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American Government: Federalism through History

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  • Type: Video Tutorial
  • Length: 9:47
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  • Posted: 07/01/2009

This lesson was selected from a broader, comprehensive course, American Government. This course and others are available from Thinkwell, Inc. The full course can be found at http://www.thinkwell.com/student/product/americangovernment. The full course covers constitutional principles, civil liberties, civil rights, people and politics, choosing representatives, political institutions, public policy, key Supreme Court cases, changes in democracy, and more. The course features three renowned professors: Gerald Rosenberg, an Associate Professor of Political Science at the University of Chicago, Mark Rom, an Associate Professor of Government and Public Policy at Georgetown University, and Matthew Dickinson, an Associate Professor of Political Science at Middlebury College.

Gerald Rosenberg directs the American Politics Workshop and lectures at the law school at the University of Chicago. He holds a Masters Degree in Politics and Philosophy from Christ Church, Oxford University, has a law degree from the University of Michigan, and has a Ph.D. from Yale. As a specialist on the judiciary, Prof. Rosenberg is the author of “The Hollow Hope: Can Courts Bring About Social Change?” and spent the 2000-2001 academic year teaching at Northwestern University Law School as Jack N. Pritzker Distinguished Visiting Professor of Law. He has been awarded a Fulbright Scholarship and spent the 2002-2003 academic year teaching US law at Xiamen University in China. He has also been awarded the Llewellyn John & Harriet Manchester Quantrell Award for Excellence in Undergraduate Teaching at the University of Chicago.

A three-time winner of his school's Outstanding Faculty Member Award, Mark Rom received his Ph.D. in political science from the University of Wisconsin and worked for four years as a senior social science analyst for the General Accounting Office. Prof. Rom is the author of “Fatal Extraction: The Story Behind the Florida Dentist Accused of Infecting His Patients with HIV”, “Poisoning Public Health”, “Public Spirit in the Thrift Tragedy”, and coauthor of “Welfare Magnets: A New Case for a National Standard”.

Matthew Dickinson received his Ph.D. from Harvard. A specialist on the presidency, he is the author of “Bitter Harvest: FDR, Presidential Power and the Growth of the Presidential Branch”. Prof. Dickinson has published numerous articles and has provided television commentary on the presidency, presidential decision-making, and presidential advisers. His current research examines the growth of presidential staff in the post-World War II era.

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I say, "Let them eat cake," but not quite yet. First, let's talk about cake, and let's talk about federalism. Federalism, of course, being a structure government that shares and divides power between national governments and state governments. One of the questions that we have about federalism is who should dominate, the national or the state? Now, if we look at the evolution of federalism over our nation's history, we can identify at least five different episodes, five different eras where the mixture of state's national control was varying.
Now, before I talk about these episodes, let's talk about the cake. The cake represents who has legitimate authority, who has the legal political power to make decisions binding for the country. Now, the first period of federalism is really the debate over national supremacy versus states' rights. So the question was really who owns the cake? Who controls the cake? And who makes the cake? This period really lasted from the time the constitution was developed in 1787 all the way up until just before the Civil War in 1860. During this period the question was, will the states have the dominant voice or the national government have the dominant voice? The constitutional debates were between the federalists who believed that the national government was the baker, the one who should have control over the cake, the one that should make it, and the one that should give it out. The anti-federalists believed that the states were the ones who were the most competent and most deserving to have the power, to have the control within the government. The federalists won that debate with the ratification of the constitution.
But that federalism, anti-federalism debate continued. A couple of cases in that period can illustrate this. One, in particular, a constitutional case, where the Supreme Court decided in McCulloch v. Maryland, that indeed the Congress had the power both to create a national bank and also to prevent the states from taxing it, a clear example where the courts decided that the national government should have supremacy over the issues given to it in the constitution.
Another element in that episode was the state assertion of nullification. Now, the principle of nullification is that the states were competent and had the power to decide which acts of Congress were constitutional. That is, the states could decide when they would follow acts of Congress and when they could declare them null and void. Those debates were resolved by the Civil War, clearly establishing the principle that the states could not do just what they want and ignore the national government, that the national government had a key and a guiding role to play in federalism.
Our second episode of federalism we can think of as dual federalism. Dual federalism is the period lasting from the end of the Civil War all the way until the Great Depression in 1933. Now, the dual federalism is represented by the layer cake. Here, during this period, the national government and the state governments were really seen as having distinct competencies. So the national government was the legal authority, the legitimate authority, over certain issues given to it by the constitution. The state governments were the legitimate authorities for those powers the constitution reserved to the states. So the state and the national governments kept fairly separate and made decisions within their purview.
Now, a couple of things that are especially important during this period, the courts by and large, supported the state efforts to control of things that they believed the constitution gave to them. The major source of debate concerned interstate commerce. You'll recall that the power to regulate interstate commerce is given the Congress in the constitution. The question that was concerned in this period was what really was interstate commerce? The courts, for most of the period ruled with the states that things were not open for Congress to rule, but this really started changing dramatically during the next episode of government. The next episode of government we can think of as cooperative federalism.
Cooperative federalism really started occurring during the great depression of 1933. At this point, the states were still seen as having lots of legal authority, but they were simply not able to respond appropriately to the demands the depression placed on them. So the national governments, and increasingly, the national courts, started allowing Congress to enact policy in areas previously forbidden to that. So during the period of cooperative federalism, the national government started having a larger say, but the way that it did this primarily was raising money and distributing to the states for programs the federal government wanted, but that the state governments actually could design. The marble represents the swirling, the intermingling of the states and national governments during that period, largely with federal funding and state implementation.
Now, the period of cooperative federalism lasted about until 1968. Then the national government started changing. We moved less from cooperation and intermingling of responsibilities, more towards what we call "coercive federalism." Coercive federalism really begins in the late 1960's and lasts until the early 1990's. Now, the symbolism of this is that during coercive federalism the national government started taking a larger and larger portion of the state, moving state and local governments to smaller and smaller pieces, almost subsumed into the cake. Now, the way the national government did this is by less money to the states, but at the same time it was giving them less assistance, it also gave them many more demands on them. The national government, during the period of coercive federalism, didn't pay for the states to do things, it instructed them to do things; it gave them mandates, primarily to do things like preemptive statutes, where the national government would either take control over an issue or enact legislation, giving an unfounded mandate to the state, telling the state to do something, but not giving it the funding to do so.
Now, there is a key court case during this period. In 1985 the Supreme Court ruled, in Garcia v. San Antonio, that the Congress could force local governments to pay minimum wages. That's really kind of amazing. Local government wages, you'd think, would be purely under the control of local governments. The Supreme Court disagreed, and in that ruling it basically decided there was almost no public policy area where the national government could not make policy. The dots became smaller during this period, the angel food cake, the national government, became increasingly large.
The fifth period is the period of upside down cake where we move away from coercive federalism, and we move towards devolution. This really beings in the early 1990's and it has continued to this day. Now, what the devolution is about is rather than the federal government telling the states what to do and coercing them to do that, the federal government increasingly has transferred authority to the states. The states have played a larger and larger role in developing policy, funding policy, and implementing policy during this period. Why? Four main reasons. In the more recent period the public became increasingly disenchanted with an all-powerful national government and they became increasingly desirous of having state and local governments having more authority and more power. This was further helped by the fact that the Republicans took control of the Congress, the House and Senate, in the early 1990's. In recent decades the Republicans have been fairly staunch advocates of turning responsibility over to the states, and once they took over Congress they were willing to give the states more power.
A clear example of this is in 1996 when the Congress enacted legislation terminating the large welfare program, the Aid to Families with Dependent Children program, a federal program, and turning most control of it back to the states, giving the states power to design and implement their new welfare program called "Temporary Assistance to Needy Families."
A third reason that states had more authority during this period is that the states' governments themselves became increasingly competent, increasingly assertive in seeking authority, and increasingly skilled in carrying it out. Finally, the courts again have changed the way that they handled federalism issues, and the courts have become increasingly sympathetic to state concerns and less sympathetic to the concerns of the national government.
For example, in 1995 in the court case United States v. Lopez, the Supreme Court ruled for the first time in 60 years that Congress had exceeded its authority under the interstate commerce clause, and that the Congress had enacted legislation that it had no power to do so. This case invalidated Congressional legislation to create gun-free school zones. The court said, "That's not congressional business. The school zones are state and local authority and properly for them."
So five periods of federalism, each reflecting a different mix of state and local authority and national authority, from the debate over who should own the cake, to separate spheres of influence, to an intermingling of responsibilities, to an increasing dominance by the federal government, and finally, a transfer of authority back to the state and local governments. Which one will dominate years from now? It's hard to say. I suspect that 50 years from now we'll have new flavors and new kinds of cakes that we can use to describe federalism. Now, which kind of federalism was best? That's a matter for us each to decide. In fact, I think I'll do so.
Constitutional Principles
Federalism in Action - Divided Powers
Federalism Through History Page [1 of 2]

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