American Federalism, 1776 to 1997:
Analyst in American National Government
Updated January 6, 1997
Since ratification of the Constitution, which established a union of
states under a federal system of governance, two questions have generated
considerable debate: What is the nature of the union? What powers, privileges,
duties, and responsibilities does the Constitution grant to the national
government and reserve to the states and the people? During the 208-year
history of the Constitution, these issues have been debated time and again
and have shaped and been shaped by the nation's political, social, and
During the pre-federalism period, the country waged a war for independence
and established a confederation form of government that created a league
of sovereign states. Deficiencies in the Articles of Confederation prompted
its repeal and the ratification of a new Constitution creating a federal
system of government comprised of a national government and states. Almost
immediately upon its adoption, issues concerning state sovereignty and
the supremacy of federal authority were hotly debated and ultimately led
to the Civil War.
The period from 1789 to 1901 has been termed the era of Dual Federalism.
It has been characterized as a era during which there was little collaboration
between the national and state governments. Cooperative Federalism is the
term given to the period from 1901 to 1960. This period was marked by greater
cooperation and collaboration between the various levels of government.
It was during this era that the national income tax and the grant-in-aid
system were authorized in response to social and economic problems confronting
the nation. The period from 1960 to 1968 was called Creative Federalism
by President Lyndon Johnson's Administration. President Johnson's Creative
Federalism as embodied in his Great Society program, was, by most scholars'
assessments, a major departure from the past. It further shifted the power
relationship between governmental levels toward the national government
through the expansion of grant-in-aid system and the increasing use of
regulations. Contemporary federalism, the period from 1970 to the present,
has been characterized by shifts in the intergovernmental grant system,
the growth of unfunded federal mandates, concerns about federal regulations,
and continuing disputes over the nature of the federal system.
In 1789, thirteen years after the signing of the Declaration of Independence
and eight years after ratification of the Articles of Confederation, which
established a league of sovereign states, the nation repealed the Articles
of Confederation and ratified a new Constitution creating the United States.
Since its ratification the Constitution, which established a union of states
under a federal system of governance, two questions have generated considerable
debate: What is the nature of the union? What powers, privileges, duties,
and responsibilities does the Constitution grant to the national government
and reserve to the states and to the people? During the 208-year history
of the Constitution the answers to these questions have been debated time
and again and have shaped and been shaped by the nation's political, social
and economic history.
What is federalism? According to James Q. Wilson and John DiIulio, Jr.,
it is a system of government "in which sovereignty is shared [between
two or more levels of government] so that on some matters the national
government is supreme and on others the states, regions, or provincial
governments are supreme.1 There are three essential
features that characterize a federal system of governance. First, there
must be a provision for more than one level of government to act simultaneously
on the same territory and on the same citizens. The American federal system
is composed of a national government and the 50 states, both recognized
by the Constitution. Local governments, creations of states, while not
mentioned in the Constitution, are nevertheless key players in American
federalism. Their power to regulate and legislate is derived from state
Second, each government must have its own authority and sphere of power,
though they may overlap. When state and federal authority conflict, federal
law is supreme under the Constitution. Article I, Sec. 8 of the Constitution
delegates certain enumerated powers to the national government that includes
the exclusive power to mint currency, establish and maintain an army and
navy, declare war, regulate interstate commerce, establish post offices,
establish the seat of national government, and enter into treaties. The
Constitution reserves powers not granted to the national government to
states, or the people, and it establishes certain concurrent powers to
be shared between state and national governments including the power to
tax. In addition, the Constitution prohibits the exercise of certain powers
or actions by both state and national governments including taking private
land withoutjust compensation; establishing a national religion; or prohibiting
the free exercise of religion.
Third, neither level of government (federal or state governments) can
abolish the other. The Civil War was fought not only on the question of
slavery but also central to the conflict were questions of states' sovereignty
including the power to nullify federal laws or dissolve the Union.
This report identifies several significant eras and events in the evolution
of American federalism and provides a capsule description or discussion
of each. It should be noted that among experts in the fleld of federalism
there may be a general consensus concerning the evolution of American federalism;
however, the choice of events and scholarly interpretations of such events
may vary and are by nature subjective.
PRE-FEDERALISM PERIOD: 1775 TO 1789
During this period, the former colonists successfully fought the War
of Independence and established a national government under the Articles
of Confederation. Disenchanted with the functioning of the national government,
the states called a Constitutional Convention with the aim of addressing
the deficiencies in the Articles of Confederation. Instead, the delegates
drafted and the states ratified, a new Constitution that created a federal
system of government.
- 1776 -- Declaration of Independence. In the midst of the Revolutionary
War, which lasted from 1775 to 1783, delegates to the Continental Congress
convened in Philadelphia and on July 4, 1776 adopted the Declaration
of Independence. Each of the former colonies also established state
governments to replace the colonial charters. The Continental Congress
was given the power to carry on the war effort.
- 1777 -- Drafting Articles of Confederation. The Continental
Congress drafted the Articles of Confederation, which defined the
powers of the Congress. Leery of a strong central government, the former
colonists created a Confederation or "League of States" that
was state-centered rather than nation-centered.
- 1781 -- Articles of Confederation approved by the States. Under
the Articles of Confederation legislative, judicial, and executive powers
rested with Congress. The Articles of Confederation established a Congress
comprised of one representative from each state, it limited the power of
the central government, and it delegated to the states the power to levy
taxes and regulate commerce. The Confederation Congress was given the power
to declare war, make treaties, and maintain an army and navy. The Articles
of Confederation had several noteworthy flaws that made it ineffective:
1) it did not provide for an executive to administer the government, 2)
the national government lacked the power to tax, and 3) it lacked the power
to regulate commerce.
- 1786 -- Articles of Confederation Reconsidered. Demand for re-
examination of the Articles of Confederation was prompted by a post- Revolutionary
War economic depression; rebellion in Massachusetts among debt ridden former
soldiers, led by Daniel Shays (Shays Rebellion); concerns about the ability
of the Confederation to support its currency or meet domestic and foreign
debt incurred during the war; issues surrounding westward expansion; and
state tariff conflicts. A group later known as Federalists and including
James Madison and Alexander Hamilton, sought support for a strong central
government that could deal with internal insurrections, arbitrate state
tariff conflicts and other conflicts among states, and manage westward
expansion. Members of the group called for a Constitutional Convention
in 1787 to reconsider the Articles of Confederation.
- 1787 -- Drafting a New Constitution. A Constitutional Convention
met in Philadelphia from May until September and drafted a new Constitution.
Under the new Constitution the central government, It... in order to
form a more perfect union," was given additional powers that included
the power to levy taxes and control commerce among states and with foreign
countries. In addition, the Convention created three co-equal branches
of government -- executive, judicial, and legislative.- In a compromise
(Connecticut Compromise) between rival plans offered by Virginia and New
Jersey delegates, the Constitution called for the creation of a legislative
branch composed of two chambers. Members of the House of Representative
from each state were to be elected by the people of that state based on
state population. The Senate would be comprised of two Senators from each
state elected by their respective state legislatures. The Constitution
included provisions that ensured the supremacy of federal laws (Article
VI), but also recognized state powers and the power of the people. (Amendment
- 1787 & 1788 -- Campaigning for a New Constitution. The
Federalist, a series of 85 essays by James Madison, John Jay, and Alexander
Hamilton writing under the pen name Publius, was published during
this period. The papers provided the philosophical underpinning in support
of the new Constitution. Those opposed to the new Constitution (labeled
Anti-Federalists but calling themselves Federal Republicans) also published
articles under the pen names Brutus and Cato, arguing for support
of a federal system of governance that would protect the state governments
from the tyranny of the national government. The Anti-Federalists or Federal
Republicans would eventually evolve into the Democratic Republican party
that ascended to power with the election of Thomas Jefferson in 1801.
DUAL FEDERALISM PHASE 1: 1789 TO 1865
The concept of dual federalism is the idea that the national
and state governments were equal partners with separate and distinct spheres
of authority. Despite the doctrine of implied powers, as first enunciated
in McCulloch v. Maryland, the federal or national government was
limited in its authority to those powers enumerated in the Constitution.
There existed little collaboration between the national and state governments
and occasional tensions over the nature of the union and the doctrine of
nullification and state sovereignty. The states rights debate and the nature
of the union -- whether the Constitution created a league of sovereign
states or a inseparable union -was a major issue in the Civil War.
- 1789 -- Constitution Approved by the States. State ratifying
conventions convened and ratified the new Constitution, which required
3/4ths (9) of the states to vote for its approval.
- 1789 to 1801 -- The Federalist Period. The period takes its
name from the dominant political party of the time, which believed in a
strong central government. Its leaders included George Washington, Alexander
Hamilton, John Adams. They were opposed by AntiFederalists or Democratic
Republicans, such as Thomas Jefferson, who argued against a strong central
government and for state centered governance. In 1790, the federal government
assumed responsibility for the war debt, which some have called an early
form of federal aid. In 1791, the first ten amendments-the Bill of Rights-were
added to the Constitution after being ratified by 3/4ths of the states.
The Tenth Amendment protected the rights of the states and declared that
all powers not expressly delegated to the central government by the Constitution
were reserved for the states. This laid the foundation for the concepts
of states rights, limited national government, and dual spheres of authority
between state and national governments.
In 1791, Congress established the Bank of the United States at the urging
of Alexander Hamilton. Thomas Jefferson opposed the idea of a national
bank. Congress granted the Bank a 20-year charter. Protracted debate over
the constitutionality of the Bank by pro- and anti-bank factions led to
the defeat of an effort to renew the Bank's charter in 1811. The charter
renewal effort was defeated partly because of the restraints the Bank put
on state chartered private banks in an effort to control inflation and
because some viewed the concept of central banking as a attack on state
sovereignty. Years later the central or national bank controversy was at
the center of the debate concerning the enumerated powers clause of the
- 1798 -- The Doctrine of Nullification. A Federalist-controlled
Congress in 1798 passed the Alien 2and
in an attempt to silence Jeffersonian Democratic-Republican critics of
the undeclared war with France. In response, Democratic-Republican controlled
legislatures in Kentucky and Virginia passed resolutions supporting the
concept of state-centered federalism and nullifying the Acts as unconstitutional.
The doctrine of nullification held that any state could suspend
within its boundaries the operation or implementation of any federal law
it deemed to be unconstitutional. The Alien and Sedition Acts played a
large part in the defeat of the Federalist party; they expired before the
Supreme Court could hear a challenge to them.
- 1800s -- Internal Improvement Debate. During this period there
was significant debate concerning the role of the national government in
the provision of roads and canals as a means of encouraging settlement
and aiding commerce. The debate raised questions about whether the national
government could participate in such activities without a constitutional
amendment that provided explicit authority or whether such activities should
be undertaken solely by states and private concerns.
- 1815 -- -States' Rights Doctrine. The Hartford Convention, which
was called to protest the economic hardships endured by New England states
during the War of 1812, attempted to assert the "states' rights doctrine."
The convention urged states to protect citizens against the acts of Congress
not authorized in the Constitution.
- 1819 -- Doctrine of Implied Powers and the "necessary and proper"
clause of Article I of the Constitution. In 1816 the central bank
was rechartered as the Second Bank of the United States. In 1819 the constitutionality
of Congress' authority to charter a national bank-the Second Bank of the
United States-was upheld by the Supreme Court in McCulloch v. Maryland
under the doctrine of implied powers and the necessary and
proper clause of Article I of the Constitution. Chief Justice John
Marshall, in writing the Supreme Court's unanimous decision in support
of Congress' constitutional authority to establish a national bank, acknowledged
that the national government was limited to powers enumerated in the Constitution
(expressed powers), but stated that Article I also allowed the national
government (Congress) to pass such laws "necessary and proper"
to carry out powers and duties enumerated by the Constitution. Thus, the
establishment of a national bank, though not explicitly sanctioned by the
Constitution, nonetheless was an appropriate activity, under the doctrine
of implied powers, that allowed the national government to carry out express
powers, duties, or authority such as levying and collecting taxes, issuing
currency, and borrowing funds. The Bank continued to be unpopular with
Democratic-Republicans and in 1832, through political maneuvering, President
Andrew Jackson, who opposed the Bank and characterized it as a "prostration
of our government for the advancement of the few at the expense of the
crippled the Bank by transferring its funds to state-chartered private
banks until its chartered expired in 1836.
McCulloch v. Maryland5
settled the question of national supremacy for a time. Justice Marshall's
interpretation of the Constitution was premised on the notion that the
national government was the creation of the people and not the states and
that Article VI established federal law as the supreme law of the land
(supremacy clause). Justice Marshall wrote that the power to tax
involves the power to destroy. If the Bank, an entity of the federal
government, could be taxed out of existence by the states it would be a
breach of Article VI, one of the fundamental principles of the Constitution
--the supremacy of the national government.
- 1824 -- Federal Regulation of Interstate Commerce. Gibbons
v. Ogden,6 addressed the issue of the scope
of Congress' authority under the commerce clause (Article I). The
case involved a dispute over the use of the Hudson River. The New York
state legislature had granted a company the exclusive right to the use
of the river that was in conflict with Congress' granting of a license
to another ship. The Supreme Court ruled that the commerce clause of Article
I granted Congress the power to regulate commercial activity and that the
power to regulate commerce had no limits except those expressly stated
in the Constitution. The Court prohibited the state from taking any action
that would interfere with the free use of rivers and harbors.
- 1828 -- South Carolina Exposition: 7
Rationale for Nullification Doctrine. In 1828, John C. Calhoun of
South Carolina, then Vice President in the Andrew Jackson Administration,
argued against the imposition of a law passed by Congress that placed a
tariff on domestic raw materials and reduced protection against imported
woolen goods. Calhoun's theory, which was published as the South Carolina
Exposition and was to be used later by Southern states in their efforts
to maintain the institution of slavery, contended that the national government
was but a servant of the states and that the Constitution was a compact
that directed the national government as an agent of the states in its
actions. According to Calhoun's theory, the Supreme Court did not possess
the power to rule on the validity of the actions of Congress, for it too
was only an agent of the states. Calhoun's theory of nullification would
have allowed a state to declare a federal law null and void within that
state unless 3/4ths of the states ratified an amendment that granted Congress
the power to enact the law. A state that challenged or nullified the law
could either abide by the law or secede. 8
- 1830 -- Webster/Hayne Debate on the Doctrine of Nullification. In
January, the Senate of the United States was the venue in which Senators
Robert Y. Hayne of South Carolina and Daniel Webster of Massachusetts debated
the issue of state sovereignty concerning a recent tariff act passed by
Congress. Senator Hayne described the nation as a league or confederation
of member states and argued that a state could refuse to obey any law passed
by the Congress under the states' rights or nullification doctrine. During
the debate Senator Hayne, who believed in limited national government argued
"Liberty first and Union afterwards." Senator Webster, in response,
argued that the Constitution was the creation of the people and not the
states and retorted "Liberty and union, now and forever, one and inseparable.9
- 1832 -- South Carolina's Nullification Ordinance. The South
Carolina legislature passed an Ordinance of Nullification, which
attempted to prohibit the implementation of Federal Tariff Acts of 182810
and 183211 under the banner of state sovereignty
and the doctrine of nullification.
- 1842 -- Testing the Constitution's Supremacy Clause and States'
Rights Doctrine. In Prigg v. Pennsylvania, 12the
United States Supreme Court ruled as unconstitutional state-passed "personal
liberty" laws enacted by northern states to protect free blacks and
fugitive slaves. The Supreme Court ruled that such laws were in conflict
with the Fugitive Slave Act passed by Congress in 1793,13
and thus violated the supremacy clause of the Constitution.
- 1850 -- Prelude to the Civil War. Fugitive Slave Act of 185014
was passed by Congress in an effort to preserve the union. In 1854 the
Wisconsin Supreme Court declared the Fugitive Slave Act of 1850 unconstitutional.
The U.S. Supreme Court overturned the State Supreme Court decision, which
involved Sherman Booth, a noted abolitionist who freed Joshua Glover, a
fugitive slave. The Wisconsin legislature, enunciating the doctrine of
nullification and states' rights, declared null and void the Supreme Court
decision that reversed the State Supreme Court decision. In 1857 the U.S.
Supreme Court in Scott v. Sandford15
rebuffed northern abolitionists and declared the Fugitive Slave Act
- 1860 -- The Civil War: Testing Federalism. Civil War addressed
two central issues: 1) the role of the federal government and 2) the nature
of the union. Slavery accelerated tensions between nation centered and
state-centered concept of the federal system. On the one hand, there were
those who argued that the union was but a league of sovereign states and
that each state had the power to nullify federal laws within its boundaries
or ultimately secede from the union. On the other side were those who believed
that the union was indestructible, created not by the states but by the
people delegating to the states and the national government certain limited
authority enunciated in the Constitution. The question of the nature of
the union was resolved in favor of a nation-centered concept of federalism.
The role of the national government was also settled by the Civil War.
Before the Civil War, the role of government was generally characterized
by decentralization. The national government acted as servant to the states.
During the War, state militia and state recruited volunteers were replaced
by a policy of federal conscription and the national government reclaimed
control over currency and banking, which had been delegated in large part
to the states during the 1830s.
DUAL FEDERALISM: PART II 1865 TO 1901
Although the era of dual federalism continued, this period was marked
by erratic but increasing presence of the national government into areas
that had previously been the purview of the states. The Sherman Anti-trust
Act, the Interstate Commerce Commission Act, as well as the Twelfth, Fourteenth,
and Fifteenth Amendments were significant events that pushed federal authority
into areas such as the power to regulate business and the economy, as well
as civil rights. In the midst of the industrial revolution, in an effort
to control the monopolistic tendencies of business, Congress passed legislation
that attempted to control commerce. Congress' authority to control commerce
was at the center of several legal disputes. In a series of court cases,
the power of the national government (Congress) to regulate commerce was
upheld. Two of the more notable laws are the Interstate Commerce Commission
Act of 1887 and the Sherman Anti-trust Act of 1890. Court cases included
Munn v. Illinois16 and Wabash, St.
Louis, and Pacific Rail Road v. Illinois17
rendered in 1886, in which the Court held that the state could not regulate
rail rates if, as a consequence, it affected a portion of the rate charged
in transportation of goods across state lines. In the area of civil rights,
the Court was far more restrictive in its interpretation of the Fourteenth
Amendment's equal protection, due process and privileges and immunities
clauses. In a series of cases, including Plessy v. Ferguson and Bradwell
v. Illinois, the Court rulings upheld state laws restricting the freedoms
and constitutional protections of certain gender or racial classes (women
- 1868 -- Due Process and Equal Protection Clauses of the Constitution.
The Fourteenth Amendment's due process and equal protection
clauses strengthened federal judicial powers. The Amendment, originally
drafted to protect the newly freed slaves from arbitrary and capricious
state actions, was used to constrain the unfair practices of businesses.
According to some scholars, the Amendment, which granted Congress the power
to enforce its substantive provisions, laid the foundation for future federal
- 1873 -- Doctrine of States' Rights Revived. Slaughterhouse
Cases18 and Bradwell v. Illinois19
The Supreme Court played a pivotal role in two civil rights cases that
tested the privileges and immunities clause of the Fourteenth Amendment.
The Supreme Court, in its rulings in the Slaughterhouse Cases and Bradwell
v. Illinois, noted that state and national citizenship were separate
and distinct. In the Slaughterhouse Cases the Supreme Court upheld
the state of Louisiana's right to confer upon one company the right to
butcher cattle in the city of New Orleans, thus creating a monopoly in
the operation of slaughterhouses. In Bradwell v. Illinois the Supreme
Court held that a state could bar women from the practice of law. The Court's
rulings in these and other cases revived the doctrine of states rights.
- 1887 -- Interstate Commerce Commission Act.20
The Act further strengthened Congress' role in the regulation of commerce
- 1890 -- Sherman Anti-trust Act21
The Act allowed Congress to control the formation of business monopolies
and signaled a larger role forthe national government in the economy.
- 1896 -- Civil Rights, States' Rights and the Separate but Equal
Doctrine. In Plessy v. Ferguson,22 the
Supreme Court established the doctrine of separate but equal, upholding
a Louisiana law that mandated racially segregated accommodation on trains,
ruling that so long as the segregated facilities were equal they were not
a violation of the Fourteenth Amendment's equal protection clause.
The doctrine was overturned in 1954 in Brown v. The Board of Education
of Topeka, Kansas.23
In Williams V. Mississippi24 the Supreme
Court validated the use of state literacy tests. The Court's ruling allowed
a state to determine standards under which persons would gain the right
to vote. The application of literacy tests had a discriminatory impact
COOPERATIVE FEDERALISM: 1901 TO 1960
This period marked an era of greater cooperation and collaboration between
the various levels of government. It was during this era that the national
income tax and the grant-in-aid system were authorized in response to social
and economic problems confronting the nation. Though the first part of
the 20th century has been characterized by some federalism scholars as
one of inactivity, by 1920 eleven grant programs had been created and funded
at a cost of $30 million. During this period the federal government was
seen as "servant of the states" in the kinds of activities funded.
The federal grant system, spurred by the Great Depression, was expanded
and fundamentally changed the power relations between federal and state
- 1910 -- New Nationalism. President Theodore Roosevelt's New
Nationalism initiative sought to expand the powers of the national
government. His view of government contended that matters of national concern
had become too decentralized or as he stated:
"[The New Nationalism] is still more impatient of the impotence
which springs from overdivision of governmental power, the impotence which
makes it possible for local selfishness or for legal cunning, hired by
wealthy special interests, to bring national activities to a deadlock.
The New Nationalism regards the executive power as the steward of the public
- 1913-- New Freedom Program. As an academician, Woodrow Wilson
"The question of the relation of the States to the federal government
is the cardinal question of our constitutional system. At every turn of
our national development, we have been brought face to face with it, and
no definition either of statesmen or of judges has ever quieted or decided
As President, Woodrow Wilson built upon the Roosevelt program. He sought
to continue the trend toward more active national cooperation with other
governments. Daniel J. Elazar, a noted scholar of federalism, contends
that Wilson, in line with congressionally-determined national policies,
expanded the federal role beyond "servant of the states. 27
- 1913 -- Sixteenth Amendment. The Amendment, which authorized
the income tax, provided the means of developing and expanding the grant-in-aid
system. "If grants-in-aid are the power that drive the federal engine
then the income tax is the fuel that powers it.28
- 1933 to 1938 -- New Deal. President Franklin D. Roosevelt and
the Congress in response to the economic calamity of the Great Depression
further expanded the federal role in domestic affairs. States were unable
to respond effectively on their own. The expansion of national government
in economic and social policy was seen as a necessary means of addressing
grave national economic conditions. During this period 16 on-going programs
were established. The New Deal era has been characterized as "the
geological fault line" in the history of federalism, particularly
in the area of federal-local relations.29
- 1953 -- Commission on Intergovernmental Relations.30
Congress created the Commission on Intergovernmental Relations (CIR), which
later evolved into the Advisory Commission on Intergovernmental Relations.
The CIR was a temporary study commission comprised of persons appointed
by the President and Congress. Its mission was to review federal aid to
state and local governments, to determine if federal aid and involvement
were appropriate, and to assess the fiscal capacity of the federal government
and the states to undertake various activities.
- 1954 -- Civil Rights and States' Rights Reconsidered. Brown
v. Board of Education of Topeka, Kansas struck down, as unconstitutional,
an earlier decision (Plessy v. Ferguson) and the doctrine of "separate
but equal" public accommodations for blacks. The Justices cited the
Fourteenth Amendment's due process and equal protection clause noting that
racially segregated schools were inherently unequal. Brown prompted a new
wave of action by states intent on resisting the Court's decision, including
the resurrection of states' rights under the doctrine of interposition,
which contended that a state government may interpose itself between
an improper national act and the state's citizens.
- 1959 -- Advisory Commission on Intergovernmental Relations (ACIR).31
ACIR was created by Congress to monitor intergovernmental
relations and the operation of american federalism and to report to Congress,
on a continuing basis, recommended improvements. Unlike its CIR predecessor
ACIR is a continuing body comprised of representatives from federal, state,
and local governments.
CREATIVE FEDERALISM: 1960 TO 1968
President Lyndon Johnson's Creative Federalism as embodied in his Great
Society program, was, by most scholars' assessments, a major departure
from the past. It further shifted the power relationship between governmental
levels toward the national government through the expansion of grant-in-aid
system and the increasing use of regulations.
- 1962 -- Supreme Court Forces Reapportionment. The Supreme Court's
ruling in Baker v. Carr32
is a noted example in judicial intervention into state political affairs.
The Tennessee General Assembly had not reapportioned legislative districts
since 1901 despite a state constitutional requirement to apportion according
to population. The migration of people from rural to urban areas without
legislative districts being redrawn to reflect population shifts had resulted
in city residents being under-represented in the state legislature. The
Supreme Court required the reapportionment of legislative districts based
on population (proportional representation). The Supreme Court ruled that
the denial of equal representation (districts equal in population size)
was a violation of the equal protection clause of the Fourteenth Amendment.
Based on standards established by the Supreme Court, every state except
Oregon was forced to reapportion to achieve districts equal in population.
Another legacy of Baker v. Carr was the reinvigoration of
the practice of gerrymandering of legislative districts after each decennial
Census in order to achieve or maintain some political advantage.
- 1964 -- Creative Federalism and the Great Society. Creative
Federalism and the Great Society sought to expand the national government's
role in an effort to achieve socially desirable outcomes (i.e reductions
in poverty, elimination of hunger). Prior to the Johnson Administration,
federal involvement often had to be justified as a necessary evil in order
to legitimize intrusion into state and local affairs. Under the new theory,
federal involvement was justified as long as Congress could establish a
national purpose for such actions. The Great Society programs used states
and local governments as intermediaries or agents to implement national
policies, and the volume of federal regulations increased as the federal
government became increasingly involved in areas that had previously been
the purview of state and local governments or the private sector.
CONTEMPORARY FEDERALISM: 1970 TO 1997
This period has been characterized by shifts in the intergovernmental
grant system, the growth of unfunded federal mandates, concerns about federal
regulations, and continuing disputes over the nature of the federal system.
- 1970s -- New Federalism: Phase I. During the 1960s concerns
were raised about the intergovernmental grant system, particularly about
duplication, fragmentation, overlap, and confusion. These concerns resulted
in attempts by the Richard Nixon and Gerald Ford Administrations to redirect
power relations within the federal system. The Administrations' principal
tools were revenue sharing and the consolidation of federal aid programs
into six special revenue sharing programs. The intent was to shift funds,
authority, and responsibility to states and local governments in an effort
to more effectively manage the intergovernmental grant system. Though not
completely successful, the Nixon era did recast the debate on the roles
of various levels of governments.
- 1976 -- Commerce Clause, Enumerated Powers, and State and Local
Governments. National League of Cities v. Usury33
addressed the conflict between the Tenth Amendment's enumerated powers
clause, which limited the federal government's power to those specified
in the Constitution and the commerce clause of Article I, which
bestowed upon the national government the power to regulate commerce. In
ruling on the constitutionality of the Fair Labor Standards Act,34
which established minimum wage and maximum working hours for private and
public sector employees, the Supreme Court addressed one of the fundamental
issues in federalism: to what extent may the Congress impose upon the sovereignty
of the states. The Supreme Court ruled that the Fair Labor Standards Act's
1974 amendments, which extended hour and wage coverage to state and local
public employees, violated state sovereignty as protected under the Tenth
- 1980s -- New Federalism: Phase II. Initiatives of the Ronald
Reagan Administration stimulated the debate on the appropriate roles of
federal, state, and local government. President Ronald Reagan, rather than
attempt to more rationally manage federal aid as was the case in the Nixon
Administration, sought to fundamentally restructure the system of governance.
In his 1981 inaugural address, President Reagan raised an issue as old
as the Republic: what is the nature of the union? The President stated
that "the federal government did not create the states, the states
created the federal government."35
This statement expressed the sentiments found in the Virginia and Kentucky
Resolutions, the Webster/Hayne debate, the doctrine of nullification and
state sovereignty and the states' rights philosophy. The modern debate
has also been fueled by dissatisfaction with the effectiveness and efficiency
of the national government. In 1981 Congress passed the Omnibus Budget
Reconciliation Act that consolidated a number of social programs into nine
block grants, which allowed for greater state and local autonomy and flexibility
in the fashioning of local strategies to address federal objectives. The
Administration was not successful in the second phase of New Federalism,
which would have reallocated federal and state responsibility and resources
for welfare, food stamps, and medicare and would have turned back revenue
sources to the states. The George Bush Administration also offered a turn
- 1985 -- National League of Cities v. Usury Reconsidered
In Garcia v. San Antonio Metropolitan Transit Authority36
the Supreme Court revisited the issue of state sovereignty and state and
local government protection from the imposition of federal actions. Garcia
v. San Antonio reversed National League of Cities v. Usury. Garcia
has had two significant impacts on federalism, according to some scholars.
One, under Garcia the Supreme Court held that the Tenth Amendment
does not protect state and local governments from compliance with the Fair
Labor Standards Act, which is counter to the concept of dual federalism.
Two, the Court seems to be backing away from its role as final arbiter
or interpreter of the Constitution in disputes between political branches
of the federal government and the states. The Court appears to be allowing
such disputes to be resolved by the "political"-that is the legislative-branch
- 1992 to 1995 -- New Federalism: Phase 111. The Bill Clinton
Administration's Reinventing Government Initiative and the House
Republicans' Contract with America are efforts to rearrange the
power relationships in the federal system. Both efforts seek to devolve
greater authority to lower levels of government. However, the initial reinvention
effort, as embodied in its National Performance Review Creating
A Government that Works Better and Costs Less,37
concentrated on achieving management efficiencies at the federal level.
Practical outcomes have included the issuance of E.O. 12866,38
which encourages regulatory reform such as coordinating and consolidating
planning and review requirement among complementary federal programs. The
Contract with America39 is a document
signed by Republicans campaigning for House seats during the 1994 election
season. It includes drafts of the House Republicans' ten legislative priorities
for the first 100 days of the 104th Congress, several of which focused
on changing the power relationships between the national and state governments.
Presently, it has refocused debate on the role of government and what level
of government is best suited to carry out certain functions. The present
federalism debate has resulted in the passage of unfunded federal mandate
legislation, which requires the federal government to assess the cost/benefit
impact of federal legislation on states, local governmens, and the private
sector; has fueled discussions concerning the possible elimination of several
federal departments; has prompted action to reform the regulatory process;
and has caused the consideration of legislation that would eliminate, downsize,
consolidate, or block grant a number of federal programs in an effort to
foster greater flexibility and control by state governments. This debate
has been driven by fiscal and philosophical factors including the desire
to reduce the federal deficit, to achieve management efficiencies at the
federal level, and to reconsider the proper roles of federal, state, and
- 1995 to 1997 -- The 104th Congress convened with the historic installation
of a Republican majority in both houses of Congress. Taking control of
the House of Representatives after 40 years in the minority, the new Republican
majority moved quickly to fulfill its Contract with America. Among
the accomplishments of the 104th Congress was the passage of the Unfunded
Federal Mandate Reform Act of 1995, P.L. 104-4, which requires the federal
government to assess the cost/benefit impact of federal legislation and
regulations on states, local governments, and the private sector. The Congress
also considered but failed to win passage of a balance budget amendment
that if approved by the states would have significantly affected the intergovernmental
grant system and the relationships between the national government and
states and localities.
The second session of the 104th Congress brought a renewed push on several
federalism/intergovernmental relations issues. Congress passed legislation
restructuring the delivery of rural development services, creating new
block grants in the areas of law enforcement, rural development, and welfare.
Other block granting proposals consolidating job training, education, food
stamps, and medicaid failed to win final congressional approval. The Congress
also passed a sweeping telecommunications act including provisions reaffirming
the authority of state and local governments to regulate and manage public
rights-of-way, requiring reasonable compensation for the use of public
rights-of-way, and prohibiting the preemption of local zoning authority
in the siting of cellular towers. In addition, the Act preempts local,
but not state, taxation of direct satellite broadcast services. For his
part, President Clinton vetoed product liability legislation that would
have preempted state tort laws governing the awarding of damages in civil
State's Rights and Responsibilities Revived. The Supreme Court,
in several cases, some narrowly decided, has provided ample evidence that
the era of judicial restraint may be over in matters of federalism and
the power relationships between the federal government and the states.
In 1985, in Garcia v. San Antonio Metropolitan Transit Authority,
the Court declared that states must find redress from congressional
regulation through the political/legislative process and not the judiciary.
In several recent cases, starting with New York v. United States40
and including United States v. Lopez41
and Seminole Tribe of Florida v. Florida,42
the Supreme Court has taken a more activist role, limiting the power of
the federal government and narrowing the Court's interpretation of the
commerce clause in favor of state rights. In 1992, in New York v.
United States, the Supreme Court declared unconstitutional provisions
of the Low Level Radioactive Waste Policy Amendments Act of 1985.43
The Act required states to establish sites for the disposal of non-federal
radioactive waste generated by businesses within their borders. States
failing to establish such disposal sites were to be legally liable for
damages incurred by businesses such as hospitals, nuclear utility companies,
and medical research labs that generate low-level radioactive material.
In a victory for state's rights advocates, the Supreme Court ruled that
the federal government could not compel states to enact or administer a
federal regulatory program.
In a second victory for states, the Supreme Court, in 1995, in United
States v. Lopez, in a 5-4 decision, narrowed the interpretation of
the commerce clause when declaring the Drug Free School Zone Act
of 199044 unconstitutional. The Act made it
a federal crime to possess a gun within 1,000 feet of a school. The Court
ruled that the Act could not be justified under the commerce clause
of the Constitution. The Court's narrow decision was seen as a victory
for states' rights advocates who asserted that the Act intruded on the
law enforcement responsibilities of states.
In a third decision, Seminole Tribe of Florida v. Florida, affirming
the sovereignty of states, the Supreme Court ruled that the Indian Gaming
Regulatory Act of 198845 allowed Indian tribes
to undertake certain gambling activities on Indian lands only after entering
into a compact with the state in which the gaming activity is to be located.
The Act gave Indian tribes the right to sue states in federal court to
compel good faith negotiations in establishing the compact. The Supreme
Court ruled the provision allowing Indian tribes to sue states in federal
court unconstitutional because it violated the Constitution's Eleventh
Amendment restriction prohibiting any person of another state or foreign
land from suing a state in federal court.
--U.S. Term Limits, Inc. v. Thornton, Congressional Term and
the Concept of Dual Citizenship. In a defeat for states' rights
advocates, the Supreme Court, in a 5-4 decision, declared term limit legislation
enacted by several states unconstitutional. Proponents of term limit legislation
argued that the Constitution (Article 1, Section 4) allowed each state
to fix the time, place, and manner of elections for Senators and Representatives
of Congress. The Supreme Court ruling reaffirmed the concept of dual citizenship
enunciated in 1873 in the Slaughterhouse Cases and Bradwell v. Illinois.
The Court ruled that a state could not add to the qualifications for
federal office as enunciated in Article I of the Constitution. Further,
Justice Kennedy, in a concurring opinion, noted that term limits violate
the "fundamental principles of federalism." He argued that there
exists a federal right of citizenship, a relationship between the people
... and their National Government, with which the states may not interfere."
--During its 1996 session, the Supreme Court, in Printz v. United
heard arguments challenging the Brady Gun Control Act.47
The Act establishes a 5-day waiting period and compels local law enforcement
officials to undertake a criminal background check of persons wishing to
purchase a handgun. The Act has been challenged as a violation of state
sovereignty. The Supreme Court will render its decision sometime in 1997.
The case will have important federalism implications and will provide a
clue to the direction of the Supreme Court in matters of federalism and
--ACIR Abolished. Federal financial support for the independent
federal agency, which began its work in 1959, terminated in 1996.
1. Wilson, James Q. and John J. DiIulio, Jr. American
Government Institutions and Policies. Lexington, D.C. Heath and Company,
1995. p. A-49.
2. 1 Stat 571 and 1 Stat 577
3. 1 Stat 596
4. Jackson, Andrew. For and Against the Bank Renewal Bill.
Andrew Jackson: Veto Message. In The Annals of Anierica. Chicago,
Encyclopedia Britannica, Inc., 1968. v. 5. p 535.
5. McCulloch v Maryland, 17 US 316, 4 Wheat 316, 4 LEd
6. Gibbons v. Ogden, 22 US 1, 9 Wheat 1, 6 LEd 23
7. Calhoun, John C., The Essential Calhoun: Selections
from, Writings, Speeches, and Letters, Clyde N. Wilson ed., New Brunswick,
Transaction Publishers, 1992. p. 59-60.
8. O'Connor, Karen and Larry J. Sabato. American Government.-
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21st Cong., lst Sess. Washington, In Gales and Seaton's Register, v.
6, part 1. Gales and Seaton, 1830. p. 80.
10. 4 Stat. 270.
11. 4 Stat. 583.
12. Prigg v. Pennsylvania, 41 US 539, 16 Pet 539,
10 LEd 1060 (1842).
13. 1 Stat. 302.
14. 9 Stat. 462.
15. Scott V. Sandford, 60 US 393, 19 How
393, 15 LEd 1123 (1842).
16. Munn v. Illinois. 94 US 113, 24 LEd 77 (1886).
17. Wabash, St. Louis, and Pacific Rail Road v. Illinois.
7 SCt 4, 118 US 557, 30 Led 244 (1886).
18. Slaughterhouse Cases. 83 US 36, 16 Wall 36, 21 LEd
394 (1873) and 77 US 273, 10 Wall 273, 19 LEd 915 (1873).
19. Bradwell v. Illinois. 83 US 130, 16 Wall 130, 21 LEd
20. 24 Stat. 462.
21. 26 Stat. 209.
22. Plessy v. Ferguson, 18 SCt 1138, 163
US 537, 41 LEd 256 (1896).
23. Brown v. Board of Education of Topeka, Kansas.
73 SCt 1, 344 US 1, 97 LEd 3 (1954).
24. Williams v. Mississippi. 18 SCt 583, 170 US
213, 42 LEd 1012 (1896).
25. Roosevelt, Theodore, New Nationalism. In The Annals
of America. Chicago, Encyclopedia Britannica, Inc., 1968. p. 253-254.
26. Wilson, Woodrow. Constitutional Government in the
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27. Elazar, Daniel J. The Evolving Federal System. In
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the United States. Proceedings of the Academy of Political Science,
v. 34, 1981. p. 6.
28. U.S. Library of Congress. Congressional Research Service.
Federalism: Key Episodes in the History of the American Federal
System (82-139 GOV). CRS Report for Congress, by Sandra Osbourn, August
16, 1982. Washington, 1982. p. 33.
29. Osbourn. Federalism, p. 38.
30. 67 Stat. 145.
31. 42 USC 4271
32. Baker v. Carr. 82 SCt 691, 369 US 186, 7 LEd2d
33. National League of Cities v. Usury. 96 SCt
2465, 426 US 833, 49 LEd2d 245 (1976).
34. 29 USC 201.
35. General Services Administration. National Archives
and Records Service. Office of the Federal Register. Public Papers of
the Presidents - Ronald Reagan 1981. Inaugural Address January 20,
1981. Washington, U.S. Govt. Print. Off., 1982. p 2.
36. Garcia v. San Antonio Metropolitan Transit
Authority. 105 SCt 1005, 83 Led 2d 1016 (1985).
37. Report of the National Performance Review. From Red
Tape to Results, Creating a Government that Works Better and Costs
Less. Vice President Al Gore. Washington, September 7, 1993. U.S. Govt.
Print. Off., 1993.
38. U.S. President, 1992- (Clinton). Executive Order 12866,
Regulatory Planning and Review. Federal Register, v. 58, October
4, 1993. p. 51734.
39. Gingrich, Newt, Dick Armey, and the House Republicans.
Contract with America. Gillespie, Ed and Bob Schellhas, eds. New
York, Times Books, 1994. p. 196.
40. New York v. United States. 488 U.S. 1041 (1992).
41. United States v. Lopez. 115 SCt 1624, 131 LEd2d
42. Seminole Tribe of Florida v. Florida. 116 SCt
1114, 134 LEd2d 252 (1996).
43. 99 Stat. 1842.
44. 18 USC 922.
45. 102 Stat. 2475.
46. Printz v. United States, 117 SCt 480 (1996).
47. 107 Stat 1536.
American Federalism: The Third Century. The Annals of the American
Academy of Political and Social Science, John Kincaid ed., Newbury
Park, Sage Publications, May 1990. 205 p.
Beer, Samuel H. To Make a Nation: The Rediscovery of American Federalism.
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Brennan, William J. Jr. The Bill of Rights and the States. Santa
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Federal System. The Brookings Review. Spring 1995: 6-11.
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