Federalism, History of

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Reflecting on the achievements of the constitutional convention, james madison, wrote in 1831 that the Framers had lacked even "technical terms or phrases" to describe accurately the governmental system they designed. Prior to 1787, the term "federal" had been used to signify confederation, a system in which sovereignty remained with the constituent states that ceded certain elements of authority to a central government—and in which the central authority's legislature merely could propose measures to the states for approval. By contrast, in what was known as "consolidated" government, typical of the modern European nation-state, the central authority was the repository of sovereignty and the power of the locally based units of government depended entirely upon it. The Founders departed from all the historical precedents in both these modes, Madison declared, to produce a system that was "a novelty and a compound." It is this system that we know as American federalism, with its combination of features associated with both the consolidated (or unitary) nation-state and the old-style confederational form of government.

Nearly two centuries of colonial history in North America had afforded only rare examples of cooperation and coordination that presaged even in a remote way the system devised in 1787. In 1643, Plymouth, Massachusetts, Connecticut, and New Haven formed a league called the United Colonies of New England. Commissioners appointed by the four governments dealt with boundary questions, missions to the Indians, and even coordination of military operations in the Indian war of 1675–1676; but the organization soon faded into obscurity. The only serious effort at united action after that time and involving surrender of any colonial powers was the abortive Albany Plan of Union of 1754. Designed by benjamin franklin and thomas hutchinson, the plan would have created a council of the colonies and an executive appointed by the Crown. In addition to being empowered to declare war, conclude treaties with the Indian nations, and regulate territories outside the existing colonial boundaries, the council would have been given authority to impose taxes. But the plan foundered, with not a single colonial assembly giving assent to the proposal.

Certain qualities of the British colonial system itself had foreshadowed American federalism. Although formal authority remained squarely in the hands of the British government, still the colonies were given significant latitude in governing their own affairs. The sudden centralization of power after 1763, when the British decided to tighten the reins and impose new taxes and administrative reforms, precipitated the Revolutionary crisis. Even the exigencies of newly declared independence and armed conflict with Britain had not induced the American states, however, to surrender claims to sovereignty in the interest of national unity. Indeed, the articles of confederation specifically provided that each state would retain "its sovereignty, freedom, and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." Article III, moreover, described the government only as "a firm league of friendship." The notorious weaknesses of government under the Articles, leading to demands for basic reform by 1786–1787, derived from precisely this perpetuation of the states' prerogatives.

What the Convention sought to create in 1787 was a system in which some measure of sovereignty would be retained for the states; but the national government would be given powers ample enough to govern effectively, operate directly upon the citizens, and establish the nation as a credible presence in international affairs. The continued existence of the states as separate legal entities was an essential component of the original understanding embodied in the Constitution. Structural features that assured the states of great influence included the system of representation in Congress (including equal representation for each state in the Senate), the amending process, and the voting by state in the House of Representatives in presidential elections not resolved in the electoral college.

Equally important was the concept of enumerated powers. The jurisdiction of the proposed national government, wrote Madison in the federalist #39, extended "to certain enumerated objects only, and [left] to the several states a residuary and inviolable sovereignty over all other objects." The "general principle" underlying enumeration of the central government's powers, as james wilson later wrote, was "that whatever object was confined in its nature and operation to a particular State ought to be subject to the separate government of the States; but whatever in its nature and operation extended beyond a particular State, ought to be comprehended within the federal jurisdiction." On this principle was designed Article I, section 8, with its enumeration of the specific powers of Congress, including control over foreign and interstate commerce, coinage, and the military and naval forces; the power to establish roads and post offices, inferior federal courts, and an organized militia; and authority as well to declare war and conclude treaties, to create a federal district as the seat of government, and to govern territories and regulate property of the United States. Specific limitations were also embraced in the original document of 1787: the prohibition against import and export taxes, grants of titles of nobility, bills of attainder, suspension of habeas corpus except during rebellions or invasions, or congressional interference with the slave trade for a period of twenty years. Demarcating the boundaries of the states' authority were provisions in Article I, section 10, that prohibited the states from enactment of ex post facto laws, bills of attainder, or laws impairing the obligation of contract. The Constitution also forbade the states from entering into treaties or imposing duties or tonnage fees without permission of Congress.

The seeds of controversy over the proper reach of the bounds of national power were to be found, however, in the general welfare clause and in the necessary and proper clause. Article VI, moreover, included the supremacy clause, holding that all laws and treaties made under the Constitution "shall be the supreme Law of the Land." Opponents of the Constitution cited all these provisions as evidence that the Constitution could easily justify a dangerous centralization of power, overwhelming the states and rendering their alleged residual sovereignty a nugatory matter. A new tyranny, according to this view, could easily be the result of consolidated, unitary government.

Anticipating exactly such objections, the Framers built into the federal design a guarantee of a republican form of government to each state. The privileges and immunities, and extradition provisions further buttressed state authority. The most important consequence of concern about the centralization of power and potential tyranny, however, was the movement for a bill of rights. The first nine amendments, together with the original provisions of the Constitution prohibiting the states from enacting bills of attainder or abrogating contracts, represented an effort to establish national ideals of justice—defining boundaries beyond which government must respect the rights of individual citizens. The Bill of Rights served to reinforce federalism itself as a bulwark of defense for liberty against concentrated governmental power.

What values were intended to be served by this new system of federalism, a system described by a New York judge in 1819 as a "complex and peculiar structure" that permitted the states and the national government to move "in different spheres but occupying the same territorial space, operating upon and for the benefit of the same people"? The first value, designed to protect liberty and to give republican principles full play, was maintenance of government "close to the people." The champions of the Constitution contended that by giving a continuing—and vital—role to the states, popular oversight of governmental operations would be effective and there would be a high degree of participation in public affairs. These same contentions have been heard ever since in the arguments for a federal division of powers in American government.

A second value given a high place in the rationale for federalism was diversity itself. Regional differences in cultural values and local preferences on matters of law and policy would be permitted and find expression when important powers of government remained with the states. Providing in this manner for diversity meant, as Justice louis d. brandeis argued in new state ice company v. liebmann (1932), 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."

Efficiency was another value intended to be promoted by federalism. Loading all the functions of government upon authority at the center is not only potentially dangerous to liberty; it is also potentially the cause of congestion, complexity, and ineffectiveness. Even unitary, consolidated governments find it necessary to devolve certain functions on subnational or local authority. As Madison wrote in The Federalist #14, even if the states were to be abolished, "the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction." What distinguishes a system founded on the principles of federalism from a consolidated system, however, is that federalism recognizes the legitimacy of exclusive state claims to some meaningful autonomy in important areas of law and policy. Power to control at least some of the things that really matter, in the regulation of society's affairs, must be left to the states.

A notable distinguishing feature of American federalism, consistent with the effective pursuit of these values, is the provision for constitutional amendment. What seemed a rational division of authority in the largely agrarian-commercial nation of 1787 will not be rational (or even minimally workable) two hundred years later in an integrated industrial nation with over fifty times the population of 1787. Most of the major changes in the American federal system, both in formal doctrine and in actual governmental practice, have occurred in response to that problem. By a remarkable insight of the Framers, expressed through the amendment process explicitly and the judicial processes by implication, they provided mechanisms for successful adaptation to changing circumstances and national values.

The principles of a federal system require that major changes in the boundaries of authority between the states and the national government should be accomplished by the prescribed amendment process. Such fundamental change should not occur through a process of ordinary legislation or mere administrative innovations in policy. The actual operation of the American system has sometimes conformed to this ideal: fundamental change in the structure of powers within the system were initiated, for example, by the civil war and reconstruction amendments. Yet at other times basic changes in federal-state relationships were effected without resort to the amendment process. Even the thirteenth, fourteenth, and fifteenth amendments, for example, ratified decisions already made on the bloody battlefields of the Civil War. The doctrine of implied powers was a judicial invention in mcculloch v. maryland (1819). The dramatic swing in antebellum interpretation of the commerce clause—first the marshall court's nationalistic interpretation; then, the taney court's assertion of dual federalism and concurrent powers—came about by judicial innovations in doctrine. Vast changes in law and policy, not least the abandonment of economic due process and the emergence of new presidential emergency and war powers, have occurred since 1933 without benefit of constitutional amendments.

Provisions for accommodating new states in the course of national expansion is another important feature of the federal scheme. The thirteen original states took the chance, in effect, that they would be confronted by new sectional alignments and powerful interests hostile in some measure to their own. It was a certainty that each new state taken into the Union would significantly dilute the power of the original states in the Senate, and, as population grew in newer areas, would dilute even more their power in the House of Representatives and in the Electoral College. This provision for the admission of new states underlined the values fundamental to the original understanding: government close to the people, diversity, and efficiency.

A legacy of the Founders not easily separated from their creation of a federal system is the "federal creed" that has been as influential in shaping political behavior as constitutional provisions have been in shaping the dynamics of government. By "federal creed" is meant habitual skepticism with regard to centralized power. It was expressed vividly in Walt Whitman's Leaves of Grass:

To the States or any of them or any city of the States, Resist much, obey little.

Once unquestioning obedient, once fully enslaved, no nation state, city of this earth, ever afterward resumes its liberty.

These lines express a political reality of the nineteenth century, namely, that whenever a policy was considered, debate typically centered not only on the wisdom of the policy itself but also on the cognate question: what level of government—the states or Washington—ought legitimately to have responsibility? It was the enduring popular commitment to the values of federalism, some historians contend, that kept the nation from accepting full-scale reorganization as a consolidated, unitary government in the Civil War years. Instead, despite such centralizing measures as the wartime banking laws and the postwar adoption of the Fourteenth Amendment, there remained a strong faith in the desirability of a meaningful "state sovereignty." The culture of federalism was expressed in the enigmatic pronouncement of the Supreme Court in texas v. white (1869) that "the Constitution in all its provisions looks to an indestructible Union composed of indestructible states." Similar convictions about the states' continuing importance found voice in collector v. day, two years later, when the Court asserted that surviving aspects of state sovereignty made the states "as independent of the general government as [it] is independent of the states."

Opponents of centralized power appealed to such convictions in the late nineteenth century and early twentieth century, when they argued for narrow construction of the commerce clause and found in the due process clause of the Fifth Amendment authority for declaring unconstitutional congressional regulatory measures. The same federal creed led many reformers in the Progressive era to prefer uniform state codes to outright imposition of uniformity in law by congressional action. In the New Deal years and down to the present day, moreover, opponents of the welfare and regulatory features of modern policy have expressed their views in terms that extolled state sovereignty and deplored the centralizing of power in Washington as contrary to the Framers' intent.

The variety and ingenuity of such arguments have led many commentators to conclude that the federal creed is a convenient, all-purpose shield behind which to advocate special-interest positions. The most egregious example in the nation's history has been the invocation of states ' rights as a justification for policies of racial discrimination. Conservative jurists also created a constitutional void within which neither the national government nor the states could legislate to regulate economic interests; federalism became the handmaiden of laissez-faire. Inconsistency in the application of federal principles in the 1920s led thomas reed powell to remark that "the sacred slogan of states' rights is easily forgotten when employers wish their laborers sober but unctuously invoked when they wish them young" (a reference to southern opposition to child-labor laws and support of national prohibition). In the post-world war ii era, moreover, some of the most outspoken champions of "small government" and states' rights, and opponents of the nationalization of economic and social policy, have also been most consistently in favor of massive increases in the size of the national armed forces and even of federal surveillance of political activists and other infringements on civil liberties.

Even if one concedes that federalism can be a smokescreen behind which special interests can pursue selfish aims or hide inconsistencies, the prominence of the traditional values of federalism in political rhetoric indicates that such arguments are regarded as effective. They are, in effect, appeals to the values of a "federal" political culture: American political consciousness retains inherited and much reiterated notions that certain important values are best served by decentralization of power.

Some prominent contemporary students of American federalism claim that the abstract concept of separate governments (state and national), with separate responsibilities and constituencies, is—and indeed always has been—a fiction. According to this view, despite the "fiction" of enumerated powers there has always been an overlap of responsibilities and a significant measure of federal-state sharing of power. "Dual federalism"—the concept of state and national governments occupying distinct, separate spheres of authority—is in this version of our history only a myth. Contrary to this view is another that contends that until 1861 the federal system in actuality functioned much as the model of "dual federalism" prescribed, and after the Civil War, there began a progressive centralization of power which continued until the 1980s.

The evaluation of such contending views depends upon analysis not only of doctrinal development but also of the system's practical operation. How has government actually behaved, and to what extent has power been centralized or decentralized in important areas of policy, at different stages of the nation's history? In fact, the story of American federalism is one of progressive centralization. Except for the overarching continuity infusing the whole record—the progressive centralization of power, step by step—distinct stages in the history of federalism indicate fundamental discontinuities.

The first stage was the period from the founding, in 1787–1789, to the Civil War. In this period, a remarkable array of governmental functions were exclusively, or nearly so, in the hands of the states. Power was diffused, and what "sharing" was found tended to be confined to the most superficial types of cooperation between state and national governments. Criminal law, definition of the requirements of due process, prison management, and criminal punishment were all state functions. So was the definition of property rights, confined only by the contract clause decisions of the Supreme Court. The power of eminent domain was exercised by the states virtually without a check by federal authority. Public education and labor relations, even slavery, were state matters. The states controlled the content of commercial law, family law, and such common law matters as the rules of torts, nuisance, and liability. Also decentralized were corporation law, most of taxation policy, and the design and control of the nation's transport system. At no other time after 1861 were the theoretical maxims of dual federalism so closely approximated by government in action.

The decentralization of real power before 1861 persisted even though the Marshall Court was handing down a series of landmark "nationalizing" decisions that lay the doctrinal groundwork for centralization. Even the Marshall Court left the door open for robust state regulatory activity. By the late 1830s, moreover, the Taney Court had begun to develop the doctrine of "concurrent powers," and it had shored up the state police power with its decision in charles river bridge v. warren bridge (1837). Congress simply abstained from acting in many areas of policy that had been left open to it by the Marshall Court's doctrines. The state governments, therefore, held the reins in many vital areas of policy; the structure and dynamics of power were decentralized. One consequence of this decentralization was significant state-to-state variation in the substantive content of law in property, labor, family, and criminal law. The differences between law in slave states and free states were only the most dramatic illustration of such diversity.

The period from 1861 to 1890 was the second stage in the development of American federalism. Formal constitutional change came with the Civil War and had transforming doctrinal and practical consequences, deriving from the Thirteenth, Fourteenth, and Fifteenth Amendments. Meanwhile, Congress in the 1860s was enacting civil rights laws, instituting an income tax (terminated after the war), inaugurating a national banking system, subsidizing transcontinental railroad projects, and expanding the size and reach of the federal bureaucracy generally. Thus power was centralized at an entirely unprecedented level, both in control of the economy and in protection of individual rights. Laws expanding the jurisdiction of the federal courts further concentrated power in the national government. In 1887, the interstate commerce act inaugurated federal administrative law and centralized the regulation of the railroads. In 1890, the sherman act marked the beginning of federal business law. Although such measures continued the centralizing trend in the distribution of real power, nonetheless elements of dual federalism persisted: property law, criminal justice, family relations, labor law, and most of an infant system of business regulation all remained nearly exclusively with the states.

The third stage of American federalism occupied the years 1890–1933. It was an era of accelerating centralization of policy responsibilities—although diversity persisted and the states did continue to exercise a wide-ranging discretionary authority, without substantial federal interference or direction, in many areas of law. Large-scale aid for irrigation in the West commenced with the Carey Act of 1894; and the Newlands Act of 1902 established an even larger national policy presence in that area. The pure food and drug act (1906) signaled a trend toward exercise of the national police power, augmenting controls imposed through use of the taxing and spending power, postal power, and commerce power. Both the Federal Reserve Act of 1913 and the clayton antitrust act of 1914 greatly extended federal administrative law, displacing state regulatory powers. Over the next seventy years, one of the most influential changes was the sixteenth amendment, which set the stage for the national government's use of income taxes as a major source of revenues. Midway in this period, moreover, came the dramatic temporary expansion of centralized power occasioned by world war i. Although the conservative dominance of Congress in the Republican 1920s slowed the centralizing trend, even in that decade new responsibilities were assumed or expanded by the national government. They included the institution of federal grants-in-aid to the states for infant and maternity care, and expansion of the federal roads program, established earlier. The 1920 Transportation Act and the Federal Power Act of the same year also enlarged the regulatory powers of the federal government.

Ironically, these expansions of centralized power occurred in counterpoint with recurrent expressions of dual federalism and limited government doctrines by the Supreme Court. The most important initiatives of Congress struck down by the Court were the income tax instituted in 1893 and the 1916 keating-owens child labor act. Matters such as labor relations were "entrusted to local authority" by the Constitution, the Court asserted in hammer v. dagenhart (1918); child labor was "a purely local matter in which federal authority does not extend," and to permit Congress to regulate child labor risked permitting "our system of government [to] be practically destroyed"! Yet the same judges who subscribed to such doctrines of federalism also adhered to the doctrine of economic due process. Hence, when the Court reviewed regulatory and welfare legislation enacted by the states, it frequently struck down such laws under the Fourteenth Amendment. The Court thus immunized many business interests against regulation by either the state or the national government. The federal judiciary's activism in the cause of laissez-faire and dual federalism, ironically, was evidence of a negative type of centralization: the Supreme Court stood as censor of the states in vital social and economic matters.

Against this background of mixed constitutional doctrine and new centralizing initiatives, intergovernmental relations in the modern "sharing" mode emerged. Its most important feature was grants of cash aid to the states. Congress often tied strings to such aid, requiring planning of state programs and some degree of auditing by federal officers. By 1920, eleven programs were paying $30 million annually to the states—about 2.5 per cent of state revenues, or about a tenth the proportion paid by such grants-in-aid in the early 1980s—with most of the payments representing highway construction funds.

In the field of civil rights, the Court made only a small dent in the solid shield of states' rights behind which Jim Crow legislation, disfranchisement of blacks, and control of racial violence remained the exclusive responsibility of state governments. In the South, white supremacy reigned. In the area of freedom of speech and freedom of the press, however, there was some movement by the Court toward applying Fourteenth Amendment constraints on state action.

The fourth stage of American federalism's development embraced the new deal and World War II years, from 1933 to 1945. This period witnessed the wholesale centralization of policy responsibilities, a movement spurred by the worst economic depression in the nation's history and by four years of total mobilization for war. In the wake of centralizing initiatives by Congress came a dramatic shift in constitutional doctrine by the Supreme Court. To be sure, the Court initially erected doctrinal barriers to the innovations of franklin d. roosevelt's New Deal administration; but by 1937–1938 a modern "constitutional revolution" had occurred without benefit of formal constitutional amendment. The Court discarded the doctrine of economic due process, and it adopted an interpretation of the commerce clause that validated unprecedented expansion of federal interventions in the economy and of social welfare and relief programs.

One policy area after another that previously had been in the states' hands came into the domain of federal action. Congress made agriculture a managed sector beginning in 1933; and the national industrial recovery act had much the same effect in the manufacturing sector from 1933 to 1935. The tennessee valley authority act inaugurated regional development under federal auspices, and national programs proliferated in the conservation and reclamation fields. The wagner act of 1935 established a comprehensive federal policy of collective bargaining in labor relations, instituting national administrative law in the labor field; and by 1938 wages and hours legislation had augmented the basic labor law by setting uniform national standards. Congress authorized massive federal relief and subsidized work programs; and the social security act and unemployment-compensation legislation of 1935 marked a new era of nationally sponsored and directed welfare policy. The net of federal regulatory power was thrown over many areas of industry formerly controlled, if at all, by the states: broadcasting, trucking, waterways, the securities exchanges, and previously unregulated segments of the banking industry. Meanwhile grants-in-aid—and the model of cooperative federalism of which they were an essential component—began to dominate federal-state relationships. True "sharing," in which the bulk of funding came from Congress, thus became a prominent feature of the working federal system; yet decisions tended to be made at the center, both as to policy and as to funding, with the states exercising administrative functions and serving as conduits for federal money.

Still, except for the three and a half years of war, when emergency powers extended to the national control of virtually every feature of the nation's life, the states remained a source of diversity in the American system of government. Yet the number and the significance of policy areas under their control had been so reduced that a new-modeled federal system had clearly become dominant.

The final stage in the history of federalism dates from 1945 to the present day. Its main feature, at least until the administration of ronald reagan beginning in 1981, was a continued trend toward centralization. Four characteristics of this centralization movement are particularly important. First is the permanent status of large-scale standing military forces, their support taking as much as half of the federal government's operating expenses—something without precedent in peacetime prior to 1940. Second is the tendency toward stronger federal guarantees of civil rights. All three branches of government contributed to the civil rights expansion. The executive branch enforced racial integration of the armed forces and required affirmative action programs of firms taking government contracts. Congress defined new guarantees of rights in areas such as public accommodations, and employment; it also enacted legislation under which executive departments instituted affirmative action and equal opportunity policies in labor relations, education, and other areas. The judiciary played a leading role, with the line of desegregation cases elaborating the principles of brown v. board of education (1954). The Court also carved out new areas of federal constitutional rights, such as the right of privacy and rights against sex discrimination.

The third major characteristic of centralization since 1945 is the rapid growth in the 1960s and 1970s, and the continued importance since then, of federal grants-in-aid to the states. The design and initiation of new grant programs, especially those associated with the "Great Society" measures of the lyndon b. johnson administration, led some analysts to speak of a "near monopolization of innovation by the central government" as a novel form of primary centralization. A fourth characteristic of post-1945 centralization is the continued enlargement of the scope of congressional regulatory concerns. Congress instituted far-reaching controls over air and water pollution, occupational health and safety, food and drug quality, and energy resources. Despite a strong movement in the Jimmy Carter and especially the Reagan years toward "deregulation," the federal regulatory presence in the mid-1980s remained far greater than that of the 1950s.

The Supreme Court seldom has stood in the way of such trends. Indeed, its role has been that of leader in the reapportionment and civil rights areas. In reviewing regulatory measures, only once since 1937 has the Court invoked states' rights or the commerce clause in such a way as to limit congressional power; that one exception was national league of cities v. usery (1976), a decision of limited application although notable for its assertion of the rights of the states "as states." Some state activities, the Court held, were beyond the reach of national wage and hour standards. Yet the Court has validated all other federal regulatory measures.

The scores of modern grant-in-aid programs have included many that bypassed the state governments: federal funds were awarded directly to cities and local special-purpose districts. Another hallmark of recent intergovernmental relations is what may be termed "managerialism," taking the form of program realignments, reliance on new budgeting concepts, oversight of programs by regional-level federal offices, and increased attention by Congress to the quality of governmental services at all levels. In 1958, Congress created the Advisory Commission on Intergovernmental Relations, which became a major proponent of reforms in aid programs and also an exemplar of the new-style managerialism in action.

Successive Presidents have championed the realignment of powers and policy responsibilities, as between the nation and the states. Thus Lyndon Johnson called for a "creative federalism" that would involve private-sector institutions as well as all levels of government in jointly administered programs. Some of Johnson's Great Society program complicated intergovernmental relations by permitting community organizations to challenge the existing governmental and political establishments. A reaction to the Johnson-era programs and politics was embodied in richard m. nixon's call for a "new federalism." His proposals took the form of combining increased executive power with increasing reliance on revenue sharing and "block grants" instead of categorical or conditional grants-in-aid. Although during Jimmy Carter's administration general revenue sharing was continued, the President sought to reemphasize the problems of major urban centers and depressed minority populations; he also sought to impose tighter control on grants-in-aid, to assure the realization of congressional objectives.

Ronald Reagan announced his own brand of "new federalism" on taking office in 1981. Both in his rhetoric and by administrative actions, he sought to turn the clock back dramatically on many features of modern federalism. National political dialogue was infused, for the first time in many years, with an orthodox small-government, anticentralist ideology little heeded since New Deal days. Previous Republican Presidents—dwight eisenhower, Nixon, and gerald r. ford—had all accepted in varying degrees, and even expanded in some respects, the permanent legacy of the New Deal. But in the 1980s, Reagan led a much more deeply rooted challenge to some of the welfare state and regulatory state foundations of the modern federal system. At the same time, he endorsed legislation designed to curb the authority of the federal courts, especially in the civil rights and criminal procedure areas; and he gave his support to constitutional amendments designed to permit school prayer in public schools, to require balanced budgets, and to permit the states to prohibit abortions. Reagan's programs underlined his admiration for the constitutional doctrines and policies of federalism dominant in Republican circles in the 1920s.

Once again, therefore, in the Reagan years, federalism was at the center of political debate in America; and once again, the values of federalism were being invoked for purposes that transcended the mere reordering of federal-state relationships. The classic concerns of federalism in theory—diffusion of power, diversity, liberty, efficiency—remained in the forefront of public attention. How to square the ideals expressed in the original understanding with the social and economic realities of the late twentieth century remained a profoundly important issue.

Harry N. Scheiber


Beer, Samuel 1973 The Modernization of American Federalism. Publius 3:49–95.

Davis, Rufus 1978 The Federal Principle: A Journey through Time in Quest of Meaning. Berkeley: University of California Press.

Grodzins, Morton 1966 The American System: A New View of Government in the United States, ed. Daniel Elazar. Chicago: Rand, McNally.

Mac Mahon, Arthur W., ed. 1955 Federalism: Mature and Emergent. New York: Columbia University Press.

Patterson, James 1969 The New Deal and the States: Federalism in Transition. Princeton, N.J.: Princeton University Press.

Scheiber, Harry N. 1975 Federalism and the American Economic Order, 1789–1910. Law & Society Review 10:57–118.

——1978 American Federalism and the Diffusion of Power. University of Toledo Law Review 9:619–680.

Walker, David 1981 Toward a Functioning Federalism. Cambridge, Mass.: Winthrop.

Wright, Deil 1978 Understanding Intergovernmental Relations. North Scituate, Mass.: Duxbury Press.

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