Federalism in the United States embraces the following elements:
(1) as in all federations, the union of several autonomous political entities, or “States,” for common purposes; (2) the division of legislative powers between a “National Government,” on the one hand, and constituent “States,” on the other, which division is governed by the rule that the former is “a government of enumerated powers” while the latter are governments of “residual powers”; (3) the direct operation, for the most part, of each of these centers of government, within its assigned sphere, upon all persons and property within its territorial limits; (4) the provision of each center with the complete apparatus of law enforcement, both executive and judicial; (5) the supremacy of the “National Government” within its assigned sphere over any conflicting assertion of “state” power; (6) dual citizenship.
The third and fourth of the above-listed salient features of the American Federal System are the ones which at the outset marked it off most sharply from all preceding systems, in which the member states generally agreed to obey the mandates of a common government for certain stipulated purposes, but retained to themselves the right of ordaining and enforcing the laws of the union. This, indeed, was the system provided in the Articles of Confederation. The Convention of 1787 was well aware, of course, that if the inanities and futilities of the Confederation were to be avoided in the new system, the latter must incorporate “a coercive principle”; and as Ellsworth of Connecticut expressed it, the only question was whether it should be “a coercion of law, or a coercion of arms,” that “coercion which acts only upon delinquent individuals” or that which is applicable to “sovereign bodies, states, in their political capacity.” In Judicial Review the former principle was established, albeit [Pg xii]without entirely discarding the latter, as the War between the States was to demonstrate.
The sheer fact of Federalism enters the purview of Constitutional Law, that is, becomes a judicial concept, in consequence of the conflicts which have at times arisen between the idea of State Autonomy (“State Sovereignty”) and the principle of National Supremacy. Exaltation of the latter principle, as it is recognized in the Supremacy Clause (Article VI, paragraph 2) of the Constitution, was the very keystone of Chief Justice Marshall’s constitutional jurisprudence. It was Marshall’s position that the supremacy clause was intended to be applied literally, so that if an unforced reading of the terms in which legislative power was granted to Congress confirmed its right to enact a particular statute, the circumstance that the statute projected national power into a hitherto accustomed field of state power with unavoidable curtailment of the latter was a matter of indifference. State power, as Madison in his early nationalistic days phrased it, was “no criterion of national power,” and hence no independent limitation thereof.
Quite different was the outlook of the Court over which Marshall’s successor, Taney, presided. That Court took as its point of departure the Tenth Amendment, which reads, “The powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In construing this provision the Court under Taney sometimes talked as if it regarded all the reserved powers of the States as limiting national power; at other times it talked as if it regarded certain subjects as reserved exclusively to the States, slavery being, of course, the outstanding instance.
But whether following the one line of reasoning or the other, the Taney Court subtly transformed its function, and so that of Judicial Review, in relation to the Federal System. Marshall viewed the Court as primarily an organ of the National Government and of its supremacy. The Court under Taney regarded itself as standing outside of and above both the National Government and the States, and as vested with a quasi-arbitral function between two centers of diverse, but essentially equal, because “sovereign”, powers. Thus in Ableman v. Booth, which was decided on the eve of the War between the States, we find Taney himself using this arresting language:
This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the general government…. So long … as this Constitution shall endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceeding, the angry and irritating controversies between sovereignties, which in other countries have been determined by the arbitrament of force.
It is, therefore, the Taney Court, rather than the Marshall Court, which elaborated the concept of Dual Federalism. Marshall’s federalism is more aptly termed national federalism; and turning to modern issues, we may say without exaggeration that the broad general constitutional issue between the Court and the Franklin D. Roosevelt program in such cases as Schechter Corp. v. United States and Carter v. Carter Coal Co. was, whether Marshall’s [Pg xiii]or Taney’s brand of federalism should prevail. More precisely, the issue in these cases was whether Congress’ power to regulate commerce must stop short of regulating the employer-employee relationship in industrial production, that having been hitherto regulated by the States. In Justice Sutherland’s words in the Carter case:
Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby…. The conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law, it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds to its importance. It does not alter its character.
We all know how this issue was finally resolved. In the Fair Labor Standards Act of 1938 Congress not only prohibits interstate commerce in goods produced by substandard labor, but it directly forbids, with penalties, the employment of labor in industrial production for interstate commerce on other than certain prescribed terms. And in United States v. Darby this Act was sustained by the Court, in all its sweeping provisions, on the basis of an opinion by Chief Justice Stone which in turn is based on Chief Justice Marshall’s famous opinions in McCulloch v. Maryland and Gibbons v. Ogden rendered more than a century and a quarter ago. In short, as a principle capable of delimiting the national legislative power, the concept of Dual Federalism as regards the present Court seems today to be at an end, with consequent aggrandizement of national power.
There is, however, another side to the story. For in one respect even the great Marshall has been in effect overruled in support of enlarged views of national authority. Without essaying a vain task of “tithing mint, anise and cummin,” it is fairly accurate to say that throughout the 100 years which lie between Marshall’s death and the cases of the 1930’s, the conception of the federal relationship which on the whole prevailed with the Court was a competitive conception, one which envisaged the National Government and the States as jealous rivals. To be sure, we occasionally get some striking statements of contrary tendency, as in Justice Bradley’s opinion in 1880 for a divided Court in the Siebold Case, where is reflected recognition of certain results of the War between the States; or later in a frequently quoted dictum by Justice McKenna, in Hoke v. United States, in which the Mann White Slave Act was sustained in 1913:
Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction … but it must be kept in mind [Pg xiv]that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.
The competitive concept is, nevertheless, the one much more generally evident in the outstanding results for American Constitutional Law throughout three-quarters of its history. Of direct pertinence in this connection is the doctrine of tax exemption which converted federalism into a principle of private immunity from taxation, so that, for example, neither government could tax as income the official salaries paid by the other government. This doctrine traces immediately to Marshall’s famous judgment in McCulloch v. Maryland, and bespeaks a conception of the federal relationship which regards the National Government and the States as bent on mutual frustration. Today the principle of tax exemption, except so far as Congress may choose to apply it to federal instrumentalities by virtue of its protective powers under the necessary and proper clause, is at an end.
By the cooperative conception of the federal relationship the States and the National Government are regarded as mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government according to their applicability to the problem in hand. This is the conception on which the recent social and economic legislation professes to rest. It is the conception which the Court invokes throughout its decisions in sustaining the Social Security Act of 1935 and supplementary state legislation. It is the conception which underlies congressional legislation of recent years making certain crimes against the States, like theft, racketeering, kidnapping, crimes also against the National Government whenever the offender extends his activities beyond state boundary lines. The usually cited constitutional justification for such legislation is that which was advanced forty years ago in the above quoted Hoke Case.
It has been argued that the cooperative conception of the federal relationship, especially as it is realized in the policy of federal subventions to the States, tends to break down state initiative and to devitalize state policies. Actually, its effect has often been just the contrary, and for the reason pointed out by Justice Cardozo in Helvering v. Davis, decided in 1937, namely, that the States, competing as they do with one another to attract investors, have not been able to embark separately upon expensive programs of relief and social insurance. Another great objection to Cooperative Federalism is more difficult to meet. This is, that Cooperative Federalism invites further aggrandizement of national power. Unquestionably it does, for when two cooperate, it is the stronger member of the combination who usually calls the tunes. Resting as it does primarily on the superior fiscal resources of the National Government, Cooperative Federalism has been, at least to date, a short expression for a constantly increasing concentration of power at Washington in the stimulation and supervision of local policies.
The last element of the concept of Federalism to demand attention is the doctrine that the National Government is a government of enumerated powers only, and consequently under the necessity at all times of justifying its measures [Pg xv]juridically by pointing to some particular clause or clauses of the Constitution which, when read separately or in combination, may be thought to grant power adequate to such measures. In spite of such recent decisions as that in United States v. Darby, this time-honored doctrine still guides the authoritative interpreters of the Constitution in determining the validity of acts which are passed by Congress in presumed exercise of its powers of domestic legislation—the course of reasoning pursued by the Chief Justice in the Darby Case itself is proof that such is the fact. In the field of foreign relations, on the contrary, the doctrine of enumerated powers has always had a difficult row to hoe, and today may be unqualifiedly asserted to be defunct.
As early as the old case of Penhallow v. Doane, which was decided by the Supreme Court in 1795, certain counsel thought it pertinent to urge the following conception of the War Power:
A formal compact is not essential to the institution of a government. Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. In every society there must be a sovereignty. 1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. sec. 4. The powers of war form an inherent characteristic of national sovereignty; and, it is not denied, that Congress possessed those powers….
To be sure, only two of the Justices felt it necessary to comment on this argument, which one of them endorsed, while the other rejected it.
Yet seventy-five years later Justice Bradley incorporated closely kindred doctrine into his concurring opinion in the Legal Tender Cases; and in the years following the Court itself frequently brought the same general outlook to questions affecting the National Government’s powers in the field of foreign relations. Thus in the Chinese Exclusion Case, decided in 1889, Justice Field, in asserting the unlimited power of the National Government, and hence of Congress, to exclude aliens from American shores, remarked:
While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with the powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.
And four years later the power of the National Government to deport alien residents at the option of Congress was based by Justice Gray on the same general reasoning.
Finally, in 1936, Justice Sutherland, speaking for the Court in United States v. Curtiss-Wright Corporation, with World War I a still recent memory, took over bodily counsel’s argument of 140 years earlier, and elevated it to the head of the column of authoritative constitutional doctrine. He said:
A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union…. It results that the investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic [Pg xvi]relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal government as a necessary concomitant of nationality.
In short, the power of the National Government in the field of international relationship is not simply a complexus of particular enumerated powers; it is an inherent power, one which is attributable to the National Government on the ground solely of its belonging to the American People as a sovereign political entity at International Law. In that field the principle of Federalism no longer holds, if it ever did.
Cong. Record, vol. 23, p. 6516.
The Genessee Chief, 12 How. 443 (1851), overturning The Thomas Jefferson, 10 Wheat. 428 (1825).
Knox v. Lee, 12 Wall. 457 (1871); Hepburn v. Griswold, 8 Wall. 603 (1870).
Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429; Same, 158 U.S. 601.
Cong. Record, vol. 78, p. 5358.
Smith v. Allwright, 321 U.S. 649, 665.
The Supreme Court in United States History, III, 470-471 (1922).
The Dartmouth College Case (1819) occupies 197 pages of 4 Wheaton; Gibbons v. Ogden (1824), 240 pages of 9 Wheaton; The Charles River Bridge case (1837), 230 pages of 11 Peters; the Passenger Cases (1849), 290 pages of 7 Howard; the Dred Scott Case (1857), 240 pages of 19 Howard; Ex parte Milligan (1866), 140 pages of 4 Wallace; the first Pollock Case (1895), 325 pages of 157 U.S.; Myers v. United States (1926), 243 pages of 272 U.S.
Max Farrand, The Records of the Federal Convention of 1787, III, 240-241 (1911).
See Taney’s words in 5 How. 504, 573-574 (1847), and 7 How. 283, 465-70 (1849).
21 How. 506, 520-521 (1859).
295 U.S. 495 (1935); 298 U.S. 238 (1936).
298 U.S. 238, 308-309.
312 U.S. 100 (1941).
100 U.S. 371.
227 U.S. 308, 322.
Dobbins v. Commsrs., 16 Pet. 435 (1842); Collector v. Day, 11 Wall. 113. (1870).
4 Wheat. 316, 431 (1819).
For references and further details, see E.S. Corwin, Court over Constitution, 129-176 (1938).
[Transcriber’s Note: Footnote 21 is missing from original text.]
In this connection, see Oklahoma v. Civil Service Comm’n., 330 U.S. 127, 142-145 (1947).
3 Dall. 54, 74.
12 Wall. 457, 555 (1871).
130 U.S. 581, 604.
Fong Yue Ting, 149 U.S. 698 (1893).
299 U.S. 304, 316-318.
See also University of Illinois v. United States, 289 U.S. 48, 59 (1933). In Lichter v. United States, 334 U.S. 742, 782 (1948), Justice Burton, speaking for the Court, says: “The war powers of Congress and the President are only those which are derived from the Constitution”, but he adds: “the primary implication of a war power is that it shall be an effective power to wage war successfully”, which looks very like an attempt to duck the doctrine of an inherent war power while appropriating its results.
Source: The Constitution of the United States of America: Analysis and Interpretation, Edited by Edward Corwin-1952