Federalism and State Powers

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Throughout U.S. history, the division of power between the federal government and state governments has been the subject of continuous political and legal battles. After suffering from the British government's political and economic tyrannical policies applied to the American colonies that eventually led to the American Revolution (1775–1783), many Americans greatly distrusted centralized governmental powers. As a result, when the Continental Congress drew up the Articles of Confederation in 1781, the new central government was assigned few powers. The central government had little authority over commerce, no court system, and no power to tax. The states were essentially a loose union of sovereign (politically independent) governments, each free to regulate commerce as it saw fit, make money, and have their state courts hold judgement over national laws.

It soon became apparent to many Americans that such a fragmented governmental structure based almost solely on state powers would greatly hold back political and economic growth of the young nation. So, in 1787 a Constitutional Convention was called to restructure the government and create a national economy. Debates raged between federalists, those supporting a strong central government as proposed in a Virginia plan, and anti-federalists supporting continued strong state governments as proposed in a New Jersey plan which greatly resembled the Articles of Confederation. Finally, a compromise, known as the Great Compromise, was struck deciding on federalism as the basis for the governmental structure. Federalism is a dual (split in two) system of sovereignty, splitting power between a central government and various state governments. Both the federal and state governments can directly govern citizens through their own officials and laws. The resulting Constitution in recognizing the sovereignty of both federal and state governments gave to each some separate unique powers and some shared powers. Importantly, both the federal and state governments must agree to any changes to the Constitution.

Selling the Constitution

The new federal system proposed in the Constitution was so controversial in the states, that national leaders, both federalists and advocates for state powers (antifederalists) temporarily joined forces to convince the states to ratify the Constitution. Alexander Hamilton and James Madison along with John Jay wrote a series of eighty-five articles to support ratification of the Constitution. Initially they were published separately in New York newspapers. Collectively, the essays became known as The Federalist are considered one of the more important political documents in U.S. history. Purpose of The Federalist was to explain various provisions (parts) of the Constitution. As described by the authors, the basic principles of the new government included republicanism (representatives elected by the public), federalism (power split between a central and state governments), separation of powers (power split between two or more branches of government), and free government.

Many of the Constitutional Convention's delegates as well as public citizens feared that too strong of a central government was being established. For example, the Supremacy Clause in Article VI of the Constitution states that the Constitution, federal laws, and treaties are superior to state laws and constitutions. States can not ignore or take actions against federal law or the Constitution. In an effort to ease American's fears and to gain acceptance of the Constitution, therefore moving ratification (adoption by the states) along, the federalists and antifederalists agreed to a compromise. A list of basic rights was written with intentions of adding it to the Constitution. The Constitution then gained the required ratification of the states by 1788. One of the first acts of the new Congress was to add the list of basic rights to the Constitution. The list contained ten amendments (changes or additions) to the Constitution and became known as the Bill of Rights. The Tenth Amendment in particular protected state powers and became the basis throughout American history for proponents of strong state powers to fight for their cause.

Powers Set Out in the Constitution

Articles I through VI of the Constitution largely define Federal powers and puts some restrictions on state powers. For example, only the federal government has power to coin money, declare war, raise armies and a navy, and govern Indian tribes. Concerning the federal court system, only the U.S. Supreme Court was specifically named in the Constitution, but Congress was given authority to establish other federal courts. The Tenth Amendment assigns all powers to the states not specifically given to the federal government. The amendment states that "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." States also retain a common law "police power" to pass laws protecting the health and safety, and economic welfare of its citizens. Both the federal and state governments hold similar powers in some areas such as the power to tax and to borrow money.

Particularly important clauses of the Constitution that have played a key role in determining the boundary between federal and state powers have been the Commerce Clause, the Necessary and Proper Clause, the Supremacy Clause, and the Contract Clause. These clauses recognize the dominance of the central government. The Commerce Clause in Article I gives the federal government exclusive authority to regulate interstate commerce (business between states) and trade with foreign countries. The Necessary and Proper Clause of Article I states that Congress has the authority to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested [granted] by this constitution in the government of the United States, or in any department, or officer thereof." The Supremacy Clause in Article VI states that "This Constitution, and the Laws of the United States . . . shall be supreme Law of the Land; and the Judges in every State shall be bound thereby." When the federal and state governments have passed laws on the same subject, the federal law takes priority if they come into conflict. The Contract Clause in Article I reads that "No State shall . . . make any . . . Law impairing the Obligation of Contracts."

Other limitations on state powers are included in Article IV. Each state must respect the laws, records, and court decisions of other states and that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." States can not discriminate against the citizens of other states.

A Long, Intense Debate

Largely due to the intensity of debate between federalists and states' rights advocates (antifederalists), the Constitution did not precisely establish the line between federal sovereignty and state sovereignty. As a result, over two centuries of controversy and a bloody Civil War (1861–1865) have centered on attempting to resolve the differences between those advocating a strong central government and those advocating states rights. In fact, the first two political parties in the nation were based largely on this issue, the Federalist Party and the Democrat-Republican Party (antifederalists). The balance of power between the federal government and the states has steadily changed through time.

Survival of Federalism

With British domination over the colonies still fresh in peoples' minds, a strong public support for state powers persisted through early American history. When a U.S. Supreme Court ruling in Chisholm v. Georgia (1793) weakened states' powers by upholding the right of a citizen of one state to sue another state, Congress and the states responded with the Eleventh Amendment to the Constitution which was passed and ratified within only a few years. Overriding the Court's decision, the amendment limited the rights of citizens to sue state governments. However, at the beginning of the nineteenth century the tide would turn towards federalism.

The appointment in 1801 of John Marshall, a Federalist, as Chief Justice of the U.S. Supreme Court marked the beginning of Court decisions favoring a strong federal government over state government power. Chief Justice Marshall's opinions were brilliantly reasoned and masterfully written. In Marbury v. Madison (1803) Marshall fully recognized judicial review in which the Court is the government body to decide whether laws are constitutional—that is, in agreement with the principles and power established by the Constitution. In 1815, the state of Virginia challenged the Supreme Court's constitutional authority of judicial review, but lost in Martin v. Hunter's Lessee (1816). The heavily Federalist Court continued to interpret the Constitution as granting broad (extensive) powers to the national government. In McCulloch v. Maryland (1819) Marshall ruled that the Necessary and Proper Clause gave Congress power to make any laws considered necessary to carry out its duties in providing for the nation's welfare. This principle is referred to as implied powers, powers not actually written down in the Constitution but needed for the government to function. The decision also reinforced the supremacy of federal law over state law when the two conflict. Likewise, in Gibbons v. Ogden (1824), another decision limiting state powers, the Court recognized Congress' exclusive power to regulate a broad range of business activity that could affect interstate commerce (trade between states).

One of the earliest and most dramatic disputes involving states powers resulted in the Cherokee Nation v. Georgia (1831) decision. The state of Georgia even refused to attend the Supreme Court hearing and went ahead with execution of a tribal member in defiance of federal powers. Only a year later in Worcester v. Georgia (1832) the Court ruled that state sovereignty did not include power to regulate Indian lands. Only the federal government held such power over Indian nations.

During this early period of nationalism and recognition of broad federal powers, the basic provisions of the Constitution most often used by Marshall and the Court was the Necessary and Proper Clause, the Supremacy Clause, the Commerce Clause, and the Contract Clause.

A Turn to State Powers

Marshall, through his rulings favoring the federal governments strong role, has been largely credited for saving federalism during the early period of American history. However, his decisions still maintained a respect for state sovereignty as demonstrated in the Barron v. Baltimore (1833) decision. Marshall ruled that the restraints to governmental powers in the Bill of Rights did not apply to state governments but only protected Americans from abuses of power by the federal government. With John Marshall's death in 1835 while still serving as Chief Justice, the Court took a decided turn away from recognizing strong federal powers and began favoring protection of state police powers. This was at a time that Jacksonian politics favoring strong state powers and a weaker federal government dominated public thought. The emphasis on state powers, promoted by President Andrew Jackson (1829–1837), prevailed for several decades. Similarly, the Court adopted the doctrine of "dual federalism" meaning the federal and state governments have equal power with each having its separate authorities to operate under.

By the mid-nineteenth century, state powers became closely tied to the slavery issue. Dismayed with the Marshall decisions, particularly McCulloch affirming federal supremacy, the Southern states closely guarded their power to regulate slavery. Victory by Union forces in the American Civil War decided once and for all that the federal government was supreme over states and that under federalism no state has the power to secede (leave) the federal Union. Three new constitutional amendments, known as the Civil War Amendments, were designed to restrict state powers over U.S. citizens, in particular former slaves, and shift the balance of power from states to the federal government. The Thirteenth Amendment banned slavery. The Fourteenth Amendment, adopted in 1868, made the Bill of Rights apply to state governments as it had to the federal government since first adopted in 1791. The amendment states that "No State shall . . . deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Fourteenth Amendment also declared that former slaves were indeed citizens entitled to all the privileges of citizens. However, in respect to states' powers the Court did little in the late nineteenth century to enforce the amendment against state regulation and abuses of citizens' rights.

The power of businesses within states gained an upper hand during the late nineteenth and early twentieth century. A period of rapid industrial growth, the courts adopted a laissez-faire approach (business free of government regulation) to economic matters by restricting governmental regulation and intervention. The Court would use the Tenth Amendment to negate federal attempts at business regulation by protecting state interests, and would use the Due Process Clause of the Fourteenth Amendment to protect private property rights and freedom to contract from state regulation. For example, the Court in Lochner v. New York (1905) overturned a state law establishing working conditions including maximum hours for New York bakers by claiming it violated the "liberty of contract" protected under the Fourteenth Amendment's Due Process Clause.

Broad state police powers were recognized in Euclid v. Ambler Realty Co. (1926) to protect public health and safety, and to develop natural resources. The concept of dual federalism in the early twentieth century was perhaps most dramatically highlighted by the Court's decision in Hammer v. Dagenhart (1918). The ruling overturned a federal child labor law by claiming it was reserved as a state power under the Tenth Amendment. The Court continued to use the dual federalism doctrine to overturn economic recovery measures passed by Congress into the early 1930s.

The Twentieth Century Rise of Federal Government Powers

By the late 1930s the Court, under public and political pressure resulting from reform efforts to recover from the Great Depression resulted in a dramatic change. The idea of federalism and Marshall's earlier positions returned. In West Coast Hotel Co. v. Parrish (1937) the Court extended federal power to regulate some economic activities within states. Under a broadened Commerce Clause interpretation, federal powers expanded at the expense of state powers and emphasis on the Tenth Amendment declined. The Court in NLRB v. United States (1936) reaffirmed the Wagner Act which brought labor relations under federal oversight. In addition, the Social Security Act creating a national retirement fund, passed in 1935. Another fundamental shift in power had occurred.

Although by the end of World War II (1939–1945), the federal government's powers were clearly dominant over state powers, some important state powers remained. For example, the Court ruled in Erie Railroad Co. v. Tompkins (1938) that federal courts must recognize previous state court decisions as law. The decision in International Shoe Co. v. Washington (1945) expanded state powers over out-of-state businesses that operate within their boundaries.

Increased federal powers were further recognized in the 1950s and 1960s, primarily over the issue of racial discrimination. Through the 1940s the states had retained the primary responsibility for governing the rights of its citizens. Therefore, to protect individual rights from state abuses, the Supreme Court began issuing decisions limiting state powers related to freedoms of speech and religion, due process rights to fair trials, and equal protection of the law. The Supreme Court in Brown v. Board of Education of Topeka, Kansas (1954) barred racial segregation policies in public schools and brought local school districts under federal oversight. How the state and local governments create voting districts came under federal oversight in the Baker v. Carr (1962) decision. A 1965 ruling in South Carolina v. Katzenbach upheld the Voting Rights Act of 1965 that prohibited state-established voting requirements. Also in 1965, the protection of privacy from state powers was recognized in Griswold v. Connecticut setting the basis for later recognizing abortion rights. The ruling in Miranda v. Arizona (1966) and other Court decisions substantially changed state criminal justice systems. All of these cases and more focused on limiting state power over individual behavior. Interpretation of the Fourteenth Amendment's guarantee of equal protection of the laws and due process played a key role in these decisions, allowing the amendment to finally play a role in federalism.

By the late 1970s the pendulum began to swing back to the states. State power advocates joined in opposition to these federal court decisions restricting state rights. Efforts at racial desegregation attracted the most attention. Interest in increasing state powers through greater emphasis on the Tenth Amendment to limit federal powers arose. Opposition to federal welfare programs and limitations on the criminal justice system led to the rise of a states' rights movement in the 1980s under President Ronald Reagan (1981–1989). States began receiving more authority to experiment with social programs. This direction received an additional boost in 1994 with the first Republican-controlled, pro states' rights, House of Representatives since the 1940s. As a result the mid- and late-1990s saw further growth in state powers.

Federalism and State Powers Persist Side by Side

Despite the limiting of state powers under federalism through establishment of Supreme Court judicial review, broad commerce powers of Congress, and application of the Bill of Rights and the Fourteenth Amendment to states, the states maintained constitutional and political sovereignty at the end of the twentieth century. Although the supremacy of the federal government was well established, states were still free to govern much of their own political, economic, and social affairs in areas where Congress had not acted to establish consistency on a national level. Supreme Court decisions continue to either limit or support state powers depending on the particular issue at hand and the interpretation of federalism continues to change through time.

Suggestions for further reading

Elazar, Daniel J. American Federalism: A View from the States. New York: Harper & Row, 1984.

Katz, Ellis. Federalism and Rights. Lanham, MD: Rowman & Littlefield, 1996.

Levy, Leonard W. Origins of the Bill of Rights. New Haven, CT: Yale University Press, 1999.

Livingston, John C. The Consent of the Governed. New York: Macmillan Publishing Company, 1971.

McWilliams, Wilson C. The Federalist, the Antifederalist, and the American Political Tradition. New York: Greenwood Press, 1992.

Wood, Gordon S. The Creation of the American Republic, 1776-1787. New York: W. W. Norton & Company, 1969.

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Federalism and State Powers