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Federalism
The Oxford Companion to the Supreme Court of the United States | 2005 | KERMIT L. HALL
© The Oxford Companion to the Supreme Court of the United States 2005
originally published by Oxford University Press 2005. [Copyright]

Federalism The proper balance of state and national powers in the American federal system,
wrote Woodrow Wilson in 1911, is not a matter that can be settled “by the opinion of any one
generation.” Changes in the social and economic condition of the society, in the electorate's
perception of issues needing to be addressed by government, and in the prevailing political
values, Wilson declared, required each successive generation to treat federal-state relationships
as “a new question,” subject to full and searching reappraisal.

The Supreme Court has only rarely explicitly admitted to considering such a pragmatic view of
the bases on which the boundary lines ought to be drawn demarcating the limits of national
power and the proper realm of the states' authority. On the contrary, even when the justices have
broken new doctrinal ground or moved away from earlier positions on matters of the highest
importance in law and policy, their rhetoric typically has referred to the letter—and, ineluctably,
also to the spirit—of the Constitution. They have sought for consistency of principle, as judges
are obliged to do, even when they are most obviously engaged in a process of transforming the
working legal rules under the rubric of established principle. They have tended to speak of the
issue of federalism not as “a new question,” as Wilson urged, but as an old and in certain
essential respects a timeless formulation.

The Court's decisions in cases bearing on federalism often address the intensely practical
function of maintaining a “balance” of national and state powers that will permit the government
to operate effectively—or, at moments of high crisis, even to survive. In a charge to a jury in
1790, Chief Justice John Jay gave expression to this important aspect of the federal judiciary's
role: If the new Constitution were to be effective as well as just, Jay declared, it was essential to
“provide against Discord between national and State Jurisdictions, to render them auxiliary
instead of hostile to each other; and so to connect both as to leave each sufficiently independent,
and yet sufficiently combined.”

In certain periods of our history, the Court has provided strong intellectual leadership in the
development of constitutional federalism—either in a progressive mode, supportive of policy
innovation and change, or else in a conservative mode, providing vital doctrinal support to
political groups that invoked the principles of federalism as a bulwark against movements for
change. In other periods, the Court has been notably reticent, keeping issues of federalism and
boundary-setting fairly well isolated from other types of questions brought before it.

When the Court rules on questions of federalism, it does so with uniquely definitive authority to
frame policy questions in constitutional and legal terms; and when this happens, the justices run
some risk of escalating existing controversies to a new level of intensity in politics as well.
(Thus, on one unique occasion, when the Court decided the Dred Scott case, it took
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constitutional federalism to an extreme, plunging unnecessarily into the most controversial and
explosive area of contemporary politics in a way that caused its most notorious “self-inflicted
wound.”) Moreover, as we are reminded by such instances as the Court's inability to get
President Andrew Jackson to enforce the terms of its decision in Worcester v. Georgia (1832), it
is one thing for the Court to pronounce a “definitive” constitutional ruling on a controversial
question, but it is quite another thing to command popular approval, or even full compliance
from the executive or the states, in response to its mandates. For this reason especially, the
Supreme Court's role as “umpire of the federal system” has often been a source of ideological
tension—and occasionally of high political drama—in the course of the nation's history.

The Antebellum Era.

From the founding period to the Civil War, the Supreme Court's deliberations on matters of
federalism were consistently subject to a number of distinctive configuring pressures. One of
these pressures was the legacy of the American Revolution with respect to distrust of centralized
power. The Revolution had been fought in the name of American home rule; and the ideals of
self-governance, republicanism, and natural rights had all been invoked in terms of gaining
liberation from an overpowering and arbitrary authority at the center, in London. This experience
with excessive centralization of authority persisted in American political consciousness
throughout the antebellum era. Hence, when the specter of “consolidation” of power in the
national government was raised in constitutional discourse, it was a powerful and troubling
image. Posed against this concern, however, also as a part of the Revolutionary era's legacy, was
the understanding that it was necessary for the republic to have a central government strong
enough to command respect in international relations and to maintain domestic stability.

A second pressure on the Court derived from the ambiguities that were part of the legacy of the
ratification debates. For in the great debate over the Constitution as proposed by the framers,
there was agreement on all sides that the national government was to be one of limited
powers—limited because they were “enumerated” powers, given to that government by the
people through the ratification process in the states. There was a striking lack of agreement,
however, on the extent to which enumeration meant that a survival of “sovereignty” in the states,
as constituent units within the larger system, ensured elements of state jurisdiction against any
and all encroachments by the central government (see Concurrent Power). The Supreme Court,
even at its most nationalistic moments, could not escape easily from this legacy of ambiguity and
vagueness. Nor could it resolve without a strong reaction the debate over whether it was the
states “as states” or instead “the people” of the states collectively that represented the ultimate
source of the national government's power.

The third pressure derived from the fact that the potential for disruption or dissolution of the
Union—secession by disaffected states, declaring their right to resume independent sovereign
existences as constitutional policies—remained until the Civil War a serious possibility (see
Nullification). A fourth pressure configuring the Court's political environment was the fact that
the states, as political units, were manifestly competent—as a practical matter—to perform a
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wide range of governmental functions whose effective pursuit in a later era would clearly require
much greater centralization of authority and governmental effort. That is to say, there was little
danger to stability of the Republic from a system of highly decentralized federalism in which the
national government exercised exclusive or leading authority in only a relatively few areas of
policy. Hence whenever the Court denied or cabined state authority, it predictably faced intense
criticism for going beyond what pragmatic considerations required.

Finally, there was the question of slavery in the South. No issue bearing on federalism and the
national government's proper role could ever escape the implications of doctrine and policy for
the future of the slave system controlled by the state governments. Just as all of politics was
infused by the slavery question, so was all of constitutional law. Neither “states' rights” nor
“consolidation” was a concept separable from race relations and the maintenance of the slave
system in antebellum governance.

In its first four decades—as might be expected in a nation-building period when both the British
threat (which materialized in the War of 1812) and the strength of state loyalties, with their
decentralizing potential, posed serious dangers to the new republic—the Court's line of decisions
was important above all for the ways in which it shored up the juridical foundations of new
national government's authority. To be certain, even the Marshall Court's nationalism was
tempered by some concessions to the claims of the states. In United States v. Hudson & Goodwin
(1812), for example, the Court ruled that the federal judiciary did not have a common law
jurisdiction over crimes; its jurisdiction in the criminal area was restricted according to statutory
mandate (see Federal Common Law). The Court also handed down rulings that assured the state
courts of their unquestioned authority to construe their own state constitutions and statutes, as
well as to perpetuate many important rules of common law in regard to estates, property,
trespass, and torts—a position that the Court affirmed in broad general terms in its decision in
Elmendorf v. Taylor (1825).

At the height of the Marshall Court's enthusiasm for broad construction in a nationalist mode, the
Court even lent explicit support to the doctrines of “dual federalism” on which later-day states'
righters would rely. Thus in Cohens v. Virginia (1821), a strongly framed nationalizing decision,
Marshall himself conceded that “these States … are members of one great empire—for some
purposes sovereign, and for some purposes subordinate” (p. 412). Then, in Gibbons v. Ogden
(1824), even while broadly asserting congressional power over commerce, Marshall made
explicit reference to the state police power as embracing elements of authority “not surrendered
to the general government”—a concept that he broadened in a subsequent decision, Willson v.
Blackbird Creek Marsh Company (1829), to provide the basic doctrine of what became known as
the dormant commerce power. Similarly, in Weston v. Charleston (1829) the Marshall Court
embedded in the nation's jurisprudence a long-lived doctrine that prescribed immunity of state
agencies against the federal taxing power (the obverse side of McCulloch v. Maryland and its
immunizing of federal instrumentalities from state taxation).

The most important “decentralizing” decision with respect to the role of the states in the nation's
governance, however, was Barron v. Baltimore (1833), in which the Court decided that the Bill
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of Rights amendments had not been intended to apply as checks upon the state governments.
Thus the hand of the federal courts was stayed; and not until after the Civil War, then mainly
through application of the Fourteenth Amendment, did the Court mobilize the national judicial
power in the cause of protecting individuals and groups against governmental threats to the great
liberties defined in the first eight amendments.

Still, the impact of these and other decisions favoring to varying degrees the sovereignty of the
states paled in significance against the countertrend of the first four decades. This was the
Court's movement toward nationalism and a broad construction of the enumerated powers
granted to the national government in the Constitution. The principal instruments for recognizing
broad discretionary authority in Congress and the federal courts themselves included the
Supremacy Clause, the Commerce Clause, and the Contracts Clause. Asserting in Cohens v.
Virginia (1821) that “no government ought to be so defective in its organization, as not to
contain within itself, the means of securing the execution of its own laws” (p. 387), Marshall
indicated the Court's readiness to exercise its power of judicial review when state courts
presumed to pass on the constitutionality of an act of Congress. In McCulloch v. Maryland
(1819), striking down Maryland's attempted taxation of the Bank of the United States, the Court
mobilized the Supremacy Clause to give unstinted notice of its intent to read very broadly
authority to act: “The government of the Union,” Marshall wrote, “though limited in its powers,
is supreme within its sphere of action. … It is the government of all, its powers are delegated by
all; it represents all, and acts for all” (p. 404).

This magisterial view of the government “of all” carried over to commerce and contract
decisions in which the Court boldly deployed its own judicial authority to review state legislation
and thereby constrain and limit state action. Thus the Court applied these constitutional clauses
to protect recipients of state land grants or other property from arbitrary actions of the state
legislature (as in Fletcher v. Peck, 1810); and it threw a blanket of Contracts Clause protection
over the incorporeal elements of corporate franchises, in the Dartmouth College v. Woodward
(1819). Guarding freedom of navigation on internal waters and a free internal market for
movement of goods in commerce (at least formally assured in Gibbons v. Ogden), the Court gave
mercantile and investor interests the very type of nationalization of rights that the Court declined
to extend to civil liberties in Barron v. Baltimore.

Dual Federalism and the Taney Court.

In the latter part of the antebellum era, from 1836 until the Civil War, when Roger B. Taney
served as chief justice, the Court significantly altered its posture with regard to the juridical
nature of American federalism. The Taney Court moved with determination to shore up the
doctrines of a “dual federalism,” based on the notion of the state and national governments as
coequals—each operating in its own sphere, autonomous within that sphere. The first move in
this direction came in Charles River Bridge v. Warren Bridge (1837), when the Court's new
majority declared that state governments enjoyed wide discretionary authority to advance and
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protect rights of the public as against the claims of corporations (see Private Corporation
Charters). No charter should be given a broad construction, and thereby afforded sweeping
protection under the Contracts Clause against regulation or new competition, the Court declared.
The Court sought to assure that the states would retain in robust form a police power based upon
“the rights reserved to [them]” by the Constitution—that is, “the power over their own internal
policy and improvement, which is so necessary to their well being and prosperity” (p. 552).

The Court further narrowed the effectiveness of the Contracts Clause limitation on state action
by ruling in West River Bridge Co. v. Dix (1848) that when the states exercised the eminent
domain power to take property, challenges to the propriety of such takings or to the
compensation to the former owners of property taken were the exclusive concern of the state's
own agencies; the federal courts would not intervene. In this and later eminent domain cases, the
Court declined to make the state governments in this wise “subject to our supervision” (Mills v.
St. Clair County, 1850).

A series of Commerce Clause cases, beginning with New York v. Miln (1837) and culminating
with Cooley v. Board of Wardens (1851), did similar damage to another key doctrinal buttress of
the Marshall Court's nationalism. Some subjects of regulatory authority in commerce, the Court
declared in Cooley, demanded “a single uniform rule,” but others “as imperatively demand[ed]
that diversity, which alone can meet the local necessities of navigation” (p. 318). In the Miln
decision, the Court had declared that in its own sphere “the authority of a State is complete,
unqualified, and exclusive,” pointedly referring to the “undeniable and unlimited jurisdiction” of
the state in that sphere (p. 138). In The Passenger Cases (1849), the justices were divided, but the
majority view again treated the nation and the states as coequals, reasserting that state powers
sprang from their core sovereignty and were not dependent on the sufferance of Congress.

These decisions both reflected and strategically reinforced the tendencies in Jacksonian-era
politics to enshrine the doctrines of state sovereignty and stricter boundaries for the
policymaking role of the national government. The Court's new version of federalism also
reflected vividly, however, the Jacksonians' dilemma of how to continue accommodating the
demands of the southern slave states—above all, that their “peculiar institution” be safely kept
behind the ramparts of their “inviolable sovereignty,” assuring perpetuation of the slave system.
On the one hand, in no case dealing directly with slavery questions did either the Marshall Court
or the Taney Court ever reach a conclusion in law that explicitly curbed, or even indirectly
challenged, the slave owners' full control over their enslaved fellow humans. On the other hand,
in the Dred Scott case (only the second in the Court's history to overturn a congressional statute),
the Taney Court fecklessly overreached to extend the mantle of federal judicial protection over
the institutions of slavery and interests of the slave states. Formally dedicated to doctrines of
state sovereignty and dual federalism, Taney and his colleagues proved quite ready to support
sweeping congressional powers to restrict procedural rights of defendants in cases brought under
the national Fugitive Slave Law of 1850. As the sectional crisis ominously unfolded in the
1850s, moreover, the Court in Ableman v. Booth (1859) and other cases put down all efforts by
state legislatures, courts, and administrative officials in the North to interfere with enforcement
of the fugitive acts on grounds that status of persons of whatever color or prior condition of
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servitude came within the “exclusive sphere” of state authority when present within that state's
borders.

Insofar as the Taney Court espoused nationalistic doctrines in areas of law and policy, other than
regarding slavery, it reduced only marginally the scope for action enjoyed by the states in a
system dominated by decentralized authority. One nationalistic move by the Court concerned the
extent of the federal courts' admiralty jurisdiction. In Genesee Chief v. Fitzhugh (1852), the
Court upheld congressional expansion of admiralty jurisdiction far beyond what English
precedent and the Court's earlier decisions had permitted, so as to include all major navigable
waters. National power was also somewhat extended by the Court in Swift v. Tyson (1842) in
regard to uniformity of rules applicable in commercial cases. The Taney Court also was
responsible for developing a generous definition of “diversity of citizenship,” so as to open the
federal courts to suits involving corporations domiciled in various states (Louisville, C. & C. R.
Co. v. Letson, 1844). Occasionally decisions on corporate activity cut both ways, notably in
Bank of Augusta v. Earle (1839), in which the Court ruled that under comity principles there was
a presumption that “foreign” (that is, out-of-state) corporations could do business in a state
unless that state had explicitly adopted a policy of exclusion.

When the guns sounded at Fort Sumter in 1861, such technical doctrines of interstate comity and
the like yielded to the great constitutional questions: Did states have the right to secede? How far
must the nation go to protect the institution of slavery in this nation as nearly the last remaining
stronghold of a slave system in the western world? And to what extent might armed force and
suspension of civil liberties be invoked to defend the Union? These questions in the last analysis
were decided not by learned jurists buts by the infantry, cavalry, and artillery of armies in the
field of battle.

The Post Civil War Era.

If ever the Court was faced with federal-state relationships as “a new question,” as Woodrow
Wilson later phrased it, the Civil War and Reconstruction years were such a time. In its famous
dictum in Texas v. White (1869), that the Constitution, “in all its provisions, looks to an
indestructible Union, composed of indestructible States” (p. 725), the Chase Court encapsulated
and enshrined the Radical Republicans' view of federalism. This was the epitaph for the
“compact theory” of federal union that had been championed by state rights advocates—the idea
that the states as states, not the people of the country as a whole, were the ultimate source of the
national government's power. The triumphant nationalist theory of federalism had warranted the
deployment of the armies and the extraordinary wartime emergency powers mobilized by
President Abraham Lincoln during the Civil War; and now it would similarly lend constitutional
legitimacy to the military occupation and Reconstruction governments in the southern states after
the war (see Presidential Emergency Powers).

Although the indivisibility of the Union was a settled question, other major issues remained on
the Court's agenda after the war and through the first three decades of the twentieth century.
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Crucial among these issues was the rising industrialization of the nation, along with the
emergence of a corporate structure that had become well established as the prototype of
advanced capitalism by the early 1900s (see History of the Court: Reconstruction, Federalism,
and Economic Rights). The giant national economy, stressed by the successive impacts of new
technologies and the ways in which older regions and sectors were challenged by the velocity of
accelerating economic change, manifestly could not be brought under effective public
regulation—if that is what the electorate and their governors wanted—without a strong degree of
centralization of power. How much centralizing of regulation the Constitution approved, and the
extent to which the states' economic and welfare policies would be subject to constitutional
limitations, remained vital questions. No less momentous for the future of the nation and its
federal system was the Court's response to the post–Civil War amendments—especially the
Fourteenth, which many of its congressional authors clearly had intended to effect a fundamental
change in the balance of state and national power.

In ways reminiscent of the Marshall Court's mobilization of contract, commerce, and supremacy
doctrines to limit the autonomy of the states, the Court in the late nineteenth century created a
formidable arsenal of doctrines that expanded national authority while placing curbs on the reach
of state power. Commerce Clause jurisprudence continued to be of central importance, as, for
example, in 1877, when the Court invalidated a state law conflicting with congressional
regulations of the new electric telegraph industry (Pensacola Telegraph Co. v. Western Union).
“Within the scope of its powers,” the Court forthrightly declared, the national government
“operates on every foot of territory under its jurisdiction. It legislates for the whole nation, and is
not embarrassed by State lines” (p. 10). By striking down state railroad rate regulations that
impinged on interstate operations, the Court in the 1880s gave new life to the concept of the
“dormant commerce power” of Congress: even in the absence of national legislation, state action
that burdened interstate commerce would not be tolerated. This position undoubtedly served as
the trigger for Congress to step in with major legislation in the form of the 1887 Interstate
Commerce Act (see Interstate Commerce Commission).

Once Congress thus had occupied a legislative field, the door was opened for the Supreme Court
to engage in statutory interpretation that would find specific congressional intent to preempt the
entire area of policy—and thus to foreclose types of state regulation that might otherwise have
passed a constitutional test. In the 1890s, the expanded formal authority that Congress thus
enjoyed lent impetus to its legislation for national regulation of lotteries, the liquor traffic, and
commerce in game taken in violation of state laws. The Pure Food and Drug Act of 1906
heralded a qualitative change in the character of federal intervention, since this law relied for
enforcement upon a large bureaucratic force of agency experts doing inspections in the field.

The post–Civil War Court also built on the earlier doctrine of a federal commercial common law
to develop a more expansive notion of a “general jurisprudence” that it invoked to overturn state
court decisions that upheld bond repudiation. The justices' deployment of new doctrines as
negative checks on state action went forward apace from that foundation. Thus by 1900,
gradually accepting most of Justice Stephen Field's property-minded theories and leaning upon
the jurisprudence of Thomas Cooley and other conservatives, the Court had developed a
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full-blown doctrine of “implied limitations” expressed in a variety of modes. Ironically, one of

them, the concept of “business affected with a public interest,” was introduced in the decision of
Munn v. Illinois (1877), when the Court had upheld strong regulatory interventions by the states.
But over time, the drawing of the boundary between “ordinary” businesses (which the Court
ruled could not be regulated) and those in the “affected” category became a means of
immunizing many forms of enterprise from state control.

A second major doctrine that provided for limitations on state authority was “liberty of contract,”
expressed most fully in Lochner v. New York (1905) (see Contract, Freedom of). A third was the
notion of “public purpose” restrictions upon use of the taxation power of the states; it became
linked with a conservative move by the Court to curb the range of federal taxation as well (see
Due Process, Substantive). In addition, the Supreme Court repeatedly upheld federal trial courts'
uses of equity powers in labor disputes, often over the objections of state officials or even against
the thrust of state legislation—and invariably against angry opposition from the craft unions.

Of course, the Court's activism in all these respects constituted an exercise of centralized power
that itself profoundly affected the balance of the federal system. This does not mean either that
the Court always disfavored the states or that it consistently supported the uses of national power
that Congress chose to pursue. As to the states, for example, the Court did uphold a broad
discretionary authority for them to develop their natural resources through various uses of the
eminent domain power, the ordering of their water law on highly diverse lines, and even the
adoption of a variety of regulatory measures such as public health enforcement. In decisions of
this kind, the Court declined to extend an activist federal judicial censorship over the states'
efforts to cope with some of the leading challenges of economic development and the attainment
of new goals in the areas of public health and welfare. (Indeed, the high courts of many states
invoked “substantive due process” doctrine and principles of vested rights even more rigorously
than did the federal justices to strike down reform initiatives by their legislatures.) Similarly, the
Supreme Court declined to extend the federal procedural guarantees in the criminal justice area,
so that state and local authorities continued to enjoy wide discretion in their police operations,
court houses, and jails (see Due Process, Procedural). Only in regard to property takings did the
Court depart from Barron v. Baltimore precedent in this respect, ruling as early as 1897 that the
Fourteenth Amendment “incorporated” the takings provisions of the Fifth that guaranteed
property owners due process in eminent domain situations and in some cases of overly broad
regulation.

As to the permissible range of congressional power, the Supreme Court began to give close
scrutiny to national legislation that it regarded as exceeding constitutional authority. Thus in
1879 it struck down an act of Congress protecting trademarks, and in 1883 it rendered the Civil
Rights Acts virtually unenforceable. In the next decade, the Court limited the reach of the
Sherman Antitrust Act by ruling that control of manufacturing was not authorized by the
Commerce Clause powers, resulting in a significant delay in effective enforcement; and in
Pollock v. Farmers' Loan & Trust Co. (1895), the Court found unconstitutional a federal income
tax.
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The culmination of this line of conservative decision making was Hammer v. Dagenhart (1918),
which overturned an act of Congress that would have banned the products of child labor from
interstate commerce. This decision crystallized the conservative majority's successful
reformulation of “dual federalism” for the Court. Insisting that the Constitution's enumeration of
federal powers must be read literally—and be measured against the guarantees of “local power
… carefully reserved to the States in the Tenth Amendment”—the majority provided a lecture on
constitutional principle that John C. Calhoun would have found quite acceptable: that “the
powers not expressly delegated to the National Government are reserved, … [and] the power of
the States to regulate their purely internal affairs by such laws as seem wise to the local authority
is inherent and has never been surrendered to the general government” (pp. 275–276). It would
be the Court itself, of course, that would determine on a case-by-case basis which affairs were
“purely internal” in their character, and thus were in an exclusively state-controlled sphere of
authority, and which properly were delegated to Congress.

The New Deal Court.

The potential conservative doctrines for crippling the national government in a dire emergency
would be fully realized, at least for a short interval, when the Great Depression struck and the
early New Deal legislation came before an often-divided but generally hostile Court. In United
States v. Butler (1936), the Court overturned the New Deal's agricultural control program on
Tenth Amendment and dual federalism grounds, reasserting the delegated powers doctrine of the
Dagenhart decision and trumpeting the sacredness of “reserved rights of the states.” In a parallel
move, the conservative majority deployed its now-cramped and restrictive version of the
commerce power to rule that mining and manufacturing did not constitute “commerce,” hence
could not be reached by congressional regulations. In Schechter Poultry Corp. v. United States
(1935), a decision striking down one of the keystones of the early New Deal, the National
Industrial Recovery Act, the Court declaimed against the heresy that the Commerce Clause
might be construed as “reach[ing] all enterprises and transactions which could be said to have an
indirect effect upon interstate commerce.” Such a doctrine, the justices contended, would permit
federal power to “embrace practically all the activities of the people”; and in such event, “the
authority of the State over its domestic concerns would exist only by sufferance of the federal
government” (p. 546).

By gutting the New Deal's economic program in 1935–1936, the Court invited the White House
attack and the political battle that ensued, as President Franklin D. Roosevelt moved to “pack”
the Court so that it would cease to lay what FDR termed its “dead hand” on desperately needed
programs that enjoyed broad popular support (see Court-Packing Plan). But the drama of the
Court fight somewhat obscured another side of this political drama—the fact that the Court was
already sending mixed signals. So far as state regulatory power (as opposed to congressional
authority) was concerned, the Court indicated in two decisions in 1934 that a sea change in
constitutional doctrine was possible. Thus, in Nebbia v. New York, it abandoned the
classification scheme, applied since 1877, for differentiating ordinary businesses from businesses
“affected with a public interest.” This knocked over one of the great props of economic due
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process; it also extended the range of permissible activity for the states. Similarly with the
decision in Home Building and Loan Association v. Blaisdell (1934), in which the Court upheld
a state moratorium on payments of mortgages, the Court set aside brusquely the entire heritage of
Contract Clause limits on the states on grounds that emergency conditions warranted it.

As President Roosevelt was able to make new appointments of justices, in each case a
well-credentialed New Dealer, the Court produced what has been termed a “constitutional
revolution” in doctrine, largely completed by 1941. The “revolution” was in good part one
relating to the basic principles of constitutional federalism. For example, the Commerce Clause
ceased to be viewed as limiting congressional regulatory power, as was entirely evidenced by the
Court's decision in Wickard v. Filburn (1942), declaring a virtually plenary national authority in
economic regulation. The Court reaffirmed this position in American Power & Light v. SEC
(1946), stating that the commerce power was “as broad as the economic needs of the nation”
required (p. 104). Similarly, the Tenth Amendment as a barrier to the reach of federal regulatory
authority was characterized in United States v. Darby Lumber Co. (1941) as being “but a truism”
and as such merely “declaratory,” hence of no limiting effect (p. 124).

The dimensions of the expanded national role, with Congress occupying one area of
responsibility after another that had formerly been exclusively state concerns, was truly
transforming in the 1930s: the constitutional revolution was only the formal expression of a
fundamentally changed balance of state and national power. The Social Security program of
1935 initiated the social “entitlement” programs of national scope—the foundation stone of the
modern national welfare system. Agriculture became a federally managed sector; the Wagner
Act nationalized labor-industrial relations policy; and in an entirely unprecedented move
Congress enacted wage-and-hours legislation for the general work force. All these measures
were upheld by the Court as constitutional. In addition, a vast array of new regulatory functions
and agencies preempted vital segments of regulation affecting communications, transportation,
and finance. Taken together with the relief, employment, experimental community, medical, and
other social programs of the New Deal, these initiatives amounted to a massive centralization of
agenda-setting, financing, and administrative decision-making.

In large measure, then, government in the United States had become unitary rather than truly
federal in the sense that there was any easily perceived constitutional limit on nationalization of
authority. The Court's decisions as to congressional authority under the spending power, the
taxing power, and the Commerce Clause doctrine, amounted to a nearly plenary federal police
power. The states survived as constitutional and political entities, to be sure; and the Court did
renounce the federal commercial common law in Erie Railroad Co. v. Tompkins (1938). But
more generally, the extent and importance of the states' autonomous powers (relative to those of
the federal government) had been dramatically attenuated. Subsequent flourishing of government
in the states, as evidenced by administrative reforms, expanded functions, and greater efficiency
ultimately made the federal system more vibrant and capable of delivering services more
effectively than before in many areas of policy. But the resurgence of activity in the states did
not reverse this fundamental shift toward centralized government that was the New Deal era's
great legacy. The need for unified command-and-control regulation of the economy and labor
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force during the World War II mobilization served to solidify and validate the new order.

The Warren Court Legacy.

Many, perhaps most, of the fundamentally important—and politically most
controversial—decisions of the Supreme Court since the New Deal have implicated vital
questions of the federal-state balance. The unifying theme in nearly all these decisions has been
the reconsideration of the Fourteenth Amendment's proper reach. Most important, in the line of
desegregation cases that centered on Brown v. Board of Education (1954), the Warren Court
placed the public school—that most traditionally local of all governmental institutions—under
the close scrutiny of the federal judiciary; and the “separate but equal” doctrine that had long
immunized the states from significant regulation from the center in matters of segregation was
repudiated by the Court as a misguided element of law.

The Court followed its declaration of broad principle in Brown with the requirement that
desegregation be implemented with “all deliberate speed,” and so it remanded cases to the lower
courts with instructions to take account of “varied local school problems” in implementing
Brown. This move left much latitude to state and local school authorities; and the Court
apparently anticipated their cooperation, however reluctantly it might be given. The South's
response was, instead, official resistance against a background of violent behavior both by the
police and racist mobs. Not only did desegregation require dispatch of federal troops and
marshals to school grounds and university campuses, as happened at Little Rock, Arkansas, and
elsewhere; the desegregation process also drew the federal courts into a role of continuous
monitoring and active supervision of school boards' policies and actions. This new role the
federal district judges—a role historically comparable only to their supervision of railroad
bankruptcies in an earlier era—became the model for a routinized “institutional-management”
function for them. As congressional enactments and the Court's decisions subsequently extended
the Fourteenth Amendment's reach to affect other areas of state and local government policy
where discriminatory practices were found, it meant that prisons and jails, law enforcement units,
election officials, and even state judicial bodies came under varying degrees of monitoring and
day-to-day orders by federal courts.

In the reapportionment cases of the 1960s, the Warren Court extended the equal protection
doctrine to create a new set of constitutional imperatives, ending the long-entrenched system of
blatant inequalities favoring rural districts in representation. Bitterly resisted by Justices John M.
Harlan and Felix Frankfurter in dissent, the Court in Baker v. Carr (1962) abandoned the view
that state representational process and structure constituted a “political question” beyond the
proper jurisdiction of the federal courts. Again, application of the reapportionment decisions
often required the federal district judges to supervise relevant legislative process and to approve
the maps of district boundaries.

By means of these and other revisions of constitutional interpretation, the Warren Court extended
the range of the national government's authority well into once-sacrosanct legal policy preserves
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of the states. It did so, above all, by its upholding (as in Heart of Atlanta Motel v. United States,
1964) of the civil rights acts of the 1960s as constitutional even when they were directed at
private behavior and relationships rather than “state action” which would have qualified for
regulation under the Fourteenth Amendment. The trend was evidenced also in decisions
regarding church and state, academic freedom, press censorship, political advocacy, and other
First Amendment questions. And in South Carolina v. Katzenbach (1966) the justices upheld the
1965 Voting Act's devolution of wide discretion on the U.S. Attorney General intended to root
out “the blight of racial discrimination in voting.” The Court also opened the doors of the federal
courts on a progressively wider basis to civil rights suits under section 1983, drawing steady
criticism from conservative jurists and politicians who sought to secure the states and their courts
from federal oversight.1983

In most basic regards, the Burger Court—despite adopting a more conservative stance on
institutional management of state functions, on review of state criminal decisions, and on some
other jurisdictional issues—embraced and extended these doctrines. Thus in the 1970s and 1980s
both in upholding congressional anti-discrimination law and in subjecting state and
private-sector practices to heightened scrutiny, the Court brought the Fourteenth Amendment
into play in the realms of child bearing and pregnancy, gender-discrimination practices, and age
discrimination in the job market. In these areas of law, the Court either placed new affirmative
requirements on the states or else enlarged the constitutional limits upon state legislation
regulating individual behavior.

All these decisions brought criticism on the Court. A further strong political reaction was
directed against the Warren Court's decision in Griswold v. Connecticut (1965), striking down a
state ban on dispensing of contraceptive devices; and Warren-era decisions that placed new
bounds on law enforcement practices and extended Fourth Amendment rights brought
condemnation even from the august Conference of State Chief Justices. The most explosive
political response was set off by Roe v. Wade (1973), when the Burger Court majority, without
giving even a nod to so-called federalism values, ruled that women had a right to an abortion. On
the other hand, a strong reaction to the Burger majority came from liberals when the Court
rejected a Fourteenth Amendment challenge to stark inequalities in local financing of schools in
Rodriguez v. Texas (1973), widely seen as a significant retreat from principles of equality in
schooling announced in the desegregation cases. Other decisions of the Burger Court cut back on
some of the earlier decisions liberalizing the rules for appeals to the federal courts from the state
justice systems.

Withal, the Court's cumulative rulings from the 1940s to the mid-1990s on “incorporation” of the
Bill of Rights, its acceptance of Congress's authority to define in new civil rights laws the
specific types of discrimination that were embraced in the language of the Fourteenth
Amendment, and what was accepted for decades as the New Deal Court's definitive approval of
virtually plenary congressional regulatory power on matters deemed by Congress relevant to
“commerce,” served as the underpinnings of a transformation in the law of American federalism.
 LibertyAndFreedomRadio.net

The Rehnquist Court and the “Federalism Revival.”

The Rehnquist Court put the brakes on this transforming movement, so that by the late 1990s the
increasingly conservative tribunal had worked a true sea change in the constitutional law of
federalism. It did so not only by formulating new basic rules but also by resuscitating some
long-discarded constitutional doctrines. Indeed, some of the revived doctrines are rooted
explicitly in a tradition of dual federalism that not only predates the New Deal but in some
essential respects echoes even doctrines that were invoked to defend slavery and Jim Crow laws
in earlier periods of the nation's history.

Ironically, the keynote for this doctrinal reversal was sounded early by Justice Hugo L. Black, a
judge whose views on many constitutional issues were generally abhorred by “states' rights”
conservatives. In Younger v. Harris (1971), concerning intrusive federal courts' oversight of state
court proceedings, Black boldly declared that the imperatives of “our federalism” means that
“the National Government will fare best if the States and their institutions are left free to perform
their separate functions in their separate ways” (p. 44). When the Supreme Court considered
pleas for procedural relief from defendants in state courts, Black continued, there must be “a
proper respect for state functions, a recognition of the fact that the entire country is made up of a
Union of separate state governments” (p. 44) In later years, the Court would frequently invoke
those phrases in decisions that blunted the force of Warren Court doctrines by narrowing the
grounds for procedural appeals to federal courts from the state justice systems.

Another portent of a new dual federalism thrust in the Burger Court years had come in 1976,
when a 5-to-4 majority in Usery v. National League of Cities invalidated an act of Congress that
applied wage and hours limitations to state and local government employees. This marked the
first time since the 1930s that the Court had overturned an act of Congress based on the
commerce clause. In Usery the statute invalidated was concerned unambiguously with economic
relationships; and the decision brought the Tenth Amendment up out of the grave. “The states as
states,” the majority declared, must be protected against such intrusions of federal authority.
Unable, however, to apply with any consistency the concepts in expressed in Usery of “inherent
powers” and “traditional functions,” as emanations from the Tenth Amendment, the Court
abandoned this adventure in a revived dual federalism: Justice Harry A. Blackmun shifted his
vote, and the new 5–4 majority, in Garcia v. San Antonio Metropolitan Transit Authority(1985),
asserted that the “political safeguards” of state interests that were structural and in that sense
integral to political process were protection enough (p. 565). Dissenting in Garcia, Justice
Rehnquist served notice that the issue would be revisited when new justices were appointed in
future years. And indeed it was to be revisited, though the “federalism revival” that Rehnquist
led as chief justice would be founded principally on other grounds than an explicit application of
Tenth Amendment theory.

During the period 1992–2003 four basic doctrines announcing new limits on national power
were announced by Rehnquist and by Justices Sandra Day O'Connor, Anthony M. Kennedy,
Clarence Thomas, and Antonin Scalia, who comprised the “dual federalist bloc” on the Court in
this period. First was a ruling in 1992 (New York v. United States) that Congress could not
constitutionally “commandeer” state government officials by compelling them “to enact and
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enforce a federal regulatory program.” In Printz v. United States (1997), the Court reinforced
this new anti-commandeering prohibition, ruling that Congress's requiring local officials to
conduct background checks on gun purchasers was “fundamentally incompatible with our
constitutional system of dual sovereignty” (p. 935).

The “sovereignty” theme was given enhanced prominence in a second major revised doctrine,
this one based explicitly on the Eleventh Amendment as interpreted in Seminole Tribe of Florida
v. Florida (1996). Here the five-justice bloc denied the power of Congress to authorize a suit in
federal court against a state government. This decision directly overruled the Court's position in
Pennsylvania v. Union Gas Company (1989), in which the Court had declared that regulations
under the Commerce power overrode any Eleventh Amendment limits. Casting an even wider
conceptual net, the Seminole majority invoked the common law as it stood in England during the
eighteenth century as the background principle of state sovereign immunity.

The Court's inventive expansion of the Eleventh Amendment's meaning manifestly went beyond
anything that its explicit language warranted, as was acknowledged by Justice Kennedy writing
for the majority in Alden v. Maine (1998). The Court in Alden, again by a 5-to-4 vote, struck
down a provision of the national Fair Labor Standards Act that had authorized private suits by
employees of a state government in that state's own courts when overtime-pay provisions of the
act were violated. Kennedy's opinion invoked the concepts of “residuary and inviolable
sovereignty” (p. 715) and respect for the states' dignity as grounds for decision. As to the
constitutional text itself, Kennedy dismissed as “ahistorical literalism” (p. 730) the argument that
the Eleventh Amendment's language in no ways warranted such breadth of interpretation. This
rhetoric, citing “the separate sovereignty of the states” (p. 757) resonated with the tones of
antebellum dual federalism discourse. It also was a signal that, despite their frequently voiced
paeans of devotion to “original intent” and their declamations against giving excessive latitude to
the explicit language of the Commerce Clause, the conservative majority was marching forward
in expanding its new jurisprudence of constitutional federalism. As Justice David Souter
complained in his Alden dissent, the majority had created not only created a doctrine of state
immunity out of an ex cathedra proclamation of what was “fundamental” to federal structure and
was “implied by statehood itself,” but had gone on from there to declare that this immunity was
thenceforth “inalterable” despite the jurisprudence of more than a century to the contrary.

The third basic constitutional revision that the Rehnquist Court's majority produced to constrain
Congress emerged in commerce power cases. The Commerce Clause posed a special problem for
the judicial engineers of the new dual federalism because of the consistent deference (except for
the short-lived period of Usery doctrine) that the Court had shown to Congress for half a
century—effectively granting the Congress a virtually plenary congressional police power in
regulation of all activities that Congress deemed to be “substantially related to commerce” and to
be “in the national interest.” Moreover, in the landmark civil rights cases of the 1960s
(Katzenbach v. McClung and Katzenbach v. Morgan), the Warren Court had reinforced this
tradition by extending the reach of the commerce power to validate legislation designed to ban
racial discrimination.
 LibertyAndFreedomRadio.net

The Rehnquist Court abandoned the established doctrine of judicial deference to Congress on
regulations under the commerce power. In United States v. Lopez (1995), the Court thus
declared unconstitutional a federal statute of 1990 that banned possession of gun within a school
zone. The Lopez majority opinion rejected the claim that gun control near local schools was
relevant to commerce. This type of regulation was a traditional state and local function, the Court
ruled, not properly subject to federal interference. Significantly, the majority also made a
judgment on the adequacy of the legislative process, ruling that there was insufficient evidence
in the legislative record that commerce was significantly affected. To critics of the decision, it
was especially disturbing that the majority justices were now subjecting the legislative record to
an evidentiary standard appropriate to a trial court but, as these critics argued, scarcely
appropriate to the very different procedures of a legislature.

The principle that the Court would review legislative process and not only the content of statutes
as enacted was underscored by the decision in United States v. Morrison (2000). Again the
five-justice conservative bloc prevailed, striking down the Violence against Women Act, a
federal statute that provided a civil remedy in certain types of cases of gender-inspired violence
against women. Congress had made an ample record of hearings, including statistical data and
numerous legal opinions, even defining the classification of crimes as had been recommended by
Chief Justice Rehnquist. In addition, most of the states' attorneys general had given their support
to the act. Yet the majority justices ruled that the legislative record was insufficient, and they
scorned the claims of Commerce Clause validity for the act. Rehnquist contended that a clear
distinction must be maintained as between state and federal functions, and he ruled that evidence
of an “aggregative effect on interstate commerce” (such as Congress had declared was the result
of gender-inspired violence) did not justify overriding the traditional primacy of the states in
criminal law. The Court's opinion even invoked the notorious Civil Rights Cases of 1883, in
which the post-Reconstruction Court had eviscerated that era's civil rights laws by limiting their
reach. The fourth new doctrine fashioned to underpin the Rehnquist Court's revisionism made its
first appearance in City of Boerne v. Flores (1997), which concerned congressional authority to
define the reach of its substantive powers under the Fourteenth Amendment. The majority
justices reaffirmed Congress's undoubted authority to “enforce” the Fourteenth Amendment
(under its section 5); at the same time, however, they asserted that the Court itself had the last
word on what substantive rights might be defined by Congress under the Amendment's section 1.
The statute in question had been designed to forbid state or local governments from “burdening”
religious activity, and the Court found it unconstitutional on grounds that it went beyond the
proper scope of the Fourteenth Amendment, thus upsetting “the federal balance” (p. 536). The
Court also announced here a new test of constitutionality, requiring a federal regulatory statute to
meet a standard of “congruence and proportionality” (p. 520).

In subsequent cases, the 5-to-4 majority merged its new doctrines on legislative process and
Fourteenth Amendment powers, on the one hand, with the revised understanding of the Eleventh
Amendment, on the other. These further decisions immunized the states against private suits
under two important pieces of legislation: the Age Discrimination in Employment Act (Kimel v.
Florida Board of Regents, 2000), and the Americans with Disabilities Act (Board of Trustees of
the University of Alabama v. Garrett, 2001). Justice O'Connor reiterated in Kimel that Congress
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lacked the authority “to determine what constitutes a constitutional violation” under terms of the
Fourteenth Amendment. “The ultimate determination of the Fourteenth Amendments'
substantive meaning,” she wrote, “remains the province of the Judicial Branch” (p. 81).

The net effect of these decisions was to elevate to new prominence the issue of judicial review,
this time in the hands of a conservative bloc of judicial activists who were deploying the Court's
authority against Congress in the interests of “federalism values.” Questions of separation of
powers were also now at the forefront in confrontations on the law of federalism. The liberal
dissenting minority in the federalism cases regularly complained that such aggressive assertion
of the Court's constitutional role was appropriate in the defense or advancement of individual or
group freedoms under the Bill of Rights and the Fourteenth Amendment., but that it was
inappropriate in the allocation of powers for a “proper federal balance”—a matter which, they
insisted, should be determined by the political process and not by judicial fiat.

Counter currents in Contemporary Federalism Doctrine.

Despite the restructuring of federalism law that the foregoing Rehnquist Court decisions
achieved, there were some noteworthy doctrinal crosscurrents. Perhaps the most important is that
the Court gave no sign that it would abandon long-standing doctrine on Congress's regulatory
authority under the spending power. Hence when Congress grants funds to the states for any
purpose, it may attach to these transfers such “regulatory” conditions as it sees fit, regardless of
other doctrines introduced as barriers to straightforward regulatory legislation. Nor has the Court
repudiated the basic doctrine that a state high court is the ultimate authority in interpreting
provisions of its own state's constitution except when federal rights would be violated; hence
“independent and adequate state constitutional grounds” continues to be a potent instrument of
state judicial authority.

In addition, the Court's federalist bloc has not held together on all federalism cases. Rulings in
several distinctive areas of law have been particularly significant. First, the Court surprised most
observers with its decision, written by Justice Kennedy for the 6-to-3 majority, in Romer v.
Evans (1998) invalidating a Colorado constitutional amendment that would have barred local
governments from enforcing ordinances designed to protect homosexuals against discrimination.
In a later decision of momentous importance in national life—a decision denounced by Scalia in
dissent as a victory for homosexuals in “the cultural wars”—the Court in Lawrence v. Texas
(2003) overturned its previous holding in Bowers v. Hardwick (1986), now declaring
unconstitutional a state “anti-sodomy” law that sought to regulate private sexual behavior by
consenting adults.

A startling development was Rehnquist's move to form a “liberal” majority in Nevada

Department of Human Resources v. Hobbs (2002), in which the Court upheld as constitutional
the congressional act mandating that employers provide leave time for family purposes. Given
the history of gender stereotyping and of disadvantages endured by women in the workplace, the
Court ruled it was within Congress's proper authority under the commerce clause and the
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substantive language of the Fourteenth Amendment to regulate employment conditions regarding

gender. In Buckley v. American Constitutional Law Foundation (1999), the extreme states rights
position was rejected as the Court sustained a robust First Amendment right for political speech
and activities that a state had sought to abridge. The decision in Buckley overturned a Colorado
statute seeking to regulate the petitioning process and to limit out-of-state citizens from
participation in the state's initiative and referendum processes. In dissent, Rehnquist protested
that a long-standing and “historically established” practice that he deemed purely “a matter of
state concern” should not be overturned by judicial action in this manner (p. 231). Similarly
nationalist in its approach was the Court's decision in Saenz v. Roe (1999), with Rehnquist,
joined by Thomas, again in dissent. The Saenz majority ruled that California had acted in
violation of the Privileges and Immunities Clause of the 1787 Constitution (Article IV, section 2
seldom cited by the Court since the 1873 Slaughterhouse decision) and in violation of the
Fourteenth Amendment when it established welfare benefits for persons who were recent arrivals
in the state at a lower level than benefits given to persons established as residents for longer than
one year.

Finally, it is significant that while limiting the Congress's regulatory authority by dint of its new
federalism doctrines, the Court has also upheld some highly intrusive extensions of federal
administrative authority in matters such as abortion counseling and the mandatory medical
sustenance of impaired newborn infants—matters historically left to the states, but now become
prominent in the conservative “social agenda” in national politics. And in the most highly
charged political situation in which the Court has acted in the twentieth century, the conservative
bloc intervened in the Florida presidential vote count in the 2000 election. On the one hand the
Court declined to adjudge the fairness of state and local election officials' policies that worked
against Democratic nominee Al Gore and favored George W. Bush, while on the other it
overrode the state's own constitutional processes to set aside the Florida Supreme Court's orders
for a recount of votes.

Conclusion.
Historically, the political values associated with federalism have been invoked with equal zeal by
Marshall Court nationalists and their antebellum state rights opponents, by Radical Republicans
in the Civil War era, by the champions of substantive due process in the Lochner era, and by the
Progressives and liberals on the one side and by their various conservative protagonists on the
other in the modern period of American development. These political values include the notion
of a government responsible to the electorate at the grass roots, concerned to protect diversity of
interests and ideas and policies, and, above all, supportive of human dignity and freedoms. The
Supreme Court's successive—often rival—formulations and revisions of federalism doctrine
have reflected how the process of constitutional ordering expresses the competition of basic
values in the marketplace of political ideas. They also reflect how pursuit of such values as
individual dignity has sometimes required the imposition of national standards and curbing of
state prerogatives, with consequent diminution of “dual federalism” values. As was noted at the
outset of this essay, however, the Court also has maintained a concern, perforce, with making
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government effective—that is, a concern to square with the mandates of a constitutional

federalism the need for government to respond to changing social and economic conditions,
emergencies of war and peacetime, and evolving political ideals in the larger constitutional
culture of the nation. Maintenance of terms on which the Union will function as “a nation of
states” has thus been at the very heart of the Court's historical importance in American
governance.
 LibertyAndFreedomRadio.net

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