95-518 GOV


American Federalism, 1776 to 1997:
Significant Events



Eugene Boyd
Analyst in American National Government
Government Division

Updated January 6, 1997


SUMMARY

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 economic history.

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.


CONTENTS


INTRODUCTION

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 Constitutions.

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.


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.


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 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.


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.


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 519 (1819).

6. Gibbons v. Ogden, 22 US 1, 9 Wheat 1, 6 LEd 23 (1824).

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.- Roots and Reform, New York, McMillan Publishing Company, 1993. p.71.

9. Webster, Daniel. Congressional Debates. Mr. Foot's Resolution. 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 442 (1873).

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 United States. New York, Columbia University Press, 1961. p. 173.

27. Elazar, Daniel J. The Evolving Federal System. In Pious, Richard, ed. The Power to Govern: Assessing Reform in 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 663 (1962).

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 626 (1995).

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.



ADDITIONAL READING

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. Cambridge, Mass., The Belknap Press of Harvard University Press, 1993. 473 p.

Brennan, William J. Jr. The Bill of Rights and the States. Santa Barbara, Center for the Study of Democratic Institutions, 1961. 24 p.

Hamilton, Alexander, James Madison, and John Jay. The Federalist. Benjamin Fletcher Wright ed. Cambridge, Mass., The Belknap Press of Harvard University Press, 1.974. 527 p.

Peterson, Paul E. Who Should Do What: Divided Responsibility in the Federal System. The Brookings Review. Spring 1995: 6-11.

Stanfield, Rochelle L. The New Federalism. National Journal, v. 27, January 28, 1995: 226-230.

Stuart, Elaine. The Conference of the States Gains Momentum. State Government News, March 1995: 16-19.

The States and Federalism. CQ Researcher, v. 6, No. 34, September 13, 1996: 793-816.

U.S. Library of Congress. Congressional Research Service. Federalism: Key Episodes in the History of the American Federal System, by Sandra Osbourn. CRS Report 82-139 GOV. Washington, 1982. 44 p.