Federalism and the Courts

The law plays a defining role in federalism. The Constitution expressly grants certain powers to the federal government, states that it may enact any laws that are "necessary and proper" to exercising these powers, and then (in the tenth amendment) asserts that all powers not expressly granted to the national government are retained by the states. In practice, these are not clear lines. The Supreme Court has had to determine when state activities trespass on areas that have explicitly been preempted by the federal government and when federal acts encroach on states' reserved powers. Over the course of U.S. history, judicial decisions have punctuated the changing relations between states and the national government.
 

The courts serve as the referees between governments, interpreting and expanding on the relationship originally delineated by the Constitution.   This interpretation has been in the hands of men (and, recently, women) with very different temperaments and views of the proper roles of the different levels of government and of the courts. Judicial conservatives (not necessarily the same as political conservatives) tend to seek to identify the intent of framers of laws, rather than to reinterpret them in light of changing civic contexts. Conversely, judicial activists (who may be politically conservative as well as liberal) are more willing to develop law in new directions in response to changing circumstances rather than waiting for legislators to act to clarify areas that are obscure or where past laws and rulings are silent. Even when the court includes activists, however, judicial decision-making is inherently conservative in the sense that it depends, above all, on precedent. In order for laws to be justly administered, there is a need for consistency and predictability. Hence the doctrine of stare decisis --letting past decisions stand.

Because judicial decision-making is intentionally less volatile than political action, the courts often seem out of sync with the political tenor of an era. In theory, the Supreme Court is protected from political winds by lifetime appointments. At least once, however, the court changed its tune as a result of a credible political threat. Franklin Delano Roosevelt, angered at repeated overturning of New Deal legislation by a court that was protective of state and commercial interests, decided the best way to accelerate his policies would be to appoint his own justices to the court. To accomplish this, he proposed increasing the size of the Supreme Court. Although this was never done, his effort seems to have been effective in making the court more amenable to his agenda.

Depending on how you interpret the activities of courts, the decisions may be seen in several ways:

• they allow a static constitution to evolve as the world changes while keeping true to the spirit of the original drafters;
• they reflect changing economic and social norms;
• they clarify the intent of Congress, which has the last say in what is allowed;
• they reflect prevalent political agendas and the interests of power elites.

Some Decisions on Federalism

Court decisions have been collected and reviewed extensively on other sites. I will not try to duplicate efforts of expert legal scholars. However, I have included some thumbnails and quotes from personal favorites of mine below, in a personal chronology of cases with an impact on federalism.
 

Marbury v. Madison, 5 U.S. 137 (1803)
established the Supreme Court as the ultimate authority on the constitutionality of Congressional acts.

McCulloch v. Maryland (1819)
In upholding the creation of a national bank, the Court takes an expansive interpretation of the "necessary and proper" clause. This shifts power to Congress and gives it broad latitude in legislating.

Gibbons v. Ogden, 22 U.S. 1 (1824)
Defined Congressional authority over commerce as complete.

Cooley v. Board of Wardens , 53 U.S. 299 (1851)
Laid a dual federalism framework for commerce regulation, articulating the notion of a dormant commerce clause and leaving it up to the Court to define the boundaries of state actions.

Texas v. White, 74 U.S. 700 (1868)
Post CivilWar ruling asserted that the United States was an indestructible union made up of indestructible states.

Collector v. Day, 78 U.S. 113 (1870)
Outlined doctrine of dual federalism in the context of a ruling that federal taxes could not be levied on salaries of state officials.

Swift and Company v. United States, 196 U.S. 375 (1905)
Articulated the doctrine of "stream of commerce", which provided a basis for expanding commerce clause power to activities surrounding manufacture as well as trade and set the groundwork for federal police power.

Hammer v. Dagenhart, 247 U.S. 251 (1918)
Restored doctrine of dual federalism in order to overturn child labor laws.

National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)
Returned to stream of commerce analysis, for the first time reversing a series of conservative decisions that had rejected New Deal efforts.

United States v. Darby, 312 U.S. 100 (1941)
In upholding a New Deal minimum wage law, the Court states that the tenth amendment simply describes the obvious, that what is not surrendered to the federal government is retained by the states, but sets no limits on enumerated powers of Congress.

National League of Cities v. Usery 421 U.S. 542, 547
In case related to regulation of wages and hours of state employees, the court narrowly ruled that state sovereignty set important limits on what was allowable to Congress.

GARCIA v. SAN ANTONIO METRO. TRANSIT AUTH., 469 U.S.
Overturned League of Cities, and decided that the Constitutions sets virtually no limits on Congress; states must look to political processes for remedies.

South Dakota v. Dole 483 U.S.203 (1987)
Congress may make federal grants contingent on state action--in this case, linking highway funds to state limits on the drinking age.

United States v. New York 505 U.S. 144 (1992)
Congress may not command a state to enact regulations.

Seminole Tribe of Florida v. Florida 116 S.Ct. 1114 (1996)
Ruling related to Indian gaming, determined that Commerce Clause does not trump state sovereign immunity. Commentary by Professor William Funk, Lewis and Clark Law School, Editor, Administrative and Regulatory Law News Vol.21 No. 4, Summer 1996.

United States v. Lopez, 514 U.S. 549 (1995)
In striking down this law that bans possession of hand guns on school grounds, the Court set a limit on the reach of the Commerce Clause for the first time in 60 years.

Printz v. United States, 1996 Brady bill decision

Federal Maritime Commission v. Port of Charleston, SC 2002 - Kettl,"Dusting Off Dignity"

  Journal and law review articles with cases related to federalism   Instrumental and Non-Instrumental Federalism by Michael C. Dorf, Professor of Law, Columbia University School of Law. Article from Rutgers Law Journal on-line edition, Volume 28 Number 4 Summer 1997

How Many Times Was Lochner-Era Substantive Due Process Effective? by Michael J. Phillips. Mercer Law Review on line. Spring 1997, vol 48, no. 3

   On the First Principles of Federalism Roger Pilon, Cato Institute

   Federalization of Criminal Law U.S. v. Lopez,

   Some legally annotated web sites related to federalism and the tenth amendment   All Good Things Must Come To An End Here's a highly personal recounting of McCullough v. Maryland by Sean Strasburg, a libertarian, apparently, at The Graduate College, Princeton University

  The Constitution for The United States, Its Sources and Its Applications annotated by  Barefoot Bob, Coeur d'Alene, Idaho

   Supreme Court decisions   H-LAW List HOME PAGE

  United States Supreme Court Villanova's collection of Supreme Court Decisions from 1937-1975