Federalism Essay, Research Paper

“The powers delegated. . .to the federal government are few and defined. . . .The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people and the internal order, improvement, and prosperity of the State.”

—James Madison, The Federalist Papers #45

Since the establishment of judicial review in Marbury vs. Madison , the Supreme Court has been charged with the role of mediator. The Court arbitrates disputes between the individual and government, between the constitution and statuary law, and, within a constitutional framework, determines the allocation of power between states and the national government. The issue of federalism has occupied the Court’s docket since its inception and continues to do so today. The Court’s reaction to it has greatly altered over time as both the composition of the Court and the political mind-set of the country have shifted.

The tenth amendment of the U.S. constitution reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This amendment is the looking glass through which the issue of federalism is most often viewed. In the early decisions of the Court, with the notable exception of Marbury vs. Madison , the Marshall Court ruled heavily in favor of an expansive view of the tenth amendment and granted the states as much latitude as possible within the framework of the new constitution. Many of the Marshall Court’s decisions were regarded with contempt since they ran contrary to the Hamiltonian flow of public opinion.

Like a child beginning kindergarten, the government was just starting out, just beginning to explore new areas. The states were accustomed to their independence and their individual constitutions. The imposition of a federal government, although not entirely unwelcome, was at best uncomfortable. The Marshall Court was forced to reconcile the desire for state autonomy with the need for federal government. Marshall himself demonstrated the embodiment of this conflict as he was required to balance his personal Hamiltonian belief in a strong national government with the degree of federalism he thought the states could abide.

The Courts of the 19th century took a decidedly pro-active role when it came to securing the states’ tenth amendment rights. In an 1824 opinion, Justice Johnson voiced the court’s position when he characterized federalism as being “. . . destructive to the harmony of states.” Throughout the 19th century and into the beginning of the 20th century, the Court would maintain this “new” anti-federalist position, the development of which is commonly associated with the eruption of industry, the 1887 passage of the Interstate Commerce Clause, and the 1890 Sherman Anti-trust Act.

The court spent the late half of the 19th century and the early half of the 20th delineating clear limits to congressional power as it concerned the Interstate Commerce Clause. The court ruled that the Congress could regulate use of interstate channels, regulate and protect interstate commerce, and regulate the activities that substantially effect interstate commerce. This ruling, however, was extremely vague and thus highly case specific. The Court felt that it needed to provide some limitation upon the vast powers the law would grant congress by reserving specific privileges for the states.

It is possible to track this conservative trend through an examination of the Court’s decisions beginning with an 1868 decision in which the Court found that the Commerce Clause did not cover the regulation of insurance companies. The Court’s second ruling on the Clause can be considered a landmark case for the limitation it put upon the federal government. In the United States Vs. E.C. Knight Co. , the Supreme Court found that the federal government could not use the commerce clause to regulate “production”, “mining” or “manufacturing” because all of these existed prior to the actual existence of commerce. This was a tremendous loss of revenue to the federal government, as the taxation of such items was no longer permitted. This is not to say, however, that the Supreme Court’s restriction of federalism was detrimental to business. In fact, as can be seen by the decision in Knight, the Court was protective of the rights and privileges of private industry. This age of the conservative court would last until the 1930’s when a shift in Court jurisprudence would begin to be seen .

In the 1930’s, an era marked by the Great Depression, the New Deal, and Franklin Roosevelt’s infamous court- packing plan, the Supreme Court set off on a path of nearly complete deference to the federal government. While it was initially unyielding in its defense of states rights, even going as far as to declare the National Recovery Act and the Agricultural Act unconstitutional , the Court’s last stand on the issue of states’ rights was taken in 1935 in the case of the United States v. Schechter Poultry Corporation . In Schechter the majority opinion espoused the belief that, “extraordinary conditions may call for extraordinary remedies. But, the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions neither create nor enlarge constitutional powers.” This case, however, was to be the Court’s waterloo.

In the elections of 1936 which followed close on the heels of the Schechter decision, Franklin Roosevelt was re-elected in a landslide victory which allowed him to announce his infamous court-packing scheme. The Supreme Court had become badly divided when it came to New Deal legislation with four of the justices on each side of every New Deal issue. Unhappy with the Court’s recent decisions, Roosevelt suggested that for every justice over the age of 70, at the time there were six, a new justice be added. The plan was under consideration by the Judiciary Committee when the verdict in a key minimum wage case, West Coast Hotel v. Parish , came down.

The verdict in West Coast was exactly what Roosevelt had hoped for, and to this day there is speculation that Justice Roberts voted with Justices Stone, Cardozo, Brandeis, and Hughes to preserve the Court from Roosevelt’s plan. While this clearly was not the direct cause, the Justices had cast their votes 2 months before Roosevelt announced his plan, there is little doubt that the tremendous pressure placed upon the Court by Roosevelt, congress and the public had an impact on the outcome of the case. Although the Court survived intact, a severe shift toward liberalism was apparent. The Court-packing plan, however, is not the sole reason for the shift toward a federalist perspective.

For nearly every year of his presidency after 1936, Roosevelt appointed one, if not more, Supreme Court Justices. The sheer number of appointees was enough to alter the face of the Court. His first appointee was Justice Black who characterized what would become the attitude of the Court for the next few decades by saying, “It is up to federal legislators to decide on the wisdom and utility of legislation.” The Justices Roosevelt appointed were tremendously influential not just for their numbers but also for their longevity. At minimum, they were on the Court for 15 years. The liberal bent they gave the Court can be seen throughout the decisions of the next few decades.

Through an examination of the most renowned cases of the next 6 decades, the liberal movement of the Court away from States’ rights and towards federalism can be clearly seen. In 1954, the Supreme Court handed down one of its most famous decisions in Brown v. The Board of Education . The decision was a reversal of Plessy v. Ferguson , and essentially absorbed the powers of the state by assuming the right to declare segregation illegal. The Court’s other famous decision, Roe v. Wade , was also a limitation upon states’ rights. Roe imposed a federal standard upon the states by dictating the degree to which they could regulate abortion. Through the 1980’s, the Court expanded federalism in both social and economic arenas . The early 1990’s, however, began a period of change in the Court’s tenth amendment jurisprudence.

The first marked return toward states’ rights occurred in 1993 with the finding that the popular Brady Bill was unconstitutional. The Court ruled that the federal government had gone too far in segments of the bill. It was a violation of the states powers to compel state law enforcement officials to perform a federal function. While the bill will surly pass when it returns to the Court with the recommended alterations, the Court’s step in protecting the States was key.

In 1995 the Court again took a step toward a conservative interpretation of the tenth amendment. In the United States v. Lopez , for the first time in 30 years the Supreme Court found a congressional usage of the Commerce Clause unconstitutional. The argument of congress, which the Court rejected, was that under the constitution through the Commerce Clause they could govern the possession of guns in schools. The Court disagreed saying that such an interpretation would “require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated. . .and that there will never be a distinction between what is truly national and what is truly local.”

The question now becomes what has motivated this change in the Court’s attitude? There is little doubt that the strong conservative inclination of the Court’s Chief Justice William Rehnquist has played a role in this recent shift. Rehnquist is backed by a fairly conservative Court with Justices Scalia, Thomas, Kennedy and O’Connor behind him, and perhaps this majority will force a return to the upholding of States’ rights. Just last year this trend appeared to be continuing as the Court forbid state probation officers from suing states to collect unpaid federal overtime and protected universities from suit for breaking patent laws.

The docket in front of the Court as they head back into session this week is clearly heavy on tenth amendment cases. Facing the Court will be cases where the decisions could expand the tenth amendment or vastly limit it. The Justices will have to decide if state employees are still protected under federal anti-discrimination laws or if states can use federal money to pay for bus transportation to religious schools. While precedents do exist for these issues, the Rehnquist Court has been only too happy to over turn and viewing these cases with a more conservative eye might be enough to alter the outcome.

There are also three new, groundbreaking cases the Court will review. These cases are important because they, unlike the cases mentioned above, are precedent setting. Perhaps even more importantly the cases are critical because the Court’s decision will play itself out in more than one arena. The first issue concerns a principal called “pre-emption” in which the Court must decide if federal statutes can supersede state codes and laws. Pre-emption would require Congress to indicate each time a bill would supercede a state law and thus make it ten times as difficult to do. Businesses are against it because it makes uniform federal laws, which businesses favor over a multitude of vastly different state laws, more difficult to pass. The second case will raise the question of the involvement of the Food and Drug Administration in monitoring tobacco as a drug. Finally, the last case, which has received a tremendous amount of publicity recently, confronts the issue of the Drivers Privacy Protection Act in which a federal law would “pre-empt” state laws by making it illegal to give out information on drivers’ licences.

“This is a case about power. . .”said Justice Stevens in his dissention in Seminole Tribe v. Florida. For the last hundred and fifty years, the supreme court