A Short History
of
American
Federalism
[A printable version is available on the class web site.]
Take Home Lessons
• The federalist language of the constitution is flexible,
and the Supreme Court is the chief interpreter.
• American federalism has been more about practical
results than about any kind of ideological purity.
• Traumatic events in the body politic have decided the
great issues of federalism with even greater force and
finality than have the decisions of the Supreme Court.
• The historical trend has been for the federal balance to
shift toward the central government.
indestructible union 1789-1865
• 1791 – Adoption of the 10th Amendment as a
part of the Bill of Rights
10th Amendment [1791]
 The powers not expressly 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.
 ???
10th Amendment [1791]
 The powers not [expressly] 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.
indestructible union 1789-1865
• 1791 – Discussion of a National Bank
• 1819 – McCulloch v. Maryland (national bank v. state):
broad reading of the necessary and proper clause.
Article I, Section 8 – ¶ 18
 [18] To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the
Government of the United States, or in any Department or
Officer thereof.
indestructible union 1789-1865
• 1819 – McCulloch v. Maryland (national bank v. state):
broad reading of the necessary and proper clause.
• Central government is given powers over taxes and commerce,
and while no mention is made of incorporating banks, we cannot
assume that the framers intended to embarrass the government
“by withholding the most appropriate means.”
• “Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but
consistent with the letter and spirit of the Constitution, are
constitutional.”
• Citing Supremacy Clause, Marshall declares that “the
government of the Union, though limited in its powers, is
supreme within its sphere of action.” “The states have no power,
by taxation or otherwise,” to prevent the central government
from executing its policy.
indestructible union 1789-1865
• 1833 – Barron v. Baltimore (wharf owner v. city):
the Bill of Rights protects people only from the
national government
• 1865 – Civil War Ends: the indivisible union
perspective triumphs
dual federalism and laissez-faire capitalism
1865-1937
• The Civil War Amendments fundamentally reshape
American federalism, shifting power from the States to
the national government.
• “United States” becomes a singular noun.
• 1865 – 13th Amendment nationalizes power over slavery and
abolishes it
• 1868 – 14th Amendment: requires the states to abide by basic
civil rights and gives the federal courts power to enforce
compliance
• 1870 – 15th amendment compels states to regulate voting
without respect to race
14th Amendment, §1 [1868]
 All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No state shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.
dual federalism and laissez-faire capitalism
1865-1937
• 1913 – 16th Amendment overturns a Supreme
Court decision declaring the income tax to be
unconstitutional. Henceforth, the national
government will have super powers with respect to
raising revenue.
• 1920 – Missouri v. Holland (state v. national
official): federal laws that would otherwise be
unconstitutional, are constitutional if based on treaties
with other nations
dual federalism and laissez-faire capitalism
1865-1937
• 1905 – Lochner v. New York – state law limiting bakery
workers to 60 hours per week violated the “liberty of contract”
protected by the due process clause of the 14th Amendment.
[voiding the fundamental police powers of the state]
• 1918 – Hammer v. Dagenhart – prohibition of interstate
shipment of child-produced goods was not a regulation of
commerce. [voiding congressional power over commerce]
• What’s the legal theory here? Who benefits?
interdependency and cooperative
federalism 1937 to present
• 1937 – The Revolution of 1937: The Supreme
Court gives its seal of approval to the New
Deal. The Court adopts an extremely broad view of
the Commerce Clause. Henceforth, virtually anything
that might “affect” interstate or foreign commerce
may be regulated by Congress.
interdependency and cooperative
federalism 1937 to present
Fiscal Federalism: Money is power.
• 1964 – Johnson's War on Poverty: radical
expansion of categorical grants in aid (money with
strings)
• 1969 – Nixon's New Federalism: general
revenue sharing (money without strings)
• 1981 – Reagan's New Federalism:
responsibilities to be transferred to the states (strings
without money)
interdependency and cooperative
federalism 1937 to present
• 1987 -- South Dakota v. Dole (state v. national
official): the court reaffirmed that (1) Congress can
attach conditions to the receipt of federal funds, and
(2) Congress may spend for the general welfare and
in so doing is not limited by the direct grants of
legislative power in the Constitution.
interdependency and cooperative
federalism 1937 to present
1994 -- Contract with America:
• responsibilities (generally those associated with helping poor
people) to be transferred to the states; block grants would limit
the pain in the short run, but no guarantee that they would
continue (permanent strings with temporary money).
• An important piece of this agenda became law with the 1996
welfare reform act that abolished federal Aid to Families with
Dependent Children in favor of block grants to states (and
ironically a whole bunch of mandates about who would be
eligible and how the money would be spent.)
• In some respects this is Reagan's new federalism in a new suit of
clothes.
• One more important element: no new unfunded mandates.
interdependency and cooperative
federalism 1937 to present
The Republican Court: Congress steps over the line when it
engages in noncommercial criminal regulation of matters where
the impact on commerce is negligible.
• U.S. V. Lopez (1995) voided Gun Free Schools Act
• Printz v. U.S. (1997) voided Brady Bill requirement that local law
enforcement do background checks
• US. V. Morrison (2000) voided Violence against Women Act
• Gonzales v. Raich (2005) upheld federal power over California’s
medical marihuana law.
• 11th amendment sovereign immunity of states held to trump
federal labor laws as applied to state employees.
interdependency and cooperative
federalism 1937 to present
• 2000 – Presidential Campaign & Aftermath [Actions
speak louder…]
• What We Say: During the campaign both candidates
promised to fix public education, and predictably the Democrat
proposed a plan that had more national standards and the
Republican a plan that relied more heavily on the states. [as
expected]
• What We Do: The Florida Vote Counting Fiasco was a major
dispute about federalism with an amazing and ironic twist. In
recent years the Democratic Party has been the party of
national power, the Republican Party the party of states' rights.
With the election in the balance, Democrats argued for states'
rights, and the Republican Party rushed to the federal courts to
overturn state law. [role reversal]
interdependency and cooperative
federalism 1937 to present
• 2001 -- War on Terrorism: Subsequent to
September 11th President Bush announced a war on
terrorism, a war without limits in terms of time or
geography, a war that may be fought on American
soil to a greater degree than any since the Civil War.
• 2004-present – Battle over Same-Sex
Marriage: Again, Democrats and Republicans find
themselves on the wrong sides of the federalism
debate---which brings us back to where we began.
Take Home Lessons
• The federalist language of the constitution is flexible,
and the Supreme Court is the chief interpreter.
• American federalism has been more about practical
results than about any kind of ideological purity.
• Traumatic events in the body politic have decided the
great issues of federalism with even greater force and
finality than have the decisions of the Supreme Court.
• The historical trend has been for the federal balance to
shift toward the central government.
Questions to Ponder
• Is this tipping of the balance toward the central
government a good thing or a bad thing?
• Does it make us more democratic or less democratic?
• Does it make us more equal or less equal?
• Does it make us more free or less free?
• And who is “us”?
American
Federalism
Today
Budget Surplus Projections
SOURCE: Congressional Budget Office (2001)
Budget Surplus Projections
SOURCE: Congressional Budget Office (2001)
Budget Surplus Projections
SOURCE: Congressional Budget Office (2011)