Imagining Federalism

So just how do we deal with this complicated relationship between the central government and the States? On the one hand, the brief period of (quasi) State sovereignty (at most the 12 years between 1776 and 1787) proved the inadequacy of confederation. On the other, the creation of the constitution seemed to ignore State claims to sovereignty. Still, the debate over the breadth and effect of federal power is one our country has never resolved. Beginning with the ratification debates (Federalist vs. Anti-Federalist), continuing through the Marshall and Taney courts, through the Civil War and Reconstruction, on to the post-industrial revolution, war and economic depression, and into the 21st century, we are still haven't figured it out. Each era, it seems, has its own vision of federalism, and its own set of doctrines.

From Federalist Era to Dual Federalism

John Marshall was an ardent Federalist, and his opinions reflect his vision of broad and strong federal power. His successors, however, were more inclined to states rights. Starting with Dred Scott in 1854, through the Civil Rights Cases of 1883, all the way up to 1937, the Supreme Court used one technique after another to weaken federal power.

The Dual Federalism era (roughly 1883-1837) was premised on the primacy of state sovereignty (almost as if the South had won the Civil War). Not only were Congress' enumerated powers narrowly construed, the Court arrogated to itself the authority to assess the propriety of legislative "means." Compare, for instance, the Lottery Cases with Hammer v. Dagenhart. In the former, the Court held that Congress could ban interstate traffic in lottery tickets, but in the latter held a ban on interstate traffic in clothing made using child labor was unconstitutional. Lottery tickets, it seems, were harmful per se, but clothing made by kids was not. As you can see, not only did these cases get the federalism issue wrong, they also upended separation of powers principles (by the Court substituting its policy judgments for those of congress).

Federalism Recast

Among the many consequences of the Civil War was the reconceptualization of American federalism. No longer were the states to be trusted as guarantor of peoples' rights. Rather, the 13th, 14th and 15th Amendments confirmed that the federal government would be the principal protector of civil rights. These Amendments significantly curtailed state power, and each gave additional powers to congress to enforce civil rights.

The fruits of the Union victory were quickly lost when the Supreme Court ruled that the Reconstruction Laws (which were based on the Civil War Amendments) were unconstitutional, because they invaded states' rights. For the next 80 years, there were no civil rights laws in this country (except for some triffling few in some northern states). Thus, when America was once again ready to embrace civil rights as a tenet of human dignity, in 1964, Congress resorted to its power under the Commerce Clause, rather than its powers under the Civil War Amendments.

What should you know about this doctrinal and historical roller-coaster? You should understand the different approaches the Court took during the early years (Federalist period) and the post-Civil War and "Dual Federalism" periods. Doctrinal clarity was restored during the New Deal, but upset once again with the Rehnquist court in the late 20th century. That's where we'll pick up next week.

Posted by The Professor at February 18, 2006 11:55 AM | TrackBack