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 – Adoption of the 10 th 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 – 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 – 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 – 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 The Civil War Amendments fundamentally reshape American federalism, shifting power from the States to the national government. “United States” becomes a singular noun – 13th Amendment nationalizes power over slavery and abolishes it 1868 – 14 th Amendment: requires the states to abide by basic civil rights and gives the federal courts power to enforce compliance 1870 – 15 th amendment compels states to regulate voting without respect to race

14th Amendment, §1 [1868] 4 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 – 16 th 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 – 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 – 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 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) Fiscal Federalism: Money is power.

interdependency and cooperative federalism 1937 to present 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 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 War on Terrorism: Subsequent to September 11 th 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 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)