Dodie Kasper and Mel Hailey
are pleased to participate in the
Law Related Education Conference
at
The George W. Bush Presidential Center
Dallas, Texas
February 7, 2014
Federalism Over Time
1. How does the Constitution provide for
federalism?
How many examples can you list?
Features of Federalism
• Article 1, Section 8 – list of powers of the U. S.
Congress; Section 10—no state can enter into an
agreement/compact with another state without
the consent of Congress
• Article 4– horizontal federalism
• Article 6—supremacy clause
• Amendment 10 – “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.” (1791)
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Article I, section 8
The enumerated powers of the central
government consist of the power to:
• lay and collect taxes, duties, and imposts
• provide for the common defense and general
welfare of the United States
• regulate commerce with foreign nations, and
among the states, and with Indian tribes
• coin money and regulate the value thereof
• declare war
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A Founder on Federalism
Did you know?
Only Switzerland had
some type of federal
system at the time of the
framing of the
Constitution.
Approximately 40 papers
of The Federalist deal
with Federalism in some
way.
Implied Powers
• The central government may make
all laws which shall be necessary and
proper for carrying into execution
the enumerated powers.
• The necessary and proper clause has
often been used to expand the
powers of the national government.
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2. Review your list…
Look at your original list… circle the one’s that
match what you wrote in your notes…
How will you remember the additional ones?
McCulloch v. Maryland (1819)
• McCulloch was the first major decision by the
Supreme Court under Chief Justice John Marshall
about the relationship between the states and the
national government.
• The Court upheld the power of the national
government and denied the right of a state to tax the
bank.
• The Court’s broad interpretation of the necessary and
proper clause paved the way for later rulings
upholding expansive federal powers.
Gibbons v. Ogden (1824)
• The Gibbons case centered on the conflict between
the states and the powers of Congress.
• Could New York grant a monopoly concession on the
navigation of the Hudson River? The Hudson River
forms part of the border between New York and New
Jersey and the U.S. Congress also licensed a ship to sail
the Hudson.
• The main constitutional question in Gibbons was about
the scope of Congress' authority under the Commerce
Clause.
• In Gibbons, the Court upheld broad congressional
power over interstate commerce.
Dred Scott v. Sandford (1857)
• The Supreme Court articulated the idea of concurrent
powers and dual federalism in which separate but
equally powerful levels of government is preferable,
and the national government should not exceed its
enumerated powers.
• The Taney Court held that Mr. Scott was not a U.S.
citizen and therefore not entitled to sue in federal
court.
• The case was dismissed and Scott remained a slave.
• Taney further wrote that Congress had no power to
abolish slavery in the territories and slaves were
private property protected by the Constitution.
3. Review the cases
Which of these cases had the greatest effect on
federalism?
Rank them 1-3 and be prepared to defend your
answer.
Federalism: Dynamic or Dead?
Theory
V.
Dual
Cooperative
Dual Federalism
Definition: The national government and the
state governments have sovereign power in
their respective spheres of authority.
History Trivia Fun with Dual Federalism
Each state retains its sovereignty, freedom, and
independence, and every power, jurisdiction, and right,
which is not by this Confederation expressly delegated
to the United States, in Congress assembled
Articles of Confederation, Article 2
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.
United States Constitution, Amendment 10
“Among the enumerated powers, we do not find that of
establishing a bank or creating a corporation. But there is no
phrase in the instrument which, like the Articles of
Confederation, excludes incidental or implied powers and
which requires that everything granted shall be expressly
and minutely described. Even the 10th Amendment, which
was framed for the purpose of quieting the excessive
jealousies which had been excited, omits the word
"expressly," and declares only that the powers "not
delegated to the United States, nor prohibited to the States,
are reserved to the States or to the people," thus leaving the
question whether the particular power which may become
the subject of contest has been delegated to the one
Government, or prohibited to the other, to depend on a fair
construction of the whole instrument.”
Chief Justice John Marshall
McCulloch v. Maryland
4 Wheat. (17 United States) 316 (1819)
In interpreting the Constitution, it
must never be forgotten that the
Nation is made up of States to which
are entrusted the powers of local
government. And to them and to the
people the powers not expressly
delegated to the National
Government are reserved.
Justice William R. Day
Served 1903-1922
Hammer v. Dagenhart
247 U.S. 251 (1918)
Kind of interesting note: Hammer v. Dagenhart was a 5-4 decision
Harlan Fiske Stone
Served 1925-1946
C.J. 1941-1946
The conclusion is inescapable that Hammer v.
Dagenhart was a departure from the principles
which have prevailed in the interpretation of
the Commerce Clause both before and since
the decision, and that such vitality, as a
precedent, as it then had, has long since been
exhausted. It should be, and now is, overruled.
United States v. Darby
312 U.S. 100 (1941)
The big shift in federalism is underway. Vote was unanimous.
4. Why were the rulings different?
Why do you think the court changed its mind?
Federalism: Not a Piece of Your Mother’s Cake
Anymore.
Equal Partners or are the States Being Squeezed by a Growing National Government?
What type of federalism is there
today?
•
•
•
•
•
Dual Federalism (Layer Cake)
Cooperative Federalism (Marble Cake)
– FDR and the New Deal
-- LBJ and the Great Society (Categorical Grants)
New Federalism
– Reagan and the New Federalism (Devolution and Block Grants)
Pre-emptive Federalism
– George W. Bush and the No Child Left Behind (NCLB) (2001)
Progressive Federalism
– Obama and the Affordable Care Act (2010)
Permissive federalism may be the more accurate descriptor of federalism today.
It is defined as “a sharing of power and authority between the national and state
governments with the state’s share resting upon the permission and
permissiveness of the national government.”
The Supreme Court: A Return to
State’s Rights?
• From New Deal to 1980s: Court has generally expanded
national authority at the expense of the states.
• Beginning in 1980s: Court interpretations altered
– Willingness to allow Congress to regulate in a variety of areas
waned
– Webster v. Reproductive Health Services (1989)
– Planned Parenthood of Southeastern Pennsylvania v. Casey
(1992)
– U.S. v. Lopez (1995)
– Bush v. Gore (2000)
The Future of Federalism
(from Professor Hailey’s Crystal Ball given to him by Atlanta’s chief meteorologist a
couple of weeks ago)
• Power will continue to shift to the national
government because of
– the nature of the Presidency.
– the Supremacy clause
– Amendments to the Constitution
• Particularly 14, 16, and 17
Create a timeline.
Review your notes and create a timeline of
events that reflect federalism over time.
If the event gave the federal government more
power then place it above the line and if the
power went to the states, place the event below
the line.