Question

A general law city, according to Green (2013) has a structure largely shaped by a state’s law or constitution. The municipality can adopt local ordinances setting rules for its residents, but only within the range allowed by state law. This format can also be shaped by Dillion Rule (2017), which essentially means that local governments only have the powers granted to them by the state. There is debate about the challenges and benefits of this system. Some local governments feel the rule restricts them when they try to deal with evolving issues such as a growing population with changing needs. A general law city would have to seek power from the state to deal with new problems if that authority hasn’t already been explicitly granted, and that’s where this system can be seen as a constraint.  How should power be distributed between states and the federal government for a successful democracy?

Answer 1

The balance of power which would be established under the Constitution has been branded as ‘unique [8] ’ compared to other democratic nations around the world today, with the balance in favour of the states (the people) and their independence against the federal government, but this balance is shifting as will be shown below. This is ‘unique’ in the sense that most nations like Australia have the inverse with favour towards a national government away from the states.

In building a balance between the interests of the states and federal government, the framers enumerated the powers under Art. I – VII of the Constitution and more specifically article one, section eight. This section outlines the powers and areas for which the new federal government can legislate [9] leaving the ‘remainder [10] ’ with the states. The federal government is limited to only these powers and any legislation outside would amount to ‘over-reach [11] ’.

The remainder powers of the states are very wide allowing the states almost unlimited ‘plenary power [12] ’, so long as any law created does not conflict with federal legislation, or the constitutional powers [13] . For example a state could make laws regarding ‘same sex’ marriage as it does not fall within the purview of Congress [14] .

In order for the effective administration of the new national government there was a need to establish a law making body in which the enumerated powers could be used for the good of the nation. This new body was established under article one, section one of the constitution and would be known as ‘Congress [15] ’. Congress shall ‘make all laws which shall be necessary and proper for carrying into execution [16] ’ any of the enumerated powers, alongside state legislatures [17] . This new Congress would give the people the right of ‘representation’ under the new government, lacking under the old imperial system [18] .

This representation in the new Congress would involve the election [19] of members from each state into either one of the two houses. These two houses are known as House of Representatives [20] and the Senate [21] . The idea behind having two houses was to act as a check and balance on each other, and to provide equal representation to each of the states. The House of Representatives is made up of elected members based on the population of the state in question (some may have more than others), were as the senate was devised to provide a ‘protection’ as such to this disparity by giving each state two members, not reliant on population [22] .

Whilst the ground work had been laid in which both the states and federal government would balance their new found powers to, make laws and provide for representation by the states in the new federal government, there was still the question of, what if the new government was acting outside their power, what redress would the states have? This was answered by delegates with the formation of The Supreme Court of the United States of America [23] and other lower (subordinate) courts that Congress seen fit from time to time [24] . The Supreme Court was established as the ‘guard’ of the new federal Constitution, and the highest court in the country.

While each state would maintain their legal system including Constitutions, courts [25] and the Legislature they would now have to contend with a federal law making body, Congress and its powers as given under the Constitution. This new court would give the ability for the states to object to new laws passed by Congress if a state felt it to be unconstitutional, and a violation of their rights in a form of judicial review [26] .

This new court would have the power not only to review an act of Congress, but also would have the right to strike it down if so required, due to Congress enacting a law which was outside of their powers. This power of review was set into stone by the court in Marbury v Madison (1803) [27] .

IV My, how you have grown...