Arguments about federalism

Federalism


•Key terms • Court cases •Major arguments • State responses to federal mandates • Federalism by the numbers • Index of articles about federalism

See also: Arguments in support of federalism, Arguments opposed to federalism

This page presents a selection of the main areas of inquiry and disagreement related to the history, theory, and practice of federalism. In the context of the United States, federalism refers to a system of government that divides power between the federal government and state governments, or between two or more state governments. For more information on federalism, click here.

Ballotpedia has tracked nine arguments supporting federalism, 10 arguments opposing federalism, and the following six arguments related to the nature of federalism:

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: The intentions of the Framers related to federalism have been misunderstood

2. Argument: Federalism is not the same as decentralization

3. Argument: Federalism is the middle-ground between disunity and centralization

4. Argument: Federalism is difficult to maintain

5. Argument: Federalism establishes opportunities for citizen engagement

Claim: Uncertainty over division of powers establishes opportunities for citizen engagement

Click here to view arguments supporting federalism. Click here to view arguments opposing federalism.

What is federalism and what isn't it?

This section includes arguments about the nature of federalism, the Founders' views on federalism, whether contemporary federalism aligns with the Founders' intentions, and whether action is needed to preserve federalism.

Argument: The intentions of the Framers related to federalism have been misunderstood

This argument posits that an inaccurate understanding of the Constitution has led to misinterpretations of federalism and the authority granted to the federal government.

Claim: A broad reading of the commerce clause centralizes too much power in Congress

This claim suggests that the modern view of the commerce clause gives Congress too much power over anything related to commerce, including almost all manufacturing and production taking place in a single state. Instead, according to this view, the clause was only intended to give the federal government the ability to regulate trade between the 50 states.

Law professor Richard A. Epstein wrote in a 1987 article for the University of Chicago Law School, “The commerce power is not a comprehensive grant of federal power. It does not convert the Constitution from a system of government with enumerated federal powers into one in which the only subject matter limitations placed on Congress are those which it chooses to impose upon itself. Nor does the ‘necessary and proper’ clause work to change this basic design; although it seeks to insure that the federal power may be exercised upon its appropriate targets, it is not designed to run roughshod over the entire scheme of enumerated powers that precedes it in the Constitution.”^[1]

Epstein wrote, “Article I, section 8, contains an extensive list of separate, discrete, and enumerated powers granted to Congress, whereas article I, section 9, contains a comparable list of powers specifically denied to it. The lists of inclusion and exclusion suggest that the provisions contained in any one section should be read to recognize the existence and necessity of other specific powers and limitations contained elsewhere in article I, as well as the certainty that some matters are wholly beyond the power of Congress.”^[1]

Epstein continued, “A system which says that the commerce clause essentially allows the government to regulate anything that even indirectly burdens or affects commerce does away with the key understanding that the federal government has received only enumerated powers. The doctrine of ‘internal relations’ is not only a philosophical creed that says every event is related to every other separate event; it is also something of an economic truth in a world in which the price of any given commodity depends upon the costs of its inputs and upon the alternatives available to potential buyers. To say that Congress may regulate X because of its price effects upon any goods in interstate commerce, or because of its effects upon the quantity of goods so shipped, is to say that Congress can regulate whatever it pleases, a theory that cases such as Wickard v. Filburn have so eagerly inferred.”^[1]

Claim: The necessary and proper clause does not grant Congress unlimited power

This claim suggests that the necessary and proper clause was designed to prevent a limitation upon Congress’ means to achieve its enumerated ends and does not grant the federal government unlimited power.

Epstein wrote, “Nor is any of this understanding upset by the ‘necessary and proper’ clause of the Constitution, which may expand the power of Congress, but does not provide for an unlimited grant of federal power. The necessary and proper clause provides that Congress shall have the power ‘[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ As drafted the clause does nothing to upset the balance of power between the federal and the state governments, nor to contravene the principle of enumerated powers on which the structure of article I, section 8 rests. What the necessary and proper clause does is to ensure that the Congress shall have all means at its disposal to reach the heads of power that admittedly fall within its grasp.”^[1]

Claim: Federalism was a political compromise, not an idealistic aspiration

This claim suggests that federalism was established as a political compromise between independent state governments to grant authority to the central government; it was not designed as an idealistic aspiration.

In a 1988 article for the Columbia Law Review, professor Deborah Jones Merritt wrote, “The federal system resulted from a compromise between those who saw the need for a strong central government and those who were wedded to the independent sovereignty of the states. It was unthinkable to most eighteenth century citizens that the Constitution should abolish state governments. At the same time, the difficulties experienced under the Articles of Confederation demonstrated the need for a strong central power. Given these constraints, the Framers of the Constitution pursued the only practical course: a federal system that would maintain independent state governments while giving the new central government supreme authority in certain designated areas. Federalism in the United States thus was born as a political compromise rather than as a theoretical ideal.”^[2]

Claim: Citizens are granted sovereignty under the Constitution

This claim suggests that the Constitution was intended to grant sovereignty to citizens, as opposed to state or federal government.

Law professor Michael W. McConnell wrote in a 1987 article for the University of Chicago Law School, “The most persuasive inference from the text of the Constitution is that sovereignty rests in the people of the United States, and not in the governments of either the states or the nation. It follows that the extent of federal authority is neither more nor less than that delegated through the Constitution. That the states were in some sense sovereign prior to the Constitution seems largely irrelevant.”^[3]

Claim: America’s government deviates from the Framers’ vision

This claim states that the modern system of American federalism does not align with the vision the founders had for American government.

James M. Buchanan wrote, “We know now that United States history has destroyed Madison's vision. As a result of the destructive Civil War in the 1860s, secession was permanently eliminated as an effective extra-constitutional check on the progressive increase in central government authority. And, in the 20th century, constitutional guarantees against federal encroachment on the authority of states were undermined by executive, legislative, and judicial departures from established principles.”^[4]

Argument: Federalism is not the same as decentralization

This argument posits that federalism and decentralization are not synonymous, having different goals and outcomes.

Claim: Decentralization is neither superior to nor a substitute for federalism

This argument states that decentralization does not promote the same public benefits as federalism.

Writing for the 2001 Southern California Interdisciplinary Law Journal, Yale Law School Graduate Fellow Jason Mazzone wrote, “The social capital argument highlights an important advantage of federalism over mere decentralization. Social capital is enhanced when there are multiple sites of political power that promote the political activities of a large number of citizen groups and provide greater opportunities for direct forms of participation in public life. Decentralization increases the sites of political decisionmaking and may also increase opportunities for citizens to exert influence at multiple sites. In a decentralized system, however, power ultimately rests in the central authority, providing incentives for citizen groups to seek influence by strengthening their resources at the national level. In a federal system, consolidating resources at the national level may have very little impact on politics at the state level, because power, not merely decisionmaking authority, is dispersed. Citizens cannot depend on the national government to intervene on their behalf in the states. Instead, influence over state policies requires citizens to direct resources towards state government because that is the ultimate decisionmaker.”^[5]

Claim: Decentralization, not federalism, is better at securing citizen participation, state competition, and responsive governance

This claim suggests that federalism does not secure benefits commonly associated with it, such as increased citizen participation, more efficient state competition, and greater government responsiveness. According to this claim, such goals are the product of administrative decentralization.

Law professors Edward L. Rubin and Malcolm Feeley wrote, “We begin in Part I by defining federalism and distinguishing it from the separate concept of administrative decentralization. On the basis of this distinction, we demonstrate that federalism, once properly defined, does not secure citizen participation, does not make government more responsive or efficient by creating competition, and does not encourage experimentation. Assuming these are desirable goals - and some certainly are - they call for a decentralized regime, not a federal one. Having rejected these essentially instrumentalist arguments for federalism, we then turn to the major normative arguments - arguments that do not merge federalism with decentralization. The two leading arguments are that federalism diffuses governmental power, and that it secures community."^[6]

Rubin and Feeley wrote, “Once we recognize the distinction between federalism and decentralization, we can see that many standard arguments advanced for federalism are clearly nothing more than policy arguments for decentralization. These are the claims that some nationally-defined policy is best achieved by permitting regional variation. The point is not simply that federalism is unnecessary for implementing such policies, that it represents an unnecessary use of constitutional artillery. Rather, federalism is absolutely antithetical to these policies because it allows the wrong kinds of variation. Implementing a national policy through a decentralized system means that the permitted variations will be those that contribute to achieving the designated policy. In contrast, federalism allows the states to vary as they choose, pursuing their own policies instead of the national one. This can be justified only by arguments favoring a variety of policies, not by arguments favoring the implementation of a single policy by a variety of methods. Of the standard arguments for federalism, four are really arguments that specific national policies are best implemented by decentralized decision-making; these are public participation, effectuating citizen choice through competition among jurisdictions, achieving economic efficiency through competition among jurisdictions, and encouraging experimentation." All four reflect policies that are applicable to the American political context; while questions can certainly be raised about their desirability, they are at least plausible strategies for governing our country. They are national strategies, however, linked to federalism only by confusing that concept with decentralization, and by the airy, flag-waving-in-the-breeze rhetoric that characterizes the entire subject."^[6]

Rubin and Feeley wrote, “The answer suggested here is that ‘we’ means our national polity, because that is the real locus of public debate. Federalism, as opposed to decentralization, acts as a constraint on our ability, as a nation, to achieve the policies we want, including policies of participation, local variation, and experimentation. It may encourage some states to go further with these policies, but, more significantly, it permits other states to fall below the accepted minimum. One can only justify federalism by asserting that there is no ‘we’ - that the nation is not a political community. In that case, the variation among states, and their commitment to different normative positions, is not problematic, because there is no national standard below which they can fall, and, on average, states are as likely to reach the ‘right’ level as the national government. But our nation is indeed a political community; for better or worse, it does constitute our political sense of self and the arena in which our basic normative positions about government must be argued and resolved.”^[6]

Claim: Decentralization is different from federalism and can occur without federalism

This claim posits that federalism and decentralization are different and that decentralization can exist without federalism. It suggests that federalism differs from decentralization because decentralization exists when decision-making authority is delegated to subordinate governing units from a supreme central governing power. According to this claim, federalism grants rights and powers to states, which impedes effective governance.

Yale Law School Graduate Fellow Jason Mazzone wrote, “Federalism differs from decentralization because the latter exists when authority is delegated. A nationalist system of government might be decentralized when it decides to delegate decisionmaking authority to local officials. In contrast, under federalism, actual power is located as a structural matter at a more local level and the national government cannot decide to remove that power. A nationalist system is not necessarily more centralized than a federal system of government, because in a federal system the states might not themselves delegate power locally and the nationalist government might delegate extensively.”^[5]

Mazzone continued, “[B]ecause there is no necessary correlation between federalism and decentralization, these arguments should focus on the appropriate degree to which authority should be delegated and not on whether power should be localized as a structural matter.”^[5]

Rubin and Feeley wrote, “Decentralization is a managerial concept; it refers to the delegation of centralized authority to subordinate units of either a geographic or a functional character. Setting aside the political context for the moment, and focusing on the concept of decentralization as a matter of organization or systems theory, the main reason to decentralize is to achieve effective management. Very often, an administrator who is relatively close to the subject matter will be more knowledgeable, more responsive, and more involved than a higher ranking person ensconced in some distant central office. An industrial corporation might decentralize authority to factory managers, or a state university system might decentralize authority to the head of each constituent campus… But none of this has anything to do with federalism. All these decentralized systems are hierarchically organized and the leaders at the top or center have plenary power over the other members of the organization. Decentralization represents a deliberate policy that the leaders select, or at least approve, based on their view of the best way to achieve their goals. A decentralized system can be, and often is, the product of a purely managerial decision by a centralized authority. The essence of federalism, as a coherent political concept, is quite different. To be sure, federal systems share certain structural features with decentralized ones. The most basic is that, within a single system of governance, decisions are made by subsidiary units and the central authority defers to those decisions. But in a federal system, the subordinate units possess prescribed areas of jurisdiction that cannot be invaded by the central authority, and leaders of the subordinate units draw their power from sources independent of that central authority. Federalism is not a managerial decision by the central decision-maker, as decentralization can be, but a structuring principle for the system as a whole.”^[6]

Argument: Federalism is the middle-ground between disunity and centralization

This argument states that federalism is critically understood as a balance between total disunity and full centralization.

Claim: Federalism cannot exist when government is too centralized or overly decentralized

This claim posits that champions of federalism cannot dogmatically affirm or reject federal authority. Instead, they must seek out an optimal balance that allows for strong states and a strong central government.

Former Supreme Court Justice Antonin Scalia wrote, “In meeting to discuss federalism, we have to bear in mind that it is a form of government midway between two extremes. At one extreme, the autonomy, the disunity, the conflict of independent states; at the other, the uniformity, the inflexibility, the monotony of one centralized government. Federalism is meant to be a compromise between the two. As such, it is a stick that can be used to beat either dog. When Alexander Hamilton exalted its virtues, he meant it as a criticism of colonial disunity; we mean it today - in this group, at least - as a criticism of central control.”^[7]

Claim: Decentralization can go too far

This claim contends that federalism is an effective model, but too much decentralization can result in a variety of problems including waste, the inability of states to compete with the national government, and codependency between state governments.

Yale Law School Graduate Fellow Jason Mazzone wrote, “[T]he social capital argument cautions against shifting governmental power away from the states to the local level of cities, towns, and neighborhoods because these entities are likely too weak to compete with the national government over the appropriate division of power. Such a shift may potentially deplete social capital.”^[5]

Alexander T. Tabarrok wrote, “Note also that the subsidiarity principle also implies that decentralization can go too far. If we split the central district into two, then there could be wasteful duplication of services; two firehouses when one would do. Similarly when dealing with public goods the subsidiarity principle implies that the public goods with the largest extensive range should be supplied by the political jurisdiction with the largest extensive range. National defense is the obvious example. If national defense were left to the states each state would have an incentive to free ride on the provision of defense by the others. If New York pays for a nuclear missile, then why should New Jersey pay for anything at all?”^[8]

Claim: Centralization can go too far

This claim suggests that problems occur when the central government expands beyond its established authority. Two main issues that can develop from this expansion of authority include smaller units of government becoming dependent on the national government and the national government failing to fulfill its obligations.

Pietro S. Nivola wrote, “Why the paternalists in Washington cannot resist dabbling in the quotidian tasks that need to be performed by state and local officials would require a lengthy treatise on bureaucratic behavior, congressional politics, and judicial activism. Suffice it to say that the propensity, whatever its source, poses at least two fundamental problems.”^[9]
Nivola continued, “The first is that some state and local governments may become sloppier about fulfilling their basic obligations. The Hurricane Katrina debacle revealed how ill-prepared the city of New Orleans and the state of Louisiana were for a potent tropical storm that could inundate the region. There were multiple explanations for this error, but one may well have been habitual dependence of state and local officials on direction, and deliverance, by Uncle Sam."^[9]
Nivola continued, “Apart from creating confusion and complacency in local communities, a second sort of disorder begot by a national government too immersed in their day-to-day minutia is that it may become less mindful of its own paramount priorities.”^[9]

Argument: Federalism is difficult to maintain

This argument posits that federalism is decaying and institutions like federal courts need to help defend it.

Claim: Only federal courts can preserve federalism

This claim posits that only federal courts can defend federalism. According to this argument, states lack the power to defend their rights and powers under federalism themselves.

Michael S. Greve wrote, “As explained, competitive federalism presupposes enumerated powers. Enumerated powers, in tum, depend on judicial enforcement. The ‘process federalism’ notion that the states will protect themselves is hopelessly at odds with reality and, in Professor Van Alstyne's apt phrase, difficult to understand ‘as other than a goodhearted joke.’ Nor will Congress limit itself; barring constitutional constraints, it will suck the states (along with all else) into its impetuous vortex. When it comes to structural constitutional constraints, the federal courts are it. Either the courts constrain Congress, or else federalism is dead and will remain dead.”^[10]

Claim: Federal courts no longer favor federalism

This claim contends that federal courts used to protect state and local jurisdictions but have supported greater centralization since the New Deal.

Greves wrote, “In 1937 the judiciary abandoned the rules - enumerated powers - that forced the states to compete with each other and with the federal government. Sure enough, the market collapsed and gave way to what is, to all intents, a federal monopoly. Having deprived the citizens of the benefits of genuine choice and competition, the Supreme Court has now turned around to protect state and local governments. Acting as an intergovernmental antitrust agency of sorts, the Court intervenes every so often to restrain the federal monopolist and to ensure the survival of state and local governments, which serve as kinds of regulatory mom-and-pop stores. In politics as in markets, however, mom-and-pop stores are often uncompetitive operations with inferior service and higher prices, and for all their alleged flexibility and ‘closeness to the people,’ the states may be the least responsible, most interest-group-infested, most meddlesome of all government institutions. As Madison feared, the pernicious tendencies of faction are more difficult to control at the state level than at the federal level. This is precisely why competition must check and discipline state governments. The Supreme Court's federalism, however, shuns competition and instead extols the virtues of shopping locally. The Court subordinates consumer preferences to the protection of a producer cartel - and calls that ‘federalism.’”^[10]

Claim: There’s no significant historical court precedent for upholding federalism

This claim states that federal courts have consistently opposed federalism and ruled in favor of greater centralization since the Constitution’s framing.

Law professors Edward L. Rubin and Malcolm Feeley wrote, “In our view, federalism in America achieves none of the beneficial goals that the Court claims for it. Moreover, the federal courts, despite occasional oddities like Gregory, New York v. United States, or National League of Cities v. Usery, have not favored federalism at any time during their existence. To the contrary, they have been consistent opponents of federalist positions, as recent history demonstrates.”^[6]

Claim: Central control is growing stronger, local power is growing weaker, and the shift will likely continue

This claim contends that American government power is becoming more centralized and state and local jurisdictions will likely continue to grow weaker.

Claim: Globalization contributes to centralization

This claim posits that globalization encourages centralization because it prompts the federal government to remove local impediments to international trade and competition.

Pietro S. Nivola wrote, “National prosperity now rests more than ever on the ability of firms to compete in global markets, and on standardizing rules that might otherwise complicate the free flow of trade, foreign investment, and financial capital. In the United States, as in other major trading partners such as the European Union, it is no surprise that higher orders of government increasingly have moved to dismantle local impediments to negotiating international trade treaties, improving the competitive position of businesses, and streamlining financial markets. Globalization at least partly explains recent federal efforts to harmonize banking regulations and to challenge anticompetitive practices in some states—their decisions to harbor trade sanctions, for instance, and to countenance boundless tort litigation.”^[11]

Claim: States contribute to centralization

This claim posits that states contribute to centralization because state officials prefer to delegate decision-making on contentious issues to the national government so that they cannot be held politically responsible or forced to compete with other states for resources.

Pietro S. Nivola wrote, “This is not to say that national preemption is always instigated inside the Beltway. Sometimes state officials agitate to have their powers trumped. In the fiercely litigious arena of environmental policy, for instance, state and local officials have sought cover under the blanket of federal tutelage. Invoking a coast-to-coast rule, even if a blunt instrument, is often safer than trying to defend nuanced exercises of local discretion.”^[11]

Michael S. Greve wrote, “None of this means that the states will become cheerful advocates of a limited federal government. States do not want competition; they want a cartel. As a general matter, they would be stupid to want anything else. It may be possible, however, to split the states as a constituency and to induce more states to favor competition on a larger number of occasions. Let a few states exploit such cracks, and others may begin to look for different, larger openings. Such a development might in turn give the Supreme Court some confidence that federalism's intended beneficiaries at least do not oppose federalist competition and may even support it on appropriate occasions.”^[10]

Greves wrote, “In 1937 the judiciary abandoned the rules - enumerated powers - that forced the states to compete with each other and with the federal government. Sure enough, the market collapsed and gave way to what is, to all intents, a federal monopoly. Having deprived the citizens of the benefits of genuine choice and competition, the Supreme Court has now turned around to protect state and local governments. Acting as an intergovernmental antitrust agency of sorts, the Court intervenes every so often to restrain the federal monopolist and to ensure the survival of state and local governments, which serve as kinds of regulatory mom-and-pop stores. In politics as in markets, however, mom-and-pop stores are often uncompetitive operations with inferior service and higher prices, and for all their alleged flexibility and ‘closeness to the people,’ the states may be the least responsible, most interest-group-infested, most meddlesome of all government institutions. As Madison feared, the pernicious tendencies of faction are more difficult to control at the state level than at the federal level. This is precisely why competition must check and discipline state governments. The Supreme Court's federalism, however, shuns competition and instead extols the virtues of shopping locally. The Court subordinates consumer preferences to the protection of a producer cartel - and calls that ‘federalism.’”^[10]

Claim: Corporations prefer centralization

This claim posits that corporations prefer centralized power, especially when the national government is politically divided, because a gridlocked national government cannot check big businesses.

Pietro S. Nivola wrote, “The short answer to why projects like Senator Thompson’s fizzled is that corporations presently fear aggressive regulators and tax collectors in the state legislatures and bureaucracies even more than the divided, hence suitably gridlocked, governing institutions at the federal level. These business interests now look to preemptive acts of Congress not just to set baselines (floors) below which state policies must not fall but to secure compulsory ceilings on the possible excesses of zealous states. Perceived as disabling this type of legislated constraint on local zealotry, the Thompson bill was zapped by an eleventh-hour corporate lobbying blitz."^[11]

Pietro S. Nivola wrote, “Economic and technological changes will continue to furnish many reasonable arguments for replacing local with national, even international, standards. Whether the resulting regimentation is always commendable or not, powerful corporate lobbies will apply great pressure to secure it. Further, for this and other reasons, both parties in Congress remain receptive to centralist claims. There is not much basis for believing that all this will change. Multiple forces—including the role of the media and of contemporary campaign finance, to name but two—will continue to intensify the political temptations to nationalize, or preempt, public policy in the American federal system. At best, those temptations could only be tweaked, not suspended, by schemes such as a Federalism Accountability Act.”^[11]

Claim: The federal government’s spending power and mechanisms contribute to centralization

This claim states that some grant-in-aid programs undermine federalism and expedite centralization. Most programs, such as Medicaid, are too expensive for states to fund. Consequently, the federal government can attach strings to the funding needed for such programs and control most policy areas.

Pietro S. Nivola wrote, “At issue, again, is a variety of means by which the federal government dictates to the states what they must or must not do. The methods include policies that, technically, are grants-in-aid. In theory, states can decline to receive federal money, but in practice that option is mostly illusory, and federal stipulation of increasingly intricate grant conditions overrides or distorts local priorities. New federal strings are often attached after aid programs have been institutionalized; by then, powerful constituencies are so deeply invested in the programs, and so fiercely protective of them, that what started as a voluntary partnership with the states degenerates to federal arrogation. And typically, federal rules remain firmly in place even if congressional appropriations fall far short of authorizations. The local provision of special education for students with disabilities, for instance, is essentially governed by federal law, even though Congress has never appropriated anything near its authorized share of this $43 billion-a-year mandate.”^[11]

Claim: Both Democrats and Republicans in Congress have interests in furthering centralization

This claim posits that both parties in Congress will tend to support greater government centralization due to forces such as the demands of modern campaign financing.

Pietro S. Nivola wrote, “Economic and technological changes will continue to furnish many reasonable arguments for replacing local with national, even international, standards. Whether the resulting regimentation is always commendable or not, powerful corporate lobbies will apply great pressure to secure it. Further, for this and other reasons, both parties in Congress remain receptive to centralist claims. There is not much basis for believing that all this will change. Multiple forces—including the role of the media and of contemporary campaign finance, to name but two—will continue to intensify the political temptations to nationalize, or preempt, public policy in the American federal system. At best, those temptations could only be tweaked, not suspended, by schemes such as a Federalism Accountability Act.”^[11]

Claim: The media is a force for greater centralization

This claim posits the news media tends to exacerbate the nationalization of policy issues, contributing to the push for greater centralization of power.

Pietro S. Nivola wrote, “Economic and technological changes will continue to furnish many reasonable arguments for replacing local with national, even international, standards. Whether the resulting regimentation is always commendable or not, powerful corporate lobbies will apply great pressure to secure it. Further, for this and other reasons, both parties in Congress remain receptive to centralist claims. There is not much basis for believing that all this will change. Multiple forces—including the role of the media and of contemporary campaign finance, to name but two—will continue to intensify the political temptations to nationalize, or preempt, public policy in the American federal system. At best, those temptations could only be tweaked, not suspended, by schemes such as a Federalism Accountability Act.”^[11]

Argument: Federalism establishes opportunities for citizen engagement

This argument states that uncertainty exists concerning what would be a proper division of powers and that that is good because it creates more opportunities for citizens to engage in politics and compete for political influence.

Claim: Uncertainty over division of powers establishes opportunities for citizen engagement

This claim suggests that uncertainty over division of powers is good because it creates opportunities for citizens and citizen groups to engage in politics.

Yale Law School Graduate Fellow Jason Mazzone wrote, “The social capital argument for federalism also suggests that there is some value in uncertainty. An uncertain division of political power and ongoing struggles over the proper functions of different governing entities may in fact be a healthy aspect of our political system. Uncertainty creates opportunities for citizen engagement. Any search for a final, settled account of how to divide the functions of government among competing authorities may be unnecessary and perhaps, ultimately misguided.”^[5]

Mazzone continued, “From a social capital perspective, competition between the national government and the states over the appropriate division of power is a healthy feature of federalism. The ongoing struggle over the division of power presents constant opportunities for citizen groups to pursue their agendas. The struggle promotes social capital as a result.”^[5]

Mazzone wrote, “The social capital argument for federalism … points to the importance of competition between the national government and the states over the appropriate division of governmental power. Ongoing power struggles between the national and state governments provide constant opportunities for citizen groups to exert influence. When the division of power is clearly defined, citizen groups pursuing their agendas are able to direct their resources at the appropriate target. An ambiguous division of power, however, creates uncertainty regarding which government, national or state, will eventually make the decisions on a particular matter. This ambiguity in turn casts doubt on the merits of pursuing one avenue of influence rather than another––an uncertainty that citizen groups otherwise excluded from political influence can exploit.”^[5]

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Footnotes

[properscope-1] 1.0 ^1.1 ^1.2 ^1.3 Chicago Unbound, "The Proper Scope of the Commerce Power," 1987

[guarantee-2] JSTOR, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," January 1988

[evaluating-3] University of Chicago Law School, "Federalism: Evaluating The Founders' Design," 1987

[individualsovereignty-4] Catholic Theological Union, "Federalism and individual sovereignty," 1995

[socialcapital-5] 5.0 ^5.1 ^5.2 ^5.3 ^5.4 ^5.5 ^5.6 SSRN, "The Social Capital Argument for Federalism," accessed March 27, 2022

[neurosis-6] 6.0 ^6.1 ^6.2 ^6.3 ^6.4 BerkeleyLaw University of California, "Federalism: Some Notes on a National Neurosis," April 1994

[twoface-7] Chicago Unbound, "The Two Faces of Federalism," 1982

[independent-8] Independent Institute, "Arguments for Federalism," September 20, 2001

[federalmatters-9] 9.0 ^9.1 ^9.2 Brokings Institute, "Why Federalism Matters," October 2005

[realfederalism-10] 10.0 ^10.1 ^10.2 ^10.3 Google Books, "Real Federalism," 1999

[federalfuture-11] 11.0 ^11.1 ^11.2 ^11.3 ^11.4 ^11.5 ^11.6 Brookings Institute, "Does Federalism Have a Future?" December 1, 2001

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