NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about how Federalism works. Today’s episode features Professor Steven G. Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - PUBLIUS: Where do we find the concept of Federalism in the Constitution? We’re here today with Professor Steven Calabresi to define federalism and explore how it works in the American system. How did federalism define not only the power structure between the federal and state governments, but also among the states themselves? STEVEN CALABRESI: What is federalism? The answer is that federalism, in my view, is another form of the separation of powers, but whereas the separation of powers separates legislative, executive and judicial power at the national level, what federalism does is it separates power between the national government in the United States and the state governments in the United States. And it is the case that it was the state governments, or at least popular conventions in nine of the 13 states that created the federal constitution and therefore the federal government, but the federal government under the US Constitution is a government of limited and enumerated legislated powers. And there are significant powers that are still retained by the states. The state governments in the United States are what are called governments of general jurisdiction. That is to say they have what Professor Richard Epstein sometimes calls the police power, the power to protect the public health, safety and welfare. State governments can regulate people's activities in ways that the federal government lacks the enumerated power to do. The enumerated powers of the federal government have been read very broadly in some cases, I think too broadly, but it is nonetheless the case that the federal government has a substantial amount of power. One way of comparing the federal government and the state governments in the United States is to ask what percentage of GDP each level of government spends. And I believe the federal government and the states are spending about half each of the section of GDP, which goes toward governmental expenditures. So state governments remain very important in the United States. The federal government has significant and substantial powers. PUBLIUS: Most other nations have stronger federal governments than the United States. How has the restraint of federalism on the national system actually helped the US to grow and thrive? STEVEN CALABRESI: Federalism has another advantage to it, which is that it has allowed the United States to spread from being what the framers thought was an empire of 13 states stretching a thousand miles along the Atlantic coast, into what is undeniably an empire that stretches across all of North America, from the Atlantic coast to the Pacific coast, and which includes Alaska and Hawaii as well as various federal territories. And the ability of the American Constitution of 1787 to adopt and be relevant to the governance of a country as large and as populous as the United States is today is an absolutely remarkable thing. To put this in perspective, the United States today is the fourth largest country territorially in the world. If you subtract Tibet from China and you probably ought to subtract Tibet from China, we would be the third largest country territorially in the world. And just by way of comparison, the only two countries that would be ahead of us are Canada and Russia, most of which include land that's uninhabitable. So in terms of habitable land, the United States is vast. It's simply very, very large. Beyond the sheer size of the federal government and of the country, there's also the fact that the United States is the third most populous country in the world. Americans are used to hearing that China has the biggest population in the world. They're used to hearing that India has the second biggest population in the world than that it's about to overtake China. What most Americans don't realize is that the 330 million people who live in the United States of America, live in the third most populous country in the world. So if you measure the success of a constitution or a regime by the size of its territory or by the number of its inhabitants, the United States is absolutely extraordinary and unique. And what's more, the United States has a much higher GDP per capita, that's gross domestic product per capita per person, than do the more populous countries, that are more populous than the United States. On the last ranking done by the International Monetary Fund of GDP per capita, the United States ranked 11th in the world, out of about 240 countries. The only countries that ranked ahead of us on GDP per capita, were countries like Kuwait and the United Arab Emirates, which have vast amounts of oil and very few people. If you compare the United States GDP per capita to that of China, it turns out the China's GDP per capita is 92nd in the world, while ours is 11th. Many Americans that used to hearing that China has the second largest economy in the world after the United States. But China also has four times as many people as the United States. And so per person, China is a very poor country compared to the United States. Essentially, China has 300 million middle class Chinese, a small crust of wealthy Communist Party leaders, and China has a billion people who are living in poverty. India also has a huge problem with poverty. India's GDP per capita is about 144th in the world. So the US compares very favorably with these other large, populous countries. If you compare the US to the supposedly advanced countries of western Europe, it turns out the Germany's GDP per capita is about 20th. England's is about 26. France and Italy are in the 30s. The United States does quite well compared to them. Some people attribute American wealth and success to the discovery of a new world and the seizing of North America from the Native Americans, but that can't explain what's happened in the United States because the same process of Europeanization occurred in Latin America, and neither Brazil or Argentina nor Chile nor Columbia are nearly as successful economically as we are, nor have they had a stable constitution since 1789. In fact, Brazil is on its eighth constitution. The most recent one dates from 1988. Argentina has an older constitution, but it has a president who is in the habit of firing all the justices of the supreme court, as soon as he or she is elected. And so there really isn't ... Argentina has elections, but it's not really what you'd call a constitutional democracy because a president who can fire all the judges is more of a tyrant than he is a democratic president. So federalism is central to the American Constitution. It's central to the success of the American Constitution and it's an amazing feature of the American Constitution that it's been able to encompass such a vast territorial area of land with such a large population and that it's produced such an economically advanced country. PUBLIUS: Other countries also have states and provinces but no other country has as many as 50 of them. Is it easier or harder to unify a country with such a large number of diverse entities? STEVEN CALABRESI: One thing that should be pointed out about that is that today we have 50 states. In 1789, we had 13 states. In a federation with 50 states, you're going to have a lot more state line crossings than you'll have in a federation with 13 states. And if every state line crossing creates federal power to act, a huge increase in the number of states will lead to a huge increase in the power of the federal government. And that is essentially what happened in the United States, not only for constitutional reasons, but also for political reasons. Because we have 50 states, which is a very large number of states for federation, the states have lost political clout in Congress and with the president. Many federations are smaller than the United States. Germany has a very vibrant system of federalism and Germany has 16 states, which it calls lunder. Canada has significant aspects of federalism to its constitutional structure. Canada has 10 provinces and one of them, Quebec is threatening to secede. I think it's quite possible that if the United States had only four states, say the northeast, the Midwest, the south and the West, I think if the United States had four states, probably one of them would secede, either the south or the northeast. I don't think a four-state federation would hold together. What holds the United States together is that we have 50 states and the states are so divided that they can't collectively organize a secession. And that's really what the Civil War kind of established. PUBLIUS: Was the Southern Confederacy doomed to fail? What happened after the Civil War that doomed any future secession efforts? STEVEN CALABRESI: When the civil war broke out, there were 15 slave states and 16 free states. And when the slave states tried to secede, only 11 of the 15 of them were able to agree to secede and become part of the Southern Confederacy. The Civil war was a very closely fought struggle. It wasn't until the fall of 1864 when General Sherman marched to the sea through Georgia, it wasn't until the fall of 1864 that it was clear that the North would win the civil war and Abraham Lincoln would be reelected. I think if it hadn't been for the collective action problem that caused four slave states to stay in the union, it's possible the union would have broken apart in the Civil War, but it didn't break apart and what happened after the Civil War is that Congress created as many states as we could out of the remaining federal territories, so that there would never be an organized secession again. Recently some citizens in California got enough signatures to put an initiative on the ballot in California to split the state of California into three states. The Supreme Court of California recently declared that initiative unconstitutional under California's state constitution, which I think is the correct ruling. There has been talk at times of California trying to secede from the United States and people point out that if California seceded from the United States, it would by itself have the seventh largest economy in the world. But it's never going to happen, because California just as wealthy as it is and as populous as it is and as much as it has a distinct cultural identity, it just isn't big enough to make it on its own. So, I think that secession isn't going to happen. But as I said, I think if we had a four state federation with the West and Midwest, the south and the northeast, I think we might well have three or four different countries rather than the successful federal system we have. Since the original 13 states were admitted to the union, 37 additional states have applied for statehood, and have also been admitted to the union. In general, in order to be admitted to the union, the votes in a state have to vote that they want to join the union. They have to come up with a written constitution that congress determines is republican informed, a subject which I will address in a minute, and then if congress wants to, it can admit the new entity as a new state into the union, and of course every new state is entitled to at least two senators and one representative, and possibly more representatives depending on its population. PUBLIUS: Where does Congress get the authority to admit new states? What does it mean to require a prospective state to have a written constitution that is republican in form? Do new states have the same rights as existing states? STEVEN CALABRESI: There's no second class citizenship for newly admitted states. New states are co-equal to the 13 original states. The supreme court announced that in a case called Coyle against Oklahoma, where congress tried to tell the newly admitted state of Oklahoma what city would have to be the capital city of Oklahoma. Oklahoma sued, and said congress had not required any of the original 13 states to locate their capital in a certain city, and so congress lacked power to require Oklahoma to do that, and the supreme court, in Coyle against Oklahoma, sided with Oklahoma and said, Oklahoma can pick whatever city it wants to be its capital city. That is right, not a terribly important right, but it is a right that the states do retain. That's the grant of power, of congress, in article 4, section 3, to admit new states to the union. Article 4, section 4, says the following. It says the United States shall guarantee to every state in this union, a republican form of government, and shall, in case of invasion or insurrection upon the invitation of the legislature or the governor, militarily intervene to protect republican form of government in the states. This clause is commonly called either the guarantee clause, or the republican form of government clause. It does give congress congress an enumerated power to guarantee to the state's republican form of government. The nationalists, at the Philadelphia Constitutional Convention in 1787, had very high hopes for the guarantee clause. They really hoped the nation government would use it to clean up some abusive practices in the states, but that has not happened. The guarantee clause has, in fact, only been invoked once in American history, although in a very important instance, and that was after the military defeat of the south, in the Civil War, in 1865. Congress passed three statutes between 1865 and the inauguration of president Grant in 1869, which were called reconstruction acts, and by those acts, congress divided the south up into military districts, and provided that each military district would be run under martial law, without the bill of rights supplying by a military governor, to be appointed by the secretary of defense, who was a Lincoln holdover, who president Andrew Johnson wanted to fire. Through this mechanism, Congress completely dominated the confederacy from 1865 to 1869. Eventually the 11 confederate states came up with state constitutions that were so republican in form, that congress realized it was going to have to readmit them to the union, and that they would get seats in the senate, and seats in the house of representatives, and might be able to outvote the republicans in congress, so the republicans in congress attached a condition to readmitting the southern states to the union, which was that the 11 southern states not only had to come up with constitutions that were republican informed, they also had to ratify the 14th amendment as a condition of their being readmitted to the union. It was only because of his forced ratification of the 14th Amendment by the 11 confederate states that Congress was able to get a 3/4 of the state's majority to approve the 14th Amendment to the Constitution. Now, I think this is a perfectly constitutional bargain for Congress to have made. Professor John Harrison defends it in a brilliant law review article, in the University of Chicago Law Review, but it must be said that forcing 11 states to ratify constitutional amendment as a condition of readmitting them to the Union is pretty knuckle ball politics by any measure. Under the Guarantee Clause, when Congress admits a new state, it has an obligation to look at the state's constitution and to verify that the constitution is Republican in form. Congress has, for example, used that power by requiring the states of Utah and Idaho in their state constitutions to ban polygamy, which had been practiced by some fundamentalist Mormons, in Utah and Idaho, prior to those states being admitted to statehood. Congress does scrutinize state constitutions and has to certify that they are Republican in form before it can admit them to the Union. There are those two additional enumerated powers of Congress in Article 4, Section 3, to admit new states, and in Article 4, Section 4, to guarantee a Republican form of government to the states. In addition to those grants of power, to Congress, the three reconstruction amendments to the Constitution, the 13th Amendment abolishing slavery, the 14th Amendment guaranteeing equal civil rights, and the 15th Amendment giving African-American men the right to vote, all have a Section at the end of them, which says, "Congress may enforce the provisions of this amendment by enacting appropriate legislation." Here, the legislative history of the 13th, 14th, and 15th Amendment is very clear. The framers of those amendments meant the appropriate legislation clauses attached to them to be interpreted in the same way that John Marshal mangled the Necessary and Proper clause in McCulloch against Maryland. The Supreme Court is supposed to only review very deferentially laws that Congress passes to enforce the 13th Amendment ban on slavery, the 14th Amendment guarantee of equal civil rights, or the 15th Amendment guarantee of equal voting rights for African-American men. This question of admitting new states to the union is not a question that is of purely academic interest. There have been proposals made by democrats recently, frustrated by republican control of the senate, to reduce the size of the district of Colombia to include the mall, the capital building, the monuments, and the supreme court, and to turn the rest of the district of Colombia into a new state, which would be entitled to two senators and one congressman, and in theory a majority of both houses of congress could admit such a state to the union. In addition to that, the people of Puerto Rico, which is a US territory, have voted in a referendum that they would like to be admitted as a state to the union. Conceivably, a new house of representatives and senate could admit Puerto Rico as a state to the union, and Puerto Rico would then be entitled to two senators, and probably several congressmen, not simply one, so this is not a question of purely academic interest. One point that's very important to stress, and that the supreme court has made clear in its case law, is that new states that are admitted to the union must be absolutely equal in all their rights to the original 13 states. PUBLIUS: You’ve discussed how the states and federal government relate to each other under the Constitutional system. Are there any parts of the Constitution that govern how the states relate to each other? STEVEN CALABRESI: There are, of course, other constitutional amendments of importance. The 19th Amendment gave women the right to vote in federal and state elections, and gives Congress the power to enforce that right by appropriate legislation. There are other constitutional amendments, as well, that give Congress enumerated powers. That being said, we've now covered all of the most important and most formidable enumerated powers. More discussion of Congress's power to enforce the 14th Amendment has to be delayed until we talk about what the 14th Amendment guarantees, because, until we know what the 14th Amendment guarantees, it's fruitless to talk about Congress's power to enforce it. There are also two very important federalism clauses in Article 4, Section 1, and Article 4, Section 2. Those clauses do not concern the scope of Congress's enumerated power, but they concern, instead, problems of state to state relationships in American federalism. Article 4, Section 1, says that the state courts, in every state, are obligated to give full faith and credit to the judgements of other states' supreme courts, which means that if two residents of a state, say Illinois, litigate a lawsuit, and the Illinois courts finally resolve that lawsuit, and the defendant then moves to Wisconsin, the Wisconsin courts have to enforce the judgment of the Illinois courts against the defendant who moved from Illinois to Wisconsin. That is to say, the Wisconsin courts in that example have to give, what we would call, full faith and credit to a decision of the Illinois state supreme courts. The Full Faith and Credit Clause was present in the predecessor to the Constitution, the Articles of Confederation. It's essential to make federalism work, because, obviously, if defendants could avoid having to pay damages in lawsuits that they lost in their state court, they would have an incentive just to move out of state and avoid paying what they owed. The Full Faith and Credit Clause makes it impossible to do that, and it obligates out-of-state courts to give full faith and credit to in-state judgements. Article 4, Section 2, contains several clauses that are of great importance. The first clause that's important, in Article 4, Section 2, is the Privileges and Immunities Clause. That clause says that citizens in every state are entitled to the privileges and immunities of citizens of the United States. That's a very complicated formulation. It's borrowed from the Articles of Confederation. The effect of the principle of the Privileges and Immunities Clause of Article 4, Section 2, is that it means that, when an out-of-state citizen, say from Wisconsin, is in another state, like Illinois, that out-of-state citizen is entitled to all the civil right that citizens of the state of Illinois enjoy. If citizens of the state of Illinois have rights to freedom of speech and of the press, or to the free exercise of their religion, under the Illinois Constitution, or if they have Illinois statutory civil rights, or if they have Illinois common law civil rights, Illinois has to give an out-of-stater from Wisconsin or Indiana the same civil rights that it gives to its own citizens in Illinois. Illinois cannot discriminate against out-of-state citizens. This clause is critically important, because, obviously, one couldn't form a workable federal union with people traveling from state to state and doing business in different states, if there weren't a guarantee that out-of-staters have the same civil rights and in-staters. I should emphasize that the Privileges and Immunities Clause of Article 4 only gives out-of-staters the same civil rights as in-staters. It doesn't give them the same political rights, like the right to vote or the right to serve on a jury. For example, if an out-of-state person, from Wisconsin, traveled to Illinois, that person would have all the civil rights of Illinois citizens, but that person would not be eligible to vote in Illinois elections or eligible to serve on a jury in Illinois. The out-of-state Wisconsin citizen could change their citizenship and become a citizen of Illinois, at which point they could vote in Illinois elections or serve on an Illinois jury. So long as they remain a Wisconsin citizen, they don't have the same political rights in Illinois as Illinois citizens have. Again, this is just a basic and obvious distinction. It's necessary to promote travel and federalism in a commercial economy to protect civil rights nationwide, but it would subvert federalism if out-of-state residents could cross the border and vote in another state's elections without changing their state citizenship. The Privileges and Immunities Clauses clearly applies to civil rights and not to the political right to vote or to serve on juries. PUBLIUS: You mentioned civil law issues. What about the enforcement of criminal laws? STEVEN CALABRESI: Article 4 also contains, within it, a Fugitives From Justice Clause, which provides that, if a person is indicted or prosecuted in a state, again, perhaps Illinois, and that person then flees to another state, like Wisconsin or Indiana, the governor of Illinois has the power to request the governor of Wisconsin or the governor of Indiana to extradite the person and send them back to Illinois to face trial. This Fugitive From Justice Clause is, again, essential in a federal system. The states couldn't enforce their criminal laws if indicted criminals had the ability to flee to another state and not be extradited back to the state where they face criminal prosecution. This, too, is a necessary clause to make American federalism work. With that discussion of Article 4, Sections 1 and 2, and with my prior comments on congressional power under Article 4, Section 3 and 4, we've completed Article 4 of the Constitution, which is really all about federalism. The first three articles being about the separation of powers, for the most part, except for Article 1, Section 8, which enumerates the powers of the national government. PUBLIUS: The states even have the power to pass or stop a proposed Constitutional amendment. Can you discuss how that works? How have the Amendments played into questions of Federalism in general? STEVEN CALABRESI: Article 5 of the Constitution grant Congress and additional important power, which it shares with the states, which is that under Article 5 of the Constitution, constitutional amendments can be passed by a 2/3 majority of both the House of Representatives and the U.S. Senate. Those amendments are then sent to the states for ratification. They must be ratified by 3/4 of the states. If they are ratified by 3/4 of the states, they become part of the Constitution, and they alter the meaning of the Constitution. Today, 3/4 of the states is 38 states out of 50. It's very hard, in practice, to get a constitutional amendment passed. It's very hard to get 2/3 of both houses of Congress to agree on a constitutional amendment, and it's very hard to get 38 states to ratify a constitutional amendment, particularly, because all the states, except for Nebraska, have bicameral legislatures. One has to get a ratification bill through two houses of a state legislature for it to pass. In the 1970s, an equal rights amendment was proposed by Congress to guarantee equal rights for women. As I'll explain later, when we talk about the 14th Amendment, I think the Equal Rights Amendment was superfluous. I think the 14th Amendment already protects equal civil rights for women. The interesting thing about the Equal Rights Amendment in the 1970s is that it was ratified by 35 states, but not by 38, which is 3/4 majority. The Equal Rights Amendment failed to become part of the Constitution. The most amusing constitutional amendment, in American history, is also the most recent constitutional amendment, and that's the 27th Amendment. The 27th Amendment says that a congressional pay increase shall not take effect until there has been an intervening election to the House of Representatives and to the Senate. It's basically a way of protecting against congressmen voting themselves huge salaries. What makes the 27th Amendment fascinating is that it was originally proposed, in 1789, by James Madison and 2/3 of both houses of Congress in 1789 as part of 12 amendments, 10 of which became the first 10 amendments to the Constitution and the Federal Bill of Rights. The no congressional pay raise without an intervening election amendment lingered out there in the states, having been ratified by some states, but it was not ratified by 3/4 of the states until 1992. That raised a question of whether you could ratify a constitutional amendment over a period of time that exceeded 200 years. That answer is, yes you can. Congress, by an overwhelming vote of both houses, after 3/4 of the states had ratified the 27th Amendment to declare that the amendment had been validly ratified in a resolution and that it was now a part of the Constitution. That's the most interesting case, recently, to arise under Article 5. Article 6 of the Constitution, in its second paragraph, contains a critical clause called the Supremacy Clause. The Supremacy Clause says, this constitution, the laws made pursuant to it, and all treaties made, or which have been made, shall be the supreme law of the land, not withstanding anything in any state constitution or law to the contrary. This clause is vitally important. It says federal statutes, treaties, and the federal constitution, trump even state constitutions, as well as state laws and state common law. That makes the federal government truly powerful in a national government, because it allows the federal government to preempt or displace state laws. There are two interesting things about the wording of the Supremacy Clause. The Supremacy Clause, as I said, says that this constitution and the law pursuant to it are the supreme law of the land. That language, the laws made pursuant to the Constitution, makes it clear, textually, that statutes passed by Congress and signed by the president, are only the supreme law of the land only if they're pursuant to the Constitution. Statutes which violate the Constitution are not the supreme law of the land. The phrase, all treaties made or which shall be made are the supreme law of the land, was written the way it was to make it clear that the peace treaty between the United States and Great Britain, which was enacted in 1783, would remain the supreme law of the land, under the Constitution, when it took effect in 1789, and that all future treaties would also be the supreme law of the land. That completes Article 6. Article 7 simply provides that the Constitution would go into effect once 9 out of the 13 original states ratified it. The Constitution went into effect in 1789 with 11 states out of 13 having ratified it. North Carolina and Rhode Island did not ratify the Constitution until after 1789. Article 7 is now complete, because, of course, all of the original states ratified the Constitution….. PUBLIUS: You’ve mentioned most of the Constitutional Amendments in this discussion. Could you give us a quick synopsis of Amendments to wrap up? STEVEN CALABRESI: There are, of course, 27 amendments to the Constitution. The first 10 of which are called the Bill of Rights, and which were ratified in 1791. The amendments are critically important. Obviously, all Americans know that the Bill of Rights is critically important. I'll say just one word about the other 17 amendments, and that is that the 13th, 14th, and 15th amendments, which were adopted between 1865 and 1870, are usually called the Reconstruction Amendments. They abolish slavery, created equal civil rights, and gave African-American men the right to vote. These three Reconstruction Amendments, which critically altered the Constitution are so momentous and have so changed the Constitution, that they are often referred to as the second founding of the Constitution. It's important to note that as important as the first founding was in the 1780s, the second founding, after the civil war, with the adoption of the 13th, 14th, and 15th Amendments is really of equal importance. There is one other group of amendments which have radically altered the Constitution. Some of them in good ways, some of them in ways that have created problems. These are the Progressive Era constitutional amendments, which were approved between 1913 and 1920, during the presidency of Woodrow Wilson. There are four Progressive Era constitutional amendments, three of which are of great importance today. The first of the Progressive Era amendments, which is of huge importance, is the 16th Amendment, which authorizes the federal income tax. That is a really huge deal, because prior to 1913, the federal government had to operate on a budget that was essentially a shoestring budget. All federal revenue, prior to 1913, was generated by tariffs on foreign trade. There's a limit to how high you can raise tariffs and how much money you can raise with tariffs. Once Congress had the power to tax incomes, it had an enormous amount of additional money to spend. What Congress did is it taxed enormous amounts of income. It appropriated enormous amounts of money, and it gave grants to the states which strings attached, requiring the states to wave certain powers in order to receive the federal grant. As a result, the 13th Amendment had, the 16th Amendment, I'm sorry, had a really critical effect in altering American federalism and in greatly strengthening the federal government vis a vis the states. The 17th Amendment, which was also ratified in 1913, eliminated a provision in the original Constitution, under which state legislatures elected U.S. senators, and it put in place the current system, where the people of each state elect U.S. senators. This greatly transformed the nature of the Senate. Prior to 1913, the senate was a little bit like the United Nations and senators were ambassadors from state legislatures, and they were responsive to state legislatures. Since 1913, senators have been much more sensitive to popular opinion, much less supportive of state power, and much more supportive of national power. The 17th Amendment worked a huge change in American federalism. The 18th Amendment, which was also a progressive amendment, enacted prohibition of alcohol. A social experiment that proved utterly disastrous and led to another constitutional amendment, which repealed the 18th Amendment. It's amusing to note that the moralists, who supported the progressive movement, and who supported expanding the right to vote to women, also supported criminalizing the buying, and selling, and possessing of alcohol, a project, which, as I say, utterly failed. The final Progressive Era amendment, the 19th Amendment, which was ratified in 1920, gave women the right to vote in all federal and state elections. Obviously, this doubled the size of the electorate in federal and state elections. In recent elections, it's been noted that, to some extent, there is a gender gap in terms of partisan preferences of women and men. Since the Reagan Administration, in the 1980s, men have tended to be more supportive of the Republican Party and less supportive of the Democratic Party than women. There has been this gender gap since at least the Reagan Administration. Again, the gender gap is all made possible by the 19th Amendment giving women the right to vote. The first election in which women voted was the presidential and federal elections of 1920. It should be noted, just to toot the horn of the American Constitution, that the United States was the second major country in the world to give women the right to vote. The first country to give women the right to vote was Australia. United States was second in 1920. The United Kingdom of Great Britain and Northern Ireland did not give women the right to vote until 1928. Women did not get the right to vote in elections in Germany, France, and Japan, and India, until after the second World War. The U.S. was a real pioneer with respect to giving women the right to vote in 1920. There are other constitutional amendments which I need not discuss, but it's important to know that, of the amendments, there are three blocks that are very important. The first 10, which are called the Bill of Rights. The three Reconstruction Amendments, the 13th, 14th, and 15th Amendments. Then, the three Progressive Era Amendments, which remain viable, the 16th, 17th, and 19th Amendments. That pretty much completes my very lengthy discussion of the text of the U.S. Constitution. PUBLIUS: Where is federalism today? Is it still relevant? STEVEN CALABRESI: I think the argument for federalism and part of the definition of federalism is that it comes back to the famous quote from Lord Acton that power corrupts and absolute power corrupts absolutely. And so the separation of powers, like the Aristotelian mixed regime, was a response to the fact that absolute power corrupts absolutely. And it's good to separate out power among three branches of the federal government. And it's good to have bicameralism in the legislative branch, but it's even better to combine the benefits of separation of powers and bicameralism with a further division of power between the national government and the state governments. And in the United States, happily, we have that degree of protection. Now until 1937, it was generally understood that the United States had a system of dual federalism. And what dual federalism meant was that only the federal government could act in its sphere of powers and only the state governments could act in their sphere of powers. Unfortunately, President Franklin Roosevelt and the New Deal Supreme Court favored what they called a marble cake theory of federalism. And the marble cake theory of federalism meant that the state governments could redistribute wealth and the national government could redistribute wealth as well. The state governments could regulate you and the federal government, could regulate you too. If the state regulations are inconsistent with the federal regulations, obviously the supremacy clause of article six makes federal law the supreme law of the land. But in practice ever since 1937, we've lived in a world where there are significant spheres in which you can be regulated by both the state governments and the federal government. That is contrary to the original design and it's contrary to our practice up to 1937, but it is the world we live in. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! - Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about how Federalism works. Today’s episode features Professor Steven G. Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - Where do we find the concept of Federalism in the Constitution? We’re here today with Professor Steven Calabresi to define federalism and explore how it works in the American system. How did federalism define not only the power structure between the federal and state governments, but also among the states themselves? What is federalism? The answer is that federalism, in my view, is another form of the separation of powers, but whereas the separation of powers separates legislative, executive and judicial power at the national level, what federalism does is it separates power between the national government in the United States and the state governments in the United States. And it is the case that it was the state governments, or at least popular conventions in nine of the 13 states that created the federal constitution and therefore the federal government, but the federal government under the US Constitution is a government of limited and enumerated legislated powers. And there are significant powers that are still retained by the states. The state governments in the United States are what are called governments of general jurisdiction. That is to say they have what Professor Richard Epstein sometimes calls the police power, the power to protect the public health, safety and welfare. State governments can regulate people's activities in ways that the federal government lacks the enumerated power to do. The enumerated powers of the federal government have been read very broadly in some cases, I think too broadly, but it is nonetheless the case that the federal government has a substantial amount of power. One way of comparing the federal government and the state governments in the United States is to ask what percentage of GDP each level of government spends. And I believe the federal government and the states are spending about half each of the section of GDP, which goes toward governmental expenditures. So state governments remain very important in the United States. The federal government has significant and substantial powers. Most other nations have stronger federal governments than the United States. How has the restraint of federalism on the national system actually helped the US to grow and thrive? Federalism has another advantage to it, which is that it has allowed the United States to spread from being what the framers thought was an empire of 13 states stretching a thousand miles along the Atlantic coast, into what is undeniably an empire that stretches across all of North America, from the Atlantic coast to the Pacific coast, and which includes Alaska and Hawaii as well as various federal territories. And the ability of the American Constitution of 1787 to adopt and be relevant to the governance of a country as large and as populous as the United States is today is an absolutely remarkable thing. To put this in perspective, the United States today is the fourth largest country territorially in the world. If you subtract Tibet from China and you probably ought to subtract Tibet from China, we would be the third largest country territorially in the world. And just by way of comparison, the only two countries that would be ahead of us are Canada and Russia, most of which include land that's uninhabitable. So in terms of habitable land, the United States is vast. It's simply very, very large. Beyond the sheer size of the federal government and of the country, there's also the fact that the United States is the third most populous country in the world. Americans are used to hearing that China has the biggest population in the world. They're used to hearing that India has the second biggest population in the world than that it's about to overtake China. What most Americans don't realize is that the 330 million people who live in the United States of America, live in the third most populous country in the world. So if you measure the success of a constitution or a regime by the size of its territory or by the number of its inhabitants, the United States is absolutely extraordinary and unique. And what's more, the United States has a much higher GDP per capita, that's gross domestic product per capita per person, than do the more populous countries, that are more populous than the United States. On the last ranking done by the International Monetary Fund of GDP per capita, the United States ranked 11th in the world, out of about 240 countries. The only countries that ranked ahead of us on GDP per capita, were countries like Kuwait and the United Arab Emirates, which have vast amounts of oil and very few people. If you compare the United States GDP per capita to that of China, it turns out the China's GDP per capita is 92nd in the world, while ours is 11th. Many Americans that used to hearing that China has the second largest economy in the world after the United States. But China also has four times as many people as the United States. And so per person, China is a very poor country compared to the United States. Essentially, China has 300 million middle class Chinese, a small crust of wealthy Communist Party leaders, and China has a billion people who are living in poverty. India also has a huge problem with poverty. India's GDP per capita is about 144th in the world. So the US compares very favorably with these other large, populous countries. If you compare the US to the supposedly advanced countries of western Europe, it turns out the Germany's GDP per capita is about 20th. England's is about 26. France and Italy are in the 30s. The United States does quite well compared to them. Some people attribute American wealth and success to the discovery of a new world and the seizing of North America from the Native Americans, but that can't explain what's happened in the United States because the same process of Europeanization occurred in Latin America, and neither Brazil or Argentina nor Chile nor Columbia are nearly as successful economically as we are, nor have they had a stable constitution since 1789. In fact, Brazil is on its eighth constitution. The most recent one dates from 1988. Argentina has an older constitution, but it has a president who is in the habit of firing all the justices of the supreme court, as soon as he or she is elected. And so there really isn't ... Argentina has elections, but it's not really what you'd call a constitutional democracy because a president who can fire all the judges is more of a tyrant than he is a democratic president. So federalism is central to the American Constitution. It's central to the success of the American Constitution and it's an amazing feature of the American Constitution that it's been able to encompass such a vast territorial area of land with such a large population and that it's produced such an economically advanced country. Other countries also have states and provinces but no other country has as many as 50 of them. Is it easier or harder to unify a country with such a large number of diverse entities? One thing that should be pointed out about that is that today we have 50 states. In 1789, we had 13 states. In a federation with 50 states, you're going to have a lot more state line crossings than you'll have in a federation with 13 states. And if every state line crossing creates federal power to act, a huge increase in the number of states will lead to a huge increase in the power of the federal government. And that is essentially what happened in the United States, not only for constitutional reasons, but also for political reasons. Because we have 50 states, which is a very large number of states for federation, the states have lost political clout in Congress and with the president. Many federations are smaller than the United States. Germany has a very vibrant system of federalism and Germany has 16 states, which it calls lunder. Canada has significant aspects of federalism to its constitutional structure. Canada has 10 provinces and one of them, Quebec is threatening to secede. I think it's quite possible that if the United States had only four states, say the northeast, the Midwest, the south and the West, I think if the United States had four states, probably one of them would secede, either the south or the northeast. I don't think a four-state federation would hold together. What holds the United States together is that we have 50 states and the states are so divided that they can't collectively organize a secession. And that's really what the Civil War kind of established. Was the Southern Confederacy doomed to fail? What happened after the Civil War that doomed any future secession efforts? When the civil war broke out, there were 15 slave states and 16 free states. And when the slave states tried to secede, only 11 of the 15 of them were able to agree to secede and become part of the Southern Confederacy. The Civil war was a very closely fought struggle. It wasn't until the fall of 1864 when General Sherman marched to the sea through Georgia, it wasn't until the fall of 1864 that it was clear that the North would win the civil war and Abraham Lincoln would be reelected. I think if it hadn't been for the collective action problem that caused four slave states to stay in the union, it's possible the union would have broken apart in the Civil War, but it didn't break apart and what happened after the Civil War is that Congress created as many states as we could out of the remaining federal territories, so that there would never be an organized secession again. Recently some citizens in California got enough signatures to put an initiative on the ballot in California to split the state of California into three states. The Supreme Court of California recently declared that initiative unconstitutional under California's state constitution, which I think is the correct ruling. There has been talk at times of California trying to secede from the United States and people point out that if California seceded from the United States, it would by itself have the seventh largest economy in the world. But it's never going to happen, because California just as wealthy as it is and as populous as it is and as much as it has a distinct cultural identity, it just isn't big enough to make it on its own. So, I think that secession isn't going to happen. But as I said, I think if we had a four state federation with the West and Midwest, the south and the northeast, I think we might well have three or four different countries rather than the successful federal system we have. Since the original 13 states were admitted to the union, 37 additional states have applied for statehood, and have also been admitted to the union. In general, in order to be admitted to the union, the votes in a state have to vote that they want to join the union. They have to come up with a written constitution that congress determines is republican informed, a subject which I will address in a minute, and then if congress wants to, it can admit the new entity as a new state into the union, and of course every new state is entitled to at least two senators and one representative, and possibly more representatives depending on its population. Where does Congress get the authority to admit new states? What does it mean to require a prospective state to have a written constitution that is republican in form? Do new states have the same rights as existing states? There's no second class citizenship for newly admitted states. New states are co-equal to the 13 original states. The supreme court announced that in a case called Coyle against Oklahoma, where congress tried to tell the newly admitted state of Oklahoma what city would have to be the capital city of Oklahoma. Oklahoma sued, and said congress had not required any of the original 13 states to locate their capital in a certain city, and so congress lacked power to require Oklahoma to do that, and the supreme court, in Coyle against Oklahoma, sided with Oklahoma and said, Oklahoma can pick whatever city it wants to be its capital city. That is right, not a terribly important right, but it is a right that the states do retain. That's the grant of power, of congress, in article 4, section 3, to admit new states to the union. Article 4, section 4, says the following. It says the United States shall guarantee to every state in this union, a republican form of government, and shall, in case of invasion or insurrection upon the invitation of the legislature or the governor, militarily intervene to protect republican form of government in the states. This clause is commonly called either the guarantee clause, or the republican form of government clause. It does give congress congress an enumerated power to guarantee to the state's republican form of government. The nationalists, at the Philadelphia Constitutional Convention in 1787, had very high hopes for the guarantee clause. They really hoped the nation government would use it to clean up some abusive practices in the states, but that has not happened. The guarantee clause has, in fact, only been invoked once in American history, although in a very important instance, and that was after the military defeat of the south, in the Civil War, in 1865. Congress passed three statutes between 1865 and the inauguration of president Grant in 1869, which were called reconstruction acts, and by those acts, congress divided the south up into military districts, and provided that each military district would be run under martial law, without the bill of rights supplying by a military governor, to be appointed by the secretary of defense, who was a Lincoln holdover, who president Andrew Johnson wanted to fire. Through this mechanism, Congress completely dominated the confederacy from 1865 to 1869. Eventually the 11 confederate states came up with state constitutions that were so republican in form, that congress realized it was going to have to readmit them to the union, and that they would get seats in the senate, and seats in the house of representatives, and might be able to outvote the republicans in congress, so the republicans in congress attached a condition to readmitting the southern states to the union, which was that the 11 southern states not only had to come up with constitutions that were republican informed, they also had to ratify the 14th amendment as a condition of their being readmitted to the union. It was only because of his forced ratification of the 14th Amendment by the 11 confederate states that Congress was able to get a 3/4 of the state's majority to approve the 14th Amendment to the Constitution. Now, I think this is a perfectly constitutional bargain for Congress to have made. Professor John Harrison defends it in a brilliant law review article, in the University of Chicago Law Review, but it must be said that forcing 11 states to ratify constitutional amendment as a condition of readmitting them to the Union is pretty knuckle ball politics by any measure. Under the Guarantee Clause, when Congress admits a new state, it has an obligation to look at the state's constitution and to verify that the constitution is Republican in form. Congress has, for example, used that power by requiring the states of Utah and Idaho in their state constitutions to ban polygamy, which had been practiced by some fundamentalist Mormons, in Utah and Idaho, prior to those states being admitted to statehood. Congress does scrutinize state constitutions and has to certify that they are Republican in form before it can admit them to the Union. There are those two additional enumerated powers of Congress in Article 4, Section 3, to admit new states, and in Article 4, Section 4, to guarantee a Republican form of government to the states. In addition to those grants of power, to Congress, the three reconstruction amendments to the Constitution, the 13th Amendment abolishing slavery, the 14th Amendment guaranteeing equal civil rights, and the 15th Amendment giving African-American men the right to vote, all have a Section at the end of them, which says, "Congress may enforce the provisions of this amendment by enacting appropriate legislation." Here, the legislative history of the 13th, 14th, and 15th Amendment is very clear. The framers of those amendments meant the appropriate legislation clauses attached to them to be interpreted in the same way that John Marshal mangled the Necessary and Proper clause in McCulloch against Maryland. The Supreme Court is supposed to only review very deferentially laws that Congress passes to enforce the 13th Amendment ban on slavery, the 14th Amendment guarantee of equal civil rights, or the 15th Amendment guarantee of equal voting rights for African-American men. This question of admitting new states to the union is not a question that is of purely academic interest. There have been proposals made by democrats recently, frustrated by republican control of the senate, to reduce the size of the district of Colombia to include the mall, the capital building, the monuments, and the supreme court, and to turn the rest of the district of Colombia into a new state, which would be entitled to two senators and one congressman, and in theory a majority of both houses of congress could admit such a state to the union. In addition to that, the people of Puerto Rico, which is a US territory, have voted in a referendum that they would like to be admitted as a state to the union. Conceivably, a new house of representatives and senate could admit Puerto Rico as a state to the union, and Puerto Rico would then be entitled to two senators, and probably several congressmen, not simply one, so this is not a question of purely academic interest. One point that's very important to stress, and that the supreme court has made clear in its case law, is that new states that are admitted to the union must be absolutely equal in all their rights to the original 13 states. You’ve discussed how the states and federal government relate to each other under the Constitutional system. Are there any parts of the Constitution that govern how the states relate to each other? There are, of course, other constitutional amendments of importance. The 19th Amendment gave women the right to vote in federal and state elections, and gives Congress the power to enforce that right by appropriate legislation. There are other constitutional amendments, as well, that give Congress enumerated powers. That being said, we've now covered all of the most important and most formidable enumerated powers. More discussion of Congress's power to enforce the 14th Amendment has to be delayed until we talk about what the 14th Amendment guarantees, because, until we know what the 14th Amendment guarantees, it's fruitless to talk about Congress's power to enforce it. There are also two very important federalism clauses in Article 4, Section 1, and Article 4, Section 2. Those clauses do not concern the scope of Congress's enumerated power, but they concern, instead, problems of state to state relationships in American federalism. Article 4, Section 1, says that the state courts, in every state, are obligated to give full faith and credit to the judgements of other states' supreme courts, which means that if two residents of a state, say Illinois, litigate a lawsuit, and the Illinois courts finally resolve that lawsuit, and the defendant then moves to Wisconsin, the Wisconsin courts have to enforce the judgment of the Illinois courts against the defendant who moved from Illinois to Wisconsin. That is to say, the Wisconsin courts in that example have to give, what we would call, full faith and credit to a decision of the Illinois state supreme courts. The Full Faith and Credit Clause was present in the predecessor to the Constitution, the Articles of Confederation. It's essential to make federalism work, because, obviously, if defendants could avoid having to pay damages in lawsuits that they lost in their state court, they would have an incentive just to move out of state and avoid paying what they owed. The Full Faith and Credit Clause makes it impossible to do that, and it obligates out-of-state courts to give full faith and credit to in-state judgements. Article 4, Section 2, contains several clauses that are of great importance. The first clause that's important, in Article 4, Section 2, is the Privileges and Immunities Clause. That clause says that citizens in every state are entitled to the privileges and immunities of citizens of the United States. That's a very complicated formulation. It's borrowed from the Articles of Confederation. The effect of the principle of the Privileges and Immunities Clause of Article 4, Section 2, is that it means that, when an out-of-state citizen, say from Wisconsin, is in another state, like Illinois, that out-of-state citizen is entitled to all the civil right that citizens of the state of Illinois enjoy. If citizens of the state of Illinois have rights to freedom of speech and of the press, or to the free exercise of their religion, under the Illinois Constitution, or if they have Illinois statutory civil rights, or if they have Illinois common law civil rights, Illinois has to give an out-of-stater from Wisconsin or Indiana the same civil rights that it gives to its own citizens in Illinois. Illinois cannot discriminate against out-of-state citizens. This clause is critically important, because, obviously, one couldn't form a workable federal union with people traveling from state to state and doing business in different states, if there weren't a guarantee that out-of-staters have the same civil rights and in-staters. I should emphasize that the Privileges and Immunities Clause of Article 4 only gives out-of-staters the same civil rights as in-staters. It doesn't give them the same political rights, like the right to vote or the right to serve on a jury. For example, if an out-of-state person, from Wisconsin, traveled to Illinois, that person would have all the civil rights of Illinois citizens, but that person would not be eligible to vote in Illinois elections or eligible to serve on a jury in Illinois. The out-of-state Wisconsin citizen could change their citizenship and become a citizen of Illinois, at which point they could vote in Illinois elections or serve on an Illinois jury. So long as they remain a Wisconsin citizen, they don't have the same political rights in Illinois as Illinois citizens have. Again, this is just a basic and obvious distinction. It's necessary to promote travel and federalism in a commercial economy to protect civil rights nationwide, but it would subvert federalism if out-of-state residents could cross the border and vote in another state's elections without changing their state citizenship. The Privileges and Immunities Clauses clearly applies to civil rights and not to the political right to vote or to serve on juries. You mentioned civil law issues. What about the enforcement of criminal laws? Article 4 also contains, within it, a Fugitives From Justice Clause, which provides that, if a person is indicted or prosecuted in a state, again, perhaps Illinois, and that person then flees to another state, like Wisconsin or Indiana, the governor of Illinois has the power to request the governor of Wisconsin or the governor of Indiana to extradite the person and send them back to Illinois to face trial. This Fugitive From Justice Clause is, again, essential in a federal system. The states couldn't enforce their criminal laws if indicted criminals had the ability to flee to another state and not be extradited back to the state where they face criminal prosecution. This, too, is a necessary clause to make American federalism work. With that discussion of Article 4, Sections 1 and 2, and with my prior comments on congressional power under Article 4, Section 3 and 4, we've completed Article 4 of the Constitution, which is really all about federalism. The first three articles being about the separation of powers, for the most part, except for Article 1, Section 8, which enumerates the powers of the national government. The states even have the power to pass or stop a proposed Constitutional amendment. Can you discuss how that works? How have the Amendments played into questions of Federalism in general? Article 5 of the Constitution grant Congress and additional important power, which it shares with the states, which is that under Article 5 of the Constitution, constitutional amendments can be passed by a 2/3 majority of both the House of Representatives and the U.S. Senate. Those amendments are then sent to the states for ratification. They must be ratified by 3/4 of the states. If they are ratified by 3/4 of the states, they become part of the Constitution, and they alter the meaning of the Constitution. Today, 3/4 of the states is 38 states out of 50. It's very hard, in practice, to get a constitutional amendment passed. It's very hard to get 2/3 of both houses of Congress to agree on a constitutional amendment, and it's very hard to get 38 states to ratify a constitutional amendment, particularly, because all the states, except for Nebraska, have bicameral legislatures. One has to get a ratification bill through two houses of a state legislature for it to pass. In the 1970s, an equal rights amendment was proposed by Congress to guarantee equal rights for women. As I'll explain later, when we talk about the 14th Amendment, I think the Equal Rights Amendment was superfluous. I think the 14th Amendment already protects equal civil rights for women. The interesting thing about the Equal Rights Amendment in the 1970s is that it was ratified by 35 states, but not by 38, which is 3/4 majority. The Equal Rights Amendment failed to become part of the Constitution. The most amusing constitutional amendment, in American history, is also the most recent constitutional amendment, and that's the 27th Amendment. The 27th Amendment says that a congressional pay increase shall not take effect until there has been an intervening election to the House of Representatives and to the Senate. It's basically a way of protecting against congressmen voting themselves huge salaries. What makes the 27th Amendment fascinating is that it was originally proposed, in 1789, by James Madison and 2/3 of both houses of Congress in 1789 as part of 12 amendments, 10 of which became the first 10 amendments to the Constitution and the Federal Bill of Rights. The no congressional pay raise without an intervening election amendment lingered out there in the states, having been ratified by some states, but it was not ratified by 3/4 of the states until 1992. That raised a question of whether you could ratify a constitutional amendment over a period of time that exceeded 200 years. That answer is, yes you can. Congress, by an overwhelming vote of both houses, after 3/4 of the states had ratified the 27th Amendment to declare that the amendment had been validly ratified in a resolution and that it was now a part of the Constitution. That's the most interesting case, recently, to arise under Article 5. Article 6 of the Constitution, in its second paragraph, contains a critical clause called the Supremacy Clause. The Supremacy Clause says, this constitution, the laws made pursuant to it, and all treaties made, or which have been made, shall be the supreme law of the land, not withstanding anything in any state constitution or law to the contrary. This clause is vitally important. It says federal statutes, treaties, and the federal constitution, trump even state constitutions, as well as state laws and state common law. That makes the federal government truly powerful in a national government, because it allows the federal government to preempt or displace state laws. There are two interesting things about the wording of the Supremacy Clause. The Supremacy Clause, as I said, says that this constitution and the law pursuant to it are the supreme law of the land. That language, the laws made pursuant to the Constitution, makes it clear, textually, that statutes passed by Congress and signed by the president, are only the supreme law of the land only if they're pursuant to the Constitution. Statutes which violate the Constitution are not the supreme law of the land. The phrase, all treaties made or which shall be made are the supreme law of the land, was written the way it was to make it clear that the peace treaty between the United States and Great Britain, which was enacted in 1783, would remain the supreme law of the land, under the Constitution, when it took effect in 1789, and that all future treaties would also be the supreme law of the land. That completes Article 6. Article 7 simply provides that the Constitution would go into effect once 9 out of the 13 original states ratified it. The Constitution went into effect in 1789 with 11 states out of 13 having ratified it. North Carolina and Rhode Island did not ratify the Constitution until after 1789. Article 7 is now complete, because, of course, all of the original states ratified the Constitution….. You’ve mentioned most of the Constitutional Amendments in this discussion. Could you give us a quick synopsis of Amendments to wrap up? There are, of course, 27 amendments to the Constitution. The first 10 of which are called the Bill of Rights, and which were ratified in 1791. The amendments are critically important. Obviously, all Americans know that the Bill of Rights is critically important. I'll say just one word about the other 17 amendments, and that is that the 13th, 14th, and 15th amendments, which were adopted between 1865 and 1870, are usually called the Reconstruction Amendments. They abolish slavery, created equal civil rights, and gave African-American men the right to vote. These three Reconstruction Amendments, which critically altered the Constitution are so momentous and have so changed the Constitution, that they are often referred to as the second founding of the Constitution. It's important to note that as important as the first founding was in the 1780s, the second founding, after the civil war, with the adoption of the 13th, 14th, and 15th Amendments is really of equal importance. There is one other group of amendments which have radically altered the Constitution. Some of them in good ways, some of them in ways that have created problems. These are the Progressive Era constitutional amendments, which were approved between 1913 and 1920, during the presidency of Woodrow Wilson. There are four Progressive Era constitutional amendments, three of which are of great importance today. The first of the Progressive Era amendments, which is of huge importance, is the 16th Amendment, which authorizes the federal income tax. That is a really huge deal, because prior to 1913, the federal government had to operate on a budget that was essentially a shoestring budget. All federal revenue, prior to 1913, was generated by tariffs on foreign trade. There's a limit to how high you can raise tariffs and how much money you can raise with tariffs. Once Congress had the power to tax incomes, it had an enormous amount of additional money to spend. What Congress did is it taxed enormous amounts of income. It appropriated enormous amounts of money, and it gave grants to the states which strings attached, requiring the states to wave certain powers in order to receive the federal grant. As a result, the 13th Amendment had, the 16th Amendment, I'm sorry, had a really critical effect in altering American federalism and in greatly strengthening the federal government vis a vis the states. The 17th Amendment, which was also ratified in 1913, eliminated a provision in the original Constitution, under which state legislatures elected U.S. senators, and it put in place the current system, where the people of each state elect U.S. senators. This greatly transformed the nature of the Senate. Prior to 1913, the senate was a little bit like the United Nations and senators were ambassadors from state legislatures, and they were responsive to state legislatures. Since 1913, senators have been much more sensitive to popular opinion, much less supportive of state power, and much more supportive of national power. The 17th Amendment worked a huge change in American federalism. The 18th Amendment, which was also a progressive amendment, enacted prohibition of alcohol. A social experiment that proved utterly disastrous and led to another constitutional amendment, which repealed the 18th Amendment. It's amusing to note that the moralists, who supported the progressive movement, and who supported expanding the right to vote to women, also supported criminalizing the buying, and selling, and possessing of alcohol, a project, which, as I say, utterly failed. The final Progressive Era amendment, the 19th Amendment, which was ratified in 1920, gave women the right to vote in all federal and state elections. Obviously, this doubled the size of the electorate in federal and state elections. In recent elections, it's been noted that, to some extent, there is a gender gap in terms of partisan preferences of women and men. Since the Reagan Administration, in the 1980s, men have tended to be more supportive of the Republican Party and less supportive of the Democratic Party than women. There has been this gender gap since at least the Reagan Administration. Again, the gender gap is all made possible by the 19th Amendment giving women the right to vote. The first election in which women voted was the presidential and federal elections of 1920. It should be noted, just to toot the horn of the American Constitution, that the United States was the second major country in the world to give women the right to vote. The first country to give women the right to vote was Australia. United States was second in 1920. The United Kingdom of Great Britain and Northern Ireland did not give women the right to vote until 1928. Women did not get the right to vote in elections in Germany, France, and Japan, and India, until after the second World War. The U.S. was a real pioneer with respect to giving women the right to vote in 1920. There are other constitutional amendments which I need not discuss, but it's important to know that, of the amendments, there are three blocks that are very important. The first 10, which are called the Bill of Rights. The three Reconstruction Amendments, the 13th, 14th, and 15th Amendments. Then, the three Progressive Era Amendments, which remain viable, the 16th, 17th, and 19th Amendments. That pretty much completes my very lengthy discussion of the text of the U.S. Constitution. Where is federalism today? Is it still relevant? I think the argument for federalism and part of the definition of federalism is that it comes back to the famous quote from Lord Acton that power corrupts and absolute power corrupts absolutely. And so the separation of powers, like the Aristotelian mixed regime, was a response to the fact that absolute power corrupts absolutely. And it's good to separate out power among three branches of the federal government. And it's good to have bicameralism in the legislative branch, but it's even better to combine the benefits of separation of powers and bicameralism with a further division of power between the national government and the state governments. And in the United States, happily, we have that degree of protection. Now until 1937, it was generally understood that the United States had a system of dual federalism. And what dual federalism meant was that only the federal government could act in its sphere of powers and only the state governments could act in their sphere of powers. Unfortunately, President Franklin Roosevelt and the New Deal Supreme Court favored what they called a marble cake theory of federalism. And the marble cake theory of federalism meant that the state governments could redistribute wealth and the national government could redistribute wealth as well. The state governments could regulate you and the federal government, could regulate you too. If the state regulations are inconsistent with the federal regulations, obviously the supremacy clause of article six makes federal law the supreme law of the land. But in practice ever since 1937, we've lived in a world where there are significant spheres in which you can be regulated by both the state governments and the federal government. That is contrary to the original design and it's contrary to our practice up to 1937, but it is the world we live in. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!