Federalism as a Constitutional/Legal System
As a constitutional or legal concept, federalism refers to a
system of government in which constitutional powers are
divided between two levels (national and state). [Review
material on federalism from previous treatment of the U.S.
Constitution (i.e., 6 characteristics of constitutional
federalism).]
The U.S. Constitution creates (or acknowledges) two levels
of government:
• The national government is a government of delegated
(enumerated) powers;
• The states are governments of reserved powers [10th
Amendment].
The Nature of the National Government’s
Constitutional Powers
Whatever constitutional powers the national government
possesses are delegated by the Constitution. However,
throughout the 200+ years of our constitutional history,
there has been some question as to the extent of the
powers actually delegated. As a matter of fact, the
national government two types of delegated powers:
• expressly delegated powers (those specifically mentioned
in the Constitution)
and
• implied delegated powers (those that are delegated by the
Elastic Clause - Article I, section 8:18).
The Evolution of Constitutional
Federalism in the United States
There two distinct periods of development of
intergovernmental relations (IGR) - that is, relations
between the national and state governments - in the
United States since the Constitution was ratified in 1789:
• 1789 to (roughly) 1900 [this period was characterized by
conflict or antagonism between the two levels]
• 1900 to the present [this period has been characterized
more by cooperation between the two levels, although
occasionally conflicts still emerge]
Federalism in the 19th Century
Whereas the federalism of the 19th century was marked by
constitutional/legal conflict between the two levels of
government, the Supreme Court played a pivotal role in
the evolution of constitutional federalism. There were
two dominant interpretations of federalism during this
period.
• 1801 - 1835 The Marshall Court -- “National Federalism”
• 1835 - 1863* The Taney Court -- “Dual Federalism”
*Some historians and constitutional law scholars argue that, even though
Roger Taney left the Court in 1863, his philosophy of “dual federalism”
continued to dominate decisions of the Supreme Court until at least the turn
of the 20th century. Still others contend that the Taney philosophy underlay
the decisions of the Supreme Court until the 1930s, particularly in cases
dealing with interstate commerce.
Comparison of the Marshall and Taney Interpretations
Interpretation of:
Doctrine of Implied Powers Relationship between 2 Levels
Emphasizes the Elastic Clause
[Article I, section 8:18]
John Marshall
(1801-1835)
“National Federalism”
Roger Taney
(1835-1863--1900)
“Dual Federalism”
“....there is no phrase in the
instrument (the Constitution)
which like the articles of
confederation (sic) excludes
incidental or implied powers;
and which requires that
everything granted shall be
expressly or minutely
described....”
(McCulloch v Maryland, 1819]
Emphasizes the Supremacy Clause
[Article VI, par 2] - National supremacy
“...it has been contended that if a law
passed by a state....comes into
conflict with a law passed by congress
(sic) in pursuance of the constitution
(sic), they affect.... each other as equal
opposing powers. But the
framers....foresaw this state of things,
and provided for it, by declaring the
supremacy not only of itself, but (also)
of the laws made in pursuance of it.”
(Gibbons v Ogden, 1824]
Emphasizes the reserved
powers [10th Amendment]
De-emphasizes the Supremacy Clause
[Article VI, par 2] - Dual sovereignties
“....every power delegated to
the national government must
be expounded in coincidence
with a perfect right in the
states to all that they have not
delegated; in coincidence too,
with the possession of every
power and right necessary for
their existence and
preservation....”
(Abelman v Booth, 1859]
“....This judicial power was justly
regarded as indispensable, not merely
to maintain the supremacy of the laws
of the United States, but also to guard
the states from any encroachments
upon their reserved rights by the
general government. So long as this
Constitution shall endure, this tribunal
must exist with it, deciding....the angry
and irritating controversies between
sovereignties....”
[Abelman v Booth]
Constitutional Interpretation
Broad constructionist
“we (the Supreme Court) are not
restrained....from construing the
words of the Constitution;
defining the judicial power in
their true sense. We are not
bound to construe them more
restrictively than they naturally
import....There is nothing so
extravagantly absurd....as to
require the words which import
this power should be restricted
by a forced construction....”
[Cohens v Virginia, 1821]
Strict constructionist
“....the Constitution speaks not
only in the same words, but
with the same meaning and
intent with which it spoke
when it came from the hands
of the framers....”
[Dred Scott v Sanford, 1857]
Another Illustration: Missouri v Holland [1920]
• Facts of the case:
By a treaty of 1916 the United States and Great Britain undertook the regulation
and protection of birds migrating between Canada and various parts of the United States. An Act passed by
Congress in 1918 gave effect to the treaty by establishing closed seasons and other rules. The state of
Missouri pursued legal remedies to prevent the game warden of the United States [Holland] from enforcing
the act.
• The constitutional issue: Does Congress have the constitutional power to establish hunting seasons
and other rules? The state of Missouri claimed that under the 10th Amendment the authority to establish
hunting rules is a power of the state, because the power is not specifically delegated to Congress.
• The decision of the Supreme Court: The Supreme Court ruled that the act of Congress was
constitutionally valid and enforceable by Holland.
• The reasoning behind the decision: Article II, sec. 2 of the Constitution specifically delegates the
treaty-making power to the president. Article VI, par. 2 declares the supremacy of the Constitution, treaties
made under the authority of the United States, and acts of Congress made in pursuance of the Constitution.
Additionally, Article VI, par. 2 requires that “the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” Since the treaty is made under the
constitutional authority of the United States, laws made by Congress pursuant to the treaty are the supreme
law of the land. Furthermore, Article I, sec. 8:18 gives Congress the power “to make all Laws which shall be
necessary and proper for carrying into Execution” the delegated powers of Congress “and all other Powers
vested by this Constitution in the Government of the United States, or any Department or Officer thereof.”
Whereas the president is an officer of the United States government, and the Constitution delegates the
treaty-making power to the president, Congress may make laws that are necessary and proper to execute the
treaty of 1916. In the Supreme Court’s view, the Act of 1918 is a necessary and proper means to execute the
provisions of the treaty.
• Implications of the case:
Although the relations between the national government and the state
governments has been characterized more by cooperation during the 20th century than by legal/constitutional
conflict, constitutional controversies over federalism occasionally come before the Supreme Court. Missouri v
Holland is a good representation of the Court’s general position on federalism during the 20th century.
Brennen’s v Meese’s Construction
….Those who framed the Constitution
chose their words carefully; they
debated at great length the most
minute points. The language they
chose meant something. It is
incumbent upon the Court to [uphold]
that meaning….
….We current justices read the
Constitution in the only way we can:
as 20th century Americans. We look to
the history of the time of framing and
to the intervening history of
interpretation. But the ultimate
question must be, what do the words
of the text mean in our time? For the
genius of the Constitution rests not in
any static meaning it might have had
in a world that is dead and gone, but
in the adaptability of its great
principles to cope with current
problems and current needs.
….from an address to the American Bar
Association, July 9, 1985
….from a speech at Georgetown
University, October 12, 1985