Political union and the resulting constitutional structures that configure relationships among the states and institutions of national governance.

Even before the U.S. ConstitutionConstitution, U.S. went into effect, there were serious debates about what type of political system it would create and what type of union had already been formed. Part of the problem was multiple and shifting word usages. Those advocating the Constitution’s ratification identified themselves as Federalists, described the new structures as partly federal, and claimed those structures were necessary to preserve the federal union. At the same time, members of the founding generation identified federalism with a confederation of sovereign states, as distinct from a consolidated or national government. Relying on these distinctions, James Madison in The FederalistFederalist, The[Federalist] (1788), No. 39, argued that the proposed Constitution was neither purely federal nor entirely national but instead included features of each.

Federalism in the American context has since become identified with this hybrid political system especially the Constitution’s configuration of national and state governing powers. Unlike the Articles of Confederation, the Constitution establishes a centralized government, which has institutions that directly represent the people and are capable, in turn, of acting directly on them. As a result of the Constitution’s delegation of limited powers to these institutions, however, the states continue to hold independent governing powers. The states also play other important roles within the constitutional order, through, among other mechanisms, their equal representation in the Senate and their participation in constitutional amendment.

Not surprisingly, controversies involving problems of federalism survived the Constitution’s ratification. Some such controversies but certainly not all those of constitutional significance have arisen in the context of litigation. Accordingly, the Supreme Court played an important role in the development of American federalism on several fronts. In the process, the Court articulated a range of competing conceptions of the constitutional design.

One set of issues centered on problems of jurisdiction and matters of interpretive or decisional authority. Article III of the U.S. Constitution defines the jurisdiction of federal courts as including cases or controversies “between Citizens of a State and Citizens of another State.” In Chisholm v. Georgia[case]Chisholm v. Georgia[Chisholm v. Georgia] (1793), the Court held that this provision authorized federal courts to decide a suit against Georgia brought by two citizens of South Carolina. Two years later, Congress and the states overturned this holding by passing the Eleventh AmendmentEleventh Amendment, which restricts federal courts from hearing suits against states brought by citizens of other states or by citizens of foreign nations. In subsequent decisions, the Court held that this amendment also bars suits against a state by its own citizens without its consent. However, the significance of these exceptions has been diluted by the Fourteenth Amendment, along with distinctions between the states and state officials. As explained below, a fertile area of constitutional litigation involves federal courts’ enforcing the U.S. Constitution and federal laws against the states and state actors.

Article III delegates to federal courts the authority to decide some cases based on the identity of the litigants, as with lawsuits between citizens of different states. Federal courts also have authority to decide controversies based on the subject matter, including cases “arising under th[e] Constitution, the Laws of the United States, and Treaties.” Especially during the republic’s first 100 years, substantial conflict surrounded the Court’s assertions of appellate power to review decisions by state courts in cases raising such “federal questions.” Most prominently, in Martin v. Hunter’s Lessee[case]Martin v. Hunter’s Lessee[Martin v. Hunter’s Lessee] (1816), a civil case, and Cohens v. Virginia[case]Cohens v. Virginia[Cohens v. Virginia] (1821), a criminal case, the justices insisted that they had final authority to review decisions by state courts. In both contexts, state courts denied that the Supreme Court had authority to review or reverse their decisions.

Challenges of federal authority by state judges, legislatures, and others continued through the antebellum period and into the twentieth century. The Court responded to one such challenge in Ableman v. Booth[case]Ableman v. Booth[Ableman v. Booth] (1859), in the context of efforts by the Wisconsin supreme court to authorize the release of prisoners from a local jail based on the state judges’ position that the federal Fugitive Slave Act of 1850 was unconstitutional. In response, Chief Justice Roger Brooke Taney unflinchingly reasserted the Supreme Court’s interpretive supremacy. He claimed that “no power is more clearly conferred by the Constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws.” (Ironically, however, the Court’s position on the constitutional status of slavery was soon overruled by the Civil War and Reconstruction amendments.)

Almost one hundred years later, Chief Justice Earl Warren echoed Taney’s position on the preeminence of the Court’s interpretive powers in Cooper v. Aaron[case]Cooper v. Aaron[Cooper v. Aaron] (1958). In that case, the justices sought to overcome resistance to their previous ruling in Brown v. Board of Education (1954). Collapsing the constitutional text into its interpretation by the justices, Warren proclaimed that “the interpretation of the Fourteenth Amendment by this Court in the Brown Case is the supreme law of the land, and Article 6 of the Constitution makes it of binding effect on the States.”

Woven through these cases raising questions of jurisdictional and decisional authority were controversies over the scope of Congress’s powers (or federal powers more generally) and their relationships to state powers, along with efforts to enforce other limitations on the states. Among other things, the Supreme Court justices took positions on the constitutional status of slavery, the scope of the Constitution’s delegation of commercial powers and their negative implications, implied powers, and taxing and spending powers. The Tenth AmendmentTenth Amendment was at the center of these debates because it both presupposes that federal powers are intrinsically limited and refers to reserved powers of “the states” and “the people.” The Fourteenth Amendment was also centrally relevant, as it was the vehicle for the Court’s applying much of the Bill of Rights to the states, along with additional guarantees of due process and equal protection.

During the republic’s early years, the federal government’s role was relatively limited compared to that of the states. Nevertheless, in cases such as McCulloch v. Maryland[case]McCulloch v. Maryland[MacCulloch v. Maryland] (1819) and Gibbons v. Ogden[case]Gibbons v. Ogden[Gibbons v. Ogden] (1824), Chief Justice John Marshall offered a vigorous conception of federal powers and emphasized the supremacy of delegated over reserved powers. He presumed that federal powers were intrinsically limited and thus were consistent with the states’ continuing to have substantial regulatory autonomy. However, he did not regard state powers as affirmative limitations on congressional powers or as capable of interfering with their exercise. Therefore, he claimed that state powers must give way to legitimate assertions of federal power.

Taney, Marshall’s successor, developed the idea of state police powersPolice powers and placed greater emphasis on the limited scope of federal powers. Beneath the surface if not always transparently, there was recurring concern during Taney’s tenure with problems of slavery. In some contexts, he and his colleagues treated federal and state powers as potentially overlapping, as with powers of commercial regulation in general. At the same time, the justices treated some federal and state governing powers as mutually exclusive and reciprocally limiting. Taney relied on a version of the latter approach, characteristically dual federalistDual federalism, in Scott v. Sandford (1857). Among other things, he argued that limitations on Congress’s powers relating to slavery corresponded to and protected powers reserved exclusively to the states.

The predominant view during the antebellum period, as articulated by Chief Justice Marshall in Barron v. Baltimore[case]Barron v. Baltimore[Barron v. Baltimore] (1833), was that federal judges lacked authority to enforce the Bill of Rights against the states. Other parts of the constitutional text, such as Article I, section 10, imposed limitations directly on the states. The Court interpreted some constitutional delegations of power to Congress as preempting state regulations within certain “spheres.” However, the Court, along with Congress, allowed large measures of state autonomy. Accordingly, dual federalism largely prevailed in both theory and practice.

The Civil War Civil Warand ReconstructionReconstruction substantially altered these relationships between institutions of federal and state governance, along with their respective relationships to the people at large. During the war itself, governing power became increasingly centralized, supporting further consolidations of national power after the war. These tendencies were exacerbated, moreover, by problems of reconstruction. The Thirteenth, Fourteenth, and Fifteenth Amendments altered representational structures, imposed additional limitations on the states, and otherwise sought to reduce state autonomy and enhance national powers.

During these transformative periods, the Court’s role was mixed. In Ex parte Merryman[case]Merryman, Ex parte[Merryman, Ex parte] (1861), the Taney Court denied that President Abraham Lincoln had authority to suspend the writ of habeas corpus. However, the president refused to comply with this decision, and in the Prize Cases[case]Prize Cases[Prize Cases] (1863), a majority of the justices upheld Lincoln’s blockade of Southern ports. After the war, in Ex parte Milligan[case]Milligan, Ex parte[Milligan, Ex parte] (1866), the Court reasserted itself, with Salmon P. Chase as chief justice, by invalidating the military trial of a civilian when civil courts were open. In Mississippi v. Johnson[case]Mississippi v. Johnson[Mississippi v. Johnson] (1867), Georgia v. Stanton[case]Georgia v. Stanton[Georgia v. Stanton] (1868), Ex parte McCardle[case]McCardle, Ex parte[MacCardle, Ex parte] (1869), and Texas v. White[case]Texas v. White[Texas v. White] (1869), however, the justices refrained in various contexts from taking a position on the validity of military reconstruction. In the last of these cases, Chase supported the cause of the Union by proclaiming that “the Constitution in all its provisions looks to an indestructible Union composed of indestructible states.” Thus, he denied that states could legitimately secede from the Union, claimed that the war had altered relationships between the rebellious states and the Union, and affirmed congressional power to restore republican governments in the South.

The post-Civil War Reconstruction years were a time of both political and legal upheaval in the United States.

(Library of Congress)

The judges initially interpreted the Thirteenth, Fourteenth, and Fifteenth Amendments as supporting Congress’s power to secure civil rights from abridgement by the states or individuals. However, soon the justices joined a broader retreat from Reconstruction, as signaled by the opinions in Slaughterhouse Cases[case]Slaughterhouse Cases[Slaughterhouse Cases] (1873) and Civil Rights Cases[case]Civil Rights Cases[Civil Rights Cases] (1883). Justices Samuel F. Miller and Joseph P. Bradley wrote the respective majority opinions. In the former case, the Court upheld a monopoly on the slaughtering of meat in New Orleans; in the latter, it invalidated the Civil Rights Act of 1875. From opposite directions, these two decisions perpetuated models of dual federalism.

Dual federalismIn Slaughterhouse Cases, Miller claimed that the “one pervading purpose” of the Thirteenth, Fourteenth, and Fifteenth Amendments was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen.” Though he suggested that other races might benefit from their guarantees, Miller denied that these amendments “radically changed the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.” More specifically, he denied that the privileges or immunities clause of the Fourteenth Amendment “was intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States.” Nor did that clause “constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens.” He staked out corresponding positions on the Thirteenth Amendment and the Fourteenth Amendment’s due process and equal protection clauses.

In Civil Rights Cases, Bradley likewise argued that the Fourteenth Amendment did not “invest Congress with power to legislate upon subjects which are within the domain of State legislation.” In his view, the amendment provided remedies for abridgements of rights by states, not individuals. Relying on the Tenth Amendment, a majority of the justices claimed that the law regulating individual actions exceeded Congress’s delegated powers.

Although the Court would subsequently adhere to aspects of the majority opinions in these two cases, many of the dissenters’ arguments would eventually prevail in one form or another. The dissents of Justices Stephen J. Field and Bradley in Slaughterhouse anticipated judicial enforcement of commercial rights as limitations on the states in reliance on the due process clause of the Fourteenth Amendment. Federal judges went even further by relying on that clause as the primary vehicle for enforcing much of the Bill of Rights against the states, making prescient Justice Noah H. Swayne’s characterization of the amendment as “a new Magna Charta.” Justice John Marshall Harlan’s dissent in the Civil Rights Cases likewise anticipated national regulation of individual actions. Relying on the Fourteenth Amendment and Article I’s delegation of commercial powers, Congress in the twentieth century would assert and the justices would uphold sweeping national civil rights legislation, economic regulations, and other expansions of national power.

Justice Noah H. Swayne called the Fourteenth Amendment a “new Magna Charta.”

(Collection of the Supreme Court of the United States)

In the meantime, the Court enlisted the Fourteenth Amendment, along with the Fifth and Tenth, to promote economic laissez-faire. Lochner v. New York[case]Lochner v. New York[Lochner v. New York] (1905) and Hammer v. Dagenhart[case]Hammer v. Dagenhart[Hammer v. Dagenhart] (1918) epitomize the restrictive decisions of this era. Both dealt with matters of federalism: the first through the justices’ invalidation of a state law in reliance on the U.S. Constitution; the second because the majority relied on dual federalist premises to strike down an act of Congress. In Lochner, the Court held that a state maximum-hour workday law for bakers deprived them of liberty without due process of law in violation of the Fourteenth Amendment’s due process clause; and in Hammer, they argued that a federal law regulating child labor exceeded Congress’s powers, conflicted with the Fifth Amendment, and encroached on powers reserved exclusively to the states. The combined result of such decisions was to treat a wide range of commercial transactions (but not all) as beyond the legitimate reach of governmental restriction, federal or state.

Controversy over this issue erupted during the New Deal. In response to intense pressure from President Franklin D. Roosevelt, Congress, state legislatures, and various constituencies, the Court shifted its posture in the late 1930’s and early 1940’s. West Coast Hotel Co. v. Parrish[case]West Coast Hotel Co. v. Parrish[West Coast Hotel Co. v. Parrish] (1937) and United States v. Darby Lumber Co.[case]Darby Lumber Co., United States v.[Darby Lumber Co., United States v.] (1941) both signaled and epitomized this change, often described as “revolutionary.” In West Coast, the Court employed deferential reasoning to uphold a state minimum-wage, maximum-hour law, and in Darby, it affirmed Congress’s powers to regulate terms of employment. In the process, the Court rejected dual federalist premises: Instead of presuming that federal and state powers were mutually exclusive and reciprocally limiting, they treated such powers as substantially overlapping, in many ways complementary, but with federal powers supreme.

The Court did not, however, entirely withdraw from enforcing constitutional limitations on the states. On the contrary, United States v. Carolene Products Co.[case]Carolene Products Co., United States v.[Carolene Products Co., United States v.] (1938) suggested that the Court would continue to enforce enumerated rights, seek to guard political processes, and ensure fidelity to requirements of equal protection. Such efforts and their extensions gained momentum through the Civil Rights and women’s movements and social change more generally, culminating in Warren and post-Warren Court precedents such as Brown v. Board of Education (1954), Mapp v. Ohio (1961), Miranda v. Arizona (1966), Griswold v. Connecticut (1965), and Roe v. Wade (1973).

Chief Justice Earl Warren’s successors, Warren E. Burger and William H. Rehnquist, led modest retreats from these overall trends toward the Court’s upholding greater concentrations of central governing power along with increased supervision of state actions. For example, in National League of Cities v. Usery[case]National League of Cities v. Usery[National League of Cities v. Usery](1976), the Court invalidated provisions in the Fair Labor Standards ActFair Labor Standards Act (1938) as they applied to the states. However, a majority of the justices overruled this decision nine years later in Garcia v. San Antonio Metropolitan Transit Authority[case]Garcia v. San Antonio Metropolitan Transit Authority[Garcia v. San Antonio Metropolitan Transit Authority] (1985). Once again invoking principles of federalism, the Court in United States v. Lopez[case]Lopez, United States v.[Lopez, United States v.] (1995) invalidated a federal law limiting possession of guns near schools. For the first time since 1937, a majority of the justices held that Congress had exceeded its commercial powers. Then in Seminole Tribe v. Florida[case]Seminole Tribe v. Florida[Seminole Tribe v. Florida] (1996) and Printz v. United States[case]Printz v. United States[Printz v. United States] (1997), respectively, the justices revitalized the Eleventh Amendment and held that Congress could not command state and local officials to enforce a federal law. These cases, along with others involving issues of affirmative action, term limitations, criminal processes, and other matters, have been at the center of ongoing debates involving matters of federalism in the United States.

Cases from the founding period exemplify ways that constitutionalism in the United States rests on a premise that the states and the people may act through representational structures in some capacities while acting independently of them in others. Principles of federalism are at the heart of these interactions, forming and being reformed by ongoing commitment to constitutional governance. Rather than being settled by more than two hundred years of practice, these principles have remained radically contestable.

• A good starting point is Robert F. Nagel’s The Implosion of American Federalism (New York: Oxford University Press, 2002), a wide-ranging exploration of the subject of federalism that pays special attention to the role of the Supreme Court. Other up-to-date studies of the subject include Ralph A. Rossum’s Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, Md.: Lexington Books, 2001), Kermit L. Hall’s A Nation of States: Federalism at the Bar of the Supreme Court (New York: Garland, 2000), and The Supreme Court’s Federalism: Real or Imagined? (Thousand Oaks, Calif.: Sage Publications, 2001), edited by Frank Goodman. Two other useful and up-to-date historical surveys of the topic are Robert Sutton’s Federalism (Westport: Greenwood Press, 2002) and Christopher N. May’s Constitutional Law: National Power and Federalism (New York: Aspen, 2004). Frank Goodman has edited an excellent collection of essays about Federalism during the later years of the Rehnquist Court in The Supreme Court’s Federalism: Real or Imagined? (Thousand Oaks: Sage Publications, 2001). Federalism is placed in its historical and theoretical context in A Nation of States: Essays on the American Federal System (Chicago: Rand McNally, 1963), edited by Robert A. Goldwin; Raoul Berger’s Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987); and How Federal Is the Constitution? (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1987), edited by Robert A. Goldwin and William A. Schambra. Similar treatments of federalism can be found in Wayne D. Moore’s Constitutional Rights and Powers of the People (Princeton, N.J.: Princeton University Press, 1996) and Daniel J. Elazar’s Covenant and Constitutionalism: The Great Frontier and the Matrix of Federal Democracy (New Brunswick, N.J.: Transaction, 1998). For a progressive approach to federalism, see the essays in “Constructing a New Federalism: Jurisdictional Competence and Competition,” Symposium Issue, Yale Law and Policy Review/Yale Journal on Regulation (1996).

Ableman v. Booth

Civil Rights Cases

Constitution, U.S.

Eleventh Amendment

Fourteenth Amendment

Implied powers

Judiciary Act of 1789

New Deal

Nullification

Reconstruction

Slaughterhouse Cases

State constitutions

States’ rights and state sovereignty

Tenth Amendment