I realize this has already been explained fully, but I just wanted to insert an illustration: Imagine if all the former European colonies and protectorates in the South Pacific area were to join into one body. You would want New Zealand law to remain, as much as possible, the way it’s always been. Some huge federal system that applied equally to Tasmania, Hong Kong, and Viet Nam would not suit you very well. So you’d want some system that allowed New Zealand to govern itself wherever feasible, only ceding power to the feds when it is impossible for one state to go it alone while maintaining the larger system.
In the U.S., federal law is supreme over state law. Const., Art. VI, Sec. 2 – "The Supremacy Clause. However, because the federal government is one of limited powers (as discussed above), the Supremacy Clause only operates when the federal law in question is a proper exercise of federal power. The federal government does not have general power over safety, health, or morals – that’s left to the states. If the federal government tried to make a law in this area, it should be given no effect. Therefore, for any federal law or other action, you have to ask “What is the basis for federal action here?”
Art. I, Sec. 8 of the Constitution lays out most of the areas of federal jurisdiction – the federal government can maintain the military and make war, can regulate interstate and foreign commerce, can coin money and establish a treasury, can establish a post office, can borrow money, etc. Certain amendments to the Constitution (including especially 13-15, “The Reconstruction Amendments” which were made shortly after the Civil War) grant the federal government some other powers, such as guaranteeing due process and the right to vote. If an area of jurisdiction is not listed as one of the federal powers, it’s generally within the realm of the states to regulate, and if the federal government tries to regulate it, the states can tell the fed to go hang.
So the answer to your question as to why the fed is supreme in some areas and not in others is that the Constitution lists the areas where the fed has any power, and when it exercises power legitimately, the Supremacy Clause means it trumps inconsistent state law. Whereas, in the other areas, the fed has no power, and states can do what they want.
The quesion of the Schiavo case is, then, what area of federal authority is Congress attempting to assert here to compel Mrs. Schiavo’s feeding tube to be reinstated. Is it the federal power to maintain the Post Office or the military? Is it the federal power to regulate interstate commerce? The federal power to abolish slavery? Which is it? Because if it isn’t one of the enumerated federal powers, then the federal government has no right to act.
(Of course, it’s more complicated that this, because one of the federal powers is to do anything “necessary and proper” for executing its other powers. The drug laws of the U.S., for instance, are considered a necessary an proper application of Congress’s power to regulate interstate commerce, even though the federal government wouldn’t otherwise have a general power over criminal activity.)
So to turn to some of the specific things you’ve mentioned – as noted above, abortion is basically a matter of state law – it deals with the health and morals of the populace, which is central to state power, and states can regulate abortion providers as they choose within certain limits. However, women have a right to an abortion as a mater of federal law (the right to an abortion is considered a necessary component of the right to due process contained in the 14th Amendment), so states may not go so far as to regulate abortions out of existence.
Marriage is also the type of health, welfare and morals issue that is directly in the power of the states. The federal government generally doesn’t have the power to regulate marriage in terms of who can perform them, what counts as a marriage, how old you have to be, whether you can marry your cousin, etc., etc. – these are all issues decided by the states, and each state draws the line differently. (In Pennsylvania, for instance, anyone can perform a marriage if they get a license first, not just a clergyman or judge; in Virginia, first cousins can marry, while in other states they cannot.) However, because the federal government has the power to enforce the Equal Protection Clause of the 14th Amendment, it has said that states are not permitted to have anti-misegnation statutes that prevent interracial marriages. While states have regulatory power over marriages, they cannot regulate them in such a way as to violate federal constitutional rights, and the right to equal protection is read to include the right to marry someone outside your race.
Today, the issue is of course gay marriage. Again, since marriage is a state issue, it’s up to the states to decide whether gays can marry, as Massachusetts has (for the time being, at least). Many people argue that the same reasoning that requires states to allow interracial marriages should also require states to allow gay marriages as well, although there is no definitive answer to the question yet. The federal government, however, cannot prevent Massachusetts from recognizing gay marriages, because marriage is within the state baliawick. That’s why this summer there was an attempt to pass a constitutional anti-marriage amendment to the U.S. Constitution – right now, the federal government does not have the power to prevent gay marriages, but it could do so if a new amendment expanded the power of the federal government to allow it.
–Cliffy
Lot of lengthy responses in this one. :eek:
My two cents are
1c. The US is just physically large (surface area), allowing for a wider variety of social differences to pop up.
2c. Due to my first cent, traditionally no one has ever much liked Supreme Court decisions when finalized. Even though the whole time, everyone kept hoping it would get to the Supreme Court and finally be decided. The agony of that is just annoying.
Yes, but we’ve drawn the boundary lines a bit differently in Canada.
Criminal law is the single biggest difference. As RickJay mentioned, in Canada, criminal law is the exclusive jurisdiction of the federal Parliament, not the provinces. In the U.S. criminal law is mainly state, but the federal Congress has the power to create crimes under the “necessary and proper” clause, to aid in the enforcement of federal laws. Hence murder in the U.S. is normally a state crime, but if you murder a federal official in the course of his/her duties, it’s a federal crime as well. (So Tim McVeigh was only prosecuted in federal court for the murder of the federal officials in the federal building in Oklahoma City. He was never charged with the murders of the other people who were in the building at the time. His accomplice, Nichols, was prosecuted for both the federal crimes and the state crimes.)
Why the difference between Canada and the U.S. on this point? My impression is that it is related to the circumstances of each nations’ birth. As others have commented, the 13 colonies went through a revolution and were very suspicious of centralised authority. The single most intrusive power of the state is the criminal law, since the criminal law can be used to take away one’s property, one’s liberty, or one’s life. Therefore, the drafters of the U.S. Constitution decided to keep that power primarily local, to avoid giving a potentially tyrannical central government such a major power.
In Canada, the history was different. Those of Loyalist ancestry, who had fled the U.S. and stayed British, interpreted events there exactly the opposite: the central imperial government had failed to protect them from the tyranny of the local state governments. Centralised authority under the Crown was desireable. As well, our Confederation pact was worked out while the U.S. Civil War was still raging, and no-one was sure how it would work out. Some of the Fathers of Confederation, notably John A. Macdonald, interpreted the events down south as illustrating the dangers when the local governments had too much power, so he fought for a stronger centralised government. As well, he took the opposite approach to the criminal law issue - he stated that since the criminal law is the most powerful state power, all aspects of criminal law should be decided in the central legislature, where they will get the greatest public scrutiny and need broad support from reprepresenatives drawn from throughout the country.
To respond to your particular questions, of abortion and marriage, the answer in Canada is that there is divided jurisdiction. Prohibiting abortions outright falls under the federal power to criminalise conduct. There currently is no federal prohibition on abortion in Canada. The provinces do not have the power to pass criminal laws, so they can’t fill that gap. However, they do have jurisdiction over health care and the medical profession, so the provinces can pass laws regulating the necessary standards of training and experience doctors and hospitals need to perform abortions. The federal government could not do that, since it has no jurisdiction over health standards.
Marriage is also a divided jurisdiction. The federal Parliament has exclusive jurisdiction to pass laws relating to the substantive law of marriage, which is a hot topic nowadays, with same-sex marriage on the political agenda. Only Parliament can pass a law permitting or forbidding same-sex marriage; the provinces cannot do so, as the Supreme Court rescently confirmed. However, the provinces have exclusive jurisdiction over “solemnization of marriage” - the necessary formalities on getting married are all under provincial law - things like the marriage licence, who is elgibile to perform maarriages, what paperswork has to be filed afterwards with Vital Stats, etc. Parliament cannot legislate on this topic.
And on top of that, there’s concern among other, more conservative states, that it could still happen that a court would conclude that a gay couple united in one state has the right to be recognized as married in all states, due to a combination of the constitutional dispositions of “Equal Protection” and that the states must give “Full Faith and Credit” to legal actions of another state. (BTW that has NOT HAPPENED in any of the cases that have made the news!) Thus their desire to introduce a constitutional amendment to give the Fed Govt a specific position on marriage law.
For a lot of the more complex concerns of modern governeance, e.g. management of child custody, the state governments form interstate compacts or agree to adopt “uniform model codes” of legislation, thus creating a uniform or at least mutually-compatible system of state-level laws and regulations.
Also, regarding Foible’s list, add to that in some jurisdictions the School District, or the Water Supply District, may be itself an independent, separately-elected entity, not directly subordinate to the city or county.
It’s simple: Whether or not an issue should be decided on a federal vs state level depends on whether conservatives can wield a majority in the federal governent or just in certain states.
Ya. :rolleyes:
The issue of state vs federal power is a long-standing one in the United States. In the beginning, the states held the power and the federal government only had what powers the states delegated to it. By now, the situation is almost the complete reverse. State sovereignty is now pretty much a theoretical matter only; realistically, the states would not be able to defy the federal government on any issue where Washington chose to make a stand.
One of the main props of the federal government has been the “commerce clause” of the Constitution, which gives the federal government the power to regulate commerce between the states. Various supreme court decisions have used this clause to uphold a wide range of Congressional actions - for example, the court upheld a federal law prohibiting racial discrimination in restuarants by noting that some of the food the restaurant served had been produced in other states.
On a side note, there are whole courses at law schools in this country on how to deal with conflicting laws between jurisdictions.
For example, if a married but separated (and living in different states) wanted a divorce, which state should be used? In some cases, it is common sense. In others it is a struggle since one state’s laws might be more beneficial to one party.
I’ll admit that I typically fall into the “If Mommy says no, ask Daddy.” philosophy. If the national government is doing something I like, then I am all in favor of it. If they aren’t, then I start screaming about “State’s rights”. And, I suspect that philosophy matches more of the population than any other view.
Including the Erie doctrine (when does a federal court apply state law to the conflict before it?); and conflict of laws analysis (which state’s law applies?). Oh, and forum non conveniens – I love that one!
This is probably a hijack, but this thread made me wonder: I haven’t read the Schiavo bill Congress passed. Did they specify what law applies? Because if Florida law applies, methinks we’ll be right back where we started. And I can’t see federal law being different from Florida’s, in any event. Husband trumps parents in any jurisdiction, I would think.
We’re Americans. There’s hostility whenever anyone – federal, state, county, local, muni, homeowner’s association – tells us what to do. 
The bill is available on Findlaw. The key sections appear to be 1 and 2:
(I’ve added the numbers in square brackets for the discussion below.)
On the federalism issue, here’s a few points that strike me:
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the members of Congress appear to have agreed that they don’t have the power to pass anything substantive so they’re asking the federal courts to do what Congress can’t do;
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point [1] indicates that Congress are instructing the federal courts to make their own findings and to ignore any findings made by the state courts, on a matter that is within state jurisdiction;
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point [2] instructs the federal courts to hear the matter immediately, disregarding the normal principle of abstention pending state court determinations, which is one of the doctrines that the federal courts have evolved out of deference to state courts’ jurisdiciton over matters within state jurisdiction;
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point [3] instructs the federal courts to ignore exhaustiom of state court remedies, which is another doctrine that the federal courts have evolved out of deference to state courts’ jurisdiction.
Yup, that sure sounds to me like respect for state rights, and keeping those activist federal courts out of matters that don’t concern them.
I don’t have a law degree, but I’m not sure that was a real part of the rationale. The Constitution was designed by and for the original thirteen states, all of which were decidedly British just before the separation. Few people at the time would have planned for the country to expand so far as it wound up doing — into French Louisiana, or Spanish areas like Florida and the desert southwest. Louisiana wasn’t annexed until 1803, long after the separation of state and federal power was already established.
Of course it’s fortunate (for us anyway) that our Founding Fathers designed a system not only suitable for the original 13 states, but which adapted well to including new states. This has certainly allowed peculiar states like Louisiana to preserve much of their unique character. But I don’t know that Thomas Jefferson and company were thinking anything like that in 1787.
After hearing about all of the complications that a federation of states can entail calm kiwi, you’re probably glad that New Zealand abolished its system of provincial governments in 1876.
Yes, smart move, that. We should do it too on this side of the Tasman.
I can’t tell if you’re agreeing or disagreeing with me, sage Rat, but states’ rights was a big issue in the 1860’s, 1960’s and 1990’s when liberals were in power in Washington. Now that conservatives are in power, states’ rights has gone right out the window.
Despite all the rhetoric you hear about states rights and federalism, very few people really care about these issues in and of themselves. Most people who invoke these principles are usually concerned about some other issue (abortion, gay marriage, education, voting procedures, drug laws, euthansia, etc) and are invoking whatever side of the state/federal balance best suits their greater purpose.
Not disagreeing (as such.) Was just hoping to remind you of common practice without having to resort to the wiffle bat.
You may be right, I can’t admit to know of the relative strengths or agendas of the parties through the ages…but neither does most of anyone else until you tell us how you know this.
Anyhoo. Apologies for the hijack.
As sovereign countries, did the original states have the right of secession from the Union if their people so desired? If so, did they lose that sovereignty after the Civil War? (As an Englishman I ask the question with a nervous eye cast towards Brussels.)
I know some of this has been answered before, but I’m putting my own twist on it:
Sometimes we aren’t sure, either - in which case the courts decide. The Supreme Court might step in solely to determine jurisdiction. The matter can then go through state courts and, if appealed often enough, end up back in the Supreme Court for an actual decision.
But in most instances the Constitution + ammendments are sufficient for a decision of jurisdiction.
They don’t always. It is possible for an act to be a crime in one state and not in another. As an example, this was an issue in Dred Scott vs. Missouri, a notable pre-civil war case, and a whole lot of so-called Jim Crow laws, pre Roe vs. Wade abortion laws which varied widely from state to state, various marriage laws (such as it being legal to marry a first cousin in some states and not others), and so on and so forth.
Federal laws, by definition, apply to everyone in the United States.
Abortion is and always has been a State matter. Prior to Roe vs. Wade it might have been illegal to have an abortion at any point (except for specified medical reasons like threat to the mother) in, say Missouri but legal at any time in the pregnancy in, say, New York (but don’t quote me on that - I am not sure of the exact legalities in reality). Roe overturned a LOT of state laws outlawing abortion, but had little to no effect on many others.
This is why abortion foes would like a *Federal * ammendment, and prefer to work Federal legislation - otherwise, they have to convince 50 separate governments of the rightness of their views, any of of which could reverse their decision at any time, unless all those State constitutions (yes, each State has a constitution, too) in which case you might as well try for a Federal ammendment.
This is also why the anti-gay marriage folks would like to have a Federal ammendment - otherwise you have gays marrying in Massachusetts and - oh horrors! - they’ll move some place Mississippi or Georgia, which, it’s pretty clear, will have to recognize the marriage as legal due to the “full faith and credit” clause and 14th Ammendment.
Although not nearly as vocal, there is a contingent that has wanted marriage tunred over to the Feds for a long time - back to the days when couples who wanted a divorce in, say, South Carolina where it was very, very difficult to obtain might move to Nevada (which had minimal residency laws), get a legal divorce there, then move back to South Carolina, which would be forced to recognize the divorce.
No, oddly enough the States are afraid that euthanasia will become Federally forbidden.
The US makes a distinction between “passive euthanasia”, which is the withdrawing of medical care and artificial life support and “active euthanasia”, which is also called “mercy killing” (or murder, depending on which side you’re on) and is usually a lethal dose of medication. In most of the US, active euthanasia is forbidden (but permitted in Oregon as “physician-assisted suicide”), but passive euthanasia at the request of the person receiving care is permitted. Thus, if Ms. Schiavo had had some form of written statement stating that she did not want to be kept alive in a persistent vegetative state by tube feeding there would be no issue - such a tube would either have not been inserted, or removed when it was apparent recovery was unlikely.
Things are fuzzy because she did not leave behind an explicit directive, therefore the decision became that of her next of kin - her husband and parents. Now, sometimes all parties in such situations can come to agreement on a course of action, in which case the courts aren’t likely to step in, but because they couldn’t in this case they went to court. And a collection of people from religious zealots to those with philisophical qualms about the taking of life have stepped into the breach, further muddying the waters.
It’s pretty clear to me that the Feds do not have jurisdiction here, but they’re hoping the district court decides otherwise. If various parties don’t like the decision it could, after time, wind up in the Supreme Court, which is what they really want because a decision there applies to the entire nation. And if they can set the precedent they want in the Schiavo case, they can use it as leverage against the Oregon laws that allow “physician-assisted suicide”, and against any other State with a similar statute.
**Anyhow, an addition about criminal law ** - the Federal jurisdiction in that area has expanded considerably in that area during the latter half of the 20th Century. For instance, now it is a Federal crime to kill a Federal officer during the performance of his duties, it wasn’t always so. When Lincoln was killed it was a Federal crime because it occured within the boundaries of Washington, D.C., where everything (including parking tickets) is a Federal matter. When Kennedy was killed, however… I don’t have a personal recollection of the matter, but I seem to recall that, there being no Federal statute against assasinating the President of the US what’s-his-face was to be tried for murder in a Texas court (because that’s where the crime took place). Then he was murdered. Anyhow, since then, it’s been a Federal crime to off the President, and a whole bunch of other Federal folks.
Things also get funny with the death penalty - most folks outside the US don’t know and don’t understand that there are (I think) 19 States that don’t have the death penalty. Some, like Wisconsin, have abolished it. Michigan, at least, has never had that penalty. The only way to get the death penalty in Wisconsin or Michigan is to commit a capital Federal crime. So, if you’re in court for Murder One in Wisconsin which court - State vs. Federal - your case is tried in can be a matter of life or death.
And now for a word about things the Founding Fathers never dreamed of: It’s a darned good thing that the Constitution is flexible - for instance, if you read the Consitution you’ll note that nothing was said about air travel or commerce. Well, of course not, the thing was written in the late 1700’s and we didn’t get airplanes until 1903. Initially, there were no laws regarding air travel, then there was some squabbling over jurisdiction, then the Feds said, whoa, obviously these things cross state lines, it’s our turf. Not that squabbles don’t still occur - I speak from experience that even if an airplane crosses a state line to wind up in someone’s back yard, while the Feds maintain it’s their issue to deal with the local sheriff AND the State transportation department will also likely have some desire to look into the matter. Airport noise rules are set by the local governments (in instances, as local as a city) but the Feds also weigh in.
This is one of the reasons the US courts are so busy.
Also, this stuff is on my mind a lot because I just got back from jury duty for the Federal District Court of Northern Indiana today.
Now that’s a very interesting question, one that is still debated in the USA to this very day.
I’ve heard it said that the Civil War was fought over a point of grammer, namely, which is more correct:
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The United States ARE…
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The United States IS…
The difference being a subtle one, but vital - are we a collection of sovereign nations yielding sovereignty for the greater good in some areas, or are we one nation with internal divisions for purposes of government?
And it is ALSO a question that the EU member nations should consider very carefully before signing on the line. It is very clear that the States that seceded from the Union in 1860 thought they had the right to do so. It is equally clear that the non-seceders disagreed. Both parties felt so strongly they were willing to fight to the death over it. As it happened, the North and the Union won - and they wrote the subsequent rules. Whatever the understanding was at the time the US Constitution was written, it is now indisputable that States do NOT have a right to secede without everybody else’s permission. And I have a great deal of trouble imagining that ever being approved.
So, the question of whether or not the US would ever break up - not likely. It would take, essentially, another Civil War with the seceding side winning. A civil insurrection/rebellion is possible, but I think success would be extremely unlikely. Or, if we had a cataclysm on the scale of the Yellowstone supervolcano popping off in a serious manner which so devastated that US that pretty much all government broke down and then recongealed into smaller sovereign units. But it would take something really big to shatter the US into separate countries at this point.