HOW THE FEDERAL SYSTEM CAME INTO EXISTENCE
When the United States was created, it was very unique for its time. A country without a monarch, made up of states, none of which had a monarch or aristocracy of their own. Each group was made up of people selected by their own peers. This, the American Experiment was born.
The United States of America, at its inception, was a loosely organized collection of colonies, that only had two things in common: a feeling of alienation from England and a distrust of a central government. This is why, when the government was first formed, the Articles of Confederation left the central government of the United States very weak, and put most of the power in the hands of the states.
The Articles were introduced in November 1777, and were ratified by all of the states in 1781. It was clear almost from the onset that the Articles were flawed. The Federal government was very weak, unable to pass any law without 9 states agreeing, couldn’t regulate trade and commerce between the states, and was essentially economically neutered. That’s why the Federalist Convention, later called the Constitutional Convention, was called in May 1787.
A SEPARATION OF POWER
Power corrupts, and absolute power corrupts absolutely. Nobody wanted a situation with one person or body having all of the power in a strong central government. The states didn’t want a strong central government telling them what to do. The first of many compromises was reached, where the United States would have jurisdiction over interstate issues like military actions, treaties, commerce, and the like, while the states would retain control over events inside of their own borders. This is how the balance of power between the states and the federal government was created.
A TON OF COMPROMISES
My favorite definition of compromise is an agreement where both parties are equally dissatisfied. The only way to get the states to agree to anything on how the federal government was structured was a series of compromises. Our bicameral legislature was a compromise between the small and large states on voting rights. The Electoral College was a compromise between free and slave states for electing the president. The four year presidential term was a compromise between those that wanted an election for executive every year, and those that wanted one appointed for life.
But by far the largest compromise was the Bill of Rights. The Constitution covered many aspects and elements of how the federal government would work, but it didn’t guarantee the rights and freedoms of the citizens. The states refused to ratify the Constitution without these guarantees.
Most people know about the Bill of Rights, but like most things in politics, they don’t know the details. Sure, they’ll cry about freedom of speech or carrying guns, but ask them which amendment protects from cruel and unusual punishment (Eighth) or which prevents soldiers from taking quarter in their house without permission (Third), and they’ll look flummoxed.
What’s amazing is how important judicial protections are in the Constitution and the Bill of Rights. 5 of the 10 amendments deal specifically with legal protections for the individual from the federal government. Little things that we take for granted like bail commensurate with the crime, a right to a quick and speedy trial, and trial are guaranteed by the Bill of Rights.
HOW DOES THIS WORK IN PRACTICE
The separation of jurisdictions between the states and federal courts creates the possibility that an act is legal under one set of laws, but not the other. For example, smoking weed is legal in Colorado, but it is still illegal in the eyes of the Federal government. To quote Jules from Pulp Fiction, “it’s legal, but it ain’t a hundred percent legal.” The reverse happens as well. While there are many laws on the federal books about how to properly transport firearms, some states go above and beyond those.
This also creates the scenario where an act is illegal on both the federal and state levels at the same time. Because laws were violated in different jurisdictions at the same time, both, or all depending on how many states are involved, could each press charges.
Here’s an example. Let’s say a real estate developer from New York laundered money from Russian Oligarchs using banks in New York, real estate in Florida, and moved these funds to California, using shell companies in Maryland. Who can come after him?
Answer: All of them. At the same time.
Federal law prohibits the accepting of money from Russian Oligarchs per the Magnitsky Act. New York, California, and Florida each have laws against using banks located in their states to laundering money, and Maryland would consider creating a company for the sole purpose of laundering money illegal. There’s likely some fraud in there as well.
So, that’s the Federal System of law in a nutshell. One question that I feel should get its own article, and will soon, is “What about a pardon?” There are limits to those, the biggest being that it can only be used on Federal laws, not state. So, in the above example, if the real estate developer was pardoned federally, they’ll still have New York, California, Florida, and Maryland to deal with.