Federalism and Civil Rights

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In the scheme of the United States Constitution, the concept of federalism requires respect for the distinct legal authorities and diverse cultures of the separate states, but the concept of civil rights requires adherence to uniform rules emanating either directly from the national Constitution or indirectly from various congressional enactments. The two concepts are thus bound in a structural tension.

This tension has persisted since the reconstruction amendments, when the national government first seriously began to create federal civil rights that could be asserted against the states. These rights, together with the expansion of federal judicial power necessary to enforce them, were self-conscious efforts to eradicate aspects of the indigenous culture of the southern states traceable to the institution of slavery. Federal civil rights were thus born in a burst of national centralization.

Ironically, these rights were interpreted by courts in such a way as to permit racial subordination to endure even in the absence of slavery. The fourteenth amendment in particular was understood to establish civil rights that were primarily economic in nature, most notably the right of freedom of contract. In the era after lochner v. new york (1905), federal courts were so persistent in using this right to strike down social reform legislation in the states that Thomas Reed Powell was moved to "question whether judicial centralization is not pushed to an extreme under our federal system."

In this context, the values of federalism acquired a distinctively progressive cast. In 1932, for example, Justice louis d. brandeis, in his dissent in new state ice company v. liebmann, gave his influential and ringing defense of federalism as a "laboratory" for "novel social and economic experiments." When, after the constitutional crisis of the new deal, the Supreme Court backed off from its enforcement of laissez-faire economic rights, these same federalist values led some to challenge the Court's creation of a vigorous regime of noneconomic civil rights. In adamson v. california (1947), for example, Justice felix frankfurter opposed Justice hugo l. black's proposal to "incorporate" the guarantees of the bill of rights into the Fourteenth Amendment for application against the states. Frankfurter argued that the incorporation doctrine would "tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom."

In this way the values of federalism became associated with conservative opposition to the establishment of federal noneconomic civil rights. This association reached its apex when the concept of states ' rights was used to challenge the legitimacy of brown v. board of education (1954, 1955) and the civil rights movement, a conjunction that came close to discrediting the values of federalism as effective limitations on the establishment of civil rights.

Certainly by the mid-1960s, as the nation committed itself to the recognition and implementation of civil rights, the values of federalism were in eclipse. The Supreme Court incorporated virtually all of the Bill of Rights into the Fourteenth Amendment for application against the states, and it aggressively enlarged its interpretation of the scope and application of those rights. The incorporation of most of the fourth amendment, Fifth Amendment, and Sixth Amendment forced the states to comply with uniform national standards in the area of criminal procedure. The Court's expansion of first amendment guarantees of freedom of speech and religious liberty resulted in the invalidation of numerous state regulations that had heretofore been deemed perfectly acceptable reflections of local culture. And the Court's firm commitment to rights of racial and ethnic equality effectively outlawed the Jim Crow culture of the southern states. Congress significantly participated in this process of establishing national civil rights through its enactment of the civil rights act of 1964, the civil rights act of 1968, and the voting rights act of 1965.

By the end of the warren court era, the rhetoric of federalism had virtually disappeared from the ongoing debate about the substance of civil rights. For example, when the burger court deliberated whether the equal protection clause should require strict scrutiny of gender classifications, it argued the question almost entirely in terms of the independent merits of the position, rather than in terms of the effect that such scrutiny would have on the ability of diverse states to enact laws that reflected distinct cultural attitudes toward controversial issues of gender equality. Similarly, when the Burger Court in roe v. wade endowed women with the constitutional right to have an abortion, it barely discussed the implications of the decision for the values of federalism.

The end of the 1960s witnessed a political renaissance of the values of federalism, a renaissance that later intensified during the presidency of ronald reagan. This renaissance found judicial expression in debates over the reach of federal judicial power, rather than in debates over the nature of the substantive civil rights protected by that power. Thus, both the Burger Court and the rehnquist court invoked values of federalism in order to curb the authority and accessibility of federal courts, which the Warren Court had greatly expanded in an attempt to enforce fully the civil rights that it had recognized.

For example, in an important line of cases that originated with younger v. harris, the Burger Court invoked the principles of "our Federalism" in order to limit the availability of federal equity relief. The Court explained these principles as a "notion of "comity,' that is, a proper respect for state functions," and the belief that the nation "will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." The Court invoked similar notions of comity to justify restrictions on access to the courts for federal writs of habeas corpus, expansive interpretations of state immunity from federal judicial power under the eleventh amendment, strict presumptions against waivers of that immunity, and limitations on the authority of federal courts to issue injunctions broadly restructuring state and local government institutions. The tension between civil rights and federalism thus continued, although in a somewhat modulated key.

That tension may profitably be analyzed by inquiring into the values served by the concepts of civil rights and federalism. Civil rights, at least those that emanate from the Constitution, serve mainly to protect persons from the exercise of governmental authority. The persistent image is that of individuals safeguarded by courts from the domination of an overpowering government. From this perspective, it makes no difference whether government power is exercised at the state or federal level.

Yet federalism is committed to the proposition that it is usually preferable to exercise power at the local rather than national level. There are many different rationales for this preference, ranging from efficiency to experimentation. But there are two justifications that are most directly responsive to the values underlying the claim for civil rights.

The first accepts the premise that it is vitally important to protect individual liberty from the excesses of state power, but it views courts as, in the long run, unreliable institutions for securing that protection. Individual freedom is better served, so the argument runs, by establishing the states as centers of power that are competitive with the federal government, in the expectation that the resulting diffusion of power will effectively check the potential for abusive government. To establish the states as independent centers of power, however, requires ceding to them autonomy from a uniform regime of civil rights emanating from the federal government. On this account, then, the resolution of the tension between civil rights and federalism ought to depend upon how the long-term benefits to civil rights anticipated from the structural arrangements of federalism compare against the short-term benefits that would result from judicial enforcement of federal civil rights.

The second justification for federalism strikes deeper, for it denies that the image underlying the rationale for civil rights is adequate as a description of local state governments. State governments, according to this argument, are closer to the people and hence more fully realize the values of political participation. Thus, they should not be pictured as overreaching and impersonal governments estranged from their citizens, but rather as more nearly authentic communities, in which political processes both form and express genuine social commitments. The national imposition of uniform civil rights would therefore be both unnecessary and deeply disruptive of these positive local processes. On this account, then, the resolution of the tension between civil rights and federalism ought to depend upon whether states can more accurately be described as representing authentic and inclusive communities or as impersonal and potentially oppressive governments.

Given the difficult and perplexing nature of these inquiries, it is clear why the tension between federalism and civil rights has endured, and in all likelihood will continue to do so.

Robert C. Post


Post, Robert C. 1988 Justice Brennan and Federalism. In Harry N. Scheiber, ed., Federalism: Studies in History, Law and Policy, pp. 37–45. Berkeley, Calif.: Berkeley Press.

Powell, Thomas Reed 1931 The Supreme Court and State Police Powers, 1922–1930. Virginia Law Review 17:529–556.

Rapaczynski, Andrzej 1985 From Sovereignty to Process: The Jurisprudence of Federalism After Garcia. Supreme Court Review 43:29–38.

Sandalow, Terrance 1980 Federalism and Social Change. Law and Contemporary Problems 43:29–38.

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Federalism and Civil Rights