Federalism and Foreign Policy: Do the States have Rights?

Term Paper (Advanced seminar), 2003

27 Pages, Grade: 1,0/ A


Table of Contents

1. Introduction

2. What is Federalism? – An Explanation

3. Federalism in the United States of America
3.1 Federalism and the Constituent State
3.2 The Basis of Federalism – The United States Constitution

4. United States Foreign Policy
4.1 Constitutional Basis for U.S. Foreign Policy
4.2 The Role of Congress in Foreign Policy

5. The States

6. Major Supreme Court Rulings in U.S. Federalism
6.1 The Chinese Exclusion Case: Chae Chan Ping v. United States 130 U.S. 581 (1889)
6.1.1 Historical Background
6.1.2 The Case
6.2 United States v. Curtiss-Wright Export Corp 299 U.S. 304 (1936)
6.2.1 Historical Background
6.2.2 The Case

7. Conclusion

8. Bibliography

9. Appendix

1. Introduction

Throughout history the American nation has been significantly altered by the decisions of the Supreme Court which has been responsible for the correct interpretation of the most important American document: the United States Constitution. Especially concerning the separation of powers among the different governmental branches legislature, judiciary, and executive and the subdivision of power between the federal government and the governments of the constituent states, a lot of decisions had to be made. The rulings of the Highest Court of the United States shaped the country and its future considerably and delegated more rights to the federal government.

This paper will investigate in particular the question if the member states of the federal union do have rights in regard to foreign policy or if they are completely subordinate to the decisions of Congress. Beginning with an explanation of the term federalism, I will try to give a brief overview over the American governmental system. Following that, I will take a closer look at the basis of the American government – the U.S. Constitution and the delegation of powers it attends to. The third part then deals with U.S. foreign affairs, the constitutional background it is based on, and moreover the role Congress plays in foreign policy-making. Subsequently, in the next chapter, the focus will be on the constituent states and their special role within the federal union and in this context I will consider predominantly their possibilities to have an influence on foreign affairs matters. Finally, the thesis will consider two of the most important cases that have been ruled by the United States Supreme Court: the opinions in Chae Chan Ping v. U.S. – ‘ The Chinese Exclusion Case’ – and U.S. v. Curtiss-Wright Export Corp. have been among the most significant decisions concerning U.S. federalism and have been of great importance for the role of the states in foreign affairs. To conclude, I will summarize the results that follow from this work.

2. What is Federalism? – An Explanation

In order to be in a position to reply comprehensively to the question asked in the title of this paper – Federalism and Foreign Policy – Do the States have Rights? – it is indispens­able to define the concept of federalism more specific.

The term federalism is originally derived from the Latin word foedus, meaning nothing else than alliance. Today the expression describes a form of government, where the different member states of a federal union (or a confederation) keep their independence to a high degree while participating in the national government.[1]

American federalism[2] is one of the most interesting aspects of the U.S. Constitution, nonetheless, it cannot be denied that it is, furthermore, considered one of the most complicated factors shaping American politics. Right from the founding of the United States of America, federalism has been a recurring subject of controversy between the national government and the single states, each struggling for more power and influence. The main problem within the U.S. Constitution results from the allotment of certain competences to the federal government, as well as to the constituent states which, in spite of this, are not clearly defined. Consequently, both sides fight for more control and competences, given that the articles of the Constitution can be broadly interpreted.

Yet what does the expression federalism in fact stand for? – In easy terms federalism can be defined “as the division of political power between a central government, and a number of local governments”,[3] meaning that several states associate themselves under a central government, while still maintaining a portion of their autonomy.

Federalism is a system of rules for the division of public policy responsibilities among a number of autonomous governmental agencies. These rules define the scope of authority available to the autonomous agencies – which can do what – and they provide a framework to govern relationships between and among agencies. The agencies remain autonomous in that they levy their own taxes and select their own officials, but they are also linked together by rules that govern common actions.[4]

The federal union of the United States consists in its fundamental nature of the principle, that complex national institutions and their authority are distributed on several levels of government (local, state and national government) and that these powers are vertically separated into legislative, judicative, and executive authorities.

In a federal union – in contrast to a confederation of states[5] – the single state does not have a sovereign status, although the confederation allocates a considerable degree of freedom to member states to influence politics and policies. Thus, in a federal union each state possesses to a certain extend autonomy in making its decisions which is derived directly from the unions’ federal constitution. Therefore the constituent states are able to exercise their respective powers independently, although on all the different levels of the union each state is still subordinate in the hierarchy (in regard to the different governmental branches the single states are always inferior to the federal institutions).

3. Federalism in the United States of America

One of the most important issues in the American federal union is the distribution of powers between the central and the state government. However, this partition of control is also among the most difficult tasks the U.S. government has to fulfill, since the Constitution is rather unclear in this respect. In the following paragraphs we will see how the members of the Constitutional Convention tried to solve the problem, how they delegated the powers to the various governmental branches and how they were subdivided between the Union and the states, respectively.

3.1 Federalism and the Constituent State

In principle, federal systems allocate broad powers to all constituent units, each of which can act in these broad areas without the approval of any other unit. All constituent units, furthermore, are guaranteed existence so long as the system exists because they are the system.[6]

In contrast to a unitary system, the federal structure thus offers a much wider sphere of political self-determination as well as influence to the member states and consequently promotes their political participation. Though the policies differ in each state – due to the fact, that the states are relatively free to construct and execute an individual political “sub-state” system as long as it does not come into conflict with the Constitution – “the states are, at one and the same time, well-integrated parts of the overall American civil society and also separate civil societies in their own right with their own political system”.[7] Additionally, these fifty different U.S. state governments continue to expand their responsibilities and up until now

[e]ach state has created its own legal and administrative system, giving the nation 40,000 municipal governments, another 26,000 special districts, and more than 15,000 school districts. […] More important, nearly 500,000 elected officials work with more than 13 million appointed officials in performing these state and local responsibilities.[8]

For that reason, the states can be viewed as functioning systems within a system, where, nonetheless, “many policies, such as antidiscrimination laws, reflect an equally apparent sense of national uniformity”.[9] Yet although the uniformity can be noticed, Elazar makes clear to the reader, that

[i]n the noncentralized American system, there is no central government with absolute authority over the states in the unitary sense, but there is a strong national government coupled with strong state governments that share authority and power, constitutionally and practically.[10]

3.2 The Basis of Federalism – The United States Constitution

According to the U.S. Constitution there are several powers specifically delegated to the national government, while others are left to the states. Yet, if it is that simple, then where do all these conflicts between the federal union and the constituent states result from?

The problem definitely lies within the formulation of the articles and amendments of the U.S. Constitution which allows a broad interpretation of the single rights and duties. Not for nothing have different interpretations of the Constitution and overlapping jurisdiction led to numerous differences, ending up in lawsuits before the U.S. Supreme Court.

“The fifty American states, located between the powerful federal government and the burgeoning local governments in a metropolitan zing nation, are the keystones of the American governmental arch”[11] but their actual possibilities to exercise influence on political decision-making on the national basis is rather limited. The Tenth Amendment of the Constitution states that “[t]he 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.”[12] This is a rather unspecific and unclear statement, that does not contain – neither for layman nor for an expert – what kind of powers ultimately are passed on to the states. The Tenth Amendment,

[m]ore than any other amendment in the Bill of Rights, […] was designed to address Antifederalists’ concerns that the new national government would simply swallow up the rights of the states. Thus, states were to be left with powers not prohibited to them or not delegated to the national government.[13]

The above stated passage from John R. Vile’s book A Companion to the United States Constitution and its Amendments hence includes two major aspects: The first aspect is that of the already existing fear in the beginnings of the emerging nation, that the rights of the states would be ‘simply swallowed up’ by the national government; and second, that the prerogatives of the states are not explicitly written down in the Constitution, but follow from the powers which are neither prohibited to them nor “delegated to the national government”. Consequently, it could be assumed, that at least these ‘delegated powers’ are clearly defined. However, since the rights given to the national government are not only those listed in Article 1, Section 8 of the Constitution,[14] but moreover those “that can be reasonably implied from the necessary and proper clause and from other grants of power”[15], state powers cannot at all be easily identified.

Nonetheless, “[o]ne purpose of a constitution in a federal system, where power is split between a central government and constituent parts that Americans designated as states, is to outline the respective powers of both governments”,[16] and for this reason it is essential to analyze the contents of the document more precisely. According to Article 1, Section 8, “[t]he Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States”.[17] On the other hand, certain powers obviously seem to be reserved to the state governments: In view of the fact that the Constitution for example does not authorize Congress to maintain a system of public schools or to regulate issues concerning marriage and divorce, it may be inferred that these powers are within the states’ sphere of competence. Moreover, one could suppose, that the Tenth Amendment of the U.S. Constitution offers the member states extensive possibilities to regulate their internal concerns, which however, is not the case. The history of the nation is characterized by frequently arising tension between the national government and the single states which are struggling to defend their autonomy. In more than one case the U.S. Supreme Court had to restrict the competences of either or the other. Elazar does this explain that way:

Given the existence of a national economy in which people and goods flow across boundaries easily on the basis of essentially private decisions, the state governments, no matter how willing, are simply unable to cope with certain problems without federal assistance. Unemployment insurance, workmen’s compensation, water pollution control, major highway construction, and a whole host of programs cannot be undertaken alone, even by those states who can afford to support them. The nation’s great industrial corporations have facilities in too many different states, sell their goods in all the rest, and can locate (or relocate) their operations as they see fit. The nation’s great waterways – and by connection, most of its smaller ones – flow across state lines, carrying with them whatever is deposited upstream. The nation’s highways can only service the nationwide market if they provide for easy transitions from jurisdiction to jurisdiction. In these cases and many others, state action to exercise legitimate controls, to set appropriate standards, or to implement public programs must, at the very least, be supported by federal actions or policies that will give the states room in which to maneuver.[18]

Yet, in certain areas of economy the states are still left completely free of national control and Elazar adds, that

[a]lthough the national Constitution may set the standard, the Supreme Court the guidelines, the Congress the means of making national policy felt, and the president the will to enforce it, the state governments are left to administer their own services within their own boundaries in a manner consonant with their respective political postures. Only in those cases where it has been clearly demonstrated that the states cannot or will not implement the Constitution as interpreted does it become possible for the federal authorities to intervene.[19]

In conclusion it can be said, that some factors within the governmental system led to an increased federal authority: Due to various decision of the Supreme Court, the competences of the national regime augmented – at the expense of those of the states. In certain fields a tendencies towards centralization becomes visible while, despite all objections, the states without a doubt are not left without rights. They do, furthermore, also have the power to execute them within their boundaries, specifically concerning economic matters. Yet, and this is the question here, does that also relate to foreign policy matters or are the states in this respect entirely subjected to the federal government’s authority and its decisions? In the following paragraph I will examine that problem more closely, in particular under the aspect of the legal provisions and with special regard to the different institutions involved in decision-making.

4. United States Foreign Policy

In comparison with other industrialized nations, where leaders usually enjoy considerable latitude in setting strategic priorities, the American foreign policy-making process is highly politicized and notoriously inefficient, making it extremely difficult for the nation’s leaders to mobilize and sustain broad-based political support. Questions of foreign policy often assume a prominent role in national politics and provoke intense and bitter debate.[20]

In principle, it has practically always been a very difficult task for the American nation to find an internal political consensus in regard to foreign policy, since the U.S. political system is rather fragmented and therefore not habitually of the same opinion. Certainly because the framers of the Constitution did already foresee the danger of an imbalance of power, the U.S. Constitution provides for the legislative and the executive branch to share the authority over foreign affairs, although even the members of the Constitutional Convention argued about the division of powers: When George Washington declared the United States in 1793 neutral in the war between Great Britain and France, he was instantly accused by pro-French members of Congress, that he was going beyond his competences. Congress was doubtlessly of the opinion that this power lay within their authority. The incident resulted in a political tumult, forcing Alexander Hamilton and James Madison – both members of the Constitutional Convention – to tackle the question, in how far the Constitution allocated the powers in regard to foreign policy between the president and Congress.[21]

Hamilton and Madison offered radically different interpretations of the Constitution. Writing under the pen name Pacificus, Hamilton argued that foreign policy is by its very nature the province of the executive branch and that the powers delegated to Congress in the Constitution are “exceptions out of the general ‘executive powers’ that are to be construed strictly, and ought to be extended no further than is essential to their execution.” Writing as Helvidius, Madison condemned Hamilton’s argument as unsupported “by any general arrangements, or particular expression, or plausible analogies, to be found in the constitution.” Madison argued instead that Congress enjoyed wide latitude in the exercise of its legislative powers in foreign affairs.[22]


[1] Cf. www.net-lexikon.de/Foederalismus.html.

[2]“The United States is not the only government to establish a federal union. Switzerland became a feder­al state in 1848, Canada in 1867, Germany in 1867, and Australia in 1900”, cf. www.pinkmonkey.com.

[3] Ibid.

[4] Thomas J. Anton, American Federalism and Public Policy: How the System Works, Philadelphia: Temple UP, 1989, 3.

[5] It has to be distinguished between federal union and confederation: In a confederation the single states keep their sovereign status although delegating limited powers to a central authority. For the explana­tion of federal union, cf. definition above.

[6] Anton, American Federalism and Public Policy, 3.

[7] Daniel J. Elazar, American Federalism: A View from the States, New York, and others: Harper & Row, Publishers, 21972, 2.

[8] Anton, American Federalism and Public Policy, 4.

[9] Ibid., 1.

[10] Elazar, American Federalism, 3.

[11] Ibid., 1.

[12] www.law.cornell.edu/constitution.

[13] John R. Vile, A Companion to the United States Constitution and its Amendments, Greenwood Publishing Group: Westport (CT), 1993, 154.

[14] Cf. Appendix, Article 1, Section 8 of the U.S. Constitution.

[15] Vile, A Companion to the United States Constitution, 155, cf. also Appendix, Article 1, Section 8, last paragraph.

[16] Ibid., 55.

[17] Cf. Appendix, Article 1, Section 8, where the powers are listed in detail.

[18] Elazar, American Federalism, 33.

[19] Ibid., 6.

[20] Peter Trubowitz, Defining the National Interest: Conflict and Change in American Foreign Policy, Chicago, London: Chicago Press, 1998, 2.

[21] Cf. James M. Lindsay, Congress and the Politics of U.S. Foreign Policy, Baltimore, London: Johns Hopkins UP, 1994, 13.

[22] Ibid., 13-14.

Excerpt out of 27 pages


Federalism and Foreign Policy: Do the States have Rights?
University of Kassel
American Federalism - Die Entwicklung eines politischen Modells
1,0/ A
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ISBN (eBook)
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American Federalism: The United States Constitution and its interpretation by the Supreme Court - This paper investigates in particular the question if the member states of the federal union do have rights in regard to foreign policy or if they are completely subordinate to the decisions of Congress. 4 pages appendix.
Federalism, Foreign, Policy, States, Rights, American, Federalism, Entwicklung, Modells
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Ilka Kreimendahl (Author), 2003, Federalism and Foreign Policy: Do the States have Rights?, Munich, GRIN Verlag, https://www.grin.com/document/37913


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