• Video

How Does the Difficulty of Legislating Protect Federalism?

It is frequently difficult to pass federal legislation because any law must be passed by both the House and Senate then signed by the President. Professor John McGinnis explains that this is an important protection for federalism. The states are free to pass their own legislation that meets their particular needs without constant federal interference which would supersede their laws. https://youtube.com/watch?v=UFLugz5AkxY


The classical view of the separation of powers in government is it means it's laborious government. It's time consuming government. It's government that may necessarily have to have a relatively limited agenda. That's a protection of liberty. The supremacy clause allows within the enumerated powers, the federal government to trump state legislation, but it only can do so when it passes legislation. And so, before you ever get to the supremacy clause, you get to the question of passing legislation and it's made purposefully quite difficult, quite laborious. And that's, in some sense, as important a protection of the states, and is actually proved maybe a more important protection of the states, than the enumerated powers. In fact, you might say that bicameralism, really tricameralism, because you not only have to pass the house, the Senate, you've got to get the signature of the president, political scientists have seen that it acts like a sort of mild super majority rule. Really it's not enough to have a majority support for legislation. You really need to have more than the majority of the country, so it creates a good deal of inertia. So this is two important protections. One, you have to think of the separation of powers as a protection of federalism, because quite beyond the enumeration of powers, the fact is that it's hard to get federal legislation, and when you can't get federal legislation, the states can act.

Related Content