Political union and the resulting constitutional structures that configure relationships among the states and institutions of national governance.
Even before the U.S. Constitution
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
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
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
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
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 Amendment
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
Taney, Marshall’s successor, developed the idea of state police powers
The predominant view during the antebellum period, as articulated by Chief Justice Marshall in Barron v. Baltimore
The Civil War
During these transformative periods, the Court’s role was mixed. In Ex parte Merryman
The post-Civil War Reconstruction years were a time of both political and legal upheaval in the United States.
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
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."
In the meantime, the Court enlisted the Fourteenth Amendment, along with the Fifth and Tenth, to promote economic laissez-faire. Lochner v. New York
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
The Court did not, however, entirely withdraw from enforcing constitutional limitations on the states. On the contrary, United States v. Carolene Products Co.
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
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
Judiciary Act of 1789
States’ rights and state sovereignty