Section , which provides a federal private right of action for victims of gender-motivated violence, was within the power of Congress to enact under the Commerce Clause. In Morrison , the victim of an alleged rape brought suit against the alleged rapist, arguing that this portion of the act was sustainable because it addressed activities that substantially affect interstate commerce.
This point had been made previously in Lopez , and here the Court reaffirmed the holding that in order to fall under the acceptable category of laws that "substantially affect commerce," the underlying activity itself must generally be economic or commercial. In the case of Gonzales v. Raich , 63 the Court evaluated an "as applied" challenge to the Controlled Substances Act as regards obtaining, manufacturing, or possessing marijuana for medical purposes.
The case was brought by two seriously ill residents of California who used marijuana in compliance with the California Compassionate Use Act of In upholding the application of the Controlled Substances Act in the Raich case, the Court relied on its decision in Wickard v.
Filburn , 66 which held that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. The Court in Wickard held that Congress could regulate not only the wheat sold into commerce, but also wheat retained for consumption on a farm.
Based on Wickard , the Court in Raich held that Congress could consider the aggregate effect that allowing the production and consumption of marijuana for medical purposes would have on the illegal market for marijuana. In addition, because exempting the use of medical marijuana could undercut enforcement of the Controlled Substances Act, the Court found that the application in this case was within Congress's authority to "make all Laws which shall be necessary and proper" to effectuate its powers.
The Constitution provides Congress not only enumerated powers, but also the ability to pass laws to make such powers effective. While such a power might have been implied of necessity even without an explicit textual basis in the Constitution, the Founding Fathers specifically included congressional authority to "make all Laws which shall be necessary and proper" 73 to effectuate its powers. Although the extension of congressional power under this clause is not an independent basis for legislation, the provision has been integral to a broad interpretation of other congressional powers.
For instance, as discussed below, the expansive nature of modern Commerce Clause doctrine may actually be a reflection of Necessary and Proper Clause jurisprudence. Sometimes, the Court's reliance on the Necessary and Proper Clause in a particular case is only briefly noted, or may even exist sub silentio.
For instance, the majority opinion in the case of Gonzales v. Raich discussed above emphasized that, in evaluating the scope of Congress's authority under the Commerce Clause to regulate medicinal marijuana, the Court need only find that Congress had a "rational basis" to find a link between the legislation and the Commerce Clause.
The Court then went on to note that in such cases "Congress was acting well within its authority to 'make all Laws which shall be necessary and proper' to 'regulate Commerce This passing reference to the Necessary and Proper Clause may obscure its historical significance to Commerce Clause litigation.
Writing in concurrence in Raich , Justice Scalia argued that it is more accurate to characterize the expansive "substantial effects" prong of Commerce Clause analysis as predominantly based on the Necessary and Proper Clause. He noted that the current description of the "substantial effects" prong is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.
Rather, "as this Court has acknowledged Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce including activities that have a substantial effect on interstate commerce derives from the Necessary and Proper Clause.
Another area where the Court has provided a similarly broad interpretation of an Article I congressional power based on the Necessary and Proper Clause is the Spending Clause.
The defendant, who was convicted of attempting to bribe a city councilman to facilitate the building of a hotel and retail structure in Minneapolis, argued that the statute in question had no federal nexus.
The Court rejected this argument, holding that Congress's authority under the Spending Clause, when supplemented by the Necessary and Proper Clause, allowed Congress to ensure that federal dollars not be diverted or undermined by corruption.
The Court held that it was not important if the federal funds received by the governmental entity in question were not directly involved in a particular scheme, because "money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value. An even more expansive interpretation of the Necessary and Proper Clause, in this case as applied to the entire federal criminal penal system which derives from a variety of congressional powers , is found in the Court's opinion in United States v.
The statute contained no requirement that the threatened future conduct would fall under federal jurisdiction, raising the question of what constitutional basis could be cited for the enforcement of the statute.
The majority opinion in Comstock upheld the statute after considering five factors: 1 the historic breadth of the Necessary and Proper Clause; 2 the history of federal involvement in this area; 3 the reason for the statute's enactment; 4 the statute's accommodation of state interests; and 5 whether the scope of the statute was too attenuated from Article I powers. Maryland , 81 where the Chief Justice wrote: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
Previous federal involvement in the area included not only the civil commitment of defendants who were incompetent to stand trial or who became insane during the course of their imprisonment, but, starting in , the continued confinement of those adjudged incompetent or insane past the end of their prison term. In upholding the sex offender statute, the Court found that protection of the public and the probability that such prisoners would not be committed by the state represented a rational basis for the passage of such legislation.
The Court further found that the state interests were protected by the legislation, as the statute provided for transfer of the committed individuals to state authorities willing to accept them. Finally, the Court found that the statute was not too attenuated from the Article I powers underlying the criminal laws which had been the basis for incarceration, as it related to the responsible administration of the United States prison system. Another significant source of congressional power is Section 5 of the Fourteenth Amendment.
The Fourteenth Amendment provides that states shall not deprive citizens of "life, liberty or property" without due process of law nor deprive them of equal protection of the laws.
Section 5 provides that Congress has the power to legislate to enforce the amendment. The Fourteenth Amendment represented a significant shift of power in the nation's federal system. Until the passage of the Fourteenth Amendment, the Constitution was limited to establishing the powers and limitations of the federal government.
However, the amendments passed immediately after the Civil War the Thirteenth, 82 Fourteenth, and Fifteenth 83 Amendments , dramatically altered this regime. Passage of these amendments subjected a state's control over its own citizens to oversight by either the federal judiciary or Congress.
The most significant impact of the Fourteenth Amendment has been its implementation by the federal courts, as state legislation came under scrutiny for having violated due process or equal protection.
However, Congress has also seen fit to exercise its power under the Fourteenth Amendment to address issues such as voting rights and police brutality.
The scope of Congress's power under Section 5 of the Fourteenth Amendment, however, has been in flux over the years. In Katzenbach v. Morgan , 84 the Court held that Section 5 of the Fourteenth Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment as defined by the courts, but to help define its scope.
In Katzenbach , the Court upheld a portion of the Voting Rights Act of that barred the application of English literacy requirements to persons who had reached 6 th grade in a Puerto Rican school taught in Spanish. In upholding the statute, the Court rejected the argument that Congress's power to legislate under the Fourteenth Amendment was limited to enforcing that which the Supreme Court found to be a violation of that amendment. Rather, the Court held that Congress could enforce the Fourteenth Amendment by "appropriate" legislation consistent with the "letter and spirit of the constitution.
The rationale for this holding appears to be that Congress has the ability to evaluate and address factual situations that it determines may lead to degradation of rights protected under the Fourteenth Amendment.
This is true even if a court would not find a constitutional violation to have occurred. In fact, what the Court appeared to have done was to require only that Congress establish a rational basis for why the legislation was necessary to protect a Fourteenth Amendment right.
Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. Mitchell , 85 the Court struck down a requirement that the voting age be lowered to 18 for state elections. In prohibiting Congress from dictating the voting age for state elections, a splintered Court appears to have supported Congress's power to pass laws that protect Fourteenth Amendment rights against state intrusions, but rejected the ability of Congress to extend the substantive content of those rights.
As year-olds are not a protected class under the Fourteenth Amendment, the Court found that Congress was attempting to create, rather than protect, Fourteenth Amendment rights.
More recently, in the case of Flores v. For many years prior to the passage of RFRA, a law of general applicability restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of the First Amendment, had to be justified by a compelling governmental interest.
However, in the case of Oregon v. Smith , 87 the Court had lowered this standard. The Smith case involved members of the Native American Church who were denied unemployment benefits when they lost their jobs for having used peyote during a religious ceremony.
The Smith case held that neutral generally applicable laws may be applied to religious practices even if the law is not supported by a compelling governmental interest. RFRA, in response, was an attempt by Congress to overturn the Smith case, and to require a compelling governmental interest when a state applied a generally applied law to religion.
The City of Boerne case arose when the City of Boerne denied a church a building permit to expand, because the church was in a designated historical district. The church challenged the zoning decision under RFRA.
The Supreme Court reiterated that Section 5 of the Fourteenth Amendment gave Congress the power to enforce existing constitutional protections, but found that this did not automatically include the power to pass any legislation to protect these rights.
Instead, the Court held that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. For instance, the Court's decision in Katzenbach v.
Morgan of allowing the banning of literacy tests was justified based on an extensive history of minorities being denied suffrage in this country. In contrast, the Court found no similar pattern of the use of neutral laws of general applicability disguising religious bigotry and animus against religion. The law focused on no one area of alleged harm to religion, but rather just broadly inhibited state and local regulations of all types.
The scope of the enforcement power under Section 5 of the Fourteenth Amendment also has become important in cases where the Court has found that Congress has overreached its power under other provision of the Constitution, or is limited by some provision thereof.
For instance, as discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state sovereign immunity generally prohibit individuals from suing states for damages under federal law. For instance, a significant amount of federal legislation is clearly supported by the commerce clause, but it might not be supported under Section 5.
Recently, the Court decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority for such legislation. In College Savings Bank v. The New Jersey savings bank had developed a patented program where individuals could use a certificate of deposit contract to save for college. The state of Florida set up a similar program, and the College Savings Bank sued Florida for false and misleading advertising under a provision of the Trademark Act of Lanham Act , 91 alleging that Florida had made misleading representations about its own product.
The Court first noted that under Seminole Tribe of Florida v. Florida , Article I, powers such as the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity. Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of Congress's power under Section 5 of the Fourteenth Amendment. Although the Fourteenth Amendment provides that no state shall "deprive a person of As the Court found that Congress had not established an authority under the Fourteenth Amendment to abrogate the state's immunity, the College Savings Bank could not proceed against the state of Florida for unfair trade practices.
Even if a property interest is established, it would still need to be determined that Congress had the authority to protect that property interest under the Fourteenth Amendment. College Savings Bank , 92 the Court, in a decision concerning the same parties as the case discussed above, considered whether the College Savings Bank could sue the state of Florida for patent infringement.
Congress had passed a law specifically providing that states could be sued for patent violations, 93 citing three sources of constitutional authority: the Article I Patent Clause, 94 the Article I Interstate Commerce Clause, 95 and Section 5 of the Fourteenth Amendment. As the Court had previously precluded abrogation of sovereign immunity through the exercise of Article I powers, the question became whether Congress had the authority to pass patent legislation under Section 5 of the Fourteenth Amendment.
Unlike the previous case, the Court found that, under a long line of precedents, patents were considered property rights. However, the Court had to further consider whether the protection of such a property right under Section 5 of the Fourteenth Amendment was "appropriate" under its ruling in City of Boerne. Consequently, the Court evaluated whether a federal right to enforce patents against states was appropriate remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners.
Specifically, the Court sought to evaluate whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment violation that Congress could redress. The Court noted that Congress had failed to identify a pattern of patent infringement by the states, and that only a handful of patent infringement cases had been brought against states in the last years. The Court also noted that Congress had failed to establish that state remedies for patent infringement were inadequate for citizens to seek compensation for injury.
In fact, the state of Florida argued that no constitutionally based violation had occurred, as it had procedures in place that would provide the necessary due process for patent infringement by the state to be challenged. Consequently, the Court found that the exercise of Section 5 of the Fourteenth Amendment in this context would be out of proportion to the remedial objective.
The Court engaged in a similar analysis, with like results, in evaluating the application of age discrimination laws to the states. In Kimel v. Florida Board of Regents , 96 the Court noted that the Age Discrimination in Employment Act of , while a valid exercise of Congress's commerce power, could not be applied to the states unless Congress also had the power to enact it under Section 5 of the Fourteenth Amendment.
The Kimel Court held, however, that age is not a suspect class, and that the provisions of the ADEA far surpassed the kind of protections that would be afforded such a class under the Fourteenth Amendment. Further, the Court found that an analysis of Congress's ability to legislate prophylactically under Section 5 required an examination of the legislative record to determine whether the remedies provided were proportional and congruent to the problem.
A review by the Court of the ADEA legislative record found no evidence of a pattern of state governments discriminating against employees on the basis of age. Garrett , 97 again with similar result. In Garrett, the Court evaluated whether two plaintiffs could bring claims for money damages against a state university for failing to make reasonable employment accommodations for their disabilities; one plaintiff was under treatment for cancer, the other for asthma and sleep apnea. A number of different reform ideas have been put forward with the aim of enhancing the ability of the national and State governments to work together.
These include:. Many commentators have called for reforms aimed at altering the financial relationship between the Commonwealth and the States to achieve a greater fiscal balance. Currently, the Commonwealth raises far more tax revenue than it spends while, conversely, the States are only able to raise a relatively small proportion of revenue that is insufficient to meet its many spending responsibilities.
One proposal for reform is to give the States a guaranteed share of tax revenue, beyond the GST, to enable them to finance their own spending responsibilities.
This could potentially involve restoring to the States the power to collect their own income tax. Some commentators have proposed that the federal system be restructured to allow for stronger regional governance. Proponents also argue that the existing State boundaries do not reflect the geographical, social and cultural diversity of Australia.
A common suggestion is that the regions of north Queensland or western New South Wales become their own States, while other proposals suggest having a federal system with as many as 60 regional governments. Another proposal that is sometimes put forward is to abolish the States altogether and move to a unitary system in which all legislative power is invested in the Commonwealth government. What is federalism? What are the strengths and weaknesses of federal systems?
Strengths Flexibility : Federalism allows policy to be customised to meet the particular needs of certain areas and communities. It has the ability to embrace diverse populations in a single political system while also providing a space for cultural differences. As a concept, it can adapt to the unique circumstances of different countries.
Democratic participation : Federalism creates a system of dual citizenship. For example, in Australia, we are citizens of both the nation and a particular state. We may vote for different political parties at different levels of government.
Smaller constituent entities allow citizens to engage with government more directly. Federations are able to do this while maintaining the strength of a larger nation.
This provides an incentive for states to improve their services so that they can compete with other jurisdictions. Check on government power : The division of power between the constituent entities that make up a federation helps ensure that the national government will not become oppressive or authoritarian. It prevents power from becoming concentrated in a single governing body. Also, the need for cooperation between the levels of government provides greater scrutiny of policy.
The Bill of Rights Institute engages, educates, and empowers individuals with a passion for the freedom and opportunity that exist in a free society. Summary: Federalism is one of the basic principles of our U. Constitution but a complex concept to understand. When the Framers created the Constitution they not only established a system of checks and balances to separate power within the national government, they also divided authority between state and national governments.
This division creates clear spheres of responsibility for each level of government, promoting local control and preventing tyranny, or the concentration of power, in the hands of one body.
In this eLesson, students will describe the concept of Federalism and explain the important role it plays in the U.
As a class, fill out the chart. In the end, define federalism and ask students the following questions:. Federalism: The division of power between the national and state governments. Group Work: minutes On the board, make another chart with 3 categories: Powers of the national government, Powers shared by national and state governments, and Powers of state governments.
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If no button appears, you cannot download or save the media. Text on this page is printable and can be used according to our Terms of Service. Any interactives on this page can only be played while you are visiting our website. You cannot download interactives. A government is a system of order for a nation, state, or another political unit. A government is responsible for creating and enforcing the rules of a society, defense, foreign affairs, the economy, and public services.
While the responsibilities of all governments are similar, those duties are executed in different ways depending on the form of government. Some of the different types of government include a direct democracy, a representative democracy, socialism, communism, a monarchy, an oligarchy, and an autocracy.
Help your students understand the different forms of government with these classroom resources. The Rule of Law is a principle established in ancient Greece that holds all people and organizations accountable to the same set of laws.
It has had a profound effect on civilizations across the world.
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