The U.S. Federal System

                                    The United States Federal System

    There are three major types of government in the world today:

  1. Unitary System
  2. Confederation
  3. Federalism[1]

 

Under the Unitary system, power is vested in the national level of government, with very limited power held in smaller political subdivisions such as counties parishes, provinces or towns. The Unitary System is the most used system worldwide.[2]

A Confederation is a union of equal states, with some powers of government being held at a national level. The Confederation is the least used type of government worldwide.[3]

  1. Structure of the United States Federal System

 

The Federal system is the system used in the United States. In the Federal system, the national government hold significant power, but smaller political sub-divisions, such as states, hold significant powers. Of these systems, the Federal System proved more useful and adaptive for the United States of America. The “United States was born from a series of colonies under the Unitary System[4] of Great Britain. With the advent of the American Revolution, the United States, became at first, a confederation under the Articles of Confederation.[5] This confederation was effective on March 1, 1781 and functioned as very weak form of national government.  When the Confederation failed, the United States grew into a federal system of government, giving greater power to a national government in 1787. The Federal system of government works best for the United States for many reasons, including:

  1. The size of the United States
  2. The diversity of the political subdivisions in the United States.

As the United States itself grew and changed over time from 1787, so has its federal system grown and evolved. There have been 2 major kinds of federalism in use in the United States.

The first type is “duel federalism”. This holds that the federal and state governments are “co-equal”, with each being “sovereign”. In this type of federalism, the Constitution is interpreted very narrowly, where the federal government has jurisdiction only where it is clearly granted in the United States Constitution and there is a very large group of powers which belongs to the states. This asserts that the Tenth Amendment, Supremacy Clause, the Necessary and Proper Clause, and the Commerce clause are strictly interpreted to given limited powers to the federal government.

 The second type of federalism is “cooperative federalism.” This holds that the national government is supreme over the states. Cooperative federalism asserts that the Tenth Amendment, Supremacy Clause, the Necessary and Proper Clause, and the Commerce clause have a pro-federal government or wide interpretation, more in favor of the federal government. An early case illustrating cooperative federalism was “Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)”.[6] The Supreme Court ruled that “Congress’s right to regulate commerce under the Commerce Clause… acknowledges no limitations other than those prescribed in the Constitution. This ruling cemented the supremacy of federal law in the area of Commerce over state laws seeking to regulate the same matters. In the case of “Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964),” the presumption of cooperative federalism was taken further. The Supreme Court ruled in this case that states could not create their own patent or patent-like laws because of the Supremacy clause of the United States Constitution[7]. Federal patents preempt state patents. Stiffel Company secured a patent from the States of Illinois, granted in 1957, for the creation of a “pole lamp”.  Soon after, Stiffel brought the lamp to market, Sears Roebuck and Company department store marketed copies of the lamp. Stiffel sued Sears for patent infringement and unfair competition under Illinois state law. Stiffel accused Sears of causing “confusion in the trade” as to the source of the lamps. The United States District Court of the Northern District of Illinois held the Stiffel patent invalid for “want of invention” or “insufficiently inventive.”[8] The Court further ruled that  Sears was guilty of unfair competition because of the similarity of design of the lamps and stopped Sears from selling identical lamps and also ordered sears to pay monetary damages to Stiffel. The United States Court of Appeals for the Seventh Circuit affirmed the decision of the District Court. The Court of Appeals further ruled that Stiffel only had to prove the “likelihood of confusion as to the source of the products” due to the identical appearance of the lamps. The Supreme Court of the United States granted “certiorari”[9] to consider whether the use of the State of Illinois’ “unfair competition in its patent law was comparable with United States patent law.

The Supreme Court reviewed the decision as well as the history of patent monopoly in United States and English law. The Court ruled that the lower courts erred by using Illinois unfair competition law to give Stiffel Company a patent monopoly on its “unpatented” lamp. It further stated that “mere” inability of the public to tell two identical articles apart, is not enough to support an injunction against copying or an award of damages for copying an article which the federal patent laws permit to be copied. Justice Hugo Black went further:

         “What Sears did was to copy Stiffel’s design and to sell lamps almost identical to those sold by Stiffel. This it had every right to do under federal patent laws. That Stiffel originated the pole lamp and made it popular is immaterial.”[10]

This decision is cited for the preempting of state patent protection by federal patent laws.

    The United States Constitution provides specific powers to both the states and the Federal Government. These are:

  1. Reserved Powers – These are Powers that are reserved specifically for the states. These powers include police powers such as providing police and fire protection, health regulations, licensing and education.
  2. Granted Powers- These are powers granted to the Federal government. These powers include all powers specifically granted in Article 1, Section 8 of the Constitution. These are express or enumerated powers which include the power to raise an army or navy, coin money, to provide for patent and copyright protections and to make treaties and war with other nations. Enumerated powers give the Federal Government implied or inherent powers in these areas.
  3. Concurrent Powers-These are powers which both state and the Federal Governments hold. These include spending for the general welfare, ability to construct and maintain roads and the power of taxation.

Note: Though the Bill of Rights places restrictions on the Federal government, the Bill of Rights placed few restrictions on the states as originally enacted. state. But with the judicial interpretation of the Fourteenth Amendment’s “Due Process” clause, restrictions upon the states were incorporated, especially those that uphold civil rights of citizens in the states.[11]

 

  1. History of the United States Federal System

          The United States government is not a direct democracy. It is a republic as we confirm when saying the “Pledge of Allegiance”. The most common definition of a republic is “a political order in which the supreme power rests in a body of citizens (We, the people) who are entitled to vote for representatives responsible to them. (We, the people)[12]

A democracy is defined as a form of government where the people decide policy matters directly-through town hall meetings or by voting on ballot initiatives and referendums.[13] The  Framers of the Constitution were quite fearful of “pure” democracy and so framed the Constitution to plainly state that the system of government of the United States would be that of a “republic.” Article IV Section 4 of the United States Constitution states: “The United States shall guarantee to every state in this Union a Republican Form of Government.”[14] The framers built in the scheme of representative government and the selection of representatives to steer the nation away from pure democracy. James Madison noted that one of the most important differences between a democracy and a republic is “the delegation of the government (in a republic) to a small number of citizens, elected by the rest.”[15]  The system of government established by the Framers was never intended to be a democracy. The “Pledge of Allegiance “, where wording has changed since its origins in 1887, has never changed the words “and to the Republic for which it (the flag) stands”.

 

But where did the idea of such a representative government originate? James Madison, the father of the Constitution as we know it, garnered many of his ideas, as did Benjamin Franklin and Thomas Jefferson from the World’s Oldest living Participatory Democracy on earth. This is the “Six Nations”, also known as the Iroquois Confederacy. The Six Nations practiced this form of government for more than eight (800) hundred years before the Constitution or the United States was created. The character of the American concept of “democracy” which shaped the formation of the “republic” evolved from examples provided by the Iroquois Confederacy, which bordered the British Colonies.[16] The Iroquois Confederacy was formed without the presence of any Europeans or their influences.  There is no recorded document or record of the exact date, time and place of the formation of the Iroquois Confederacy. It is known that the “sixth” nation, The Tuscaroras “moved from the Carolinas around 1714 to become the sixth national member of the Confederacy.[17] There exists a wide range of  estimates  as to when the Confederacy  was founded  and through “traditional”(non-native American methods) history marking methods have fixed the origin of the Confederacy between 1000 and 1400 A.D. Most Euro-American historians have placed the founding date to be about 1450 AD.[18] Whatever the date, the confederacy was formed at the end of several generations of “bloody and divisive warfare between the Five Nations that joined the Iroquois league.[19] The idea of the “league”, also known as a “federal union” was introduced through a great leader of the Huron, Deganwidah. Because he was not of the Five Nations, Deganwidah would have a difficult time presenting his views to its leaders. He also had another problem, Deganwidah stuttered very badly. The people of the Five Nations societies put a very high value on oratory abilities in leadership.[20] Deganwidah wandered among each tribe of the Five nations and studied each culture to determine ways to end the fighting between them. It was during these travels that he met another great leader, Hiawatha. Hiawatha agreed to speak for Deganwidah and engaged in long negotiations with the leaders of the waring Native Nations.   Through Hiawatha’s efforts, a peace agreement was produced following the vision of Deganwidah.[21] The “Kainanerekowa”, known as their constitution, translates in European to the “Great Law of Peace.” (Note: The Great Law of Peace was translated into English about 1880 by Seth Newhouse, a Mohawk)[22] It should be noted that the Native, Indigenous people of the land “re-named America” were never ignorant or illiterate people. They had their own customs and language when the Europeans began exploring and colonizing the land. Parts of the Great Law of Peace using the great white pine tree as a metaphor for the unity and strength of the League include:

“Roots have spread out from the Tree….one to the north, one to the west, one to the east, and one to the south…. And the name of these Roots is the Great White Roots of Peace…. If any man or any nation outside the Five Nations shall show a desire to obey the laws of the Great Peace…. they may trace the Roots to their source…… and they shall be welcomed to take shelter beneath the Tree….”[23]

There was never a debate in the Iroquois Confederacy about accepting anyone, regardless of origin or race. This surpassed the colonists as the “Declaration of Independence” was modified to remove all condemnations against slavery to ensure the approval of the Southern slave-holding colonies. Lewis Henry Morgan, American anthropologist, produced the first systematic study of “American Indian” social organizations, entitled “League of the Ho-de-no-sau-nee (meaning “People building a Long House” in their native language) or Iroquois (from the French)” in 1851. Morgan spent more than a decade in association with the Iroquois through his friendship with Ely S. Parker (Hasanoanda, later known as Donehogawa) a Seneca, who became a U.S. Army Brigadier General and Adjutant to General U. S. Grant during the Civil War.[24]

Due to Parker’s influence, Morgan was adopted by the Iroquois and made the following observations regarding the Iroquois Confederacy:

“The [six] nations sustained nearly the same relation to the [Iroquois] league that the American states bear to the Union…. Their whole civil policy was averse to the concentration of power in the hands of any individual, but inclined to the opposite principle of division among a number of equals.”[25]

Morgan’s views were echoed by later writers. Herbert M. Lloyd in an introduction in the book, “League of the Iroquois” (published 1902) stated:

“Among all the North American peoples, there is none more worthy of study, by reason of their intellectual ability, the character of their institutions and the part they have played in history, than the Iroquois of the League. And, as it happens, this is the people which has longest been known to ourselves, which has been most closely observed by our writers and statesmen, and whose influence has been most strongly felt in our political constitution and in our history as colonies and nation.” Lloyd continued: "In their ancient League the Iroquois presented to us a type of Federal Republic under whose roof and around whose council fire all people might dwell in peace and freedom.”[26]

 

 The Great Law of the Peace also provided a legislative structure for the Confederacy. Two of the nations, (Cayuga and Oneida) were regarded as the “younger brothers” and two other nations (Seneca and Mohawk) were regarded as the “older brothers.” The Onondaga nation was charged with breaking any ties between the younger and the older brothers. In this structure the younger and older brothers appear be the precursor for the United States structure for the House of Representatives and Senate. The Onondaga nation also had “veto” power, which foreshadowed powers inherent in the United States Executive Branch.  This veto power held by the Onondaga could be overridden by the Cayuga and Oneida (younger brothers) and the Seneca and Mohawk (older brothers, acting together.[27] There were many other provisions in the Great Law Of Peace which  foreshadow the United States Constitution such as provisions for amending the law, qualifications for Chiefs of the Council, and qualifications for statemen in the League. Chiefs of the council were elected by the extended family of women holding a chiefship in each Nation. In this respect, the Iroquois Confederacy was far ahead of our United States Constitution, which did not grant women the right to vote until the 19th Amendment was ratified in 1920.

The Great Law of the Peace had rules for removal of chiefs and rules for processing complaints brought to the Council of chiefs. All these concepts had a very real impact on the structure and formation of the Republic of the United States of America. In his book, “Exemplar of Liberty”- Native America and the Evolution of Democracy, author, Donald A. Grinde, Jr. offers irrefutable proof with the following words of Canassatego, the great Iroquois chief as he advises assembled colonial governors in 1744, 32 years before the writing of the Declaration of Independence and 45 years before the ratification of the United States Constitution:

“Our wise forefathers established Union and Amity between the Five Nations. This has made us formidable; this has given us great Weight and Authority with our neighboring Nations. We are a powerful Confederacy; and by your observing the same methods our wise forefathers have taken, you will acquire such Strength and power. Therefore, whatever befalls you, never fall out with one another.”[28]

There can be little doubt that much of our United States Federal System was derived in whole in some portions and in part in others has its formation in the roots of the Six Nations of the Iroquois Confederacy, the world’s “Oldest Living Participatory Democracy.” Atop illustrations of “The Tree of the Great Peace” proudly sits an eagle, guardian bird of the Haudenosaunee.[29]

 

 

 

 

NOTE: Local government powers cannot violate or supersede the state constitutions and the state codes or state laws of the state where the entity is located.  Local government powers cannot supersede or violate the United States Constitution and Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.

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[1] “Constitutional Topic: Federalism” www.USConstitution.net- copyright 1995-2010 Craig Walenta, referenced 11/5/17, p.1

[2] Ibid, p.2

[3] Ob.cit. p.2

[4] “Unitary state” Wikipedia, the free encyclopedia, July 10, 2019, pgs-1-6, -“A unitary state is a state governed as a single power in which the central government is ultimately supreme. The central government may create (or abolish) administrative divisions (sub-national units).[1] Such units exercise only the powers that the central government chooses to delegate.”

[5] “Articles of Confederation and Perpetual Union” Wikipedia, the free encyclopedia, July 10, 2019, pgs. 1-16

[6]Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)” Wikipedia, the free encyclopedia, July 10, 2019, pgs.-1-5

[7] “The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2),” ratified June 21, 1788, Wikipedia, the free encyclopedia,  August 6,  2019 pgs. 1-7

[8]Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964),” Wikipedia, the free encyclopedia, August 6, 2019 pgs. 1-5

[9] “Certiorari”- a directive that a lower court send record of a proceeding for review to a higher court. Wikipedia, the free encyclopedia, August 18,2018 p. 1

[10] Ob.cit., “Sears, Roebuck & Co. v. Stiffel Co.” p.-4

[11]“Federalism Wikipedia, the free encyclopedia, August 10, 2019, pgs.-1-28

[12] Ibid, p.12

[13] “Is the United States a democracy?”-This Nation.com-American Government and Politics, January 14, 2018, p.1

[14]  Ibid. p.1

[15] Ob.cit., - This Nation.com-American Government and Politics, January 14, 2018, p.1

[16] Johansen, Bruce E., Forgotten Founders, Benjamin Franklin, the Iroquois and the Rationale for the American Revolution, Gambit Incorporated, 1982, Ipswich, MA.

[17] Ibid. p. 8

[18] Ob. Cit., Johansen, p.9

[19] Ob.cit., Johansen, p.10

[20] Ibid., p 10

[21] Ob.cit., Johansen, p. 11

[22] Ibid., p.12

[23] Ob.cit., Johansen, p. 10

[24]“Ely S. Parker” Wikipedia, the free encyclopedia, October 24, 2019, pgs.1-7

[25] Ob.cit., Johansen, p.8

[26] Ob.cit., Johansen, p.9

[27] Ob.cit, Johansen, p.10

[28] Grinde Jr. Donald A., and Johansen, Bruce A., Exemplar of Liberty-Native America and the Evolution of Democracy, Chapter 6, “The White Roots Reach Out” published 1991.

[29] Fadden, John Kahionhes, The Six Nations: Oldest Living Participatory Democracy on Earth, illustrations, 2006