Federalism and the Constitution
Constitutions are complex instruments of republican government and popular sovereignty. The way that the Texas Constitution structures and empowers government in the Lone Star State is shaped by the federal structure of powers and responsibilities outlined in the U.S. Constitution.
Scholars often speak of three types of powers identified in the U.S. Constitution:
- Powers delegated to the Congress – Article I, Section 8
- Powers denied to the Congress and powers denied to the states – Article I, Sections 9 and 10, respectively
- Reserved powers (reserved to the states) – the 10th Amendment
Additionally, the U.S. Constitution contains numerous other clauses that contribute to the interpretation of the relationship of the states to other states, to the national government, and to the people. Article IV is dedicated to addressing many of these issues.
Despite specifying this complex set of powers granted and denied to the national and state governments, the framers still felt the need to underline the generally subordinate position of the states relative to the national government in the "supremacy clause" in Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Delegated powers are those powers granted to the national government under the United States Constitution.
The most important delegated powers are found in Article I of the Constitution, which focuses primarily on the national legislature (the United States Congress). This article lays out in specific detail the powers possessed by Congress – and, critically, the powers Congress does not exercise.
Article I, Section 8 is essentially a laundry list of the things that Congress may do. The most prominent items on this list include the "power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States...." This section also includes the following powers:
- ...To borrow money on the credit of the United States;
- To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
- To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
- To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures...
Section 8 also assigns to Congress wide ranging powers over the military, including but not limited to:
- To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
- To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
- To provide and maintain a navy....
The explicit mention of these power and others explicitly mentioned in other articles of the Constitution raises the question of whether the national government and Congress can exercise powers not explicitly mentioned. The framers were careful to make some powers explicitly off-limits. These are the powers denied to Congress. The framers composed a separate list of the powers denied to the states.
The powers denied Congress are specified in a short list in Article I, Section 9. The article begins by prohibiting Congress from limiting the slave trade until 1808, one of the key compromises between the northern and southern states. It then proceeds to prohibit things like suspension of the privilege of habeas corpus, the imposition of taxes on exports from any of the states, and granting of titles of nobility.
- The powers denied to the states are specified in an even shorter list in Article I, Section 10. These include:
- No state shall enter into any treaty, alliance, or confederation; ...coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts;...
- No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports,...
- No state shall, without the consent of Congress, ...enter into any agreement or compact with another state, or with a foreign power,...
The Bill of Rights provides an important broad guarantee to the states regarding the limits of the powers of the national government and the essentially unlimited reserve of powers that the states may claim. Amendment 10 – the last of the original ten amendments that constitute the Bill of Rights – states:
"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 "reserved powers clause" is fundamental to the ability of the states to formulate and adopt their own constitutions and laws within the rubric of the U.S. Constitution.
Because the U.S. Constitution remains the fundamental constraint on the power of the states within the federal system, new constraints on state powers can and have come in the form of additional amendments to the Constitution. The most fundamental changes were set in motion by the Civil War. Amendments 13, 14, and 15, ratified in the years following the end of hostilities, placed new or reemphasized existing constraints on the states, including the prohibition on slavery, the guarantee of due process of the law for all individuals, and the legal guarantee of voting rights for freed slaves and their descendents. It took the better part of the following century to enforce the 14th and 15th Amendments, an illustration of the ability of the states to use the reserved powers to resist efforts to bring them into compliance with national mandates.
Later amendments prohibited unjust or undemocratic practices in the various states, or expanded the voting franchise to new groups. The 19th Amendment guaranteed women the right to vote throughout the country. The 24th amendment outlawed the poll tax, which tended to disenfranchise blacks and other minorities, as well as poor whites. The 26th lowered the legal voting age to 18 years.
The U.S. Constitution also outlines general rules for relations between the states and other aspects of the states' relationship to the national government. Article IV of the Constitution is exclusively dedicated to these concerns.
- Section 1 explicitly requires the states to grant "full faith and credit" to "the public acts, records, and judicial proceedings" of the other states.
- Section 2 requires that each state respect the "privileges and immunities" that all citizens of the United States enjoy. This second section also requires that the states allow extradition of fugitives from the law (including slaves) from other states.
- Section 3 establishes general rules on the admission of new states.
- Section 4 establishes that the national government will ensure that a "republican form of government" (i.e., democratic government) exists in every state. This last section also guarantees the national government's protection of the states from foreign invasion or internal insurrection.