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УДК 811.111:323.172(73) АЛЕКСАНДРОВА А.П.
кандидат филологических наук, доцент, кафедра английской филологии, Орловский государственный университет имени И.С. Тургенева Email: angelica.p.alexandrova@yandex.ru
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ALEXANDROVA A.P.
Candidate of Philology, Department of English Philology,
Orel State University Email: angelica.p.alexandrova@yandex.ru
АМЕРИКАНСКИЙ ПУТЬ ФЕДЕРАЛИЗМА THE AMERICAN WAY OF FEDERALISM
В данной статье рассматривается американский федерализм как форма разделения власти и кратко описываются его особенности. Статья отвечает на вопросы, почему Соединенные Штаты предпочли эту форму правления другим и благодаря чему федерализм выжил в процессе развития Соединенных Штатов в современную индустриальную страну; какое влияние оказывают правила, в рамках которых функционирует федерализм, на среднего гражданина, живущего в соответствии с законами страны.
Ключевые слова: США, федерализм, Конституция США, национальное правительство, правительство штата, штаты, полномочия.
This paper is concerned with American federalism as a form of the division ofpowersand briefly describes its features. The article answers the questions why the United States preferred this form of government to others and why federalism survived in the development of the United States into a modern industrial country; how the rules within which federalism functions influence the average citizen living in accordance with the laws of the country.
Keywords: USA, federalism, U.S. Constitution, national government, state government, states, powers.
American federalism, a broad delineation of the competence of individual states and the national government in accordance with constitutional principles, is a complex system that combines many rules and traditions, the origin of which can be attributed to the creation of the first Federal government more than 200 years ago.
From a purely theoretical point of view, the federal form of government is that individual states, districts or local political organizations retain all the most important powers, while the only main task of the national government is to ensure the existence of nation or republic as a whole. With this form of government, most decisions are made by states acting as independent state units, represented by their representatives elected by the population. The decision to go to war with another country, for example, may require the approval of the majority of the states, not the majority of the population (or its representatives elected to Congress). The federal form of government in its purest form, so to speak, is characterized by an almost complete lack of trust in the national government, which essentially has no power.
While a number of aspects of American federalism fit this theoretical model (for example, the president and vice president must win a majority of the votes in a certain number of states, rather than in direct elections nationwide), still it has many features that indicate a compromise between local (state) and national (federal) authorities. This compromise is reflected, in particular, in the structure of the Congress, which consists of two chambers: the Senate, which gives equal powers to each state (two senators per state), and the House of Representatives, in which seats are distributed in
proportion to the population of the states. Amendments to the US Constitution take into account both the national interests and the interests of individual states, since the process of their adoption requires the approval of first Congress, and then three-quarters of all states.
Perhaps the most important area where a compromise is needed between federal and state authorities is the issue of specifically listed and unmentioned rights, which has been and continues to be a source of conflict since the adoption of the US Constitution. Even during the discussion of the draft Constitution, some states, in particular Massachusetts, New York and Virginia, expressed fears that the states could lose the rights won by the people as a result of the revolutionary war. The proposed Constitution listed the specific rights of the federal authorities, but did not state that the rights not mentioned in the Constitution should belong to the states. In addition, the sphere of competence of the federal government was also not clearly delineated.
As a result of the ensuing debate, mainly to persuade New York and other states to ratify the Constitution, Alexander Hamilton, James Madison, and John Jay published a series of essays known as The Federalist, detailing dignity of the new form of government provided for by the Constitution. In their essays, the authors explained the need to establish a federal system and assured wavering supporters of "state" rights that the sovereignty of the states would not be violated. The "Federalist", up to the present day considered a classic work in the field of American political thought, gave answers to many philosophical and practical questions that have repeatedly arisen in connection
© Александрова А.П. © Alexandrova A.P.
with the interpretation of the provisions of the Constitution, written in a rather general form.
As a consequence of these theoretical disputes, Massachusetts, New York and Virginia agreed to ratify the Constitution, stipulating that in the future it wouldbe supplemented by amendments that would secure certain rights to the people and states, and also ensure that the power of the Federal Government would not be unlimited. Thus, the Ninth and Tenth Amendments were born, which are the two most important constitutional sources of state powers. The Ninth Amendment says that the list of powers given in the Constitution cannot be considered complete, since it would be simply impossible to list all the rights belonging to the people.For example, on the basis of the Ninth Amendment, the US Supreme Court recognized the principle of non-interference of the authorities in the personal affairs of citizens, never mentioned in the Constitution, as constitutionally justified. The Tenth Amendment states that all powers that are not the exclusive prerogative of the Federal Government belong to the states or people. For example, the Constitution gives the Federal Government the exclusive right to form the military. Therefore, individual states cannot begin conscription into their own armies. On the other hand, since there is nothing in the Constitution about public order, each state can organize its own police force.
The compromise between federal and state governments is reflected in most decisions made by the government. The problem is that it is not easy to distinguish between the areas of competence of the Federal government and the states, as well as to determine the extent to which they can overlap. Despite the fact that the drafters of the Constitution tried to list all the powers of the Federal Government, the transformation of an agrarian rhinestone, which consisted of 13 states in 1790, into an industrial world power with a population of 226 million people inevitably led to certain problems with respect to the delineation of the competence of state governing bodies and the Federal government. Attempts to delimit this competence by the US Supreme Court over the course of two hundred years have repeatedly aggravated relations between the federal and state authorities.
The question arises "Why did the United States prefer federalism over national or central government?".The first settlers in 13 colonies sought to achieve independence from the British government, which did not recognize self-government. Under British rule, religious, political and economic freedoms were almost impossible to achieve, and the drafters of the Declaration of Independence therefore harbored a strong dislike for the central government with almost unlimited control over all aspects of the life of the local population. Clearly aware of the need to create a full-fledged nation, the authors of the Constitution wanted to avoid repeating the sad experience of government, which the Americans could get rid of only with the help of the revolution. The federal model, which was adopted at last, met the need for a nationwide organization without prejudice to the powers of local political centers.
This fact explains the existence of the Bill of
Rights, the first of ten amendments to the Constitution. These amendments restrict federal power and deprive the national government (that is, Congress) of the right to pass laws that, for example, could restrict freedom of speech, press, and religion or take away a person charged with a crime from a fair trial. At the time when these amendments were adopted, they acted as a deterrent only in relation to the national authorities, giving the states the right to regulate the affairs of their citizens themselves. True, according to modern interpretations, the rights listed in the Bill of Rights cannot be violated by either state or federal authorities.
Another reason for the strengthening of state power was mainly economic in nature: the southern states feared that a strong national government would establish strict control over the slave trade, which they considered the economic basis of the agrarian South, and the northern states feared that the centralized control over industry will slow down its development. Neither the North nor the South wanted the national government to gain too much influence in the area of economic control.
The huge size of the country undoubtedly contributed to the development of the economy and culture of certain regions and states. Despite the fact that such development did not require outside incentives, it served as a reliable basis for the creation of a strong national government, in which the interests of regions and states were not relegated to the background. The preservation of local identity was attractive to new states seeking to join the Union. They could become part of the country, while retaining control over local affairs.
However, the most important reason for the prosperity of American federalism is the abundance of natural resources in almost all parts of the United States. These riches ensured the economic independence of all states and regions and eliminated the need for redistribution of income in favor of the less well-off parts of the country, usually produced by a strong central government. The material wealth of the United States has also contributed to the emergence and strengthening of local bureaucracy, which, like local cultural characteristics, tends to flourish.
The problems inherent in American federalism are associated with the division of government functions between federal and state governments. The resulting friction can lead either to attempts by the Federal Government to impose its own laws on states (for example, an order on racial integration of schools), or to attempts by state authorities to intervene in areas where the final word may also belong to the Federal Government (for example, the establishment by the state of stricter than federal standards for the composition of automotive exhaust gases). The current tensions between federal and state governments and how federalism is perceived by average Americans are easier to understand by becoming familiar with the rules by which disagreements are resolved.While the list of these rules and examples of their specific application is far from exhaustive, they can provide a fairly accurate idea of whose power will prevail in the event of a conflict between state and federal authorities.
Rule No. 1. In conflicts between federal and state
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governments, the final word belongs to the federal (national) courts, including the Supreme Court of the United States. In the United States, there are two types of courts that handle specific cases: federal and state courts. Both federal and state courts have the power of so-called judicial review, that is, the process of interpreting laws and ensuring that they do not conflict with the federal Constitution (federal courts) and the constitutions of the respective states (state courts).Since the Federal Constitution is the main law of the country, its interpretation serves as the basis for resolving all conflicts between state and federal authorities. And since the interpretation of the federal Constitution is the prerogative of the federal courts, they are responsible for resolving disagreements between federal and state authorities, and their decisions must be carried out by the states.
Applying the doctrine of judicial review to the resolution of conflicts between state and federal authorities, the federal courts have repeatedly found themselves at the center of the most violent battles in the history of federalism. The process of racial integration of public schools, for example, led to one of the most acute conflicts between state and federal authorities. The US Supreme Court twice reaffirmed the principle that state-run schools should be desegregated. Applying and interpreting the provision of the federal Constitution, the Supreme Court invalidated state laws that impeded the implementation of desegregation. The lower federal courts went even further by ordering dedicated buses to transport students from one urban area to another in order to achieve racial balance among students in all public schools. If they disobeyed court orders, school administrators could be punished with jail time or fines, and state and local governments could be deprived of federal funds earmarked for the education system. In cases where the local administration did not want or could not present to the court effective plans for the racial integration of schools, the federal courts took over the management of education departments. All these actions were taken on the basis that the practice of racial segregation in the system of public education was found by the courts to be contrary to the US Constitution, and therefore illegal.
Another example of the spread of judicial power relates to criminal law. As mentioned above, it is undeniably believed that much of the Bill of Rights prohibits states and the Federal Government from enacting laws that contradict the first ten amendments to the Constitution. On this basis, federal courts oversee the observance of procedural guarantees in litigation before the courts of the states, and over the compliance of the criminal law of the states with the fundamental law of the country.For example, state or local police are not allowed to use unauthorized methods to arrest suspected offenders, and a state court cannot deny an accused person an attorney to defend him and must consider his case in a short time. term after arrest. Even states that, for financial, political, or other reasons, tend to act contrary to these federal guarantees cannot neglect them. In practice, this is expressed in the fact. that a federal court has the right to release from custody any person convicted by a state court without complying with the necessary federal guarantees.
After the conflict between state and federal authorities is resolved by a federal court, the decision can only be changed by adopting a new amendment to the Constitution (a difficult and rarely used procedure) or a new decision of the federal court in a similar case. In addition, due to the indisputable authority of the federal courts, judicial decisions in relation to such conflicts invariably meet with wide public support.
Rule No. 2. The federal government (Congress) may enact laws aimed at strengthening federal power. The US Constitution grants the Federal Government certain powers that the states do not have. These include the right to establish and levy national taxes, form the armed forces for the defense of the country, maintain relations with foreign states, regulate immigration, establish and manage the postal system, mint coins and issue credit notes, and also regulate interstate commerce.Under the Tenth Amendment, all powers not transferred to the Federal Government remain with the states. However, the Federal Government has the power to enact laws "necessary and appropriate" to fulfill its enumerated powers, or, in other words, the states do not have the right to enact laws that are necessary and appropriate for the fulfillment of the functions of the Federal Government, so how similar actions would be interference in the affairs of the federal authorities.
The interpretation of the term "necessary and appropriate" also leads to persistent disagreements between the states and the federal government. Sometimes states enact laws that are later qualified by federal courts as exceeding state powers. Sometimes the Federal Government passes legislation that, while not necessary and appropriate for the fulfillment of the functions of the federal authorities, lead to interference in the competence of the states. A conflict arises when individuals or organizations affected by new legislation go to court to resolve an issue. The court can then rule that the state has either made unacceptable interference with the federal government, or the power of the Federal government is not wide enough to suspend the new statute passed by the state.
Examples from the area of regulation of interstate commerce most clearly illustrate the application of this rule. Only the Federal Government has the authority to enact laws affecting interstate commerce. According to the Constitution, state legislation should not extend to this area of competence of the federal authorities.
These trends can be traced to examples of those aspects of the economy that are not covered by state legislation. States do not have the right to impose duties on products entering or leaving the state. States cannot prevent the development of their resources by citizens of other headquarters. States must not violate federal regulations governing interstate air or rail travel. States must comply with federal air and water regulations, which fall within the purview of the federal government, as air and water "cross" state lines.
On the other hand, the federal government does not have a say in the laws governing motor vehicles, as these laws are aimed at ensuring road safety within the state. States may, at their discretion, establish fares for buses and subways
within the state, as long as this does not affect interstate commerce. Criminal law is almost without limitation related to the functions of the states: the states determine what constitutes a criminal offense and how it should be punished. However, a crime committed in more than one state (for example, stealing a car and hijacking it to another state, or kidnapping a child for ransom and crossing a state line) becomes a federal crime and is usually punishable by law. under federal criminal law.
Each state can establish its own education system and the level of financial assistance to the needy and the unemployed, since education and social security do not belong to any of the federal powers listed in the Constitution. The federal government can propose and enforce certain rules and regulations by providing partial funding to state education and welfare programs, but it cannot interfere with these sectors of state government (except those moments when the rights of citizens are violated, as it was in the case of racial segregation in schools).
Almost every aspect of everyday life that the average American has to deal with is within the jurisdiction of the states and is in no way connected with the authority of the federal authorities. The Constitution does not give the Federal Government the right to regulate trade in land, products, or services between individuals unless it is in some way associated with interstate commerce. The federal government cannot prevent the state from enacting laws governing the sale of apartment buildings or air conditioners and the rates for services rendered by doctors, lawyers, or auto mechanics (unless such transactions involve interstate commerce) because according to the Constitution, the Federal Government is not endowed with such powers.
Divorce, marriage, adoption, and inheritance laws rarely affect interstate commerce or other powers that are transferred to the Federal Government. That is why it is much easier to get a divorce or get married in Nevada, where the requirements for these acts have been lower for many years than in other states. This also explains why different states have different laws treating the property rights of spouses: some of them are drawn up on the basis of French and Spanish law, where property is considered joint for the spouses, and others are on the basis of English principles of family property.
There are many interrelated issues between issues that are wholly within the jurisdiction of the federal authorities and those that fall exclusively within the jurisdiction of the states. For example, the sale and purchase of shares in joint stock companies is regulated exclusively by the Federal Government, since such transactions can be made across state lines and thus belong to its right to regulate interstate commerce. However, laws that relate to other aspects of joint stock companies, such as their formation, official authorization to conduct business and registration within the state, fall under the jurisdiction of the states, since these transactions are not related to interstate commerce.
The same can be said for internal security. The protection of state borders through the organization of the armed forces is entirely within the competence of the Federal Government.
But since the creation of the police does not necessarily contribute to the improvement of national security, the organization of the police and its leadership are completely entrusted to the states. The presence of separate federal and state police formations is also a result of the devision of powers of federal and state authorities: the Federal Bureau of Investigation investigates federal (interstate) crimes, and state and local police investigate crimes committed within the given headquarters.
Rule No. 3. States can protect their citizens more, not less than the Federal government. Although states cannot arrogate to themselves the powers of the federal government, they have the right to supplement the functions of the central government if it benefits its citizens. This principle follows directly from the Ninth Amendment: rights belonging to the people are not limited to those listed in the US Constitution. In light of the analysis of federalism, the challenge is to find out whether a given state law is beneficial or harmful to the public. In other words, more or less protection is given to state citizens under the new law as compared to the protection afforded by federal law.
Suppose California, where air pollution is a more serious problem than other states, decides to impose stricter regulations to keep air and water clean than are required by federal laws. Is this a violation of the Federal Government's sphere of competence? Can New York impose a state tax on state income even though the income has already been taxed by the Federal Government? Can the State of New Jersey subsidize abortion for the needy, even if the Federal Government has not deemed it necessary to provide such financial assistance? The answer to these questions is yes, since all of these measures are intended to be of great benefit to the residents of the states and do not run counter to the prerogatives of the Federal Government.
The immediate consequence of this rule is that states are not allowed to give their citizens less protection than is required by federal law. No state can pass legislation requiring its entire population to suddenly convert to Catholicism; no state can deprive women of the right to vote; and no state can deny an accused of a crime the right to a fair trial by jury. All of these rights are guaranteed by federal laws and are the privilege of all US citizens. The main point here is to establish how far the protection granted by the federal Constitution extends, while remembering that the state can only supplement, but by no means nullify, these fundamental guarantees.
The explanation given here for American federalism may illustrate more complex aspects of this system, and the reader may wonder why the rivalry between federal and state authorities over a wider sphere of competence ha not lead to the reign of chaos. The fact is that during the formation of the United States, it was decided to remain faithful to the principles recorded in the federal Constitution, according to which the government would respect the spirit of the law and the decision of the court. The key to understanding how conflicts between state and federal governments are resolved is the US Constitution.If we recall that the Constitution guarantees a certain number of fundamental rights and
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powers that should not be violated or questioned by the states, and the states, in turn, have adopted this structure, as evidenced by their decision to join The United States, it is easy to understand that there should be no fundamental differences in the government structure of individual states. American federalism serves as a constitutional model for
states, while providing freedom for deviations based on local traditions. Despite all the differences, the nationwide character of government can be seen throughout the country through respect for the laws and regulations discussed above. The continuity of this form of government is based on the unshakable respect of Americans for their Constitution.
Библиографический список
1. Александрова А.П. Американский федерализм как форма организации правовой системы государства. Ученые записки ОГУ, № 6 (44), 2011. С. 323-325.
2. Александрова А.П. Federalism and the U.S. Constitution. Вестник ОГУ, № 1, 2012. С. 18-19.
3. Александрова А.П. Федерализм в США: учебно-методическое пособие. Орел: ОГУ, 2009. 141 с.
4. BoydE. American Federalism, 1776 to 1997: Significant Events. January, 1997.
5. Connie S. White. We The People. HOLT, RINEHART and WINSTON. New York, 1987.
6. Drake Frederick D, Nelson, Lynn R. Teaching about Federalism in the United States. ERIC Digest. // ERIC Clearinghouse for Social Studies/Social Science Education Bloomington IN. May, 2002.
7. ElowitzL. Introduction to Government. New York: HarperCollins Publishers, 1992.
8. Federalism. Cambridge, Mass., The Belknap Press of Harvard University Press, 1993. 473 p.
9. Stepan A. Federalism and Democracy: Beyond the U.S. Model. Journal of Democracy 10. 1999.
10. U.S. Library of Congress. Congressional Research Service. Federalism: KeyEpisodes in the History of the American Federal System, by Sandra Osbourn. CRS Report 82-139 GOV. Washington, 1982.
References
1. Alexandrova A.P. American federalism as a form of the state legal system. Scientific notes of Orel State University, no. 6 (44), 2011. Pp. 323-325.
2. Alexandrova A.P. Federalism and the U.S. Constitution. Вестник ОГУ, no. 1, 2012. Pp. 18-19.(in English)
3. Alexandrova A.P. Federalism in the United States: a study guide. Orel: OSU, 2009. - 141 p.(in English)
4. BoydE. American Federalism, 1776 to 1997: Significant Events. January, 1997.
5. Connie S. White. We The People. HOLT, RINEHART and WINSTON. New York, 1987.
6. Drake Frederick D, Nelson, Lynn R. Teaching about Federalism in the United States. ERIC Digest. // ERIC Clearinghouse for Social Studies/Social Science Education Bloomington IN. May, 2002.
7. ElowitzL. Introduction to Government. New York: HarperCollins Publishers, 1992.
8. Federalism. Cambridge, Mass., The Belknap Press of Harvard University Press, 1993. 473 p.
9. Stepan A. Federalism and Democracy: Beyond the U.S. Model. Journal of Democracy 10. 1999.
10. U.S. Library of Congress. Congressional Research Service. Federalism: KeyEpisodes in the History of the American Federal System, by Sandra Osbourn. CRS Report 82-139 GOV. Washington, 1982.
