Layer Cake Federalism: Definition and Examples

Layer Cake Federalism: Definition and ExamplesReviewed by Chris Drew (PhD)

This article was peer-reviewed and edited by Chris Drew (PhD). The review process on Helpful Professor involves having a PhD level expert fact check, edit, and contribute to articles. Reviewers ensure all content reflects expert academic consensus and is backed up with reference to academic studies. Dr. Drew has published over 20 academic articles in scholarly journals. He is the former editor of the Journal of Learning Development in Higher Education and holds a PhD in Education from ACU.

marble cake vs layer cake federalism

There are two main types of federalism: dual federalism (layer cake)and cooperative federalism (marble cake).

Layer cake (dual) federalism: Power is divided between the federal and regional governments in clearly defined terms. It is based on the idea that the federal government and the regional governments are co-equals, and each is legislating in separate spheres.

Marble cake (cooperative) federalism: The federal and regional governments flexibly cooperate on a variety of issues. It is based on the idea that both the federal and the regional governments legislate in the same sphere.

Federalism – Definition

Federalism is a mixed form of government that combines a central (federal) government with regional governments (provincial, state, territorial, etc.).

Federalist nations divide power between these different entities and usually establish a clear hierarchy where, in case of conflict, the federal government takes precedence over the regional governments.

Federalism was first adopted in the union of states during the Old Swiss Confederacy (Forsyth, 1981, p. 18), but several countries have federalism today.

Some of the oldest surviving federations in the world include:

  • The United States
  • Mexico
  • Switzerland
  • Canada
  • Brazil
  • Australia

In the U.S., federalism was first established due to the problems with the Articles of Confederation.

At first, federalism in the U.S. was dual or “layer cake.” After the New Deal, however, U.S. federalism became cooperative or “marble cake.”

The progression of federalism in the United States now includes early, dual, cooperative, and new federalism.

According to Schutze (2009), the history of the European Union also shows a movement from dual or layer cake federalism to cooperative or marble cake federalism.

In all aspects of government, the Union and the Member States operate in a flexible system of shared powers.

Definition of Layer Cake Federalism

Layer-cake (dual) federalism is a subtype of federalism in which political power is divided between the federal government and the regional governments in strictly defined terms.

The metaphor of a layer cake comes from Morton Grodzins (1960) and means that the power is strictly divided between the different governmental entities.

The term is generally used to denote the system of federalism that existed in the United States from the founding until 1937 when the New Deal policies were recognized as constitutional by the Supreme Court (Zimmerman, 2001).

In the United States, the system of layer cake federalism was established as a reaction to the Articles of Confederation. The Articles conceived of limited government and a very weak federal government with the powers to declare war, make treaties, and maintain an army (Lowi et al., 2008).

As a result of this, a group later known as the Federalists generated support for a stronger federal government and highlighted problems with the Articles of Confederation.

Larry Gerston (2007, pp. 24-25) offered the following example of such a problem: The Articles of Confederation granted the Continental Congress the power to sign treaties and declare war, but it could not raise taxes to pay for an army.

In 1787, six years after the ratification of the Articles of Confederation, the Constitutional Convention decided to change their original purpose of editing the Articles and instead created a new Constitution of the United States.

The new Constitution rejected the confederal and unitary systems and instead established a dual federalist arrangement. Sovereignty was divided between the national and the regional (state) governments (Wilson et al., 2012).

The national government was recognized as superior in case of conflict with state governments:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (U.S. Const. art. VI, cl., 2).

The power of the national government was held in check by the Bill of Rights. More specifically, the Tenth Amendment limited the powers of the national government to only those that are specified by the Constitution.

It is the major expression of the principle of federalism in the Constitution of the United States:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S. Const. amend. X).

The consensus among scholars is that dual federalism in the United States ended during Franklin D. Roosevelt’s presidency in 1937 (Staten, 1993; Zackin, 2011; Young, 2001 & Zimmerman, 2001).

After industrialization, economic modernization, and the Great Depression, federal and regional powers started working together. America transitioned from dual (layer cake) federalism to cooperative (marble cake) federalism.

Examples of Layer Cake Federalism

  • Australia (some elements): The federalism of Australia, adopted as a constitutional principle in 1901, closely resembles that of U.S. dual (layer cake) federalism. The Constitution of Australia enumerates a limited range of powers for the central government and leaves the rest to the original States. Since federation, the degree to which the Commonwealth (federal) government dominates the political scene has changed dramatically in favor of it (Fenna, 2007).
  • Canada: The government of Canada is divided into eleven entities: the national Government of Canada at the federal level and ten provincial governments at the regional level. Each of these derives authority from the Constitution of Canada. The division of powers, which is similar to that of American layer cake federalism, is set out in the Constitution Act of 1867. Section 91 of the document lists the powers of the federal parliament, while Section 92 lists those of the provincial governments. Each entity is relatively independent of others in its sphere of legislation (Banting & Simeon, 1983).
  • Germany: Federalism in Germany assigns different powers to the central government, the states, and the municipalities. The federal government can exercise authority only in those areas specified in the Basic Law for the Federal Republic of Germany. The rest is left to the states (“Länder”). As Article 30 of the Basic Law states: “Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Länder.” (Basic Law for the Federal Republic of Germany, n.d.)
  • The United States (pre-1937): Before 1937 the United States had a system of dual (layer cake) federalism in which the powers of the federal and the state governments were divided. The American system was different from European dual federations (Thorlakson, 2003) because it allocated both legislative and administrative powers to each division of the government, while European federations typically give legislative powers to the federal government and administrative power to the regional governments (Bermann, 1994 & Elazar, 1993).

Conclusion

Federalism is a form of government that combines a central (federal) government with regional governments (provincial, state, territorial, etc.).

Such nations divide power between these different entities and usually establish a clear hierarchy where, in case of conflict, the federal government takes precedence over the regional governments.

Some of the oldest surviving federations in the world include the United States, Mexico, Switzerland, Canada, Brazil, and Australia.

Layer-cake (dual) federalism is a subtype of federalism in which power is strictly divided between the federal government and the regional governments.

References

Banting, K. G., & Simeon, R. (1983). And No One Cheered: Federalism, Democracy, and the Constitution Act. Methuen.

Basic Law for the Federal Republic of Germany. (n.d.). Retrieved December 19, 2022, from https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html

Bermann, G. A. (1994). Taking Subsidiarity Seriously: Federalism in the European Community and the United States. Columbia Law Review, 94(2), 331–456. https://doi.org/10.2307/1123200

Elazar, D. J. (1993). International and Comparative Federalism. PS: Political Science and Politics, 26(2), 190–195. https://doi.org/10.2307/419827

Fenna, A. (2007). The Malaise of Federalism: Comparative Reflections on Commonwealth–State Relations. Australian Journal of Public Administration, 66(3), 298–306. https://doi.org/10.1111/j.1467-8500.2007.00551.x

Forsyth, M. G. (1981). Unions of States: The theory and practice of confederation. Leicester University Press.

Gerston, L. N. (2007). American Federalism: A Concise Introduction. M.E. Sharpe.

Grodzins, M. (1960). The Federal System. In Goals for Americans: The Report of the President’s Commission on National Goals. Columbia University Press.

Lowi, T. J., Ginsberg, B., & Shepsle, K. A. (2008). American Government: Power and Purpose. W. W. Norton.

Schutze, R. (2009). From dual to cooperative federalism: The changing structure of European law. Oxford University Press. https://cadmus.eui.eu/handle/1814/23971

Staten, C. L. (1993). Theodore Roosevelt: Dual and Cooperative Federalism. Presidential Studies Quarterly, 23(1), 129–143.

Thorlakson, L. (2003). Comparing federal institutions: Power and representation in six federations. West European Politics, 26(2), 1–22. https://doi.org/10.1080/01402380512331341081

U.S. Const.

Wilson, J. Q., Jr, J. J. D., & Bose, M. (2012). American Government: Institutions and Policies. Cengage Learning.

Young, E. (2001). Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception. George Washington Law Review, 69, 139–188.

Zackin, E. (2011). What’s Happened to American Federalism? Polity, 43(3), 388–403. https://doi.org/10.1057/pol.2011.4

Zimmerman, J. F. (2001). National-State Relations: Cooperative Federalism in the Twentieth Century. Publius: The Journal of Federalism, 31(2), 15–30. https://doi.org/10.1093/oxfordjournals.pubjof.a004894

Tio Gabunia is an academic writer and architect based in Tbilisi. He has studied architecture, design, and urban planning at the Georgian Technical University and the University of Lisbon. He has worked in these fields in Georgia, Portugal, and France. Most of Tio’s writings concern philosophy. Other writings include architecture, sociology, urban planning, and economics.

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This article was peer-reviewed and edited by Chris Drew (PhD). The review process on Helpful Professor involves having a PhD level expert fact check, edit, and contribute to articles. Reviewers ensure all content reflects expert academic consensus and is backed up with reference to academic studies. Dr. Drew has published over 20 academic articles in scholarly journals. He is the former editor of the Journal of Learning Development in Higher Education and holds a PhD in Education from ACU.

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