13 Section 2.1: Dual Federalism
Dual federalism refers to the governmental system of the United States where there are 50 state governments and a single federal government. At least theoretically, the states are allowed to exercise their own powers without interference from the federal government. In other words, some powers are delegated to the federal government while others remain with the states. In reality, this boils down to an ever-evolving body of law. The trend has been toward the federal government gaining more and more influence in the sphere of criminal justice over the years since the Constitution was drafted.
The Hierarchy of Laws
Article Six of the U.S. Constitution has long been interpreted as meaning that federal law trumps state law whenever the two come into conflict. Conversely, the power of the federal government was thought to be held in check by the Bill of Rights, which are the first ten amendments to the Constitution. The exact reach of federal power has long been debated and is still not fully resolved. Major changes in how the federal government exercised its power in relation to the states have happened quickly at times, such as a dramatic increase in federal power during the Civil War, the passage of the Fourteenth Amendment immediately after the war, and during the New Deal era prior to World War II. Many political scientists contend that dual federalism is no longer an accurate term, stating that the states and the federal government share powers in a model that may more accurately be described as cooperative federalism. Nowhere has this overlap of power been more obvious than in the criminal laws of the United States and how those laws overlap the criminal codes of the various states.
The Hierarchy of Courts
As a direct result of American federalism, a dual court system exists within the United States today. There is a complete and independent federal court system, and there is a complete and somewhat independent state court system in every state. The idea of separation of powersdoes not suggest that the courts are completely independent of the other branches of government. The laws that federal courts arbitrate, for example, are passed by Congress and signed by the President. The federal courts, in turn, have the authority to decide the constitutionality of federal laws and resolve other disputes over them. On the other hand, judges depend upon the executive branch to enforce court decisions. It can be seen from these few examples that the branches of government depend on each other to function.
The U.S. Constitution gives Congress the power to create federal courts other than the Supreme Court and to determine the jurisdiction of those courts. It is Congress, not the judges, that controls the type of cases that may be addressed in the various federal courts. Congress has other constitutional responsibilities that determine how the courts operate. Congress decides how many judges there should be and where they wil