Dual Federalism

Dual Federalism, a concept that derives from the view that the Constitution was a “compact” made by the sovereign states and the people of those states for the limited purpose of giving the new national government a range of explicitly enumerated powers. The states otherwise retained all the authority of sovereign polities. The states were co‐equals with the national government because in their own “spheres” of authority—in exercise of their “reserved” powers—they were as fully supreme as the national government was in its sphere. Many, in the founding period and now, consider the Tenth Amendment an expression of this view; others deny that it should be viewed as derogatory of federal supremacy, especially in light of the Fourteenth Amendment, adopted in 1868.

Even constitutional nationalists such as Alexander Hamilton and John Marshall were willing to acknowledge rhetorically the concept of states' sovereignty in their own spheres. But they never accepted that a state's consent might be withdrawn nor interposition of state authority or outright secession permitted. Southern proslavery interests had a powerful stake in dual federalism, and the decisions of the Taney Court fulfilled their expectations on most counts (see Slavery).

Despite the outcome of the Civil War and adoption of the postwar amendments, the Court continued to rely on doctrines based on dual federalism as instruments for invalidating federal regulatory legislation, as in the child labor case Hammer v. Dagenhart (1918), in which the Court sustained the inviolability of the states' reserved powers (see Labor).

Dual federalism virtually disappeared from the Court's formal jurisprudence, however, as the result of the New Deal “constitutional revolution,” especially the expanded view of federal commerce power. Since World War II, the only application of the Tenth Amendment as a limitation on congressional regulatory power in areas “belonging to the states” has been in National League of Cities v. Usery (1976), a decision on wage and hour legislation that was reversed in Garcia v. San Antonio Metropolitan Transit Authority (1985).

See also Federalism; State Action; State Sovereignty and States' Rights.

Harry N. Scheiber