a 2003 population of 291 million, a land mass of 9,629,091 square kilometers, and a per capita gross domestic product of $36,200, the United States today is far different from the 13 states with a population of 2.5 million that declared independence from Great Britain in 1776. The transformation extends to the population's ethnic character. In 1776 about two-thirds of Americans were English, Welsh, and Scottish, with Germans comprising about 9 percent and slaves of African ancestry about 17 percent of the population. The country's population today reflects massive immigration from throughout Europe during the nineteenth and twentieth centuries and from Latin America and Asia, particularly during the late twentieth century. As of 2002, the US population was 13.4 percent Hispanic, 12.2 percent African American, and 3.9 percent Asian American. English is the de facto national language, although the US Constitution mandates no official language.

The population remains overwhelmingly Christian and predominantly Protestant although immigration has increased religious diversity. Americans accept a separation of church and state, but they are also highly religious. This religiosity is reflected in vigorous conflicts over moral issues such as abortion. The country's predominant religious belief systems have, however, been generally supportive of constitutionalism, democracy, and rights. Key rights movements, such as the abolition of slavery and the civil-rights revolution of the 1960s led by the Reverend Dr. Martin Luther King, Jr, have been driven by religious leaders. Liberal individualism has been a powerful force in American life as well, but so has communitarianism: the desire of people to build and maintain communities, especially local communities, that reflect their beliefs and preferences and also to use government, especially state and local governments, to tame the excesses of liberal individualism.

Creation of the Federal Constitution

The United States Constitution is the nation's second, drafted in 1787 to replace the weak Articles of Confederation of 1781. Under the Articles, each state had an equal vote in Congress, with state delegations subject to recall by state legislatures; consequently, representatives were tied mostly to the interests of their states. The Articles limited the confederal government to a few specified responsibilities (e.g., war and foreign affairs) and gave it no control over the internal affairs of the states. Most important, the confederal government exercised no direct authority over the states or over the citizens of those states; it could not tax or conscript citizens, nor could it subject them to its laws (e.g., economic regulations). As a result, the states could, and did, disregard mandates and requests for funding by the confederal government. The absence of adequate national authority reduced the United States to, in the words of Alexander Hamilton, "the last stage of national humiliation."²

Problems in the states also provided an impetus for a new constitution. Most early state constitutions concentrated governing power in the legislature and subjected legislators to annual election. The absence of checks and balances, plus the lack of restraints on popular enthusiasms, led to abuses (e.g., laws freeing debtors from their debts or allowing them to pay debts with worthless paper money). These are examples of what James Madison regarded as the tyranny of the majority in democratic polities.³ In addition, commercial competition among the states led to a proliferation of trade barriers designed to shield local producers against out-of-state competitors, contributing to a stagnant economy and to interstate conflicts.

The convention that met in Philadelphia in 1787 was charged by the confederal Congress with proposing amendments to the Articles of Confederation, but most of the 55 delegates concluded that only a new constitution, erected on different principles, could remedy the country's problems. The delegates proposed a system that blended elements of confederal and unitary government, or what Madison called "federal" and "national" principles.⁴ The delegates sought to augment federal power, while protecting against tyranny, in order to protect individual liberty (including property rights), promote commercial prosperity (e.g., through free trade), secure domestic peace, and enhance national defence. The constitutional limits imposed on federal and state powers also served to advance the framers' objectives, as did the few requirements imposed on the states. Individual liberty was protected by key rights embedded in the Constitution, such as the right to a jury trial, but even more by the constitutionally limited powers of the federal government, by its accountability to the people, and by the reservation of the police power to the states.⁵

With the exception of the "peculiar institution" of southern slavery, the framers were not concerned with accommodating territorially based linguistic, ethnic, or religious diversity, although they were greatly concerned about protecting the individual rights of persons with diverse linguistic, ethnic, and religious identities. President George Washington's 1790 letter to a Jewish congregation in New York City assuring protection and a safe haven for Jews in the United States exemplified this policy of toleration.⁶

Furthermore, the constitutional requirements that members of the US House of Representatives be at least 25 years old and "seven Years a citizen of the United States" and that members of the US Senate be at least 30 years old and "nine Years a citizen" ensure that the federal union's legislative body is open to immigrants who obtain US citizenship.⁷ In turn, except for the federal Constitution's ban on religious tests for federal officeholders, the Constitution is silent about language, culture, ethnicity, and religion.⁸ Authority in these matters was reserved to the states or, implicitly, to the private sphere of life. Thus the president's oath of office found in Article II, Section 1, obliges the president to "protect and defend the Constitution," not the American people, nation, or nation-state.

Among the most important new federal powers were the powers to tax, regulate interstate and foreign commerce, raise an army and navy, and subject the people to federal laws. In sharp contrast to the Articles, the Constitution also granted Congress implied powers, namely the authority to enact laws "necessary and proper" to implementing its expressly delegated powers. As a consequence of these new general powers and in conformity with the Revolutionary War slogan, "No taxation without representation," the Constitution made all federal officials either directly or indirectly accountable to the people. In addition, it instituted checks and balances and a separation of powers, and it continued to divide power between the nation and the states. It bears emphasis that the US Constitution affords the federal government only limited, delegated powers. Because all powers originally belonged to the sovereign peoples of the constituent states, the people and their states retained all powers that they did not delegate to the new federal government. Thus, although the Constitution prohibits some state powers, it does not delegate powers to the states, nor does it contain a list of powers that the states share with the federal government.

The Constitution sought to address the problems posed by interstate rivalry and majority tyranny in the states by delegating certain powers to the federal government, including the powers to establish uniform rules of bankruptcy, make currency, regulate commerce among the states, and borrow money. It also prohibited states from making currency, passing laws impairing the obligation of contracts, or laying duties on imports or exports, "except what may be absolutely necessary for executing [their] inspection laws" (Art. I, Sec. 9). The delegates believed that the federal government could be entrusted with enhanced powers because, with its checks and balances, it was better constructed than the state governments and thus less likely to tyrannize. In addition, as Madison argues, majority faction (tyranny) tends to flourish in small, homogeneous political societies, in which a single group might dominate. In contrast, the federal government, encompassing an extended commercial republic with a multiplicity of groups, would be less susceptible to the formation of majority factions.⁹

Furthermore, the Constitution provides for the admission of new states to the Union, contemplating an expanding country, with new states admitted on an equal footing with the original states, a revolutionary novelty in the 1780s. Most nonoriginal states were formed from territory governed by the United States, with Congress (under Art. IV, Sec. 3, of the Constitution) controlling the admission of states and the delineation of their boundaries. Texas was an independent republic before its admission in 1845, and five states (Vermont, Kentucky, Tennessee, Maine, and West Virginia) were carved out of the territory of older states. In the first four cases, the legislature of the older state gave its consent. West Virginia was part of Virginia, but it remained loyal to the federal Union when Virginia seceded in 1861 during the Civil War, and it was admitted through questionable constitutional procedures while that war was being fought.

The vigorously fought ratification of the Constitution in 1788, together with the inauguration of the new government in 1789 and the adoption of the Bill of Rights in 1791 (insisted upon by the anti-Federalist opponents of the Constitution), completed the nation’s founding. Successful as the Constitution was, it left the issue of slavery unresolved. Many founders opposed slavery but believed that it was not viable economically and would soon die out. However, the slave economy of the South flourished, particularly after the invention of the cotton gin in 1793, and regional conflict -- fueled partly by southern fears of northern antislavery sentiment -- led eventually to civil war.

The conclusion of the Civil War prompted the adoption of three constitutional amendments: The Thirteenth Amendment (1865) outlawed slavery; the Fourteenth Amendment (1868) extended federal protection to citizens against state violations of rights; and the Fifteenth Amendment (1870) forbade states from prohibiting men from voting because of "race, color, or previous condition of servitude." All three amendments gave Congress the power to enforce their mandates by "appropriate legislation," and all established legal standards upon which the laws and actions of state officials may be challenged in the federal courts. Some commentators believe that these amendments completed the work of the nation’s founding, eliminating the Constitution's compromise on slavery and realizing the commitment in the Declaration of Independence (1776) to the proposition that "all men are created equal."¹⁰ Other commentators view the amendments as dramatically shifting the balance of power from the states to the federal government, thus inaugurating a fundamental change in the Constitution’s design.¹¹

Either way, one key to understanding federal constitutional development since the Civil War is to recognize that President Abraham Lincoln and other slavery opponents elevated the Declaration to the status of a morally, although not legally, binding guidepost for interpreting the federal Constitution, especially with respect to individual rights. Every civil-rights movement -- by women, black Americans, Hispanics, Indians, persons with disabilities, gays and lesbians, and others -- has appealed to the Declaration as a moral basis for its claims to constitutional rights. This, in turn, has served to increase federal power. Because the Declaration declares Americans to be one people, groups facing discrimination and exclusion have declared their right to inclusion and, thus, to full and equal protection by all the rights and privileges afforded the American people by the federal Constitution.

The States in the Federal Union

The US Constitution confirms the key role of the states in the constitutional system. The states are mentioned more than 50 times in the Constitution, and crucial aspects of the federal government (e.g., selecting presidential electors and conducting congressional elections) depend on the exercise of state power. Thus the Constitution is an "incomplete constitution," which depends for its operation on state constitutions that "complete" and consequently form a part of the overall constitutional system.¹²

The American federal system is symmetrical. All states enjoy equal constitutional status. Their existence and their powers are constitutionally guaranteed rather than under the control of the US government. The Constitution safeguards the position of the states in several ways. First, it grants only limited powers to the federal government and reserves residual powers to the states, or to the people. The Tenth Amendment (1791) states that "[t]he 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." Although this may initially have been the most important protection for the states, the expansion of national power since the 1930s, together with the US Supreme Court's acquiescence in its expansion, has raised questions about whether this amendment remains an effective safeguard of state autonomy. Since the early 1990s, the Supreme Court has shown greater interest in safeguarding state power and curtailing federal power, but its rulings have blocked the further expansion of federal power rather than reversing the effects of earlier rulings that encouraged expansion.¹³

Second, the Constitution grants extraordinary protection to the territorial integrity of the states, forbidding tampering with state boundaries not only by congressional legislation but also by the normal processes for constitutional amendment.¹⁴ Third, the Constitution secures to the states a role in the selection of federal officials and in the processes of the federal government. Initially, state legislatures selected US senators, who directly represented the interests of their various states. The Seventeenth Amendment (1913) instituted popular election of senators, but states still enjoy equal representation in the Senate (two senators each), and this is the one provision of the Constitution that may not be amended by future generations. In addition, as long as they do not discriminate on the basis of race, gender, or other factors, the states also set eligibility requirements for voting in both federal and state elections. Finally, under Article V, constitutional amendments require ratification by three-quarters of the states. Taken together, these protections for state autonomy and state interests justify Madison's claim that the system created by the Constitution was partly national and partly (con)federal.

One independent authority vested in the states is the power to create their own governmental institutions. The federal Constitution imposes few limitations on this power. It directs the federal government to "guarantee to every State in this Union a Republican [i.e., representative democracy] Form of Government," and it upholds the supremacy of federal law within its constitutional sphere over "any Thing in the Constitution or Laws of any State."¹⁵ The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments limit the states' ability to restrict the franchise. Nevertheless, the states retain broad discretion in creating their own institutions and processes of government. Every state adopts its own constitution, and the state supreme court is the ultimate interpreter of this constitution and of state law more generally. Every state elects or appoints its own officials without the intervention or approval of the federal government. Finally, every state adopts its own laws, and these operate unless they conflict with federal law.

In contrast, the country's 87,900 local governments receive no recognition under the federal Constitution. For most federal constitutional-law purposes, local governments are mere creatures, or creations, of state governments. In most states, the legislature may create, abolish, and change the boundaries of local governments. In a few states with major cities, such as New York, the state’s Constitution grants the city some constitutional status or recognition. A recent important development has been the insertion of provisions in state constitutions prohibiting state legislatures from imposing "mandates" on local governments without also providing adequate funding for local governments to carry out the mandated functions, duties, or responsibilities. About half of the states have limits on "unfunded mandates," although some of these limits are found in statutes rather than in the states’ constitutions.

Federally recognized Indian tribes have a distinct status. They devise their own constitutions, elect their own leaders, and exercise significant governing authority. Nevertheless, the prevailing US Supreme Court case law recognizes no constitutional limits to Congress's power to act as trustee for Indian nations; thus the tribes' right of self-determination is ultimately a matter of congressional grace rather than a matter of rights.¹⁶

The Allocation of Powers

Constitutional Principles

Article I, Section 8, of the Constitution enumerates the legislative powers of Congress, and the Tenth Amendment confirms that powers not granted to the federal government are reserved to the states, or to the people of the states. Complications arise, however, in determining how the enumeration of powers in the Constitution affects the powers of the states. Hamilton observes that "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by the ratification of the Constitution exclusively delegated to the United States."¹⁷ This statement suggests that the powers delegated to the federal government may be divided into (1) exclusive powers, which cannot be exercised by the states; (2) concurrent powers, whose delegation to the federal government does not restrict state power; and (3) powers that are neither entirely exclusive nor entirely concurrent, whose delegation to the federal government limits but does not completely preclude their exercise by the states.

The Constitution grants exclusive authority to the federal government in various ways. Some exclusive powers, such as jurisdiction over the seat of government (Art. I, Sec. 8), are granted expressly. Other powers are both granted to the federal government and denied the states. For example, the Constitution both authorizes the president to make treaties, with the advice and consent of the Senate (Art. II, Sec. 2), and forbids the states to make them (Art. I, Sec. 10). Finally, some powers granted to the federal government, such as the power to declare war (Art. I, Sec. 8), are by their very nature exclusive and thus cannot be exercised by the states.

In granting yet other powers to the federal government, the Constitution neither expressly nor implicitly precludes state legislation. A prime example is the concurrent power to tax. Under the supremacy clause (Art. VI), state enactments may still be unconstitutional if they conflict with federal legislation. In this way, the exercise of federal power can diminish state power, but in the absence of conflicting federal legislation, the states remain free to exercise their concurrent powers.

Finally, some constitutional grants of power are neither wholly exclusive nor wholly concurrent. If the states exercised these powers to the fullest possible extent, the federal government would be prevented from achieving the ends for which the powers were intended. However, elimination of all state authority would imperil legitimate state autonomy. By far, the most important power in this category is the commerce power. Excessive state regulation of interstate commerce could threaten the national common market that the Constitution sought to create. At the same time, states have a valid interest in protecting the health, safety, welfare, and morals of their citizens and should thus not be precluded from legislating for those purposes. The US Supreme Court plays a central role in balancing the competing interests of the nation and the states, ensuring that the states can protect their citizens while not unduly restricting the flow of commerce.

Constitutional Development

The paramount feature of American constitutional history has been the expansion of the power of the federal government. This process has been aided by the Supreme Court's broad interpretation of the powers granted to Congress and by constitutional amendments -- especially the Fourteenth and Sixteenth Amendments -- that have conferred important additional powers on Congress. The states themselves have often agitated for increased federal power to meet their own needs and interests and have also fostered it by their eagerness for federal grants-in-aid. Interest groups, too, have played an important role in expanding federal power, in part because, as business leaders often say, they would rather be regulated by one 500-pound gorilla than by 50 monkeys.

As a result of these factors, although the Tenth Amendment provides for the states to retain those powers not delegated to the federal government, the areas of exclusive state control have progressively narrowed. Since the early 1930s, the federal government has entered a variety of policy areas -- for example, pollution control, race relations, and consumer protection -- that previously had been predominantly state concerns. This expansion of federal power has not invariably produced conflict because federal and state policies often have been complementary. Nevertheless, as the federal government has come to regulate areas traditionally dominated by the states, collisions between state and federal claims of authority have increased. When federal and state policies have clashed, the supremacy clause (Art. VI) mandates that federal policies prevail over (preempt) inconsistent state policies.

In its early years, the Supreme Court, particularly under Chief Justice John Marshall (1801-35), asserted the supremacy of the federal government. From the 1840s until the New Deal of the 1930s, however, the Court sought to strike more of a balance by limiting the ability of Congress to expand its powers at the expense of the states. At first, the Court struck down key New Deal legislation in the mid-1930s as violating principles of federalism, but under intense political pressure from President Franklin D. Roosevelt, a new majority emerged on the Court that began to uphold expanded federal power. The Court thereafter became a strong supporter of the growth of federal power, especially in the areas of commerce, social policy, and civil rights. In recent years, however, the Court has shifted course. A slim 5-4 states' rights majority on the Court under the leadership of Chief Justice William Rehnquist has worked to strike down some federal legislation as undercutting the constitutional autonomy of the states. The Court has resurrected the idea that the federal government cannot legislate away the "sovereign immunity" of states, thereby reducing the extent to which citizens may sue states for failure to uphold federal laws.¹⁸ It has also ruled that the federal government cannot “commandeer” state legislatures or executive officials, requiring them to carry out federal programs.¹⁹

The understanding of federal-state relations has changed over time as well. A contrast has historically been drawn between dual and cooperative federalism. Dual federalism empha-sized the separateness of the two orders of government and the need to confine each to its own sphere of responsibility and to prevent either from encroaching on the sovereignty of the other. Others noted that the framers' vague wording in the Constitution intended a more nuanced system of overlapping powers necessitating a more cooperative federalism based on sharing powers and supporting each other as the federal government helped states to fulfil basic functions and as states helped the federal government to fulfil national objectives. Cooperative federalism especially characterized federal-state-local relations from 1932 to the late 1960s, during which time the federal government poured ever more money into state and local governments and all public policy became intergovernmental. Since the late 1960s, however, many observers have characterized the system as one of regulatory or coercive federalism, in which the federal government is predominant and cooperation is viewed as the willingness of states to cooperate with federal directives. This period has been marked by unprecedented increases in federal rules attached to grants-in-aid, mandates on the states, federal preemption of state laws, federal intrusions into state tax bases, federal court orders, and a federalization of state criminal law.²⁰

In reaction to this centralization, several presidents --especially Republicans Richard M. Nixon (1969-74) and Ronald Reagan (1981-89) -- proposed a "new federalism" to return powers to the states; however, there has been little movement in this direction beyond grants of more administrative flexibility for states to implement federal policies. President Reagan, for example, while rhetorically advocating states' rights, signed more federal laws preempting state powers than had any previous president.

The Structure and Operation of Government

The Federal Government

In designing the Constitution, the delegates to the Constitutional Convention sought to create a government to which one could safely entrust the extensive powers it needed in order to serve the ends for which it was created. Making the government dependent on the people was part of the answer, as was extending the commercial republic. Another means by which they sought to realize this objective was establishing a system based on checks and balances and on a separation of powers. The delegates were aware that "the accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective might justly be pronounced the very definition of tyranny"; therefore, "the preservation of liberty requires that the three great departments of power should be separate and distinct."²¹ Thus they sought to construct a government consisting of three coordinate and equal branches, with each performing a blend of functions, thereby balancing governmental powers. Their goal was to structure the government so that the mutual relations between the three branches would keep each in its proper place.

The Constitution creates a presidential system, in which the president is elected and serves both as chief executive and as chief of state, in which a bicameral Congress exercises the legislative power and in which independent federal courts exercise the federal judicial power. The "national" house of Congress, the House of Representatives, includes 435 members, elected from districts within each state for two-year terms, with representation apportioned among the 50 states on the basis of population (although each state is guaranteed at least one representative). Districts are reapportioned by state legislatures every ten years based on data from the federal Census, and the Supreme Court ruled in Wesberry v. Sanders (1964) that congressional districts within a state must be of equal population.²² The "(con)federal" house, the Senate, has 100 members, two from each state, elected statewide to staggered six-year terms (one-third of the senators are elected every two years). In addition to its legislative powers, the Senate has the power to advise and give consent on treaties (by a two-thirds vote) and on presidential appointments to executive offices and to the federal judiciary (by majority vote).

The founders expected that the division of Congress into two houses of different sizes, with different systems of apportionment, different modes of selection, and different terms of office, would produce distinctive perspectives in the two chambers, thereby encouraging more thorough consideration of proposed statutes. They also expected that the representation of the states in the Senate would ensure that the federal government took state interests and concerns into account in its policy making. Here the evidence is less clear. The ratification of the Seventeenth Amendment, replacing the selection of senators by state legislatures with their direct election by the people, removed one of the principal structural devices the founders employed to protect the interests of the states as states. In Garcia v. San Antonio Metropolitan Transit Authority (1985), a five-member majority on the US Supreme Court concluded nevertheless that "[t]he Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself" and that the states' interests are principally "protected by procedural safeguards inherent in the structure of the federal system." Four justices disagreed, asserting that "the States' role ... is a matter of constitutional law, not legislative grace."²³

Article II of the Constitution vests the executive power in the president and awards him or her various powers and responsibilities, such as the power to veto legislation, to appoint executive officials and federal judges, to serve as commander in chief of the nation's armed forces, and to ensure that federal laws are faithfully executed. These powers make the president a formidable participant in the system of checks and balances. Historical developments have also enhanced presidential power. For example, the nation's expanding international presence has augmented presidential power because the Constitution assigns the president a major role in the conduct of foreign policy. In the domestic sphere, the expansion in the size of the federal government and in the scope of its activities has enhanced the significance of the president's powers to make appointments, supervise administration, and implement public policies.

The president is selected by a system known as the electoral college, which was devised to ensure that the chief executive was not dependent on the legislature and would therefore be willing to check it. This system also enhances the electoral weight of small states and of minority groups and requires candidates to build support across various regions. Each state casts electoral-college votes based on its representation in Congress: two senators plus the number of representatives it has in the House of Representatives. Forty-eight states award all their electoral-college votes to the presidential candidate who receives a plurality of the popular vote in the state. Typically, the candidate who receives the most popular votes nationwide also receives the most electoral votes. However, in close elections, this need not be the case. In 2000 the Democratic candidate, Albert Gore, won the nationwide popular vote by 500,000 votes (0.5 percent of the total vote) but lost in the electoral college to the Republican candidate, George W. Bush, by a 271-266 margin.

Article III of the Constitution establishes both the US Supreme Court and "such inferior Courts as the Congress shall from time to time ordain and establish." Congress responded to this invitation by creating a three-tiered system of federal courts. The federal judges are appointed by the president, confirmed by the Senate, and enjoy tenure during “good behavior.” The district courts serve as the federal trial courts, with at least one district court in each state. The thirteen courts of appeals hear appeals from the district courts. Eleven of the courts of appeals are organized regionally, with each court's "circuit" made up of three or more states. The Court of Appeals for the District of Columbia serves as a sort of state supreme court for the District of Columbia, and the United States Court of Appeals for the Federal Circuit reviews large numbers of appeals from federal administrative agencies.

At the apex of the federal court system is the US Supreme Court. This nine-member body selectively reviews cases appealed to it from the federal courts of appeals and from state supreme courts. Of the more than 7,000 cases appealed to it in any given year, it typically accepts no more than 100 cases for decision. It also has a very limited original jurisdiction conferred on it by the Constitution, extending to cases involving foreign diplomatic personnel and to cases in which a state is a party. Finally, as Chief Justice John Jay made clear in 1793 in response to a request from President Washington, the Court does not issue advisory opinions (although several state supreme courts are authorized to issue such opinions).

Article III confers judicial power on the federal courts for four basic purposes. First, in order to vindicate the authority of the federal government, federal courts are empowered to hear cases arising under the US Constitution, cases arising under US laws, and cases in which the federal government is a party. Although the power of judicial review is not mentioned in the Constitution, the Supreme Court ruled in Marbury v. Madison (1803) that the power to "say what the [federal] law is" carries with it the power to rule on the constitutionality of federal or state laws, and all federal courts exercise the power of judicial review.²⁴ Second, in order to maintain exclusive federal control over foreign affairs, the federal courts are empowered to hear admiralty cases, cases arising under treaties, cases affecting ambassadors or other diplomatic personnel of foreign countries, and cases pitting states or their citizens against foreign states or their citizens. Third, in order to maintain interstate comity, the federal courts are empowered to hear disputes between two or more states and disputes between a state and the citizens of another state. Finally, in order to protect out-of-state litigants against the possible bias of state tribunals, federal courts are empowered to hear civil cases between citizens of different states.

State Governments

American state governments have similar political structures. All 50 state constitutions have instituted a "presidential" system in which the chief executive, the governor, is elected by the populace rather than by the legislature. All have established a tripartite division of governmental power (legislative, executive, and judicial), provided for regular periodic elections, and guaranteed an array of fundamental rights. All but Nebraska have created a bicameral legislature, and all but Nebraska elect their legislators in partisan elections. Differences among state governments typically involve the size of the state legislature, the number and powers of separately elected statewide executive offices, the number of separate executive departments, and the structure of the state judicial system. Of these differences, the most important is the number of statewide elective executive offices. The election of various executive officials was introduced during the nineteenth century in order to promote greater democratic control of government, and it has largely survived to the present day despite the claim of twentieth-century reformers that it undermines governmental efficiency and effective leadership by the governor. Executive officials (e.g., the attorney general, secretary of state, and treasurer) who owe their position to the populace, rather than to the governor, exercise considerable political independence, and in many states may be political rivals of the governor.

Interstate and Federal-State Relations

Constitutional provisions addressing interstate and federal-state relations sound several themes. First is a commitment to state autonomy. For example, the federal government cannot intervene to protect states against internal violence without a request from the state legislature or the governor. Although the federal government is to "guarantee to every State in the Union a Republican Form of Government," this enigmatic clause has had little effect on how the states have structured their political institutions. Second is an expectation of conflict over the scope of federal and state authority, aggravated, as Madison observes, by the difficulty of "marking the proper line of partition between the authority of the general and that of the State governments."²⁵ The Constitution’s supremacy clause confirms that the federal government is supreme within its sphere, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," and state officials are bound by oath to support the US Constitution, but the enumeration of powers in Article I and the later ratification of the Tenth Amendment indicate that the sphere of federal authority is limited. Third is a concern about state parochialism. The tendency toward parochialism is combated by transferring some powers to the federal government (e.g., the power to regulate commerce among the states), by allowing civil cases between citizens of different states to be tried in federal courts (which are presumed to be more impartial than their state counterparts), and by protecting citizens of one state against discrimination while in another state through the privileges-and-immunities clause of Article IV. Fourth is a desire for interstate comity. The Constitution encourages comity by specifying the obligations owed by one state to another. States are obliged to give full faith and credit to the public acts and judgments of other states (e.g., recognize driver’s and marriage licenses issued in other states). They are also required to extradite fugitives from justice in other states and, prior to the Civil War, were required to return fugitive slaves. Fifth is a desire to facilitate interstate cooperation in solving common problems while safeguarding federal interests. Thus the Constitution recognizes the authority of states to compact with one another, although they may do so only with the consent of Congress.²⁶

Fiscal Powers

The framers gave Congress limited power to tax so that the federal government could raise the revenue necessary to finance its operations without having to rely on the states. The Constitution imposes three express limits on this power: Congress may not tax exports, it must apportion direct taxes among the states in relation to their populations, and it must impose taxes uniformly throughout the nation. Only the vague limitation on "direct taxes" has provoked controversy. In Pollock v. Farmer's Loan & Trust Company (1895), the Supreme Court held that because taxes on real estate are direct taxes, the same is true of taxes on income from real estate.²⁷ This decision, which in effect prevented the imposition of any type of federal income tax, was reversed by ratification of the Sixteenth Amendment in 1913.

Granting taxation authority to the federal government does not preclude taxation by the states. The power to tax is a concurrent power because states retain authority to tax anything they wish as long as a tax does not discriminate against persons or businesses from other states, violate anyone's civil rights, or violate the constitutional ban on state taxes on imports or exports. The Constitution contains no provisions for revenue sharing or fiscal equalization; it does not require the federal government or the states to cooperate or coordinate with each other on tax matters, nor does it require the states to harmonize their tax systems. McCulloch v. Maryland (1819) established the doctrine of intergovernmental tax immunities, under which states and localities cannot tax instrumentalities of the federal government (e.g., a federal courthouse) and the federal government cannot tax instrumentalities of state and local governments.²⁸

The federal Constitution does not require the federal or state governments to balance their budgets, nor does it regulate federal, state, or local borrowing. However, state constitutions do place fiscal constraints on state and local governments; they often include detailed provisions concerning the power of those governments to levy taxes, grant tax exemptions, borrow money through issuing bonds, and spend the money raised by taxing and borrowing. Many state constitutions impose tax uniformity requirements analogous to the requirement found in the federal Constitution -- for example, the Pennsylvania Constitution mandates that "all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax."²⁹ In addition, several states have adopted amendments by constitutional initiative that restrict the taxation authority of state and local governments. For example, in 1978 California adopted "Proposition 13," which reduced local property taxes and capped future property-tax increases, and in 1992 Colorado adopted the "Taxpayer Bill of Rights," which requires popular approval of all new taxes via referendum.³⁰ Most state constitutions also require state governments to have balanced operating budgets. Many also restrict state and local borrowing, typically requiring that proposals to incur debt be submitted to popular referendum. Thus, whereas the federal Constitution places few constraints on the fiscal powers of the federal government and the states, state constitutions impose a variety of limitations.

The fiscal arrangements of the federal system have changed dramatically since the early 1930s. Article I, Section 8(1), gives Congress the power to raise certain taxes and impose duties. The federal government levied an income tax during the Civil War but did not implement a permanent, graduated income tax until after the Sixteenth Amendment (1913) removed doubts about its constitutionality. With this power to tax income, the federal government became, by the Second World War, the predominant tax power. The federal government increasingly relied on this power, as well as on deficit spending, to gain leverage over the states, enticing them to enlist in federal programs by offering them conditional grants-in-aid. Acting through its spending power, Congress may extend its reach to many matters normally reserved to the states. It may accomplish its aims indirectly by attaching conditions to federal spending programs or grants. In South Dakota v. Dole (1987), the US Supreme Court upheld this use of federal power, noting that "objectives not thought to be within Article I's ‘enumerated legislative fields’ ... may nevertheless be attained through the use of the spending power and the conditional grant of federal funds."³¹ In this case, the Court upheld a condition of federal highway aid that required all states to raise to 21 the age to purchase alcoholic beverages. States failing to raise the drinking age would have lost some of their highway aid.

Foreign Affairs and Defence

The conduct of foreign affairs is preeminently a federal, rather than a state, concern. As Madison writes, "If we are to be one nation in any respect, it clearly ought to be in respect to other nations."³² The Constitution recognizes this not only by granting pertinent powers to the president and to Congress but also by expressly denying them to the states or ensuring that their exercise by the states does not conflict with federal policy. Thus Article I, Section 10, of the Constitution prohibits states from entering into any treaty, alliances, or confederation with foreign nations, but it allows them to enter agreements and compacts with foreign states with congressional consent, and many states have done so. The Constitution forbids the states from engaging in war unless actually invaded or in imminent danger of invasion, but it safeguards their ability to defend themselves through state militias. In Crosby v. National Foreign Trade Council (2000)³³ the Court struck down a Massachusetts law forbidding the state to purchase goods or services from companies that did business with Myanmar because the law conflicted with a federal statute governing trade with that country. However, the Court left unanswered the more fundamental question of whether the Constitution precludes all state actions affecting foreign affairs or even all state economic sanctions against foreign countries.³⁴ Finally, in American Insurance Association v. Garamendi (2003), the Court struck down a California statute designed to help Holocaust survivors receive payment on life-insurance plans purchased during the Second World War, holding that the law interfered with the president’s ability to conduct and control foreign policy and was thus preempted.

Each state has its own armed force, the militia, and the Constitution guarantees the states the authority to appoint militia officers and to train their militias "according to the discipline prescribed by Congress" (Art. I, Sec. 8, Para. 16). Initially, the militia served two purposes. First, the founders feared a large standing army as dangerous to republican liberty, and the militia provided an alternative to such an army, an armed force of all able-bodied free males that could help repel foreign foes or quell domestic disturbances. Thus the Constitution authorizes Congress to call state militias into the service of the United States "to execute the laws of the Union, suppress insurrections, and repel invasions" (Art. I, Sec. 8, Para. 15). (By statute, Congress has delegated this authority to the president, who serves as commander in chief of the militia when it is called into service.) Second, the militia provided a means by which the states could resist federal tyranny. As Madison observes, potential federal usurpers would face “a militia amounting to near a half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by government possessing their affections and confidence.”³⁵

Since the Second World War, the United States has maintained a large standing army, so the militia is less important. Over time, the character of the militia has changed from a force comprised of all citizens into a select and better-trained force, the National Guard. In Perpich v. Department of Defense (1990), the Supreme Court upheld over a governor's objections a congressional authorization for training National Guard troops outside the United States, ruling that the exercise of federal powers in foreign affairs supersedes state prerogatives.³⁶

The states' role in war and foreign affairs comes primarily from their representation in the US Senate. Although the Constitution designates the president as "commander in chief of the Army and Navy" (Art. II, Sec. 2, Para. 1), Congress has the authority to raise and support military forces, to declare war, to regulate commerce with foreign countries, and to suspend the writ of habeas corpus in time of war. The Constitution grants the House of Representatives a role equal to that of the Senate in exercising these military powers because individuals might have to be conscripted for war and because individuals have to be taxed to pay for war. The Constitution grants the Senate the power to confirm ambassadors and other envoys and to ratify treaties by a two-thirds vote, a concession to the southern states, which feared that a simple-majority rule would allow the northern states to ratify treaties detrimental to their interests. It thus grants the house of Congress representing state interests crucial authority over foreign policy matters that might encroach upon state powers. As the United States became a world power, the president emerged as the dominant figure in setting foreign policy and initiating military action. Nevertheless, the president seeks the support of Congress in order to present a united front to other countries. Thus President George W. Bush sought the concurrence of Congress for taking action against al-Qa’ida in the wake of the attacks on New York City’s World Trade Center in 2001 and for war against Iraq in 2003.

Citizenship

The Preamble to the Constitution indicates that those making the Constitution are "We the People of the United States." Implicit in this language is a fundamental ambiguity about the character of the system that was being created. Nationalist interpreters have read the language to mean “We the People of the whole United States,” emphasizing the founders' desire to augment federal power and the recognition of Americans as one people in the Declaration of Independence. Interpreters of states' rights have read the language as “We the People of the several States” that are uniting to form a more perfect union, thus viewing the Constitution as uniting states rather than persons. They note that the Constitution was ratified by conventions in the various states rather than by a popular national referendum and that nowhere does the Constitution permit the whole people to act directly on anything. This seemingly arcane debate has had real consequences -- for example, southern proponents of secession argued that if a state could consent to join the Union, it could also withdraw that consent. Moreover, conflict over the nature of the federal Union continues to the present day.

This ambiguity is intensified by the treatment of dual federal and state citizenship in the Constitution. The Constitution mentions both state and national citizens at several points but does not define either type of citizenship or indicate the relationship between them. In the infamous case of Dred Scott v. Sandford (1857), the Supreme Court accepted the priority of state over national citizenship, ruling that persons born in the United States derived their citizenship from their status as descendants of those "who were at the time of the adoption of the Constitution recognized as citizens in the several States." The Court also held that black Americans could not attain United States citizenship either from a state or by virtue of birth within the United States.³⁷ The Fourteenth Amendment (1868) expressly overruled Dred Scott and confirmed that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside" (Sec. 1). The amendment thus recognized the citizenship of African Americans, established the priority of national over state citizenship, and reduced state citizenship to little more than residence within a state.

The Constitution grants Congress the power "to establish a uniform Rule of Naturalization," and in Chirac v. Chirac (1817), the Supreme Court confirmed that this is an exclusive, not a concurrent, power.³⁸ Congress also has the power to exclude aliens from the United States -- admission is a privilege granted only on such terms as Congress may prescribe -- and to deport or expel aliens who have been admitted. The Supreme Court has imposed some procedural requirements on deportation hearings, but these are considerably fewer than are available to defendants in criminal trials.³⁹

Voting, Elections, and Political Parties

The states have primary responsibility for structuring their own processes of self-government, subject to few federal constitutional limitations. They also bear considerable responsibility for structuring national political processes, exercising in the first instance the power to regulate the time, place, and manner of congressional elections, and determining how presidential electors (i.e., the electoral college) are selected.

During the decade between independence and drafting of the federal Constitution, each state established its own eligibility requirements for voting in state elections. Rather than impose a uniform standard for federal elections, which would diverge from the qualifications in some states and thus create distinct state and federal electorates, the Constitution adopted the diverse state qualifications as its own. It mandated that the qualifications to vote for members of the US House of Representatives shall be the same qualifications requisite for electors (i.e., voters) of the most numerous branch of the state legislature.⁴⁰ During the nineteenth century, states liberalized voting requirements, thus substantially enlarging the federal and state electorates. Today states continue to determine voter eligibility (e.g., by limiting voting on the basis of residency, mental incapacity, and conviction of a felony crime) and to retain responsibility for voter registration. However, federal constitutional amendments and congressional statutes now limit state discretion in setting eligibility requirements. The Fifteenth Amendment (1870) forbids states from denying the right to vote based on race, colour, or previous condition of servitude. The Nineteenth Amendment (1920) guarantees women the right to vote. The Twenty-fourth Amendment (1964) provides that the right to vote in federal elections shall not be denied for failure to pay a poll tax or any other tax. The Twenty-sixth Amendment (1971) lowered the voting age to 18 nationwide. All of these amendments authorize congressional enforcement through "appropriate legislation." In 1965 Congress enacted the Voting Rights Act, which bars racial discrimination in all voting practices and procedures. The act also requires that before enacting changes to voting practices and procedures, officials in nine states and in portions of seven others in which racial discrimination was once widespread must obtain advance approval from the federal attorney general or from a federal court. Other federal laws with which states must comply proscribe electoral violence and intimidation, require states to maintain voter registration procedures for federal elections that are convenient and easy to satisfy (e.g., the "motor voter" law), and provide standards governing absentee voting by members of the armed forces.⁴¹

The right to form political parties and other political groups is implicit in the First Amendment's (1791) protections of freedom of speech and the rights to assemble and to petition governments for redress of grievances. In 1976 the US Supreme Court held that the right of individuals and groups to contribute funds to political candidates and political parties is protected under the First Amendment.⁴² However, the federal Constitution does not expressly deal with political parties, nor do most state constitutions.

The Protection of Rights

The original Constitution included several important rights protections. It forbade bills of attainder (legislative acts declaring persons guilty of crimes and passing sentence without benefit of trial) and ex post facto laws. It expressly defined and limited treason so that treason charges could not be used to persecute political opponents. It restricted suspension of the writ of habeas corpus, except "when in Cases of Rebellion or Invasion the public Safety may require it." It also forbade religious tests for holding any federal office.⁴³

The original Constitution did not include a bill of rights because few delegates to the Constitutional Convention believed one was necessary. When George Mason of Virginia proposed a bill of rights during the final week of the convention, not a single state supported his proposal. However, during the debate over ratification of the Constitution, anti-Federalist opponents of ratification pointed to the absence of a bill of rights as a fatal defect that would allow the growth of a dangerously powerful federal government. In response, Hamilton insisted that a bill of rights would expand federal power because it would imply that the federal government could do anything not prohibited by a bill of rights.⁴⁴ However, Hamilton's argument proved unpersuasive, and the Federalists, who supported ratification, agreed to introduce amendments as the price of ratification.

The Bill of Rights of 1791, the first ten amendments to the Constitution, reflects in part the anti-Federalists' concerns. Because the anti-Federalists viewed the federal government as the primary threat to liberty, the amendments imposed limits only on the federal government. Most state constitutions already contained declarations of rights to safeguard against state violations; in fact, these state constitutions were the source of most of the rights in the federal Bill of Rights. Moreover, some amendments also safeguard state prerogatives. For example, the First Amendment forbids Congress from enacting laws respecting an establishment of religion, thereby leaving the states free to structure church-state relations as they saw fit; the Second Amendment safeguards the right to bear arms, enabling citizens to band together against federal oppression under state leadership if necessary. Finally, the Tenth Amendment confirms that the Constitution grants only limited authority to the federal government and that all powers not delegated to the federal government are reserved to the states or to the people.

The Bill of Rights, moreover, reflects a concern for individual rights. The First Amendment protects basic freedoms of religion, speech, press, public assembly, and petitioning government. The Fourth, Fifth, and Sixth Amendments guarantee a panoply of rights to defendants accused of crime -- for example, a right against unreasonable search and seizure, the right to counsel, and the right against self-incrimination. The Sixth and Seventh Amendments secure the right to a jury trial in federal criminal and civil cases. The Eighth Amendment prohibits excessive bail or fines and outlaws "cruel and unusual punishments." The Ninth Amendment confirms that the list of rights in the preceding eight amendments is not comprehensive, that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

What is striking, at least from today’s perspective, is what the Bill of Rights omits. For one, it does not provide for the suspension of rights during national emergencies. The Constitution permits only suspension of the writ of habeas corpus in case of rebellion or invasion. Thus it is largely left to Congress and the judiciary to determine whether curtailment of rights during a war or other emergency is justified by circumstances. Second, the Bill of Rights recognizes no group or communal rights, and even later amendments that protect members of groups do so by protecting their individual rights. Thus the Fourteenth Amendment protects "any person" (Sec. 1) against denial of equal protection by the laws, the Fifteenth Amendment ensures that no citizen will be denied the right to vote on the basis of race or colour, and the Nineteenth Amendment does the same on the basis of gender. Third, the Bill of Rights guarantees negative rights in the form of freedoms from government oppression; it does not protect positive rights, such as rights to government services. For instance, when litigants in San Antonio Independent School District v. Rodriguez (1973) insisted that the Constitution guarantees a right to education, the US Supreme Court rejected their argument.⁴⁵ (Some state constitutions do protect positive rights, such as the right to education, to a clean and healthful environment, and to housing.) Finally, the Bill of Rights offers no protection against private violations of rights, securing rights only against violation by governments.

Three developments have dramatically altered the protection of rights under American constitutionalism. The first development began with the adoption of the Fourteenth Amendment in 1868. The amendment's immediate aim was to secure the rights of newly freed slaves against state violations. However, the amendment does not mention race, and its language is very broad. It forbids states from "mak[ing] or enforc[ing] any law which shall abridge the privileges and immunities of citizens of the United States," "deny[ing] to any person within their jurisdiction the equal protection of the laws," and "depriv[ing] any person of their life, liberty, or property without due process of law" (Sec. 1). Commentators and judges have disagreed vehemently about the intended scope of the Fourteenth Amendment. Some scholars insist that the amendment applies the Bill of Rights to the states, guarantees other rights against state infringement as well, and gives the federal government broad authority to protect these rights.⁴⁶ Others emphasize the attachment to federalism of the amendment's authors, depict the amendment's aims as specific rather than open-ended, and deny that these aims encompassed the application of the Bill of Rights to the states.⁴⁷ Initially, the Supreme Court in The Slaughterhouse Cases (1873) read the amendment narrowly.⁴⁸ However, during the twentieth century -- and particularly during the chief justiceship of Earl Warren (1953-69) -- the Court read the amendment broadly, and it incrementally ruled that nearly all provisions of the Bill of Rights protect against state, as well as federal, infringements on rights.

Implicit in what has been said is a second major development, the more aggressive stance taken by the US Supreme Court in enforcing rights. Not until the early twentieth century did the Court strike down a state law for violating the Bill of Rights. However, with the extension of the Bill of Rights to the states, the number of cases involving rights claims increased dramatically, leading to landmark Court rulings. For example, the Court's rulings protecting flag burning under the First Amendment, outlawing state-sanctioned religious practices in schools, granting government-provided legal counsel to indigent defendants, requiring police to inform suspects of their rights before interrogating them, and prohibiting the death penalty in rape cases all involved state rather than federal violations of rights.⁴⁹ In addition, the Supreme Court has relied on the equal-protection clause of the Fourteenth Amendment to address racial discrimination (e.g., Brown v. Board of Education, 1954), legislative apportionment (e.g., Reynolds v. Sims, 1964), and more recently, gender discrimination (e.g., United States v. Virginia, 1996) and affirmative action (e.g., Grutter v. Bollinger, 2003).⁵⁰ Finally, the Court has identified rights not expressly found in the Constitution, such as a right to privacy, and thereby struck down state laws held to violate these rights, such as prohibitions of abortion (e.g., Roe v. Wade, 1973).⁵¹

Beginning in the 1970s, another important development took place, namely the rediscovery of state bills (or declarations) of rights. State constitutions have always included rights guarantees. However, for most of the twentieth century, litigants only infrequently looked to these protections, preferring instead to rely on the federal Bill of Rights and on federal courts to secure their rights. Under Chief Justice Earl Warren, the US Supreme Court was very responsive to rights claims. After Warren retired in 1969, however, the Court moved in a more conservative direction, particularly in cases involving the rights of defendants. This led many civil-liberties advocates to take cases into state courts, fashioning legal arguments based on state constitutional declarations of rights. This "new judicial federalism" has enjoyed considerable success, with state courts playing a significant role in cases involving (among other things) the rights of defendants, the rights of gays and lesbians, and the reform of public school finance. Thus rights litigants often engage in forum shopping between state and federal courts.

Constitutional Change

Constitutional change can occur either by altering the text of the document through amendment or revision (replacement) or by altering the interpretation of the text. In the 50 states, constitutional change has proceeded primarily through amendment and revision. But change through interpretation has predominated for the US Constitution. The most important developments in American constitutional history -- the extension in the scope of all orders of government, the expansion of federal power, and the growth of presidential and judicial power -- have largely occurred without constitutional amendment.

The Constitution has been amended only 27 times in more than 215 years. If one excludes the Bill of Rights (Amendments 1-10) of 1791, the Constitution has been amended less than once every 13 years. The infrequency of formal change reflects in part the difficulty of amendment. Amendments must be proposed by a two-thirds vote in each house of Congress or by a convention called by Congress upon petition by two-thirds of the state legislatures. (The latter approach, inserted to ensure that Congress could not block popular demands for constitutional change, has never been utilized.) Although thousands of amendments have been introduced in Congress, only 33 have been sent to the states for ratification. Ratification requires approval by the legislatures of three-quarters of the states or, if Congress so designates, by specially elected conventions in three-quarters of the states. The ratification procedure thus reflects the federal character of the American polity, requiring that amendments be approved by both partners (federal and state) in the federal system and be supported not merely by a numerical supermajority but also by a geographically dispersed majority.⁵²

Emerging Trends and Developments

It is highly unlikely that major amendments to the US Constitution will be adopted in the near future. Therefore, the most important influences on the development of American constitutionalism and federalism in the early decades of the twenty-first century will be changes in interpretations of the Constitution and/or political developments within the leeways provided by the Constitution. Three trends bear watching.

First is the US Supreme Court's role in safeguarding state prerogatives and enforcing limits on federal power. Beginning in the 1990s, the Supreme Court reaffirmed and expanded the concept of state sovereign immunity. It also ruled that the institutions of state government (other than courts) cannot be commandeered by Congress to assist in the enforcement of federal law. It placed limits on congressional use of the commerce clause to regulate noneconomic activities. Finally, it imposed new, rather stringent standards for review of congressional legislation adopted under Section 5 of the Fourteenth Amendment, which authorizes Congress to enact "appropriate legislation" to enforce the amendment's mandates. Many of these cases were decided by a narrow 5-4 margin, and the durability of these judicial initiatives in enforcing constitutional federalism are likely to depend on future appointments to the bench, which, in turn, will depend on the outcomes of future presidential and senatorial elections.

Second is the unwillingness of the federal government to limit its activities in areas of concurrent power in order to allow the states to exercise their traditional governing responsibilities. Since the 1970s, a succession of presidents has given rhetorical support to reining in the federal government, thereby permitting state governments to pursue innovative approaches to policy issues and to tailor policy to the needs and circumstances of their citizens.⁵³ Scholars have also rediscovered the virtues of federalism.⁵⁴ Nevertheless, political practice has not always coincided with rhetoric. Presidents have tended to encourage centralized solutions for perceived problems -- for example, President George W. Bush's initiatives with regard to elementary and secondary education and tort reform -- and Congress has responded to interest-group pressure by federalizing a variety of ordinary state-law crimes, such as drug possession and violence against women. Whether this federal reach can be restrained will be important in determining the future course of American federalism.

Third are the terrorist attacks on the United States of 11 September 2001 and the response to these attacks by the federal government. These attacks and the resulting war on terrorism have concentrated the attention of the federal government on foreign affairs and homeland security and have led to the adoption of legislation (e.g., the USA Patriot Act) designed to forestall future acts of terrorism. This statute has been controversial, as have some of the other actions taken by the federal government, but the controversy has focused on alleged threats to civil liberties from these initiatives rather than on threats to the federal balance. In fact, the effort to combat terrorism has not significantly altered US federalism. The creation of the US Department of Homeland Security within the federal government entailed a major reorganization within this government but did not significantly affect intergovernmental relations. The emphasis has been on improving intergovernmental cooperation and coordination rather than on accelerating centralization. In this sense, the response to 11 September has been adapted to the current federal system.