Summary and Keywords
Federalism refers to the constitutional and political structure of the United States of America, according to which political power is divided among multiple levels of government: the national level of government (also referred to as the “federal” or “general” government) and that of the states. It is a multilayered system of government that reserves some powers to component entities while also establishing an overarching level of government with a specified domain of authority. The structures of federalism are set forth in the Constitution of the United States, although some related ideas and practices predated the founding period and others have developed since. The balance between federal and state power has shifted throughout U.S. history, with assertions of broad national power meeting challenges from supporters of states’ rights and state sovereignty. Federalism is a fundamental value of the American political system, and it has been a controversial political and legal question since the founding period.
Federalism is one of the most important but least understood principles of American law and politics. It is often associated with a belief in states’ rights, but states’ rights is only part of the meaning of federalism, as demonstrated by the frequency with which modern Americans use the term federal to refer to the national government in Washington, D.C. Today, most Americans routinely employ the word federal to refer to the nation—the United States of America—and its powers: for example, a federal case, federal law, the actions of a federal prosecutor, or the federal government itself. Federalism is a powerful concept because it appears to be neutral. It can stand in for whatever particular view one has about the appropriate structure of governmental authority in the United States. It means both states’ rights and a powerful central government overarching those states. Despite its rhetorical capaciousness, however, federalism does indeed have a core meaning. That meaning is best understood, metaphorically, as a wheel: the hub is the central government (deemed, at different moments in U.S. history, the national or the general government), and the spokes are the states. Without federalism, the nation-state would take the form either of a single hub (a unitary government) or a collection of spokes (a league or confederation). Just as the objective of the wheel is the creation and operation of the wheel as a single structure, the fundamental idea of federalism is union. The existential question of a federal republic is how to keep the proper balance between the center and the periphery in order to operate as a nation.
In debates from the colonial period through the 21st century, Americans of all political affiliations have been deeply invested in the project of figuring out what federalism means. One important lesson from history is the non-inevitability of federalism. The American founders might have selected a unitary form of government, or they might have chosen to continue as a loose league of largely autonomous states. Other than a handful of confederations stretching back to classical times that were generally deemed failures, the idea of deliberately constructing a polity to contain multiple heads of governmental power appeared to most 18th-century observers at best as folly and at worst as political suicide. Federalism must be understood as an idea that emerged and was created at a specific time, not a transcendent, timeless concept or a natural feature of American government that can simply be applied to a particular set of facts—whether by the founders or by modern commentators.
The origins of the American federal idea predated the United States. One important source stemmed from the colonists’ struggle to define the constitution that governed their relationship with the British Empire. The history of American federalism can be traced to its colonial beginnings as a scattered array of provincial responses to British metropolitan assertions of authority. During and after the American Revolution, the federal idea transformed to become a normative theory of multilayered government.
In the early 17th century, during the first three decades of English settlement in mainland North America, colonists experimented with proto-federal forms such as leagues and confederations that united certain existing colonies for specific purposes. Examples included the Fundamental Orders of Connecticut (1639) and the New England Confederation (1643). These political organizations were based on the premise that the colonists themselves, not only the Crown and Parliament, possessed political and constitutional authority. Colonists used the language of popular sovereignty that had emerged in the course of the English Civil War to justify their power to enter into these intercolonial associations.
The impulse to form leagues and alliances continued in British North America throughout the 18th century. In 1754, representatives of eleven colonies met in Albany, New York, to discuss forming a union for defense against French imperial expansion. The Albany Congress was a product of British official policy, which encouraged the colonists to form a “general government” that would operate as a layer between the colonies’ own governments and metropolitan institutions such as Parliament and the Board of Trade of the Privy Council.1 The resulting Albany Plan was not approved by the colonial assemblies, however, and consequently never took effect. Americans began to think in an explicitly federal mode in the 1760s, when they began to resist the dominant British metropolitan constitutional theory with their own ideas based on their own experience of divided political authority.
The orthodox views of commentators such as William Blackstone and theorists such as Thomas Hobbes held that sovereignty—ultimate governmental power—had to be held by a single institution, undivided and, in the term of the day, “unitary.” As Samuel Johnson put it in 1775, “In sovereignty there are no gradations.” Instead, he argued, every society must contain “some power or other, from which there is no appeal, which admits no restrictions, which pervades the whole mass of the community.”2 The alternative was an imperium in imperio, a “dominion within a dominion” (or an “empire within an empire”), which the dominant unitary theory deemed illegitimate.
In contrast to this unitary-sovereignty view, which was held by many officials and commentators in Britain as well as by some North Americans, some colonists began to view sovereignty as potentially divisible among multiple sources of authority—institutions and even levels of government. The colonists initially believed that these theories were uncontroversial, stemming as they did from the colonists’ own experience of multiple government authority. Most colonists, after all, lived under several layers of government: beginning with their parish, then their town or county, and then their colony, in addition to the metropolitan British authorities of administrative bodies such as the Privy Council, Parliament, and the Crown. Colonial commentators also drew on Continental political theory, especially the work of Samuel von Pufendorf and Hugo Grotius, which allowed for the possibility of divided authority within a single polity.
During the debate over the Stamp Act of 1765, colonists promoted the theory that their own colonial legislatures could coexist with Parliament. The theory behind this division was that the provincial legislatures and Parliament could divide lawmaking power among themselves on the basis of subject matter. So, for example, the colonial legislatures would regulate internal colonial matters such as local taxation, while Parliament would oversee external, empire-wide issues such as trade between colonies and between the colonies and Britain. As the Maryland lawyer and official Daniel Dulany wrote in a widely circulated 1765 pamphlet, Parliament should occupy the legislative field only in cases where the exercise of a particular regulatory power by the colonies might threaten the hierarchy of the empire itself, which Dulany did not challenge. Otherwise, the regulation should be left to the provincial assemblies.3
By the early 1770s, many colonists subscribed to this subject-matter-based division between Parliament’s authority on one hand and the colonial legislatures’ power on the other. Like Dulany, however, most of them continued to desire membership in the British Empire and to believe that the empire could be maintained even with a shifting of some sovereignty to the colonies. By the mid-1770s, many commentators advocated restructuring the empire along the lines of a commonwealth of nations, according to which the colonial legislatures would be equivalent and parallel to the British Parliament, with the Crown sitting at the top of the empire-wide hierarchy. As late as 1774—just two years before the Declaration of Independence—no less a revolutionary than Thomas Jefferson offered a plan for formal union between Britain and the colonies in which the empire consisted of an overarching Crown authority connected to each of the colonial legislatures.4
Revolution and Early Republic
The Revolutionary and early republican periods witnessed the formative decades for American federalism as an idea and a practice. In the 1770s, federalism was a novel argument for legislative multiplicity. By the early 1800s, federalism, along with republicanism, was the new nation’s guiding political and constitutional ideology.
The Articles of Confederation
The Articles of Confederation were the United States’ first attempt at a federal plan of government. Drafted between 1775 and 1777, during the American Revolution, the Articles were ratified in 1781. Under the Articles, the thirteen states joined in a “firm league of friendship … for their common defense, the security of their liberties, and their mutual and general welfare.”5 The areas covered by the authority of the general government largely concerned matters not pertaining to any single state: foreign affairs, postage, and currency. The power center of the general government was Congress, for the Articles did not provide for an executive or a judiciary. But the states retained “every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.”6 The bulk of governmental power resided in the states.
The drafters of the Articles appear to have spent little time debating the contours of the relationship between the peripheries and the center.7 “When it was first considered in 1774 and 1775, the task of dividing the powers of government between Congress and the colonies proved far less troubling than might have been expected,” Jack Rakove observes.8 “Instead of the working-out of a vision of multilayered authority, the Articles represented a strategy for resistance and defense.”9
The Constitutional Convention
Like judicial review, another foundational value of American constitutionalism, federalism’s origins can be traced to the drafting of the Constitution, despite the lack of explicit references to either concept in the document itself. In the late 1780s, questions of federalism dominated legal and constitutional, as well as political, debates. The question became how the levels of authority the colonists had demanded in the course of the imperial debates and then won on the battlefield would actually interact in the new government. At the core of the new federal ideology were two related beliefs: (a) the belief that multiple independent levels of government could legitimately exist within a single polity and (b) the belief that such an arrangement was not a defect to be lamented but a virtue to be celebrated.
In the course of the debates at the Constitutional Convention, the job of defining the federal-state relationship shifted from legislatures to courts. This transformation is evident in the delegates’ rejection of James Madison’s plan to give Congress the power to veto the acts of state legislatures and their adoption instead of judicial review and the Constitution’s Supremacy Clause as the institutional mechanism to check localism and the centrifugal tendencies of the states.10 With this shift from legislatures to courts as the main institutional device for regulating the federal republic, talk of “sovereignty” came to be replaced by debates about “jurisdiction” of the courts—especially the federal courts—and the meaning of the Union, a term that seemed to capture the hybrid national-confederal nature of the young republic.11
The intellectual energy of American political and legal thinkers between 1780 and 1800 was thus devoted to a project of translation between political debates and constitutional structure. These statesmen and theorists sought to translate the political conditions of multiple governmental authorities that the colonists had both experienced and theorized under the British Empire into a constitutional structure. This constitutional structure would, they believed, not simply conform to orthodox imperial legal theory through a series of workarounds or legal fictions but would instead reshape some basic premises of that orthodoxy by rejecting unitary sovereignty in favor of a deep-seated commitment to multiple sources of sovereignty.
Much of the debate in the Constitutional Convention, and in the ratification debates that followed in the states between 1787 and 1788, turned on practical concerns and fears about how the new government would operate. A vocal group of convention delegates and commentators objected to what they viewed as the unduly nationalizing bent of the draft constitution, which was based on a design by James Madison that became known as the “Virginia Plan.” These critics, many of whom adopted or became associated with the label of “Anti-Federalists,” insisted on a view of popular sovereignty that emphasized local authority, the need for small republics, and a circumscribed realm for the central government. Some Anti-Federalists argued that the states should be equally represented in Congress, which would both ensure a voice for small states and continue the Articles of Confederation’s commitment to state sovereignty. Others attacked the draft constitution’s relatively broad grant of power to Congress, in particular the taxing power, as well as to the presidency, which some critics viewed as an invitation to Hanoverian-style despotism. Still other critics argued that the convention lacked the authority to amend the Articles, much less to draft a new constitution.
Several delegates walked out of the convention rather than support the draft constitution as it began to take shape. Delegates from New Jersey proposed an alternative plan that would have created a single legislature comprising equal representation of the states. In an agreement that became known as the Great Compromise (or the Connecticut Compromise), the delegates settled on a bicameral legislature with an upper house (the Senate) based on equal representation of the states and a lower house (the House of Representatives) based on proportional representation. The structure of the Senate was widely viewed as a key battleground in the fight between more nationalizing and more state-focused delegates. In the final draft of the Constitution, senators were to be elected by the state legislatures, but they were not required to vote according to the directions of state legislators. Until the passage of the Seventeenth Amendment in 1913, which established popular election for U.S. senators by the people of each state, the Senate embodied the compromises and balancing inherent in federalism: senators were federal officials with lengthy (six-year) terms, but their political identities were closely tied to their states.
The key textual and structural elements of federalism can be found in the following provisions of the Constitution:
• Article I, Section 8: the enumeration of the powers of Congress
• Article I, Section 10: the list of powers withheld from the states
• Article III, Sections 1 and 2: “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish … The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”
• Article VI, Section 2 (the Supremacy Clause): “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”
• Tenth Amendment: “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”
• Thirteenth, Fourteenth, and Fifteenth Amendments: the Reconstruction Amendments abolishing slavery, prohibiting the states from denying the equal protection of the laws or due process of law to any person, and prohibiting the denial of the right to vote on the basis of race, color, or previous condition of servitude.
The ratification of the Bill of Rights in 1791 was also a response to Anti-Federalist concerns about the broad reach of the national government’s power. Many delegates to the state ratification conventions had demanded that explicit protections for certain personal freedoms—among them, freedom of speech and religion and protection against unreasonable search and seizure—be added to the Constitution. The Bill of Rights also explicitly reserved a domain of power to the states and the people.
Early 19th Century
By the early 1800s, federalism had become a theory of multiplicity, or overlapping layers of government. The interlocking nature of federal, state, county, municipal, and territorial governments was viewed as a key attribute of the “well constructed Union” that Madison had celebrated in Federalist No. 10.12 More than just a legal doctrine, the belief in multiplicity, overlap, and concurrent national and state powers became a foundational principle of the American political enterprise. “Federal” and “republic” appeared as the nation’s twin attributes in contemporary discussion. The terms became the bases for the names of the country’s first political parties. (See, for example, Thomas Jefferson’s words in his first inaugural address in 1801: “We have called by different names, brethren of the same principle. We are all republicans, we are all federalists”—delivered after the first, but certainly not the last, ugly presidential election in U.S. history.13) The federal conception of divided authority became central to the republic itself. The central tenet of federal ideology as it emerged in the late 18th century was a conviction that multiple levels of government could and should exist within a composite polity.
Despite this general agreement on what federalism meant in principle, however, the early 19th century brought increasing controversy over how legal and political authority should be divided in practice. Beginning at least with the First Congress’s debates over the structure of the lower federal courts, early republican commentators articulated two distinct views of what federalism meant. The first group viewed federalism as requiring a clean division between the power of the general government and that of the states. They therefore opposed concurrent power, regarding it as liable to create confusion among citizens and thus to increase the risk that the general government would be able covertly to expand its brief. As Virginia judge Joseph Jones wrote to James Madison in 1789, “Where there is danger of clashing jurisdictions, the limits should be defined as ac[c]urately as may be, and this danger will exist where there are concurrent jurisdictions.”14
The second group of commentators argued that the real imperative of federalism was to minimize the institutional footprint of the general government, either because of their normative beliefs about which level of government was more suited to handle a particular task or because they feared that the creation of any centralized agencies or programs would amount to the thin edge of the nationalizing wedge. In the debates over the lower federal courts, observers such as the Anti-Federalist Luther Martin argued that requiring state courts to enforce U.S. law was a better means of protecting state sovereignty than insisting that federal law be carried out only through federal instrumentalities.15 Martin and his fellow watchdogs of state power preferred messily concurrent powers to neatly distinct ones. In terms of modern constitutional law, they chose commandeering over formal federalism. In their view, having county sheriffs performing background checks on gun purchasers at the request of Congress would be less offensive to the federal structure than the establishment of the Transportation Security Administration.
Federalism in the decades between the founding and the Civil War was a work in progress. These years witnessed struggles over how federalism would work in practice. The main areas of controversy involved trade, internal improvements, and slavery.
In the area of trade, the key dispute was tariff policy. The issue centered on Congress’s power to pass protective tariffs on foreign goods, in particular finished goods such as textiles, many of which were imported from Great Britain. The goal of the tariffs was to favor U.S.-manufactured goods by increasing the cost to American consumers of foreign manufactures. The tariffs of 1828 (termed the “Tariff of Abominations” by its critics) and 1832 stirred particular opposition in the South, where opponents argued that the tariff policy harmed the interests of the cotton-producing states. Because the cotton-producing states exported their raw materials to Great Britain to be finished in British factories, they did not benefit from federal policies that protected manufacturing. Rather, the southern states argued that they had the most to lose from the tariff policy, including suffering real economic risk if Great Britain responded with retaliatory tariffs.
Following the passage of the tariff of 1828, many South Carolinians became increasingly vocal in their condemnation of the federal tariff policy. One of the most prominent critics of the tariff was Vice President John C. Calhoun, whose Exposition and Protest and Fort Hill Address argued that the Constitution permitted states to resist what they viewed as unconstitutional exercises of power by other branches of government and to “interpose” to restore the proper federal-state balance. Calhoun argued that this power of “interposition” dated to the founding. For support, he cited Thomas Jefferson’s Kentucky Resolutions of 1798 and James Madison’s Virginia Resolutions of 1799, which were drafted in response to the federal Alien and Sedition Acts and which argued that the states had some constitutional power to interpret federal law. The constitutional theory underpinning interposition and nullification was known as “compact theory” because it posited that the federal republic was based on a compact among the states and that the states therefore retained their sovereignty even after the Constitution was ratified and took effect. Madison articulated the theory in his Report on the Virginia Resolutions:
The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this solid foundation. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and, consequently, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.16
In November 1832, four months after the enactment of the Tariff of 1832, a convention met in South Carolina to discuss nullification of the federal tariff legislation. The convention passed an ordinance of nullification stating that the tariffs were “unauthorized by the Constitution” and were therefore “null, void, and no law, nor binding upon this State, its officers or citizens.”17
President Andrew Jackson rejected the South Carolina nullifiers’ arguments. He insisted that the nature of the Union had been settled at the Constitutional Convention and that compact theory was no longer a viable mode of constitutional interpretation. He pointed to the adoption of the Supremacy Clause of Article VI to support his argument that federal laws must trump state laws. “The States severally have not retained their entire sovereignty,” Jackson stated in his Nullification Proclamation.18 Congress then passed the Force Bill, which expanded the president’s power to enforce the collection of the tariffs, including the use of military force. The prospect of military enforcement, combined with Congress’s passage of the Compromise Tariff of 1833, led the South Carolina nullification convention to repeal the nullification ordinance. The convention did, however, also nullify the Force Bill.
Federal funding for public works projects, known as internal improvements, was another important area of controversy throughout the early 19th century. The issue centered on Congress’s power to fund and to oversee the construction of roads, canals, and later railroads. In many cases, the project in question was contained entirely within a single state, giving rise to concerns that funding or executing the project was beyond the scope of Congress’s powers. Supporters of such projects argued that they were permissible exercises of Congress’s powers to regulate interstate commerce, to build post roads, or to tax and spend for the general welfare. Several internal improvements bills were approved by Congress but met with presidential vetoes: the Bonus Bill, vetoed by James Madison in 1817, which would have applied revenue from the Second Bank of the United States to an internal improvements fund; the bill to repair the Cumberland Road, vetoed by James Monroe in 1822; and the Maysville Road Bill, vetoed by Andrew Jackson in 1830.
In many of these cases, both supporters and opponents of the bill maintained that the public works projects themselves were desirable for linking markets and producers throughout the expanding commercial republic, but they disagreed on the question of congressional power. Several constitutional amendments that would have explicitly granted Congress the power to oversee internal improvements were proposed during the period. Much of the analysis in the internal improvements debates focused on whether a given state had consented to the public works project.19 For example, plans for the Cumberland Road, which connected Ohio to the East Coast, were first discussed when Ohio was admitted to the Union in 1803. Under the terms of the admission compact that Ohio negotiated, Congress agreed to set aside 5 percent of all future net profits from the sale of lands in the state to build roads both inside and outside Ohio.
Many contemporaries viewed the nullification and internal improvements controversies as stemming not only from disagreement about the sectional effects of federal trade policy but also from larger systemic concerns about the scope of federal power. In the 1820s and 1830s, one increasingly salient arena of competition between state and federal power was the regulation of slavery. The overarching federalism question concerned concurrent power: Was slavery an issue of federal power, such that a uniform national law was necessary? If so, should that federal law be supportive of slavery where it existed and perhaps also supportive of its expansion? Alternatively, should federal law contain slavery and perhaps discourage its expansion?
Another question concerned the status of state regulations that conflicted with federal laws on the subject of slavery. Some northern states passed laws that aimed to protect African Americans from kidnapping and harassment by public and private officials who claimed authority under federal fugitive slave statutes. Other states, primarily in the slaveholding South, passed laws that sought to protect slave owners’ property rights in their slaves, to give slave owners greater latitude in punishing slaves, and to restrict the mobility of slaves.
A crucial point about federalism and slavery is that deciding whether the federal government or a state should regulate in a particular situation did not necessarily answer the question of whether the regulation should have a pro-slavery or an antislavery orientation. Some federal laws supported slavery, while others cabined it. Some states’ laws aimed to protect and liberate African Americans, while others were intended to confine them in slavery and to limit the rights available to African Americans, whether slave or free. Contemporaries debated whether the Constitution itself enshrined slavery as part of the system of government, including the system of federalism. The abolitionist editor William Lloyd Garrison called the Constitution a “covenant with death” and “an agreement with hell,” arguing that protections for slavery lay at the core of the founding document.20 Radical commentators at the other end of the spectrum argued that the Constitution should be read to give the federal government broad power to regulate and therefore to abolish slavery.21 A moderate group, many of whom were members of the Free Soil Party, argued that the status of slavery as an institution differed from the states to the territories. While the founders had given Congress the power to prohibit slavery from the territories, they maintained, slavery in the existing states was a matter of local law and thus largely beyond the scope of federal power.
The complex relationship between federalism and slavery is most evident in the controversy over the federal fugitive slave laws. The Fugitive Slave Clause of the Constitution states that “no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.”22 In 1793, Congress passed the Fugitive Slave Act, which provided enforcement for the constitutional provision. The act provided that the person to whom service was allegedly due could seize a fugitive, take him or her before any federal judge or state magistrate, and, upon proof of identity and of escape from obligation (either oral or by affidavit), obtain a certificate from the judge that the fugitive owed service to the claimant.
In Prigg v. Pennsylvania (1842), the U.S. Supreme Court took up the question of federalism and the enforcement of the fugitive slave laws. At issue was Pennsylvania’s antikidnapping statute, which required a higher evidentiary showing before a judge was authorized to issue a certificate of removal for an alleged fugitive slave. Writing for the Court, Justice Joseph Story held that the Pennsylvania statue was invalid because it “purports to punish as a public offense against the state, the very act of seizing and removing a slave by his master, which the Constitution of the United States was designed to justify and uphold.”23 Citing the Fugitive Slave Clause of the Constitution, the Court held that the federal government had exclusive power to legislate on the subject of fugitive slaves; therefore, the states could not interfere with the regime established by the Constitution and further required by the congressional statute, which protected the rights of slaveholders. The Court stopped short of requiring state officials to carry out federal policy, however. Story wrote that while state officials ought to implement federal law, they could not be compelled to do so.
Other Supreme Court cases, such as Ableman v. Booth (1859), dealt with related aspects of the fugitive slave laws. In Booth, the U.S. Supreme Court struck down the decision of the Wisconsin Supreme Court that the federal Fugitive Slave Act of 1850 was unconstitutional. The fugitive slave laws and the Prigg decision created a system of “extraterritoriality” that meant that the slaveholder “carried the law of his own state with him when he pursued a fugitive into a free state.”24 As the fugitive slave cases demonstrate, federalism did not offer a clear answer to the question of which level of government had the power to regulate slavery.
Civil War and Reconstruction
The Civil War (1861–1865) and Reconstruction fundamentally changed the meaning and structure of American federalism. The war and its aftermath led to a reshaping of existential questions of union, secession, and citizenship that had been raised but not answered in the antebellum period. Secession lost whatever plausibility it had had as a regional response to national policy; the federal government was given the constitutional duty to enforce certain rights against the states; and the United States became a modern fiscal-military state.
Secession and War
Conflicts over the correct federal-state relationship and over the consequences of that relationship for particular political issues such as slavery and trade were central issues in the presidential election of 1860, which culminated in the election of Abraham Lincoln. One month later, in December 1860, South Carolina passed an ordinance of secession.
Secession was the strongest possible articulation of the compact theory of the union. The South Carolina secession ordinance was drafted by a popularly elected convention. The ordinance amplified the arguments offered by the nullification ordinance twenty-eight years earlier. The power to secede was premised on the claim that the Constitution had established a confederate union. According to this theory, the states were the fundamental political entities of the union; they had maintained their sovereignty; and they could withdraw from the union at any time. The secession ordinance was framed as a repeal of the state’s ratification of the Constitution. “We … the People of South Carolina” declared that “the Union heretofore existing between this State and the other States of North America is dissolved, and that the State of SC has resumed her position among the nations of the world, as a separate and independent State.”25
By April 1861, eleven states had passed ordinances of secession. Among the last states to secede were Virginia, Tennessee, and North Carolina, each of which counted a strong and vocal Unionist minority among its citizens. The war began on April 12, when South Carolina troops fired upon the federal garrison at Fort Sumter, in Charleston Harbor.
The names of the belligerent armies—the Federals on one side, the Confederates on the other—demonstrate the centrality of federal ideas to American political and legal thought. Throughout the war, the official position of the Lincoln administration was that secession was not permitted under the Constitution and that the southern states were therefore in a state of rebellion or insurrection. In his first inaugural address, Lincoln insisted that secession was legally invalid:
No State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances. I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States.26
Lincoln argued that the Union predated the Constitution, pointing to the 1774 Articles of Association among the colonies, which took effect fifteen years before the ratification of the Constitution. “I hold that, in contemplation of universal law and of the Constitution, the Union of these States is perpetual,” he stated.
The constitution of the Confederate States of America contained many federal elements, some of which were borrowed directly from the U.S. Constitution. The Confederate Constitution replicated the majority of the Article I congressional powers, the Supremacy Clause, and the Tenth Amendment. The Constitution of the Confederate States retained most of the U.S. Constitution’s limitations on state power, forbidding them the power to make treaties and alliances, to coin money, or to lay import or export duties. Unlike the U.S. Constitution, the Confederate Constitution expressly prohibited Congress from passing any laws “denying or impairing the right of property in negro slaves.”27
Reconstruction and the associated constitutional amendments fundamentally reshaped American federalism, although their full effect was not realized for another century. As with the war, the path of Reconstruction was defined by the framework of the Constitution and, in particular, by the “configurative role” that federalism played in “channeling” the conflicts over slavery, economic policy, and the status of the territories.28 In the late 1860s and early 1870s, commentators shifted from a focus on the founding of the Union to a self-conscious redefinition of the meaning of Union, citizenship, and federalism. In the aftermath of the war, the terms in which contemporaries discussed these concepts underwent a profound transformation.
Taken together, the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments and the associated acts of Congress reoriented the federal-state relationship. The Civil Rights Act of 1866, the first act of “Radical Reconstruction,” made the federal courts the forum for vindicating federal rights against the states. President Andrew Johnson vetoed the bill, but Congress overrode the veto. The federal executive branch also expanded its enforcement power. Other statutes established the Freedmen’s Bureau, created federal causes of action against violations of civil rights, and expanded the jurisdiction of the federal courts. Although these civil rights provisions were principally aimed at expanding the protections afforded to African Americans, in most cases they were not limited by their terms to the vindication of the rights of freed people. Consequently, the amendments and the acts passed pursuant to them became the fount of modern civil rights law. The protection of federal constitutional rights was put squarely within federal power.
Along with these changes to the federal-state structure, the Reconstruction Amendments created new individual rights and made them enforceable against the states, by federal means. A key aim of Reconstruction, and of the Fourteenth Amendment in particular, was to expand the protections afforded by the Bill of Rights so that individuals would be able to claim rights against their states.29 These remedies represented a shift from the founding period, when the central concern had been protecting individual rights against the federal government. As Lawrence Friedman has noted, the Fourteenth Amendment created a flood of judicial review. In the first decade after the amendment’s passage in 1868, the Supreme Court decided three cases under the Fourteenth Amendment. Between 1878 and 1888, that number rose to forty-six cases and then to 297 cases between 1896 and 1905.30
The move toward expanded civil rights and greater enforcement by the federal courts was not uniform, however. Political and legal resistance to both structural and rights-based changes continued throughout the period, causing the stalling of some of the most potentially radical effects of Reconstruction. In the Slaughter-House Cases (1873)31 and the Civil Rights Cases (1883),32 the U.S. Supreme Court severely limited the scope of Fourteenth Amendment protections for civil rights as well as Congress’s ability to enforce the amendments.
The 20th Century
The status of American federalism in the early 20th century is best characterized by Justice Louis Brandeis’s famous 1932 statement that “a single courageous State may, if its citizens, choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”33 During the Progressive Era, debates about the proper federal-state relationship were central to discussions of policy, the power of government to solve social and economic problems, and the appropriate scope and agents of reform. State police power was robust, which meant that state and local regulation flourished.34
The early 20th century witnessed the expansion of federal power in areas such as war and defense, territorial expansion, and bureaucracy. Reconstruction’s expansion of broad federal power over civil rights was still in eclipse, however. Federal power was rarely brought to bear against states that passed Jim Crow segregation laws or that otherwise enforced or tolerated racial discrimination.
The New Deal Transformation
In the 1930s, federalism moved to the center of political and constitutional debate. The specific issue of federalism that was at stake was the scope of Congress’s power to pass economic legislation under its power to regulate interstate commerce. Citing the exigencies of the Great Depression, President Franklin D. Roosevelt and Congress passed several groundbreaking pieces of legislation aimed at ameliorating the Depression and encouraging economic growth. The legislation was unprecedented, insofar as it brought federal power to bear on local economic conditions, collective bargaining agreements, agricultural quotas, and a host of other areas that had previously been viewed as largely the domain of state regulatory power.
In the early decades of the 20th century, the Supreme Court had taken a variety of views toward Congress’s power to regulate interstate commerce. Many cases had construed the commerce power narrowly. For example, in 1896 the Court had held that the Sherman Antitrust Act of 1890 did not apply to the so-called Sugar Trust, which controlled 98 percent of the U.S. sugar-refining market, because the commerce power did not extend to manufacturing.35 In 1918, the Court invalidated federal child-labor regulation, holding that regulations of local labor conditions did not fall within Congress’s enumerated powers.36 By the 1930s, therefore, ample precedents existed for reading the commerce power narrowly, an approach the Court continued when it struck down major New Deal legislation such as the National Industrial Recovery Act of 193337 and the Bituminous Coal Conservation Act of 1935.38 Other constitutional sources of congressional authority, such as the taxing power, were also read narrowly, with similar effects for other New Deal legislation, such as the Agricultural Adjustment Act of 1933.39
Beginning in 1937, however, the Court began to take a more expansive view of the commerce power. The Court began to uphold congressional acts that sought to regulate interstate commerce,40 adopting a line of reasoning that had also been present in previous cases upholding federal legislation concerning intrastate railroad rates,41 the sale of lottery tickets,42 and stockyards and the meatpacking industry.43 The fact that this apparent shift in the Court’s jurisprudence followed the announcement of Roosevelt’s proposal to change the composition of the Court led some observers to term the doctrinal move “the switch in time that saved nine.” This view portrays the doctrine as shifting abruptly and in response to external political pressures. But recent scholars have pointed to a variety of internal and external factors to explain the events of 1937, some of which have emphasized the cases’ continuity with earlier decisions and strands of reasoning.44
The 20th-Century Civil Rights Revolution
The combined result of the Court’s broad interpretation of congressional power to regulate the economy, the growth of the federal administrative state, and new concerns about the legitimacy and desirability of judicial review was to expand the domain in which federal legislative power operated. Between 1937 and the 1990s, congressional regulation under the commerce power was virtually guaranteed to pass constitutional muster. During the 1960s, in the context of the civil rights movement, the Court further broadened the commerce power by taking a highly deferential stance toward congressional judgments that racial discrimination by operators of restaurants and hotels serving interstate travelers could be prohibited under the commerce power.45
Many observers regarded the expanded scope of congressional power as a vindication of the principles of Reconstruction. The landmark Civil Rights Act of 1964, which was based on Congress’s commerce power as well as the Fourteenth and Fifteenth Amendments, made explicit the link between federal power and the protection of individual rights. By the late 1960s, invocations of states’ rights were typically aimed at resisting federal power over civil rights, in favor of permitting state-sanctioned segregation and discrimination.
Beginning in the 1980s, federalism returned to the center of American political debate. States’ rights began to be invoked more frequently in mainstream political debate, after two decades of association with southern segregationism. In some cases, however, the states’ rights argument had shifted to become the prototypically liberal argument, in contrast to the more conservative nature of previous states’ rights claims. Against the backdrop of a perceived conservative national policy in areas such as same-sex marriage, drug regulation, or immigration, liberal policy makers in the states moved to embrace state autonomy to a degree not seen since before the New Deal era.
Many national political debates continue to be argued in terms of the federal-state relationship. The Patient Protection and Affordable Care Act of 2010 immediately sparked lawsuits by states attorneys general to halt its implementation. The financial stimulus package that followed the Great Recession of the early 2000s prompted several governors to vow to reject federal funds. In 2010, the state of Arizona passed new immigration laws, which in turn were met with a lawsuit by the U.S. Department of Justice asserting that the regulation of immigration was a federal and not a state power. The status of state laws permitting medical marijuana (and, in two states—Colorado and Washington—recreational marijuana) is uncertain as of 2015, given that federal law continues to ban marijuana possession or distribution.
The divisions among 18th- and 19th-century commentators find striking echoes in modern debates, in particular in the Supreme Court’s decisions centering on the Tenth Amendment. That amendment has been at the center of 20th- and 21st-century arguments about federalism. The amendment states: “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.”
For some modern-day federalists—including a majority of the Supreme Court in these “new federalism” cases—federalism requires the type of structural, subject-matter-specific separation that advocates of a sharp line between federal and state judicial power demanded in the 1790s and 1800s. In this view, the job of a federalist judge is to police the formal boundaries between the states and the general government. Structural commitments to vertical separation of powers, as well as pragmatic considerations about accountability, are held to militate in favor of a clear delineation between levels of power, even if the downstream consequence of such a holding is to encourage the expansion of federal bureaucracies because Congress is not permitted to “commandeer” or “impress” the states into its service. Schemes of cooperative federalism, which typically involve significant federal-state overlap, are disfavored.
For the dissenters (who also consider themselves “federalists”), meanwhile, the need to maintain a formal division between state and federal authority is less important than the impulse to encourage experimentation and cooperation among levels of government. In addition, these justices resist the majority’s claim to the federalist mantle and argue that their view, in fact, represents a stronger commitment to the real federalism. This is the “irony” that Justice Byron White identified in his dissent in New York v. U.S. in 1992: “In its formalistically rigid obeisance to ‘federalism,’ the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems.”46 Like the early republicans who viewed state-court review of federal questions under the Supremacy Clause as both more convenient and normatively preferable to the creation of a system of lower federal courts, the dissenters in the Tenth Amendment cases seem relatively untroubled by the use of state institutions to carry out federal law.
The historical record suggests that both accounts have a long pedigree. The real meaning of today’s federalism may be the same as that of the old federalism. Federal thought has always contained within it a commitment to the division of governmental powers. It may be tempting to view current political and legal debates through the lens of state-versus-federal power and to think that the correct view requires choosing between those sources of authority. But these issues are, in fact, the current incarnation of the bigger, deliberately unresolved question of how governmental authority is to be divided between polities—and which institutional actors will get to make that determination.
Discussion of the Literature
The scholarship on federalism can be divided into roughly three types: legal, historical, and political science.
In the legal literature, federalism is a central concern of scholars of constitutional law and federal courts and, to a lesser extent, administrative law and civil procedure. Much of the recent literature focuses on three issues:
• descriptive accounts of how federalism works in practice, especially the degree to which federal-state authority is overlapping and interwoven
• discussions of the justifications for federalism, including originalist accounts that emphasize the founders’ intentions; structural and historical accounts that compare federalism to its alternatives and regard it as an evolving process; democratic accounts that associate federalism with individual liberty; and public choice accounts that point to federalism’s ability to minimize collective action problems
• normative assessments of the proper balance of federal and state authority that should be brought to bear on a given doctrinal area or set of questions.
Federalism is also implicated in particular areas of legal scholarship in which the distinction between state and federal lawmaking is significant, including immigration law, family law, and education law. Finally, federalism is relevant to much of the theoretical literature on constitutional interpretation, democracy, and judicial review.
The historical literature on federalism is varied and diffuse. There are few systematic treatments of federalism across U.S. history. Much of the historical work focuses on the Revolutionary and founding periods. Much of this literature can be roughly divided between work that emphasizes continuities between the political and legal structures of British North America and the United States and work that argues for the novelty of the American system, sometimes with particular emphasis on the drafting and ratification of the Constitution. The historiography of federalism then largely skips to the Civil War and Reconstruction eras, with the struggle over federal power and state sovereignty intersecting with issues including slavery, war, westward expansion, capitalism and industrial development, and imperialism.
In political science, a significant body of work on political theory and in the American political development school touches on questions of federalism. There is also a growing body of empirical work examining federalism on the ground and testing some of the conventional justifications for federalism against actual observed policies.
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(1.) See Alison L. LaCroix, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2010), 22.
(2.) Samuel Johnson, Taxation No Tyranny: An Answer to the Resolutions and Address of the American Congress, 4th ed. (London: T. Cadell, 1775), 24.
(3.) Daniel Dulany, Considerations on the Propriety of Imposing Taxes in the British Colonies for the Purposes of Raising a Revenue by Act of Parliament, 2d ed. (Annapolis, MD: Jonas Green, 1765), 15.
(4.) Thomas Jefferson, “Draft of Instructions to the Virginia Delegates in the Continental Congress (MS Text of A Summary View &c.),” in Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton, NJ: Princeton University Press, 1950), 1:135.
(5.) Articles of Confederation, Article III, in Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, ed. Francis Newton Thorpe (Washington, D.C.: Government Printing Office, 1909), 1:10.
(7.) Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (New York: W. W. Norton, 1990).
(8.) Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (New York: Alfred A. Knopf, 1979), 136.
(9.) LaCroix, Ideological Origins, 128.
(10.) Alison L. LaCroix, “The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology,” Law and History Review 28.2 (2010): 451.
(11.) Alison L. LaCroix, “The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic,” Supreme Court Review (2007): 345.
(12.) James Madison, “The Federalist No. 10,” in Jacob E. Cooke, ed., The Federalist (Middletown, Conn.: Wesleyan University Press, 1961), 56.
(13.) First Inaugural Address, in Thomas Jefferson, Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 493.
(14.) Joseph Jones to James Madison, July 3, 1789, in Organizing the Federal Judiciary: Legislation and Commentaries, vol. 4, The Documentary History of the Supreme Court of the United States, 1789–1800, ed. Maeva Marcus (New York: Columbia University Press, 1992), 441–442.
(15.) See Charles F. Hobson, “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government,” William & Mary Quarterly 36.2 (3d ser. 1979): 215, 228.
(16.) James Madison, Report on the Virginia Resolutions, in The Debates in the Several State Conventions on the Adoption of the Federal Constitution, As Recommended by the General Convention at Philadelphia, in 1787, ed. Jonathan Elliot (2d ed., Washington, D.C., 1836), 4:548.
(17.) South Carolina Ordinance of Nullification, 1 S.C. Stat. 329 (1832).
(18.) Andrew Jackson, Proclamation No. 43 (December 10, 1832).
(19.) Alison L. LaCroix, “The Interbellum Constitution: Federalism in the Long Founding Moment,” Stanford Law Review 67.2 (February 2015): 397–445.
(20.) William Lloyd Garrison to Rev. Samuel J. May, July 17, 1845, in The Letters of William Lloyd Garrison, ed. Walter M. Merrill, vol. 3, No Union with the Slaveholder, 1841–1849 (Cambridge, MA: Belknap, 1973) 303; The Liberator, May 6, 1842.
(21.) See William Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, NY: Cornell University Press, 1977).
(22.) Article IV, Section 2, Clause 3.
(23.) Prigg v. Pennsylvania, 41 U.S. 539 (1842).
(24.) Don E. Fehrenbacher, Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective (New York: Oxford University Press, 1981), 22.
(25.) An Ordinance to Dissolve the Union Between the State of South Carolina and Other States, Dec. 20, 1860, in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, ed. Robert N. Scott (Washington, D.C.: Government Printing Office, 1880), 1:110.
(26.) Abraham Lincoln, First Inaugural Address (March 4, 1861), in A Compilation of Messages and Papers of the Presidents, ed. James D. Richardson (Washington, D.C.: Bureau of National Literature and Art, 1897), 7:3206.
(27.) Confederate Constitution, Article I, Section 9, Clause 4.
(28.) Arthur Bestor, “The American Civil War as a Constitutional Crisis,” American Historical Review 69.2 (January 1964): 327.
(29.) See Gerard Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York: New York University Press, 2013).
(30.) See Lawrence M. Friedman, A History of American Law, 3d ed. (New York: Simon & Schuster, 2005), 259.
(31.) 83 U.S. 36 (1873).
(32.) 109 U.S. 3 (1883).
(33.) New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Brandeis, J., dissenting).
(34.) William J. Novak, “Police Power and the Hidden Transformation of the American State,” in Police Power and the Liberal State, eds. M. D. Dubber and M. Valverde (Stanford, CA: Stanford University Press, 2008), 54–73.
(35.) U.S. v. E.C. Knight Co., 156 U.S. 1 (1896).
(36.) Hammer v. Dagenhart, 247 U.S. 251 (1918).
(37.) Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935).
(38.) Carter v. Carter Coal Co., 298 U.S. 238 (1936).
(39.) U.S. v. Butler, 297 U.S. 1 (1936).
(40.) See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); U.S. v. Darby, 312 U.S. 100 (1941).
(41.) Shreveport Rate Case, 234 U.S. 342 (1914).
(42.) Champion v. Ames, 188 U.S. 321 (1903).
(43.) Stafford v. Wallace, 258 U.S. 495 (1922); Swift & Co. v. U.S., 196 U.S. 375 (1905).
(44.) See Laura Kalman, “The Constitution, the Supreme Court, and the New Deal,” American Historical Review 110.4 (October 2005): 1052.
(45.) Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).
(46.) New York v. U.S., 505 U.S. 144, 210 (1992) (White, J., dissenting).