Дуализм федерализма: Разделение властей и формирование американской государственности.

Political arrangement

Dual federalism, also known as layer cake federalism or divided sovereignty, is a political arrangement in which power is divided between the federal and state governments in clearly defined terms, with state governments exercising those powers accorded to them without interference from the federal government. Dual federalism is defined in contrast to cooperative federalism ("marble cake federalism"), in which federal and state governments collaborate on policy.

The system of dual/joint federalism in the United States is a product of the backlash against the Articles of Confederation, ratified in 1781, which established a very weak federal government with the powers to declare war, make treaties, and maintain an army. Fueled by Shays' Rebellion and an economy faltering under the inability of the federal government to pay the debt from the American Revolution, a group later known as the Federalists generated support for a strong central government and called for a Constitutional Convention in 1787 to reconsider the Articles. In 1787, the Convention almost immediately dropped its original purpose of editing the Articles and instead drafted a new Constitution of the United States. Rejecting both confederal and unitary systems, they based the new American government on a new theory of federalism, a system of shared sovereignty that delegates some powers to the federal government and reserves other powers for the states. Among other powers, the federal legislature could now tax citizens and maintain a standing military, and had exclusive power over regulating interstate commerce and coining currency. In addition, while Article Six of the Constitution stipulated that federal law in pursuit of constitutionally assigned ends overrode any contradictory state law, the power of the national government was held in check by the Bill of Rights – particularly the Tenth Amendment, which limited federal governmental powers to only those specified in the Constitution. Importantly, at the Convention, there was large debate over the structure of the legislative branch, eventually solved by the Connecticut Compromise. In the traditional understanding of the discussion, the larger states proposed the Virginia Plan, which allocated representation to each state proportional to its population. The smaller states, fearing a tyranny of the larger states, propose the New Jersey Plan, which gave each state equal representation in the legislative body. The states' motives for such a debate have been largely understood as a method for ensuring a strong voice in the federal government so as to maintain a desired degree of sovereignty. Further, political scientist Martin Diamond interprets the argument through a federalist vs antifederalist lens, discounting the question of state size. Specifically, he argues that the pure federalism of the New Jersey Plan and the pure nationalism of the Virginia Plan eventually came together to form the system of bicameralism that the framers settled on. However, his theory largely goes against the usual understanding, which some have argued is based on stronger historical evidence.

Since the initial division of state and federal powers – collectively, the system of dual federalism – put forth by the Constitution, several seminal court cases have helped further clarify the purview of the federal government. One such case, McCulloch v. Maryland, concerned the constitutionality of a federally chartered bank, which bankers and many legislators in Maryland opposed. Thus, the bank's legitimacy was ensured by the Necessary and Proper Clause. A second major case regarding the respective rights of the state and federal government was Gibbons v. Ogden (1824). In 1808, the Fulton Livingston Company had been granted exclusive steamboat rights by the New York legislature, who in turn had leased ferry rights within a portion of New York to Aaron Ogden. Ogden, citing the monopoly granted to him by the Fulton Livingstone Company, had successfully prevented Thomas Gibbons from operating a ferry service between Manhattan and New Jersey.

In the decades before the Civil War, both Northern and Southern states clashed with the national government over perceived overreaches in its power. These conflicts struck at the heart of dual federalism, and reflected a fundamental disagreement about the division of power between the national and state levels. While these political battles were ostensibly solved either through legislative compromise or Supreme Court decisions, the underlying tensions and disagreements about states’ rights would later help set the stage for the Civil War.

In 1828, the so called "Tariff of Abominations" passed the U. S. House. It was meant as a protectionist measure to help the relatively industrialized New England states against international products, but this had grave implications for the largely agrarian South. In protest and spearheaded by Vice President John Calhoun, South Carolina formulated a "nullification doctrine", in effect claiming a state's ability to ignore federal law, and rejected the tariff. The situation became especially serious when President Jackson ordered federal troops into Charleston, though crisis was averted by the drafting of a new tariff to which both sides agreed. The U. S. Supreme Court declared the Pennsylvania law unconstitutional, striking the abolitionist law and heightening tensions between slaveholding and non slaveholding states.

A similar situation arose when, in 1854, the state Supreme Court of Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional. The U. S. Supreme Court overturned the Wisconsin Supreme Court while the Wisconsin legislature, echoing the rhetoric of South Carolina during the 1828 crisis, nullified the U. S. Supreme Court’s decision. Though the decision was largely welcomed in the South, the decision outraged abolitionists and non slaveholding states as another affront on states' rights.

The Civil War brought to a head many of the fundamental disagreements concerning the extent of state and federal powers which presidential candidates Lincoln and Douglas had debated between 1858 and 1860. Douglas, an advocate of federal government limited by a strict interpretation of the Constitution, championed the vision of America as “the confederation of the sovereign states". Lincoln, meanwhile, envisioned a more active federal government and more integrated national community, with the purview of states limited to only "those things that pertain exclusively to themselves—that are local in their nature, that have no connection with the general government". There exists debate over whether this increase in federal power was achieved against states’ will or whether such expanded powers were granted by the states. of what the abolitionists meant to accomplish, within historical context the Supreme Court decisions seem more occupied with sustaining the system of dual federalism. In making these decisions, the Supreme Court aimed to keep in line with the idea of federalism as it then existed, balancing states' rights with the protection of civil liberties, rather than simply opposing the new amendments. For instance, in Strauder v. West Virginia the Court sided with those who wished to overturn the law that excluded black citizens from juries, which suggests that the Court was beginning to build a set of cases that enumerated rights based on the new amendments. However, in other aspects the Supreme Court reasserted states' rights in relation to the 14th Amendment in particular. In the Slaughter house cases and Bradwell v. Illinois the Court supported the view that the amendment regulated states rather than individuals practicing discrimination. Both of these cases allowed states to enforce laws that infringed on individual rights.

The general consensus among scholars is that dual federalism ended during Franklin Roosevelt's presidency in 1937 when the New Deal policies were decided constitutional by the Supreme Court. Other political scientists see dual federalism ending much earlier than the New Deal; This would have been the beginning of cooperative federalism as the federal government identified a problem, set up the basic outline of the program to address the problem, and make money available to fund that program, and then turning over much of the responsibility for implementing and running the program to the states and localities. Daniel Elazar argues that there was substantial cooperation among the states and federal government beginning in the 19th century, leading up to the Civil War and several political scientists assert that starting from the 1870s and throughout the Progressive Era, the federal government and states worked together to create national policies. The federations of Australia, Canada, and Switzerland most closely resemble the model of American dual federalism in which fundamental governmental powers are divided between the federal and state governments, with the states exercising broad powers. While the American federalist system allocates both legislative and administrative powers to each division of government, European federations have historically allocated legislative powers to the federal government and left constituents to administer and implement these laws. Most western federalist systems in recent years have drifted away from autonomous levels of governments with strong state powers and moved toward more centralized federal governments, as seen in the American government's transition from dual to cooperative federalism. The Canadian and Australian federal systems closely resemble the American construct of dual federalism in that their legislative and executive powers are allocated in the same policy area to a single level of government. In contrast, some federal structures, such as those of Germany, Austria, and Switzerland, consist of federal governments exercising broad legislative powers and constituent governments allocated the power to administer such legislation in a style similar to cooperative federalism. Constitutions with delegations of broad powers to the state level of government that resemble the Constitution of the United States include the Constitution of Australia and the Constitution of Canada. The Australian Constitution was designed to enumerate a limited range of federal powers and leave the rest to the states. The Canadian Constitution, in contrast, assigned all residual powers to the federal government and enumerated a complete list of provincial powers.

In his second term, President Dwight D. Eisenhower organized the Commission on National Goals to broadly outline national objectives. Included in their 1960 report Goals for Americans: The Report of the President's Commission on National Goals was "The Federal System", a report by political scientist Morton Grodzins. In this report, Grodzins first coined the terms "layer cake federalism" and "marble cake federalism." He used the metaphor of a layer cake to describe the system of dual federalism, the separated layers of the cake symbolizing how distinct spheres of power that the state and federal governments have not been inhabited. He contrasted this with marble cake, which he saw as descriptive of federalism's status in 1960, the swirling indistinct boundaries of the cake symbolizing the overlapping and concurrent duties of the state and federal governments.