The foundation of the law in the United States is the balance of power between the federal and state governments as expressed in the Constitution. This chapter will consider what the Founders tried to accomplish when they created the federalist system with its checks and balances. We’ll also look at how the federal and state systems balance each other. Finally, we’ll examine the balance between legal and individual rights.

Since people started living together, they have searched for the best system of government. The Founding Fathers were no different: men like George Washington, the first president; Thomas Jefferson, the third president and author of the Declaration of Independence; and James Madison, the fourth president and Father of the Constitution. In the 1780s when the Founding Fathers were establishing the government of the United States, they knew several things they did not want. They did not want a king. They did not want an aristocratic system. And they did not want a marketplace closed to ideas and religion.

Instead, the Founders believed society should be an open market where ideas were exchanged and people could work to make their lives better. Our Constitution strives to provide that by allowing people maximum freedom to do what they want so long as it doesn’t infringe on the rights of others.

The men who became the Founding Fathers were well-educated men, well-versed in the history of governments. They knew the writing of Greek philosophers like Aristotle and Solon. They’d studied Cicero and other Roman thinkers. They knew the history of the Magna Carta and how for the first time the law was king and had to be followed by everybody. But they looked for something more that hadn’t yet grown out of the English Common Law.

These men had lived through the days of taxation without representation that led to the American Revolution. They had risked everything on the idea that “men are created equal and endowed by their Creator with certain inalienable rights,” as Thomas Jefferson phrased it in the Declaration of Independence.

They had also experienced the league of friendship that the Articles of Confederation created in 1781. They saw how a loose confederation would not work as the former colonies tried to solidify their independence from Britain. Some call the Articles a transition constitution, one that was better suited to war than peace. And that’s what the Founders decided. By 1787 because of conflicts among the federated states over trade and commerce, they knew something had to change.

When the men gathered in Philadelphia in 1787, some notable revolutionary leaders such as Patrick Henry were absent, unconvinced that the Articles needed to change. The key question remained whether the states needed a strong central government or the loose confederation that already existed. James Madison became the unofficial architect of the Constitution while Gouverneur Morris did most of the actual drafting.

They quickly decided that, while they needed a more centralized government, they did not want the risk of one branch accumulating so much power that a monarchy developed. Thus developed the idea of separation of power and checks and balances. While we take this system for granted, it was a revolutionary concept at the time. Not only would the federal government be balanced among its branches, there would also be a balance among the states and the state and federal government. The Bill of Rights, the first ten amendments to the Constitution that were added almost immediately, provided protection for individual rights in the face of government.

Between December 1787 (Delaware with a unanimous vote) and 1790 (Rhode Island in a close vote), all 13 states approved the Constitution.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” From the moment those words were penned, the United States has been on an ideological journey to balance the rights of people against the State.

While the text of the Constitution focuses on the federal government, the Tenth Amendment addresses states’ rights. Under the Tenth Amendment, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.” This amendment, which could appear as an afterthought, represents the belief of the Founders that any unenumerated powers were reserved to the individual states. The federal government has only the powers listed in the Constitution. All other powers flow to the states. Then the individual states can do what they choose. And that is why states have widely varying laws. New York may decide that it’s important to have laws that limit the right of citizens in one area, while Wyoming doesn’t bother to legislate that area.

The Tenth Amendment protects the self-identity and self-rule of the individual states. This concept of states’ rights was very important for the first 150 years. However, beginning in the early 1940s, the power of the Tenth Amendment was whittled away by Supreme Court cases, in particular those that gave the federal government broad powers under the Commerce Clause. In addition, the Civil Rights movement of the 1960s further nullified the power left in the Tenth Amendment.

The current view is a battle between two viewpoints. One position states that by being part of the federal government, states have given some of their power to the federal government. Under that, states’ rights are a political issue that are best governed by electing representatives to Congress who will act as the state wishes when passing laws. The second is illustrated by a couple of recent Supreme Court cases that place limits on Congress to force states to act through federal regulations. The Court has held that the federal government cannot place its burdens on the states.

Law is created in many ways:

Federalism can be defined as a political theory where the government has a central unit that is made up of subunits. In other words, the United States is a federal system, because we have a federal government that is made up of 50 states. The citizens are responsible to both the federal and state governments, and the states have a voice in the federal government through the elected representatives. This was more true prior to the passage of the Seventeenth Amendment. Prior to the Seventeenth Amendment, U.S. Senators were elected by the state houses. After that amendment, the U.S. Senators are elected by popular vote. Thus, they no longer report to the states but to the voters.

Under our federal system, some powers are reserved specifically to the states such as education, while others are reserved to the federal government, like foreign policy. Granted powers are those enumerated to the federal government in the Constitution. For the federal government those include the right to provide patent and copyright protection, establish the post office, and have an army and navy. Finally, there are concurrent powers that the state and federal governments share. These include protecting the health, safety, and general welfare of the public. For example, kidnapping can be a federal or a state crime. Both entities can tax citizens.

The first three Articles of the Constitution establish a separation of powers between the three branches of the U.S. government. This is an attempt to keep one branch from overpowering the other branches.

Federal judges hear cases involving the Constitution, the federal laws, and treaties. They also have jurisdiction to hear conflicts between parties that are residents of different states. However, a state may not be sued in federal court.

The role of the judiciary is to tell the executive and legislative branches which of their laws and regulations are unconstitutional. By doing so the court declares the law to be illegal and nullifies it. This power to nullify laws provides a check to Congress and the president from overreaching their constitutional limits.

When there is a conflict between federal and state laws, the federal law reigns supreme. For example, the First Amendment provides that there is freedom of speech and the freedom of the press. A state can’t pass a law that prohibits journalists in that state from reporting on the activities of the governor. That would be an unconstitutional restriction on the freedom of the press.

States can’t regulate below the federal level. Let’s say the Securities and Exchange Commission (SEC) issues regulations enforcing the Sarbanes-Oxley Act (see Chapter 3) that require a certain report to be filed each quarter. A state decides that filing is too burdensome for companies registered within its borders and passes a law that states companies formed within its borders are exempt. That law is unconstitutional because a state cannot override or supersede a federal law.

The states by nature of being part of the United States have delegated certain powers to the federal government. Those include the power to declare war, determine the currency, and have a post office. States maintain the power to adopt laws that fall under the police power: laws designed to protect the general welfare, health, safety, and morals of their citizens.

As I’ve mentioned, federal law prevails over state laws when there is a conflict between the two. But how can you tell if there’s a conflict? Look at the language used. Does the state law cover a new area? Or does it address the same area as the federal law? If it’s the same area, the state law cannot contradict or conflict with the federal law. Instead, state law can fill the gaps left by federal law. State law can also address areas untouched by federal law. For example, since Roe v. Wade, the federal law has been that abortion is legal in many instances, but not all. However, states can address and fill the gaps unaddressed by the federal right to privacy. For example, the Supreme Court has held that state law can address parental notification.

In addition, if it’s clear from the language of the law that Congress intends that the states not legislate or regulate, then the federal government has preempted state action. Confusion occurs when Congress is silent. Does that silence mean states can regulate or that Congress intended that neither the federal nor state governments could regulate? That often depends on the facts of the situation and the language used by Congress.

The U.S. Constitution, state constitutions, laws, and regulations provide for a balance of legal and individual rights. Legal rights stem from the Constitution and allow us to require people to act or not act. We also have duties to act in accordance with those rights and the laws. Individual rights are guaranteed by the Constitution. Many of those rights are articulated in the Bill of Rights and include freedom of speech, the freedom from unwarranted search and seizure, and the right to assistance of counsel in criminal cases.

The federal government has many powers that are delineated in the Constitution. These powers are granted because they are necessary to administer the national government.

The need to standardize commerce was a key motivator for calling the 1787 Constitutional Convention. To this day, regulating commerce remains a key power of the federal government. This power flows from Article I, Section 8, Clause 3—also known as the Commerce Clause—which states the power “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” For the first 150 years, the Supreme Court held that his clause created the federal government’s power to control or regulate the flow of commerce as it crosses state lines, but only as it crossed state lines.

Between 1937 and 1946 this power expanded dramatically. By 1946, it had expanded to allow Congress to regulate businesses. For example, federal agencies have argued that the Commerce Clause applies to companies if they use credit card machines. That tenuous connection with interstate commerce is sufficient. Courts have also held that the Commerce Clause applies to marijuana grown for personal medicinal use.

Today the Commerce Clause allows Congress to legislate activities that are economic in nature. If there is merely an economic impact, that is not sufficient and the Supreme Court may declare the law unconstitutional.

The federal government has three financial powers: taxing, spending, and banking. The Constitution provides that the federal government can levy and collect taxes as long as the revenue is used for a public purpose. The government can also spend money collected through taxes or borrowed to pay the debts of the government and provide for the defense and general welfare. Finally, the government can create and regulate banking. It has chosen to do that through the Federal Reserve System.

The Constitution also provides protections to individuals and businesses. These protections are key to the liberties that are the hallmarks of the U.S. system.

Due process is the idea that the laws should be applied fairly to all. Due process rights are found in the Fifth and Fourteenth amendments. The Fifth Amendment applies due process to federal laws. When the Fourteenth Amendment passed, it expanded the application of due process to the states.

There are two types of due process: procedural and substantive. Procedural due process applies in the criminal setting from investigation and arrest through the trial and appeal. The key question courts ask is whether an individual has been deprived of life, liberty, or property and what procedural process should be given to that individual. Those questions include: Are the laws applied fairly? Is the law too vague? Does the law lean toward guilt? If the answer is yes to any of these questions, the law is unconstitutional under procedural due process. Bottom line, the government must follow the law and procedural rules when taking an individual’s or business’s freedom or property.

Substantive due process focuses on the content of the law. It asks why about laws and examines whether the law infringes on fundamental constitutional liberties. So a law may pass with appropriate procedural due process, but still violate substantive due process because the substance or topic of the law is unconstitutional. Substantive due process has been used to strike down laws regarding abortion, confining non-dangerous mentally ill persons, and affirmative action.

Equal protection of the law protects the ideal that the government must treat its citizens equally. In general, equal protection applies to the actions of governments. Private individuals and entities can discriminate. The government cannot treat one person or group with preference over another. Instead, laws must be applied equally. If there is no justification for a difference in how groups are treated, then the law, regulation, or treatment violates the Constitution.

The underlying law or regulation may be constitutional. But it may be applied in a way that discriminates against one group and thus violates the principle of equal protection. For example, in Yick Wo v. Hopkins, the Supreme Court found that while a regulation regarding laundries was constitutional, it was applied in a way that discriminated against a class of owners.