(Important Point: The common early (pre-20th century) interpretation of the tenth amendment was that the majority of governmental responsibility lies with the states. The national government would be limited to only those powers specifically mentioned in Article I, Section 8.  The state governments would have more responsibility, a broader area of jurisdiction, and have more to do with what effects your daily life. )  This was the common view and the practice until the 20^th century. 

Trace the development of federalism & the 8 methods by which federal power has expanded since 1789.

 Eight Methods Used to Expand National Power

1.     JUDICIAL REVIEW Power to determine the constitutionality of a government action or law.  (This power, not mentioned in the US Constitution, was established by John Marshall in the Marbury v. Madison decision in 1803).

This protects the national government’s powers from being infringed upon by the states. It prevents states from the passing laws that infringe upon the U.S. constitution and the national government.  If such laws are passed and challenged in court, judicial review gives the federal court—especially the US Supreme Court—the power to rule those state laws unconstitutional, thus protecting the national government’s powers from being limited and restricted by the states.  By declaring those state laws in conflict with federal law or the US constitution unconstitutional, state powers are being restricted and narrowed.

2.      NECESSARY AND PROPER CLAUSE (Elastic Clause): if a power is listed in the constitution then it is an enumerated power.  At the end of the list of enumerated powers given the national government (Article I, Sec.8) is the necessary and proper clause—it reads: “CONGRESS HAS THE POWER TO MAKE ALL LAWS NECESSSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS.”   In McCulloch v. Maryland (1819), Chief Justice John Marshall ruled that the national government not only had enumerated powers, but implied powers. (These are powers that are not actually mentioned in the constitution—merely hinted at.)  The necessary & proper clause gives the national government these implied powers.  According to Marshall in McCulloch v. Maryland, the national government has the implied power to pass other laws that HELP carry out the enumerated powers. (Ex.: establishing the national bank helped Congress carry out the enumerated powers of taxation & coining of money —the national government had to have a place to deposit tax revenue and money it coined.; the space program helps the national government in carrying out the listed power of “providing for the common defense.”) 

3. Interstate commerce clause

Trade between the states can be regulated by the national government.  In Gibbons v. Ogden  (1823) John Marshall gave a broad interpretation of Interstate Commerce, defining it as “commercial intercourse” or any movement across state lines. This allowed the national government to regulate all sorts of activities that crossed state lines—railroads, the federal mail, radio & television stations (FCC licenses), oil & gas pipelines, etc.—thus, expanding the national government’s power beyond just regulating interstate trade. 

4. Taxation power

The national government sometimes passes taxes for reasons other than to raise revenues to pay for government programs and services.  Sometimes the taxes are designed as regulatory tools to discourage “bad behavior”:

• Sin taxes placed on alcohol and tobacco products--things we don’t approve of or are unhealthy. 
• Tariff Tax charged to imports—to make cheaper foreign products more expensive and thus encourage American consumer to buy American-made products (thus, protecting American industry and saving American jobs.)
• Tax deductions (for political, church, and charitable contributions) encourage us to spend money in “good ways” that we otherwise would not do. 

5. Power to spend for "the general welfare"

Most social programs are based on this clause—Social Security, food stamps, Medicare, Medicaid, welfare, health research for cancer, Aids, etc., Pell grants to help poor kids to go to college.  This allows the federal government to spend money in ways that our framers never envisioned—or intended.

6. Fourteenth Amendment- Added after the Civil war.

·        Equal protection clause- “No state shall deny to any person within its jurisdiction the equal protection of the laws.”  This has been used by the courts to end discriminatory practices & laws—segregated schools (Brown v. Board of Education)—1954, the white primary, poll tax, and grandfather clause as voting requirements (they were designed to prevent blacks from voting)

·        Due process clause- No State shall deprive any person of life, liberty, or property, without due process of the law

7.   Right to Privacy

Implied right established in 1965 by the Warren Court (Griswold v. Connecticut).  There are certain parts of our lives that are so private and personal that no government has any business making laws or regulating it.

ü     Birth control devices—states cannot ban sale, mailing, to adults

ü     Wiretapping—law enforcement needs a search warrant (court order) before wiretapping your phone

ü     Right to possess pornography in your home—state laws making that illegal were ruled unconstitutional

ü     Women’s abortions—(Roe v. Wade—1973) ruled that the Texas abortion statute—and those of the other 49 states were unconstitutional because they violated a woman’s right to control her body and decide whether to have the child or terminate the pregnancy.

ü    Deviant sexual behavior--Sodomy laws (laws that made it illegal to engage in certain types of “deviant sexual conduct’)—the U.S. Supreme Court ruled in 2003 that the Texas sodomy statue (and those in 10 other states) violated the rights of consenting adults to engage in sexual behavior in the privacy of their homes & bedrooms.

8.  Federal aid

Forces states, local governments, and public schools to do something we might not have originally done.  Ex.:

·        Speed limit—1970s-1995—states had to lower it to 55 mph or risk losing all federal highway funds

·        Drinking age—1986—states had to raise it to 21 or risk losing 5% of their highway funds the first year and 10% thereafter

·        Integration of Schools—1981-82—ECISD was forced to come up with an acceptable integration plan to undo the effects of decades of segregated schools or lose all federal education funds—so ECISD closed down Ector High, created magnet schools, all to produce more “natural” integration

Full faith and credit clause – every state has to recognize the court proceedings, acts, records and practices in all other forty-nine states—ex.: a marriage or divorce in one state is valid in all 50. 

Privileges and Immunities clause – New residents of a state have the same rights as native- born residents—states cannot discriminate against people moving in from other states.

 Types of Federal Aid

• Categorical Grants

90% of today’s financial aid comes from this source

• History & Purpose:
  During the great depression FDR implemented the New Deal. Its purpose was to pave highways and ease the Depression

• Application required
  

• Extensive federal regulations required

•  Much paper work required

•  A Matching Requirement

example: if project costs $10 million,  the  city, county, or state government must provide the first 10-30% out of its own pocket--the the government provides the remaining 90-70%.

• Federal money had to be used for one specific purpose

Block Grants

• History : was introduced in 1966 by Pres. LBJ as part of his Great Society--an attempt to solve the social problems facing the US

• Purpose--To solve social problems

• Application was required

• Fewer federal regulations than categorical grants

• Less paperwork than categorical grants

• There was a matching requirement--10-30%

•  Major Difference: the money could be used in a broader area with more flexibility and choices--not just for one narrow purpose as with the categorical grant

• 10% of all federal funds by today’s government 
  

Revenue Sharing

• History:   Began in 1972 under Nixon administration

• Purpose:  to reduce the role of federal government

•  No application required

•  Almost no federal  regulations

•  Very little paperwork

•  No matching requirement--it amounted to "free money" from the  federal government

•  Use:  1/3 for the state, 2/3 for local government- which in turn have to use it in eight broad areas—most freedom to use money as wanted of all 3 programs .

• Amounted to about  6-7 % of all federal aid--it was phased out in mid-1980’s under Reagan

The fiscal impact of these federal aid programs:

• 1.      Imposition of national goals:

• Raise Drinking Age to 21

• To end discrimination--forced public schools to integrate

• Forced states to lower speed limits to 55mph for energy conservation 

• 2.      Forced states to do things otherwise might not do

• 3.      Redistributive effect- Helped poorer states & cities by directing more federal $ to those poorer areas

• 4.      Paperwork required—adds to the cost of government

• 5.      Matching requirements- cities & states had to come up with some of their own money first (the matching requirement) to be eligible for the federal aid—often, this lead to higher state and local taxes

• 6.      More federal aid was sent to urban areas—because they were perceived as having the more serious problems.