4.4: Evolving Federalism

The ratification of the Constitution in 1788 began the process of adjusting the United States from a confederal system to a federal one. From the very beginning, the Supreme Court was frequently called upon to interpret the Founders’ language in situations where its meaning was unclear. Several of the Court’s earliest decisions in matters pertaining to federalism reinforced the preeminence of the national government. These decisions included McCulloch v. Maryland in 1819, which established that states could not impose taxes on the national bank, and Gibbons v. Ogden in 1824, which struck down a steamboat monopoly on the Hudson River that inhibited the national government’s ability to regulate interstate commerce.

Although these early decisions solidified the supremacy of the national government, the Supreme Court generally abided by a philosophy of dual federalism. This approach sharply divided the domains in which national and state governments could exercise their powers and gave states broad authority to manage their own affairs without national interference.

One rationale for dual federalism had to do with slavery, an issue on which the Founders had struck a tenuous bargain in order to ratify the Constitution. In theory, giving states the power to set their own policies on slavery without the national government stepping in would preserve the fragile harmony between free states and slave states. In practice, such harmony proved impossible to maintain. The Fugitive Slave Act of 1850 forced free states to return escaped slaves to their owners if captured, and the Supreme Court’s 1857 ruling in Dred Scott v. Sandford affirmed that slaveowners could bring their slaves with them into parts of the country where slavery was illegal while still maintaining ownership of them. Free states bristled at the fact that national law forced them to be complicit in an abhorrent act which they themselves had made illegal but which some of their neighbors had not.

The unworkable patchwork of laws pertaining to slavery was eventually torn apart and stitched back together by the Civil War. In the half-century that followed, five constitutional amendments shifted power from the state level to the national level. The Thirteenth Amendment abolished slavery nationwide, the Fourteenth Amendment guaranteed equal protection of the law for citizens in all states, the Fifteenth Amendment extended the right to vote to citizens of all races, the Sixteenth Amendment granted Congress the authority to impose a national income tax, and the Seventeenth Amendment removed the power to elect U.S. senators from the state legislatures and gave it to the citizens instead.

America’s federal balance tilted further toward the national government and away from the states in the 1930s. The Great Depression brought severe hardships to the United States, leading the national government to take unprecedented actions to rebuild the American economy. President Franklin D. Roosevelt’s New Deal expanded the national government in both size and scope, enabling it to take on challenges of reducing unemployment, building infrastructure, regulating the financial system, and providing pensions in the form of Social Security. Although some initiatives were blocked by the Supreme Court as unconstitutional power grabs, the Court ultimately relented and allowed most of the New Deal to go into effect. The 1960s brought additional expansion of the national government’s role. President Lyndon B. Johnson’s Great Society policies led to the creation of Medicare (to lower healthcare costs for the elderly) and Medicaid (to do the same for the poor), as well as other programs aimed at eradicating poverty, promoting education, and ending racial discrimination. By this point, the United States had moved from dual federalism to cooperative federalism, with national and state governments working in tandem to solve problems.