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F, Federalism.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023


The proper balance of state and national powers in the American federal system, wrote Woodrow Wilson in 1911, is not a matter that can be settled “by the opinion of any one generation.” Changes in the social and economic condition of the society, in the electorate’s perception of issues needing to be addressed by government, and in the prevailing political values, Wilson declared, required each successive generation to treat federal-state relationships as “a new question,” subject to full and searching reappraisal.

The Supreme Court has only rarely explicitly admitted to considering such a pragmatic view of the bases on which the boundary lines ought to be drawn demarcating the limits of national power and the proper realm of the states’ authority. On the contrary, even when the justices have broken new doctrinal ground or moved away from earlier positions on matters of the highest importance in law and policy, their rhetoric typically has referred to the letter—and, ineluctably, also to the spirit—of the Constitution. They have sought for consistency of principle, as judges are obliged to do, even when they are most obviously engaged in a process of transforming the working legal rules under the rubric of established principle. They have tended to speak of the issue of federalism not as “a new question,” as Wilson urged, but as an old and in certain essential respects a timeless formulation.

The Court’s decisions in cases bearing on federalism often address the intensely practical function of maintaining a “balance” of national and state powers that will permit the government to operate effectively—or, at moments of high crisis, even to survive. In a charge to a jury in 1790, Chief Justice John *Jay gave expression to this important aspect of the federal judiciary’s role: If the new Constitution were to be effective as well as just, Jay declared, it was essential to “provide against Discord between national and State Jurisdictions, to render them auxiliary instead of hostile to each other; and so to connect both as to leave each sufficiently independent, and yet sufficiently combined.”

(p. 322) In certain periods of our history, the Court has provided strong intellectual leadership in the development of constitutional federalism—either in a progressive mode, supportive of policy innovation and change, or else in a conservative mode, providing vital doctrinal support to political groups that invoked the principles of federalism as a bulwark against movements for change. In other periods, the Court has been notably reticent, keeping issues of federalism and boundary-setting fairly well isolated from other types of questions brought before it.

When the Court rules on questions of federalism, it does so with uniquely definitive authority to frame policy questions in constitutional and legal terms; and when this happens, the justices run some risk of escalating existing controversies to a new level of intensity in politics as well. (Thus, on one unique occasion, when the Court decided the Dred *Scott case, it took constitutional federalism to an extreme, plunging unnecessarily into the most controversial and explosive area of contemporary politics in a way that caused its most notorious “self-inflicted wound.”) Moreover, as we are reminded by such instances as the Court’s inability to get President Andrew *Jackson to enforce the terms of its decision in Worcester v. Georgia (1832), it is one thing for the Court to pronounce a “definitive” constitutional ruling on a controversial question, but it is quite another thing to command popular approval, or even full compliance from the executive or the states, in response to its mandates. For this reason especially, the Supreme Court’s role as “umpire of the federal system” has often been a source of ideological tension—and occasionally of high political drama—in the course of the nation’s history.

The Antebellum Era.

From the founding period to the *Civil War, the Supreme Court’s deliberations on matters of federalism were consistently subject to a number of distinctive configuring pressures. One of these pressures was the legacy of the American Revolution with respect to distrust of centralized power. The Revolution had been fought in the name of American home rule; and the ideals of self-governance, republicanism, and natural rights had all been invoked in terms of gaining liberation from an overpowering and arbitrary authority at the center, in London. This experience with excessive centralization of authority persisted in American political consciousness throughout the antebellum era. Hence, when the specter of “consolidation” of power in the national government was raised in constitutional discourse, it was a powerful and troubling image. Posed against this concern, however, also as a part of the Revolutionary era’s legacy, was the understanding that it was necessary for the republic to have a central government strong enough to command respect in international relations and to maintain domestic stability.

A second pressure on the Court derived from the ambiguities that were part of the legacy of the ratification debates. For in the great debate over the Constitution as proposed by the framers, there was agreement on all sides that the national government was to be one of limited powers—limited because they were “enumerated” powers, given to that government by the people through the ratification process in the states. There was a striking lack of agreement, however, on the extent to which enumeration meant that a survival of “sovereignty” in the states, as constituent units within the larger system, ensured elements of state jurisdiction against any and all encroachments by the central government (see concurrent power). The Supreme Court, even at its most nationalistic moments, could not escape easily from this legacy of ambiguity and vagueness. Nor could it resolve without a strong reaction the debate over whether it was the states “as states” or instead “the people” of the states collectively that represented the ultimate source of the national government’s power.

The third pressure derived from the fact that the potential for disruption or dissolution of the Union—secession by disaffected states, declaring their right to resume independent sovereign existences as constitutional policies—remained until the Civil War a serious possibility (see nullification). A fourth pressure configuring the Court’s political environment was the fact that the states, as political units, were manifestly competent—as a practical matter—to perform a wide range of governmental functions whose effective pursuit in a later era would clearly require much greater centralization of authority and governmental effort. That is to say, there was little danger to stability of the Republic from a system of highly decentralized federalism in which the national government exercised exclusive or leading authority in only a relatively few areas of policy. Hence whenever the Court denied or cabined state authority, it predictably faced intense criticism for going beyond what pragmatic considerations required.

Finally, there was the question of *slavery in the South. No issue bearing on federalism and the national government’s proper role could ever escape the implications of doctrine and policy for the future of the slave system controlled by the state governments. Just as all of politics was infused by the slavery question, so was all of constitutional law. Neither *“states’ rights” nor “consolidation” was a concept separable from race relations and the maintenance of the slave system in antebellum governance.

(p. 323) In its first four decades—as might be expected in a nation-building period when both the British threat (which materialized in the War of 1812) and the strength of state loyalties, with their decentralizing potential, posed serious dangers to the new republic—the Court’s line of decisions was important above all for the ways in which it shored up the juridical foundations of new national government’s authority. To be certain, even the Marshall Court’s nationalism was tempered by some concessions to the claims of the states. In United States v. *Hudson & Goodwin (1812), for example, the Court ruled that the federal judiciary did not have a common law jurisdiction over crimes; its jurisdiction in the criminal area was restricted according to statutory mandate (see federal common law). The Court also handed down rulings that assured the state courts of their unquestioned authority to construe their own state constitutions and statutes, as well as to perpetuate many important rules of common law in regard to estates, property, trespass, and *torts—a position that the Court affirmed in broad general terms in its decision in Elmendorf v. Taylor (1825).

At the height of the Marshall Court’s enthusiasm for broad construction in a nationalist mode, the Court even lent explicit support to the doctrines of *“dual federalism” on which later-day states’ righters would rely. Thus in *Cohens v. Virginia (1821), a strongly framed nationalizing decision, *Marshall himself conceded that “these States … are members of one great empire—for some purposes sovereign, and for some purposes subordinate” (p. 412). Then, in *Gibbons v. Ogden (1824), even while broadly asserting congressional power over commerce, Marshall made explicit reference to the state *police power as embracing elements of authority “not surrendered to the general government”—a concept that he broadened in a subsequent decision, *Willson v. Blackbird Creek Marsh Company (1829), to provide the basic doctrine of what became known as the dormant commerce power. Similarly, in *Weston v. Charleston (1829) the Marshall Court embedded in the nation’s jurisprudence a long-lived doctrine that prescribed immunity of state agencies against the federal taxing power (the obverse side of *McCulloch v. Maryland and its immunizing of federal instrumentalities from state taxation).

The most important “decentralizing” decision with respect to the role of the states in the nation’s governance, however, was *Barron v. Baltimore (1833), in which the Court decided that the Bill of Rights amendments had not been intended to apply as checks upon the state governments. Thus the hand of the federal courts was stayed; and not until after the Civil War, then mainly through application of the *Fourteenth Amendment, did the Court mobilize the national judicial power in the cause of protecting individuals and groups against governmental threats to the great liberties defined in the first eight amendments.

Still, the impact of these and other decisions favoring to varying degrees the sovereignty of the states paled in significance against the countertrend of the first four decades. This was the Court’s movement toward nationalism and a broad construction of the enumerated powers granted to the national government in the Constitution. The principal instruments for recognizing broad discretionary authority in Congress and the federal courts themselves included the Supremacy Clause, the Commerce Clause, and the *Contracts Clause. Asserting in Cohens v. Virginia (1821) that “no government ought to be so defective in its organization, as not to contain within itself, the means of securing the execution of its own laws” (p. 387), Marshall indicated the Court’s readiness to exercise its power of *judicial review when state courts presumed to pass on the constitutionality of an act of Congress. In McCulloch v. Maryland (1819), striking down Maryland’s attempted taxation of the Bank of the United States, the Court mobilized the Supremacy Clause to give unstinted notice of its intent to read very broadly authority to act: “The government of the Union,” Marshall wrote, “though limited in its powers, is supreme within its sphere of action. … It is the government of all, its powers are delegated by all; it represents all, and acts for all” (p. 404).

This magisterial view of the government “of all” carried over to commerce and contract decisions in which the Court boldly deployed its own judicial authority to review state legislation and thereby constrain and limit state action. Thus the Court applied these constitutional clauses to protect recipients of state land grants or other property from arbitrary actions of the state legislature (as in Fletcher v. Peck, 1810); and it threw a blanket of Contracts Clause protection over the incorporeal elements of corporate franchises, in the *Dartmouth College v. Woodward (1819). Guarding freedom of navigation on internal waters and a free internal market for movement of goods in commerce (at least formally assured in Gibbons v. Ogden), the Court gave mercantile and investor interests the very type of nationalization of rights that the Court declined to extend to civil liberties in Barron v. Baltimore.

Dual Federalism and the Taney Court.

In the latter part of the antebellum era, from 1836 until the Civil War, when Roger B. *Taney served as chief justice, the Court significantly altered its posture with regard to the juridical nature of American federalism. The Taney Court moved with determination to shore up the doctrines of a “dual federalism,” based on the notion of the (p. 324) state and national governments as coequals—each operating in its own sphere, autonomous within that sphere. The first move in this direction came in *Charles River Bridge v. Warren Bridge (1837), when the Court’s new majority declared that state governments enjoyed wide discretionary authority to advance and protect rights of the public as against the claims of corporations (see private corporation charters). No charter should be given a broad construction, and thereby afforded sweeping protection under the Contracts Clause against regulation or new competition, the Court declared. The Court sought to assure that the states would retain in robust form a police power based upon “the rights reserved to [them]” by the Constitution—that is, “the power over their own internal policy and improvement, which is so necessary to their well being and prosperity” (p. 552).

The Court further narrowed the effectiveness of the Contracts Clause limitation on state action by ruling in *West River Bridge Co. v. Dix (1848) that when the states exercised the eminent domain power to take property, challenges to the propriety of such *takings or to the compensation to the former owners of property taken were the exclusive concern of the state’s own agencies; the federal courts would not intervene. In this and later eminent domain cases, the Court declined to make the state governments in this wise “subject to our supervision” (Mills v. St. Clair County, 1850).

A series of Commerce Clause cases, beginning with New York v. Miln (1837) and culminating with Cooley v. Board of Wardens (1851), did similar damage to another key doctrinal buttress of the Marshall Court’s nationalism. Some subjects of regulatory authority in commerce, the Court declared in Cooley, demanded “a single uniform rule,” but others “as imperatively demand[ed] that diversity, which alone can meet the local necessities of navigation” (p. 318). In the Miln decision, the Court had declared that in its own sphere “the authority of a State is complete, unqualified, and exclusive,” pointedly referring to the “undeniable and unlimited jurisdiction” of the state in that sphere (p. 138). In The *Passenger Cases (1849), the justices were divided, but the majority view again treated the nation and the states as coequals, reasserting that state powers sprang from their core sovereignty and were not dependent on the sufferance of Congress.

These decisions both reflected and strategically reinforced the tendencies in Jacksonian-era politics to enshrine the doctrines of state sovereignty and stricter boundaries for the policymaking role of the national government. The Court’s new version of federalism also reflected vividly, however, the Jacksonians’ dilemma of how to continue accommodating the demands of the southern slave states—above all, that their “peculiar institution” be safely kept behind the ramparts of their “inviolable sovereignty,” assuring perpetuation of the slave system. On the one hand, in no case dealing directly with slavery questions did either the Marshall Court or the Taney Court ever reach a conclusion in law that explicitly curbed, or even indirectly challenged, the slave owners’ full control over their enslaved fellow humans. On the other hand, in the Dred Scott case (only the second in the Court’s history to overturn a congressional statute), the Taney Court fecklessly overreached to extend the mantle of federal judicial protection over the institutions of slavery and interests of the slave states. Formally dedicated to doctrines of *state sovereignty and dual federalism, Taney and his colleagues proved quite ready to support sweeping congressional powers to restrict procedural rights of defendants in cases brought under the national Fugitive Slave Law of 1850. As the sectional crisis ominously unfolded in the 1850s, moreover, the Court in Ableman v. Booth (1859) and other cases put down all efforts by state legislatures, courts, and administrative officials in the North to interfere with enforcement of the fugitive acts on grounds that status of persons of whatever color or prior condition of servitude came within the “exclusive sphere” of state authority when present within that state’s borders.

Insofar as the Taney Court espoused nationalistic doctrines in areas of law and policy, other than regarding slavery, it reduced only marginally the scope for action enjoyed by the states in a system dominated by decentralized authority. One nationalistic move by the Court concerned the extent of the federal courts’ admiralty jurisdiction. In *Genesee Chief v. Fitzhugh (1852), the Court upheld congressional expansion of admiralty jurisdiction far beyond what English precedent and the Court’s earlier decisions had permitted, so as to include all major navigable waters. National power was also somewhat extended by the Court in *Swift v. Tyson (1842) in regard to uniformity of rules applicable in commercial cases. The Taney Court also was responsible for developing a generous definition of “diversity of citizenship,” so as to open the federal courts to suits involving corporations domiciled in various states (Louisville, C. & C. R. Co. v. Letson, 1844). Occasionally decisions on corporate activity cut both ways, notably in *Bank of Augusta v. Earle (1839), in which the Court ruled that under *comity principles there was a presumption that “foreign” (that is, out-of-state) corporations could do business in a state unless that state had explicitly adopted a policy of exclusion.

When the guns sounded at Fort Sumter in 1861, such technical doctrines of interstate comity (p. 325) and the like yielded to the great constitutional questions: Did states have the right to secede? How far must the nation go to protect the institution of slavery in this nation as nearly the last remaining stronghold of a slave system in the western world? And to what extent might armed force and suspension of civil liberties be invoked to defend the Union? These questions in the last analysis were decided not by learned jurists buts by the infantry, cavalry, and artillery of armies in the field of battle.

The Post-Civil War Era.

If ever the Court was faced with federal-state relationships as “a new question,” as Woodrow Wilson later phrased it, the Civil War and *Reconstruction years were such a time. In its famous dictum in *Texas v. White (1869), that the Constitution, “in all its provisions, looks to an indestructible Union, composed of indestructible States” (p. 725), the Chase Court encapsulated and enshrined the Radical Republicans’ view of federalism. This was the epitaph for the “compact theory” of federal union that had been championed by state rights advocates—the idea that the states as states, not the people of the country as a whole, were the ultimate source of the national government’s power. The triumphant nationalist theory of federalism had warranted the deployment of the armies and the extraordinary wartime emergency powers mobilized by President Abraham *Lincoln during the Civil War; and now it would similarly lend constitutional legitimacy to the military occupation and Reconstruction governments in the southern states after the war (see presidential emergency powers).

Although the indivisibility of the Union was a settled question, other major issues remained on the Court’s agenda after the war and through the first three decades of the twentieth century. Crucial among these issues was the rising industrialization of the nation, along with the emergence of a corporate structure that had become well established as the prototype of advanced capitalism by the early 1900s (see history of the court: reconstruction, federalism, and economic rights). The giant national economy, stressed by the successive impacts of new technologies and the ways in which older regions and sectors were challenged by the velocity of accelerating economic change, manifestly could not be brought under effective public regulation—if that is what the electorate and their governors wanted—without a strong degree of centralization of power. How much centralizing of regulation the Constitution approved, and the extent to which the states’ economic and welfare policies would be subject to constitutional limitations, remained vital questions. No less momentous for the future of the nation and its federal system was the Court’s response to the post–Civil War amendments—especially the Fourteenth, which many of its congressional authors clearly had intended to effect a fundamental change in the balance of state and national power.

In ways reminiscent of the Marshall Court’s mobilization of contract, commerce, and supremacy doctrines to limit the autonomy of the states, the Court in the late nineteenth century created a formidable arsenal of doctrines that expanded national authority while placing curbs on the reach of state power. Commerce Clause jurisprudence continued to be of central importance, as, for example, in 1877, when the Court invalidated a state law conflicting with congressional regulations of the new electric telegraph industry (Pensacola Telegraph Co. v. Western Union). “Within the scope of its powers,” the Court forthrightly declared, the national government “operates on every foot of territory under its jurisdiction. It legislates for the whole nation, and is not embarrassed by State lines” (p. 10). By striking down state railroad rate regulations that impinged on interstate operations, the Court in the 1880s gave new life to the concept of the “dormant commerce power” of Congress: even in the absence of national legislation, state action that burdened interstate commerce would not be tolerated. This position undoubtedly served as the trigger for Congress to step in with major legislation in the form of the 1887 Interstate Commerce Act (see interstate commerce commission).

Once Congress thus had occupied a legislative field, the door was opened for the Supreme Court to engage in statutory interpretation that would find specific congressional intent to preempt the entire area of policy—and thus to foreclose types of state regulation that might otherwise have passed a constitutional test. In the 1890s, the expanded formal authority that Congress thus enjoyed lent impetus to its legislation for national regulation of lotteries, the liquor traffic, and commerce in game taken in violation of state laws. The Pure Food and Drug Act of 1906 heralded a qualitative change in the character of federal intervention, since this law relied for enforcement upon a large bureaucratic force of agency experts doing inspections in the field.

The post–Civil War Court also built on the earlier doctrine of a federal commercial common law to develop a more expansive notion of a “general jurisprudence” that it invoked to overturn state court decisions that upheld bond repudiation. The justices’ deployment of new doctrines as negative checks on state action went forward apace from that foundation. Thus by 1900, gradually accepting most of Justice Stephen *Field’s property-minded theories and leaning upon the jurisprudence of Thomas *Cooley and other conservatives, the Court had developed (p. 326) a full-blown doctrine of “implied limitations” expressed in a variety of modes. Ironically, one of them, the concept of “business affected with a public interest,” was introduced in the decision of Munn v. Illinois (1877), when the Court had upheld strong regulatory interventions by the states. But over time, the drawing of the boundary between “ordinary” businesses (which the Court ruled could not be regulated) and those in the “affected” category became a means of immunizing many forms of enterprise from state control.

A second major doctrine that provided for limitations on state authority was “liberty of contract,” expressed most fully in *Lochner v. New York (1905) (see contract, freedom of). A third was the notion of “public purpose” restrictions upon use of the taxation power of the states; it became linked with a conservative move by the Court to curb the range of federal taxation as well (see due process, substantive). In addition, the Supreme Court repeatedly upheld federal trial courts’ uses of equity powers in labor disputes, often over the objections of state officials or even against the thrust of state legislation—and invariably against angry opposition from the craft unions.

Of course, the Court’s activism in all these respects constituted an exercise of centralized power that itself profoundly affected the balance of the federal system. This does not mean either that the Court always disfavored the states or that it consistently supported the uses of national power that Congress chose to pursue. As to the states, for example, the Court did uphold a broad discretionary authority for them to develop their natural resources through various uses of the eminent domain power, the ordering of their water law on highly diverse lines, and even the adoption of a variety of regulatory measures such as public health enforcement. In decisions of this kind, the Court declined to extend an activist federal judicial censorship over the states’ efforts to cope with some of the leading challenges of economic development and the attainment of new goals in the areas of public health and welfare. (Indeed, the high courts of many states invoked “substantive due process” doctrine and principles of vested rights even more rigorously than did the federal justices to strike down reform initiatives by their legislatures.) Similarly, the Supreme Court declined to extend the federal procedural guarantees in the criminal justice area, so that state and local authorities continued to enjoy wide discretion in their police operations, court houses, and jails (see due process, procedural). Only in regard to property *takings did the Court depart from *Barron v. Baltimore precedent in this respect, ruling as early as 1897 that the Fourteenth Amendment “incorporated” the takings provisions of the *Fifth that guaranteed property owners due process in eminent domain situations and in some cases of overly broad regulation.

As to the permissible range of congressional power, the Supreme Court began to give close scrutiny to national legislation that it regarded as exceeding constitutional authority. Thus in 1879 it struck down an act of Congress protecting trademarks, and in 1883 it rendered the Civil Rights Acts virtually unenforceable. In the next decade, the Court limited the reach of the *Sherman Antitrust Act by ruling that control of manufacturing was not authorized by the Commerce Clause powers, resulting in a significant delay in effective enforcement; and in *Pollock v. Farmers’ Loan & Trust Co. (1895), the Court found unconstitutional a federal income tax.

The culmination of this line of conservative decision making was Hammer v. Dagenhart (1918), which overturned an act of Congress that would have banned the products of child labor from interstate commerce. This decision crystallized the conservative majority’s successful reformulation of “dual federalism” for the Court. Insisting that the Constitution’s enumeration of federal powers must be read literally—and be measured against the guarantees of “local power … carefully reserved to the States in the *Tenth Amendment”—the majority provided a lecture on constitutional principle that John C. Calhoun would have found quite acceptable: that “the powers not expressly delegated to the National Government are reserved, … [and] the power of the States to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent and has never been surrendered to the general government” (pp. 275–276). It would be the Court itself, of course, that would determine on a case-by-case basis which affairs were “purely internal” in their character, and thus were in an exclusively state-controlled sphere of authority, and which properly were delegated to Congress.

The New Deal Court.

The potential conservative doctrines for crippling the national government in a dire emergency would be fully realized, at least for a short interval, when the Great Depression struck and the early *New Deal legislation came before an often-divided but generally hostile Court. In United States v. *Butler (1936), the Court overturned the New Deal’s agricultural control program on Tenth Amendment and dual federalism grounds, reasserting the delegated powers doctrine of the Dagenhart decision and trumpeting the sacredness of “reserved rights of the states.” In a parallel move, the conservative majority deployed its now-cramped and restrictive version of the commerce power to rule (p. 327) that mining and manufacturing did not constitute “commerce,” hence could not be reached by congressional regulations. In *Schechter Poultry Corp. v. United States (1935), a decision striking down one of the keystones of the early New Deal, the National Industrial Recovery Act, the Court declaimed against the heresy that the Commerce Clause might be construed as “reach[ing] all enterprises and transactions which could be said to have an indirect effect upon interstate commerce.” Such a doctrine, the justices contended, would permit federal power to “embrace practically all the activities of the people”; and in such event, “the authority of the State over its domestic concerns would exist only by sufferance of the federal government” (p. 546).

By gutting the New Deal’s economic program in 1935–1936, the Court invited the White House attack and the political battle that ensued, as President Franklin D. *Roosevelt moved to “pack” the Court so that it would cease to lay what FDR termed its “dead hand” on desperately needed programs that enjoyed broad popular support (see court-packing plan). But the drama of the Court fight somewhat obscured another side of this political drama—the fact that the Court was already sending mixed signals. So far as state regulatory power (as opposed to congressional authority) was concerned, the Court indicated in two decisions in 1934 that a sea change in constitutional doctrine was possible. Thus, in *Nebbia v. New York, it abandoned the classification scheme, applied since 1877, for differentiating ordinary businesses from businesses “affected with a public interest.” This knocked over one of the great props of economic due process; it also extended the range of permissible activity for the states. Similarly with the decision in *Home Building and Loan Association v. Blaisdell (1934), in which the Court upheld a state moratorium on payments of mortgages, the Court set aside brusquely the entire heritage of Contract Clause limits on the states on grounds that emergency conditions warranted it.

As President Roosevelt was able to make new appointments of justices, in each case a well-credentialed New Dealer, the Court produced what has been termed a “constitutional revolution” in doctrine, largely completed by 1941. The “revolution” was in good part one relating to the basic principles of constitutional federalism. For example, the Commerce Clause ceased to be viewed as limiting congressional regulatory power, as was entirely evidenced by the Court’s decision in *Wickard v. Filburn (1942), declaring a virtually plenary national authority in economic regulation. The Court reaffirmed this position in American Power & Light v. SEC (1946), stating that the commerce power was “as broad as the economic needs of the nation” required (p. 104). Similarly, the Tenth Amendment as a barrier to the reach of federal regulatory authority was characterized in United States v. *Darby Lumber Co. (1941) as being “but a truism” and as such merely “declaratory,” hence of no limiting effect (p. 124).

The dimensions of the expanded national role, with Congress occupying one area of responsibility after another that had formerly been exclusively state concerns, was truly transforming in the 1930s: the constitutional revolution was only the formal expression of a fundamentally changed balance of state and national power. The Social Security program of 1935 initiated the social *“entitlement” programs of national scope—the foundation stone of the modern national welfare system. Agriculture became a federally managed sector; the Wagner Act nationalized labor-industrial relations policy; and in an entirely unprecedented move Congress enacted wage-and-hours legislation for the general work force. All these measures were upheld by the Court as constitutional. In addition, a vast array of new regulatory functions and agencies preempted vital segments of regulation affecting communications, transportation, and finance. Taken together with the relief, employment, experimental community, medical, and other social programs of the New Deal, these initiatives amounted to a massive centralization of agenda-setting, financing, and administrative decision-making.

In large measure, then, government in the United States had become unitary rather than truly federal in the sense that there was any easily perceived constitutional limit on nationalization of authority. The Court’s decisions as to congressional authority under the spending power, the taxing power, and the Commerce Clause doctrine, amounted to a nearly plenary federal police power. The states survived as constitutional and political entities, to be sure; and the Court did renounce the federal commercial common law in *Erie Railroad Co. v. Tompkins (1938). But more generally, the extent and importance of the states’ autonomous powers (relative to those of the federal government) had been dramatically attenuated. Subsequent flourishing of government in the states, as evidenced by administrative reforms, expanded functions, and greater efficiency ultimately made the federal system more vibrant and capable of delivering services more effectively than before in many areas of policy. But the resurgence of activity in the states did not reverse this fundamental shift toward centralized government that was the New Deal era’s great legacy. The need for unified command-and-control regulation of the economy and labor force during the *World (p. 328) War II mobilization served to solidify and validate the new order.

The Warren Court Legacy.

Many, perhaps most, of the fundamentally important—and politically most controversial—decisions of the Supreme Court since the New Deal have implicated vital questions of the federal-state balance. The unifying theme in nearly all these decisions has been the reconsideration of the Fourteenth Amendment’s proper reach. Most important, in the line of desegregation cases that centered on *Brown v. Board of Education (1954), the Warren Court placed the public school—that most traditionally local of all governmental institutions—under the close scrutiny of the federal judiciary; and the *“separate but equal” doctrine that had long immunized the states from significant regulation from the center in matters of segregation was repudiated by the Court as a misguided element of law.

The Court followed its declaration of broad principle in Brown with the requirement that desegregation be implemented with “all deliberate speed,” and so it remanded cases to the lower courts with instructions to take account of “varied local school problems” in implementing Brown. This move left much latitude to state and local school authorities; and the Court apparently anticipated their cooperation, however reluctantly it might be given. The South’s response was, instead, official resistance against a background of violent behavior both by the police and racist mobs. Not only did desegregation require dispatch of federal troops and marshals to school grounds and university campuses, as happened at Little Rock, Arkansas, and elsewhere; the desegregation process also drew the federal courts into a role of continuous monitoring and active supervision of school boards’ policies and actions. This new role the federal district judges—a role historically comparable only to their supervision of railroad bankruptcies in an earlier era—became the model for a routinized “institutional-management” function for them. As congressional enactments and the Court’s decisions subsequently extended the Fourteenth Amendment’s reach to affect other areas of state and local government policy where discriminatory practices were found, it meant that prisons and jails, law enforcement units, election officials, and even state judicial bodies came under varying degrees of monitoring and day-to-day orders by federal courts.

In the *reapportionment cases of the 1960s, the Warren Court extended the equal protection doctrine to create a new set of constitutional imperatives, ending the long-entrenched system of blatant inequalities favoring rural districts in representation. Bitterly resisted by Justices John M. *Harlan and Felix *Frankfurter in dissent, the Court in *Baker v. Carr (1962) abandoned the view that state representational process and structure constituted a *“political question” beyond the proper jurisdiction of the federal courts. Again, application of the reapportionment decisions often required the federal district judges to supervise relevant legislative process and to approve the maps of district boundaries.

By means of these and other revisions of constitutional interpretation, the Warren Court extended the range of the national government’s authority well into once-sacrosanct legal policy preserves of the states. It did so, above all, by its upholding (as in *Heart of Atlanta Motel v. United States, 1964) of the civil rights acts of the 1960s as constitutional even when they were directed at private behavior and relationships rather than “state action” which would have qualified for regulation under the Fourteenth Amendment. The trend was evidenced also in decisions regarding *church and state, *academic freedom, press censorship, political advocacy, and other *First Amendment questions. And in South Carolina v. Katzenbach (1966) the justices upheld the 1965 *Voting Act’s devolution of wide discretion on the U.S. Attorney General intended to root out “the blight of racial discrimination in voting.” The Court also opened the doors of the federal courts on a progressively wider basis to civil rights suits under section 1983, drawing steady criticism from conservative jurists and politicians who sought to secure the states and their courts from federal oversight.

In most basic regards, the Burger Court—despite adopting a more conservative stance on institutional management of state functions, on review of state criminal decisions, and on some other jurisdictional issues—embraced and extended these doctrines. Thus in the 1970s and 1980s both in upholding congressional anti-discrimination law and in subjecting state and private-sector practices to heightened scrutiny, the Court brought the Fourteenth Amendment into play in the realms of child bearing and pregnancy, *gender-discrimination practices, and age discrimination in the job market. In these areas of law, the Court either placed new affirmative requirements on the states or else enlarged the constitutional limits upon state legislation regulating individual behavior.

All these decisions brought criticism on the Court. A further strong political reaction was directed against the Warren Court’s decision in *Griswold v. Connecticut (1965), striking down a state ban on dispensing of contraceptive devices; and Warren-era decisions that placed new bounds on law enforcement practices and extended *Fourth Amendment rights brought (p. 329) condemnation even from the august Conference of State Chief Justices. The most explosive political response was set off by *Roe v. Wade (1973), when the Burger Court majority, without giving even a nod to so-called federalism values, ruled that women had a right to an *abortion. On the other hand, a strong reaction to the Burger majority came from liberals when the Court rejected a Fourteenth Amendment challenge to stark inequalities in local financing of schools in Rodriguez v. Texas (1973), widely seen as a significant retreat from principles of equality in schooling announced in the desegregation cases. Other decisions of the Burger Court cut back on some of the earlier decisions liberalizing the rules for appeals to the federal courts from the state justice systems.

Withal, the Court’s cumulative rulings from the 1940s to the mid-1990s on “incorporation” of the Bill of Rights, its acceptance of Congress’s authority to define in new civil rights laws the specific types of discrimination that were embraced in the language of the Fourteenth Amendment, and what was accepted for decades as the New Deal Court’s definitive approval of virtually plenary congressional regulatory power on matters deemed by Congress relevant to “commerce,” served as the underpinnings of a transformation in the law of American federalism.

The Rehnquist Court and the “Federalism Revival.”

The Rehnquist Court put the brakes on this transforming movement, so that by the late 1990s the increasingly conservative tribunal had worked a true sea change in the constitutional law of federalism. It did so not only by formulating new basic rules but also by resuscitating some long-discarded constitutional doctrines. Indeed, some of the revived doctrines are rooted explicitly in a tradition of dual federalism that not only predates the New Deal but in some essential respects echoes even doctrines that were invoked to defend slavery and Jim Crow laws in earlier periods of the nation’s history.

Ironically, the keynote for this doctrinal reversal was sounded early by Justice Hugo L. *Black, a judge whose views on many constitutional issues were generally abhorred by “states’ rights” conservatives. In *Younger v. Harris (1971), concerning intrusive federal courts’ oversight of state court proceedings, Black boldly declared that the imperatives of “our federalism” means that “the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways” (p. 44). When the Supreme Court considered pleas for procedural relief from defendants in state courts, Black continued, there must be “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments” (p. 44) In later years, the Court would frequently invoke those phrases in decisions that blunted the force of Warren Court doctrines by narrowing the grounds for procedural appeals to federal courts from the state justice systems.

Another portent of a new dual federalism thrust in the Burger Court years had come in 1976, when a 5-to-4 majority in Usery v. National League of Cities invalidated an act of Congress that applied wage and hours limitations to state and local government employees. This marked the first time since the 1930s that the Court had overturned an act of Congress based on the commerce clause. In Usery the statute invalidated was concerned unambiguously with economic relationships; and the decision brought the Tenth Amendment up out of the grave. “The states as states,” the majority declared, must be protected against such intrusions of federal authority. Unable, however, to apply with any consistency the concepts in expressed in Usery of *“inherent powers” and “traditional functions,” as emanations from the Tenth Amendment, the Court abandoned this adventure in a revived dual federalism: Justice Harry A. *Blackmun shifted his vote, and the new 5–4 majority, in *Garcia v. San Antonio Metropolitan Transit Authority(1985), asserted that the “political safeguards” of state interests that were structural and in that sense integral to political process were protection enough (p. 565). Dissenting in Garcia, Justice *Rehnquist served notice that the issue would be revisited when new justices were appointed in future years. And indeed it was to be revisited, though the “federalism revival” that Rehnquist led as chief justice would be founded principally on other grounds than an explicit application of Tenth Amendment theory.

During the period 1992–2003 four basic doctrines announcing new limits on national power were announced by Rehnquist and by Justices Sandra Day *O’Connor, Anthony M. *Kennedy, Clarence *Thomas, and Antonin *Scalia, who comprised the “dual federalist bloc” on the Court in this period. First was a ruling in 1992 (New York v. United States) that Congress could not constitutionally “commandeer” state government officials by compelling them “to enact and enforce a federal regulatory program.” In Printz v. United States (1997), the Court reinforced this new anti-commandeering prohibition, ruling that Congress’s requiring local officials to conduct background checks on gun purchasers was “fundamentally incompatible with our constitutional system of dual sovereignty” (p. 935).

The “sovereignty” theme was given enhanced prominence in a second major revised doctrine, this one based explicitly on the *Eleventh Amendment as interpreted in *Seminole Tribe of Florida v. Florida (1996). Here the five-justice bloc (p. 330) denied the power of Congress to authorize a suit in federal court against a state government. This decision directly overruled the Court’s position in Pennsylvania v. Union Gas Company (1989), in which the Court had declared that regulations under the Commerce power overrode any Eleventh Amendment limits. Casting an even wider conceptual net, the Seminole majority invoked the common law as it stood in England during the eighteenth century as the background principle of state sovereign immunity.

The Court’s inventive expansion of the Eleventh Amendment’s meaning manifestly went beyond anything that its explicit language warranted, as was acknowledged by Justice Kennedy writing for the majority in Alden v. Maine (1998). The Court in Alden, again by a 5-to-4 vote, struck down a provision of the national Fair Labor Standards Act that had authorized private suits by employees of a state government in that state’s own courts when overtime-pay provisions of the act were violated. Kennedy’s opinion invoked the concepts of “residuary and inviolable sovereignty” (p. 715) and respect for the states’ dignity as grounds for decision. As to the constitutional text itself, Kennedy dismissed as “ahistorical literalism” (p. 730) the argument that the Eleventh Amendment’s language in no ways warranted such breadth of interpretation. This rhetoric, citing “the separate sovereignty of the states” (p. 757) resonated with the tones of antebellum dual federalism discourse. It also was a signal that, despite their frequently voiced paeans of devotion to *“original intent” and their declamations against giving excessive latitude to the explicit language of the Commerce Clause, the conservative majority was marching forward in expanding its new jurisprudence of constitutional federalism. As Justice David *Souter complained in his Alden dissent, the majority had created not only created a doctrine of state immunity out of an ex cathedra proclamation of what was “fundamental” to federal structure and was “implied by statehood itself,” but had gone on from there to declare that this immunity was thenceforth “inalterable” despite the jurisprudence of more than a century to the contrary.

The third basic constitutional revision that the Rehnquist Court’s majority produced to constrain Congress emerged in commerce power cases. The Commerce Clause posed a special problem for the judicial engineers of the new dual federalism because of the consistent deference (except for the short-lived period of Usery doctrine) that the Court had shown to Congress for half a century—effectively granting the Congress a virtually plenary congressional police power in regulation of all activities that Congress deemed to be “substantially related to commerce” and to be “in the national interest.” Moreover, in the landmark civil rights cases of the 1960s (Katzenbach v. McClung and Katzenbach v. Morgan), the Warren Court had reinforced this tradition by extending the reach of the commerce power to validate legislation designed to ban racial discrimination.

The Rehnquist Court abandoned the established doctrine of judicial deference to Congress on regulations under the commerce power. In United States v. *Lopez (1995), the Court thus declared unconstitutional a federal statute of 1990 that banned possession of gun within a school zone. The Lopez majority opinion rejected the claim that gun control near local schools was relevant to commerce. This type of regulation was a traditional state and local function, the Court ruled, not properly subject to federal interference. Significantly, the majority also made a judgment on the adequacy of the legislative process, ruling that there was insufficient evidence in the legislative record that commerce was significantly affected. To critics of the decision, it was especially disturbing that the majority justices were now subjecting the legislative record to an evidentiary standard appropriate to a trial court but, as these critics argued, scarcely appropriate to the very different procedures of a legislature.

The principle that the Court would review legislative process and not only the content of statutes as enacted was underscored by the decision in United States v. *Morrison (2000). Again the five-justice conservative bloc prevailed, striking down the Violence against Women Act, a federal statute that provided a civil remedy in certain types of cases of gender-inspired violence against women. Congress had made an ample record of hearings, including statistical data and numerous legal opinions, even defining the classification of crimes as had been recommended by Chief Justice Rehnquist. In addition, most of the states’ attorneys general had given their support to the act. Yet the majority justices ruled that the legislative record was insufficient, and they scorned the claims of Commerce Clause validity for the act. Rehnquist contended that a clear distinction must be maintained as between state and federal functions, and he ruled that evidence of an “aggregative effect on interstate commerce” (such as Congress had declared was the result of gender-inspired violence) did not justify overriding the traditional primacy of the states in criminal law. The Court’s opinion even invoked the notorious *Civil Rights Cases of 1883, in which the post-Reconstruction Court had eviscerated that era’s civil rights laws by limiting their reach. The fourth new doctrine fashioned to underpin the Rehnquist Court’s revisionism made its first appearance in City of Boerne v. Flores (1997), which concerned congressional authority to define the reach of its substantive powers under the Fourteenth Amendment. The (p. 331) majority justices reaffirmed Congress’s undoubted authority to “enforce” the Fourteenth Amendment (under its section 5); at the same time, however, they asserted that the Court itself had the last word on what substantive rights might be defined by Congress under the Amendment’s section 1. The statute in question had been designed to forbid state or local governments from “burdening” religious activity, and the Court found it unconstitutional on grounds that it went beyond the proper scope of the Fourteenth Amendment, thus upsetting “the federal balance” (p. 536). The Court also announced here a new test of constitutionality, requiring a federal regulatory statute to meet a standard of “congruence and proportionality” (p. 520).

In subsequent cases, the 5-to-4 majority merged its new doctrines on legislative process and Fourteenth Amendment powers, on the one hand, with the revised understanding of the Eleventh Amendment, on the other. These further decisions immunized the states against private suits under two important pieces of legislation: the Age Discrimination in Employment Act (Kimel v. Florida Board of Regents, 2000), and the Americans with Disabilities Act (Board of Trustees of the University of Alabama v. Garrett, 2001). Justice O’Connor reiterated in Kimel that Congress lacked the authority “to determine what constitutes a constitutional violation” under terms of the Fourteenth Amendment. “The ultimate determination of the Fourteenth Amendments’ substantive meaning,” she wrote, “remains the province of the Judicial Branch” (p. 81).

The net effect of these decisions was to elevate to new prominence the issue of *judicial review, this time in the hands of a conservative bloc of judicial activists who were deploying the Court’s authority against Congress in the interests of “federalism values.” Questions of separation of powers were also now at the forefront in confrontations on the law of federalism. The liberal dissenting minority in the federalism cases regularly complained that such aggressive assertion of the Court’s constitutional role was appropriate in the defense or advancement of individual or group freedoms under the Bill of Rights and the Fourteenth Amendment., but that it was inappropriate in the allocation of powers for a “proper federal balance”—a matter which, they insisted, should be determined by the political process and not by judicial fiat.

Counter currents in Contemporary Federalism Doctrine.

Despite the restructuring of federalism law that the foregoing Rehnquist Court decisions achieved, there were some noteworthy doctrinal crosscurrents. Perhaps the most important is that the Court gave no sign that it would abandon long-standing doctrine on Congress’s regulatory authority under the spending power. Hence when Congress grants funds to the states for any purpose, it may attach to these transfers such “regulatory” conditions as it sees fit, regardless of other doctrines introduced as barriers to straightforward regulatory legislation. Nor has the Court repudiated the basic doctrine that a state high court is the ultimate authority in interpreting provisions of its own state’s constitution except when federal rights would be violated; hence “independent and adequate state constitutional grounds” continues to be a potent instrument of state judicial authority.

In addition, the Court’s federalist bloc has not held together on all federalism cases. Rulings in several distinctive areas of law have been particularly significant. First, the Court surprised most observers with its decision, written by Justice Kennedy for the 6-to-3 majority, in *Romer v. Evans (1998) invalidating a Colorado constitutional amendment that would have barred local governments from enforcing ordinances designed to protect homosexuals against discrimination. In a later decision of momentous importance in national life—a decision denounced by Scalia in dissent as a victory for homosexuals in “the cultural wars”—the Court in *Lawrence v. Texas (2003) overturned its previous holding in *Bowers v. Hardwick (1986), now declaring unconstitutional a state “anti-sodomy” law that sought to regulate private sexual behavior by consenting adults.

A startling development was Rehnquist’s move to form a “liberal” majority in Nevada Department of Human Resources v. Hobbs (2002), in which the Court upheld as constitutional the congressional act mandating that employers provide leave time for family purposes. Given the history of gender stereotyping and of disadvantages endured by women in the workplace, the Court ruled it was within Congress’s proper authority under the commerce clause and the substantive language of the Fourteenth Amendment to regulate employment conditions regarding gender. In Buckley v. American Constitutional Law Foundation (1999), the extreme states rights position was rejected as the Court sustained a robust First Amendment right for political speech and activities that a state had sought to abridge. The decision in Buckley overturned a Colorado statute seeking to regulate the petitioning process and to limit out-of-state citizens from participation in the state’s initiative and referendum processes. In dissent, Rehnquist protested that a long-standing and “historically established” practice that he deemed purely “a matter of state concern” should not be overturned by judicial action in this manner (p. 231). Similarly nationalist in its approach was the Court’s decision in Saenz v. Roe (1999), with Rehnquist, joined by Thomas, again in dissent. The Saenz majority ruled that California had acted in violation of (p. 332) the *Privileges and Immunities Clause of the 1787 Constitution (Article IV, section 2 seldom cited by the Court since the 1873 *Slaughterhouse decision) and in violation of the Fourteenth Amendment when it established welfare benefits for persons who were recent arrivals in the state at a lower level than benefits given to persons established as residents for longer than one year.

Finally, it is significant that while limiting the Congress’s regulatory authority by dint of its new federalism doctrines, the Court has also upheld some highly intrusive extensions of federal administrative authority in matters such as abortion counseling and the mandatory medical sustenance of impaired newborn infants—matters historically left to the states, but now become prominent in the conservative “social agenda” in national politics. And in the most highly charged political situation in which the Court has acted in the twentieth century, the conservative bloc intervened in the Florida presidential vote count in the 2000 election. On the one hand the Court declined to adjudge the fairness of state and local election officials’ policies that worked against Democratic nominee Al Gore and favored George W. Bush, while on the other it overrode the state’s own constitutional processes to set aside the Florida Supreme Court’s orders for a recount of votes.


Historically, the political values associated with federalism have been invoked with equal zeal by Marshall Court nationalists and their antebellum state rights opponents, by Radical Republicans in the Civil War era, by the champions of substantive due process in the Lochner era, and by the Progressives and liberals on the one side and by their various conservative protagonists on the other in the modern period of American development. These political values include the notion of a government responsible to the electorate at the grass roots, concerned to protect diversity of interests and ideas and policies, and, above all, supportive of human dignity and freedoms. The Supreme Court’s successive—often rival—formulations and revisions of federalism doctrine have reflected how the process of constitutional ordering expresses the competition of basic values in the marketplace of political ideas. They also reflect how pursuit of such values as individual dignity has sometimes required the imposition of national standards and curbing of state prerogatives, with consequent diminution of *“dual federalism” values. As was noted at the outset of this essay, however, the Court also has maintained a concern, perforce, with making government effective—that is, a concern to square with the mandates of a constitutional federalism the need for government to respond to changing social and economic conditions, emergencies of war and peacetime, and evolving political ideals in the larger constitutional culture of the nation. Maintenance of terms on which the Union will function as “a nation of states” has thus been at the very heart of the Court’s historical importance in American governance.

Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1982). Philip P. Frickey and Steven S. Smith, “Judicial Review, the Congressional Process, and the Federalism Cases,” Yale Law Journal (2002): 1707–1756. Kermit L. Hall, ed, Federalism: A Nation of States—Major Historical Interpretations (1987). Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973). Paul L. Murphy, The Constitution in Crisis Times, 1918–1969 (1972). Robert Post, “The Supreme Court, 2002 Term: Foreword: Fashioning the Legal Constitution: Culture, Courts and Law,” Harvard Law Review 117 (2003): 4–112. Harry N. Scheiber, “Federalism and Legal Process: Historical and Contemporary Analysis of the American System,” Law and Society Review 10 (1980): 663–672. Harry N. Scheiber, “Redesigning the Architecture of Federalism—An American Tradition,” Yale Law and Policy Review/Yale Journal of Regulation, Symposium Issue (1996): 227–296. Harry N. Scheiber and Malcolm M. Feeley, eds. Power Divided: Essays on the Theory and Practice of Federalism (1988). Bernard Schwartz, From Confederation to Nation: The American Constitution, 1837–1877 (1973).

Harry N. Scheiber