Federalism - Dividing Power between States and the United States 1. Compare difference in state laws.  Some of you have lived in other states and experienced those difference, other of you have...

Federalism - Dividing Power between States and the United States

1. Compare difference in state laws.  Some of you have lived in other states and experienced those difference, other of you have read about differences in the news perhaps regarding marriage, legalization of marijuana or some other concern. Please identify an example of those differences using two different states then answer the following questions:

1.  Why do states have different laws? Who determines what those should be?
2.  Should states be able to determine their own legislation or should our laws be uniformly determined by the federal government?

Asked on by meno9411

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kipling2448's profile pic

kipling2448 | (Level 3) Educator Emeritus

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One of the most difficult and enduringly contentious issues with which the authors of the U.S. Constitution had to contend was the division of powers between the federal government and the individual states.  These Founding Fathers believed that the nation they were constructing could not hold if the central, or federal, government was not considered the supreme legal authority in the land.  By the same token, they also recognized that the American public would understandably be parochial in its perceptions of government.  In arguing before the newly-established states for ratification of the Constitution, therefore, James Madison, the principal architect of this document, wrote in Federalist #46 that

“. . .the first and most natural attachment of the people will be to the governments of their respective States. . .[And that] (f)or the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects.”

In other words, members of the federal legislature would be regularly inclined to advance the narrow perspectives of their districts and states rather than consider issues in the broader context of a nation representing the entirety of the populace.  Towards that end, later ratification of the 10th Amendment to the Constitution – the final provision in the Bill of Rights – which occurred in late 1791, would attempt to resolve the debate over divisions of authorities between the federal and state governments.  The text of that amendment reads as follows:

“The 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.”

For better or worse, ratification of the 10th Amendment failed to resolve the matter of states’ rights; in fact, it did not come close to resolving that issue.  In addition to the festering wound of slavery and the American South’s determination to retain that practice, the Founding Fathers could not foresee the myriad of issues that have arisen since and that remain subject to intense and often bitter debates.  Which brings us to the present.  In response to the question “should states be able to determine their own legislation or should our laws be uniformly determined by the federal government,” the answer can only be that uniform application of morals or standards can only occur where the U.S. Supreme Court determines the authors of the Constitution clearly anticipated such a role by the federal government would be necessary.  Because the authors of the Constitution did not anticipate such issues as same-sex marriage and legalization of previously banned narcotics or drugs, the issue then becomes whether one can logically conclude that these contemporary issues fall within legal precedents already established or remain outside the purview of the Constitution. 

The one thing we know the Framers did not want was to replace one form of tyranny with another.  We also know that representatives from the 13 colonies represented vastly different perspectives, especially on the issue of slavery, which would only finally be definitely resolved through the South’s defeat in the Civil War of 1860 to 1865.  It was on this issue, after all, that Abraham Lincoln famously observed in 1858, prior to his eventual election as president, that

“A house divided against itself cannot stand.  I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other.”

States have different laws precisely because the Constitution provides for each State the authority to pass laws governing each State’s individual citizens.  That is the entire point of “states’ rights”; unless specifically address by the federal government through the Legislative Branch, the issue is left to the individual states to decide.  That results in different laws for different states, although, in a practical sense, the distinctions can be very minute.  Currently, different states determine whether they will allow the use of marijuana for medical purposes or, even, for entertainment purposes.  Washington and Colorado have led the way in legalizing the use of marijuana for recreational purposes, with additional states sure to follow. Conversely, the 1973 Supreme Court decision in Roe v. Wade deprived the individual states from being free to ban or seriously regulate abortion – a decision repeatedly reaffirmed.

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robyn-bird96's profile pic

robyn-bird96 | Student, College Freshman | (Level 1) Salutatorian

Posted on

For example, in Texas the death penalty is legal, while in Massachusetts, the death penalty is illegal.

States have different laws because the Constitution grants states jurisdiction over issues that are not specifically stated as powers of the federal government. This is stated in Amendment X of the Constitution (Bill of Rights).

“The 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.”

This is why the state governments decide what the law will be in that state, over issues such as education, gay marriage, abortion, capital punishment, and so on.  The people within each state elect state representatives to make local laws. 

There has a been a huge debate over how much power does the federal government possess, and whether states should have more power.  Over time, the federal government had actually increased their power through cases such as Marbury v. MadisonMcCulloch v. Maryland, and Gibbons v. Ogden, as the Supreme Court justified using the interstate commerce clause as an umbrella to increase its jurisdiction.  The Federal government increased its powers when it abolished slavery. As we can see today, with issues such as Obamacare, this debate continues to exist.  Whether the federal or state government holds more control is a personal opinion, usually based on your political ideology.  Personally, I believe the federal government should have a basic set of regulations that all states must follow for the sake of uniformity and to ensure that all people's rights are protected, but each state can decide what is the best way to implement it.

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