Eugene Boyd Show 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.
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 Tenth Amendment. 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. 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 and minorities). 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.
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 cases. 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 States,46heard 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 state sovereignty. --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 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. Under which article does a legitimate national law overrule conflicting state laws?Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
Who adjudicates conflicts between federal government and state government?In the United States, conflicts between states and the federal government are adjudicated by federal courts, with the U.S. Supreme Court being the final arbiter.
What was the doctrine of nullification?Nullification is the constitutional theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional, and it has been controversial since its inception in early American history.
What are the 3 types of federalism?The progression of federalism includes dual, cooperative, and new federalism.
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