From time to time I talk to groups of Chinese city planners and political officials about American city planning, which is very much integrated with the American political and legal system. One subject that’s tricky (even for Americans) to understand is state sovereignty and federalism. So last week I experimented with this analogy:
Imagine that the states are like fathers or heads of households; they can pretty much tell their children (counties and cities) what to do. But these fathers have also joined a church that will control certain aspects of their lives, and have agreed to abide by its rules and rulings.
Is this analogy problematic in any serious way? Given that I’m talking to Chinese Communist Party officials, is there a better organization than a church to allude to?
Give the 1st amendment, I’d avoid that analogy as it might be taken even slightly literally.
I would just say that the federal government is limited, by the constitution, to do only those things that the constitution explicitly allows it to do. The states can do all the other things, most of which are local issues, like zoning. And even then, issues like zoning are filtered down to the county or city/town level.
why do you need an analogy at all? why not just say that while the states have considerable authority to regulate municipalities, the federal government also has the power to do so, and the states have to comply with federal laws.
Analogies can be a misleading way of trying to explain constitutional principles, especially across cultures. Even the idea of “a church” might have different cultural meanings in China than in the US, so it could introduce even more confusion.
Leave the church out of it. That’s a whole 'nother can of worms that doesn’t need to be in this discussion.
In theory, it’s about delegation of responsibilities – the federal gov has certain powers (granted by the constitution or supreme court), the state has other powers, and everything else belongs to the people.
In practice, the federal government is immensely powerful and only the leftover powers trickle down to the states and people (either due to a lack of an overriding federal law or due to a lack of federal enforcement) – but this is greatly complicated by the constant legal battles and games of chicken.
China, if I’m not mistaken, is ruled top-down. American federalism is complicated because it’s neither top-down nor bottoms-up, but a combination of both. I think the concept of checks and balances is integral: The essential difference here lies not just in organizational structure, but also in the fact that there is no one supreme ruler or law of the land. The structure of power both within the federal government and between it and the states and the people is an ever-evolving thing, subject ultimately to judicial interpretation nuanced by executive appointment and popular opinion of any given time period. Even the Constitution is subject to change given enough demand.
It’s less a clear-cut hierarchy and more a constant fight for supremacy. If you want to use your household analogy, the federal government is a father forever fighting the mother (the state) over how to raise the children (the people). The children, too, have a voice that is sometimes heard, sometimes ignored.
Well, because that’s not correct. It’s very difficult to think of any federal law that could apply to municipalities (as municipalities), for instance. And states have to comply only with certain federal laws.
A lot of the complexity comes because of Fourteenth Amendment incorporations of various rights. For instance, they are enormously intrigued by the question of expropriation and eminent domain, which is apparently a huge issue in urban China. So we often end up in discussions of Kelo, and so it’s important to understand that sovereignty is in the states—subject only to a few restrictions—and that it does not come from a federal grant of powers.
Leave religion out of it. If they are not familiar with the concept of US federalism, they almost certainly will not grok the church analogy.
The closest analogy that they will probably sort of understand is the relationship between mainland China and Hong Kong and Macau. There are significant flaws in the analogy, but it would probably help get across the idea of the division between federal and state power in the US.
You don’t want to talk about churches in China unless you have to. Even if they’re visiting you in the US, they have a completely different - if any - relationship to churches.
If they’re engineers, why not make a Venn diagram showing the overlap of State and Federal responsibilities and rights? It’ll get the picture that, yes, your US State has a great deal of discretion but is superceded by federal authority on some issues.
But if you for some reason need to use the federalism argument, I’d think a landholder swearing fealty to a duke or baron would be more appropriate. The landholder rules his serfs or freemen, but obeys the rules and authority of the Baron. Or possibly a ship’s captain is a better example, since the sovereignity of a captain on his own ship is a stronger and more well-known image.
I believe a vital difference between the relationship between the Federal level and the State level and the relationship between the State level and the Local level is self-integrity and the right to existence. Someone else can find a better term, but basically neither the US Congress nor the Supreme Court can come and say “We’re dissolving Kansas and giving its territory to Nebraska”, while the State of New York COULD pass a law dissolving Nassau County and making it an integral part of the City of New York.
Apparently the Federal government can authorize a border change that could take territory away from the state, but the state would still exist.
Then there’s the Law Enforcement Misconduct Statute of 1994, now codified as 42 USC s. 14141, which makes it unlawful for any “governmental authority” to engage in a practice which encourages law enforcement agencies deprive individuals of rights secured by the federal Constitution or laws.
And then there’s the federal Clean Water Act, which regulates municipal waste-water treatment systems.
And the federal Fair Labour Standards Act, which creates the federal minimum wage law and similar provisions, also applies to municipalities, as declared by the Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, overruling National League of Cities v. Usery, which had held that the federal laws could not apply to municipalities.
Those are just a few examples from a bit of googling.