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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007. 

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The first amendment, classroom resources by topic, federalism and the separation of powers, introduction.

When crafting the Constitution, one of the central concerns of the Founding generation was how best to control government power. With the new Constitution, the Framers looked to strike an important balance—creating a new national government that was more powerful than the one that came before it while still protecting the American people’s most cherished liberties. They settled on a national government with defined but limited powers. Instead of placing authority in the hands of a single person (like a king), a small group of people (like an aristocracy), or even the whole people (like a direct democracy), the Framers divided power in two ways. At the national level, the Framers divided power between the three branches of government—the legislative branch, the executive branch and the judicial branch. This process of dividing power between different branches of government is called the separation of powers. From there, the Framers further divided power between the national government and the states under a system known as federalism. 

Big Questions

What is the separation of powers how does it work what is federalism and how does it work, where do we see these constitutional principles in the constitution why are they needed, what are some of the key battles over the separation of powers and federalism in american history (and today), video: class recording.

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United States Attorney General Jeff Sessions is expected to release a report this week that may urge more federal interdiction against state-level medical marijuana programs – a move that would raise some compelling legal and policy questions.

Divided Power: The Re-Emergence of Federalism and the 17th Amendment

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3.2 The Evolution of American Federalism

Learning objectives.

By the end of this section, you will be able to:

• Describe how federalism has evolved in the United States
• Compare different conceptions of federalism

The Constitution sketches a federal framework that aims to balance the forces of decentralized and centralized governance in general terms; it does not flesh out standard operating procedures that say precisely how the states and federal governments are to handle all policy contingencies imaginable. Therefore, officials at the state and national levels have had some room to maneuver as they operate within the Constitution’s federal design. This has led to changes in the configuration of federalism over time, changes corresponding to different historical phases that capture distinct balances between state and federal authority.

THE STRUGGLE BETWEEN NATIONAL POWER AND STATE POWER

As George Washington’s secretary of the treasury from 1789 to 1795, Alexander Hamilton championed legislative efforts to create a publicly chartered bank. For Hamilton, the establishment of the Bank of the United States was fully within Congress’s authority, and he hoped the bank would foster economic development, print and circulate paper money, and provide loans to the government. Although Thomas Jefferson , Washington’s secretary of state, staunchly opposed Hamilton’s plan on the constitutional grounds that the national government had no authority to create such an instrument, Hamilton managed to convince the reluctant president to sign the legislation. 20

When the bank’s charter expired in 1811, Jeffersonian Democratic-Republicans prevailed in blocking its renewal. However, the fiscal hardships that plagued the government during the War of 1812 , coupled with the fragility of the country’s financial system, convinced Congress and then-president James Madison to create the Second Bank of the United States in 1816. Many states rejected the Second Bank, arguing that the national government was infringing upon the states’ constitutional jurisdiction.

A political showdown between Maryland and the national government emerged when James McCulloch, an agent for the Baltimore branch of the Second Bank, refused to pay a tax that Maryland had imposed on all out-of-state chartered banks. The standoff raised two constitutional questions: Did Congress have the authority to charter a national bank? Were states allowed to tax federal property? In McCulloch v. Maryland , Chief Justice John Marshall ( Figure 3.8 ) argued that Congress could create a national bank even though the Constitution did not expressly authorize it. 21 Under the necessary and proper clause of Article I , Section 8, the Supreme Court asserted that Congress could establish “all means which are appropriate” to fulfill “the legitimate ends” of the Constitution. In other words, the bank was an appropriate instrument that enabled the national government to carry out several of its enumerated powers, such as regulating interstate commerce, collecting taxes, and borrowing money.

This ruling established the doctrine of implied powers, granting Congress a vast source of discretionary power to achieve its constitutional responsibilities. The Supreme Court also sided with the federal government on the issue of whether states could tax federal property. Under the supremacy clause of Article VI , legitimate national laws trump conflicting state laws. As the court observed, “the government of the Union, though limited in its powers, is supreme within its sphere of action and its laws, when made in pursuance of the constitution, form the supreme law of the land.” Maryland’s action violated national supremacy because “the power to tax is the power to destroy.” This second ruling established the principle of national supremacy, which prohibits states from meddling in the lawful activities of the national government.

Defining the scope of national power was the subject of another landmark Supreme Court decision in 1824. In Gibbons v. Ogden , the court had to interpret the commerce clause of Article I , Section 8; specifically, it had to determine whether the federal government had the sole authority to regulate the licensing of steamboats operating between New York and New Jersey. 22 Aaron Ogden, who had obtained an exclusive license from New York State to operate steamboat ferries between New York City and New Jersey, sued Thomas Gibbons, who was operating ferries along the same route under a coasting license issued by the federal government. Gibbons lost in New York state courts and appealed. Chief Justice Marshall delivered a two-part ruling in favor of Gibbons that strengthened the power of the national government. First, interstate commerce was interpreted broadly to mean “commercial intercourse” among states, thus allowing Congress to regulate navigation. Second, because the federal Licensing Act of 1793, which regulated coastal commerce, was a constitutional exercise of Congress’s authority under the commerce clause, federal law trumped the New York State license-monopoly law that had granted Ogden an exclusive steamboat operating license. As Marshall pointed out, “the acts of New York must yield to the law of Congress.” 23

Various states railed against the nationalization of power that had been going on since the late 1700s. When President John Adams signed the Sedition Act in 1798, which made it a crime to speak openly against the government, the Kentucky and Virginia legislatures passed resolutions declaring the act null on the grounds that they retained the discretion to follow national laws. In effect, these resolutions articulated the legal reasoning underpinning the doctrine of nullification —that states had the right to reject national laws they deemed unconstitutional. 24

A nullification crisis emerged in the 1830s over President Andrew Jackson’s tariff acts of 1828 and 1832. Led by John Calhoun , President Jackson’s vice president, nullifiers argued that high tariffs on imported goods benefited northern manufacturing interests while disadvantaging economies in the South. South Carolina passed an Ordinance of Nullification declaring both tariff acts null and void and threatened to leave the Union. The federal government responded by enacting the Force Bill in 1833, authorizing President Jackson to use military force against states that challenged federal tariff laws. The prospect of military action coupled with the passage of the Compromise Tariff Act of 1833 (which lowered tariffs over time) led South Carolina to back off, ending the nullification crisis.

The ultimate showdown between national and state authority came during the Civil War . Prior to the conflict, in Dred Scott v. Sandford , the Supreme Court ruled that the national government lacked the authority to ban slavery in the territories. 25 But the election of President Abraham Lincoln in 1860 led eleven southern states to secede from the United States because they believed the new president would challenge the institution of slavery. What was initially a conflict to preserve the Union became a conflict to end slavery when Lincoln issued the Emancipation Proclamation in 1863, freeing all enslaved people in the rebellious states. The defeat of the South had a huge impact on the balance of power between the states and the national government in two important ways. First, the Union victory put an end to the right of states to secede and to challenge legitimate national laws. Second, Congress imposed several conditions for readmitting former Confederate states into the Union; among them was ratification of the Fourteenth and Fifteenth Amendment s. In sum, after the Civil War the power balance shifted toward the national government, a movement that had begun several decades before with McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824).

The period between 1819 and the 1860s demonstrated that the national government sought to establish its role within the newly created federal design, which in turn often provoked the states to resist as they sought to protect their interests. With the exception of the Civil War, the Supreme Court settled the power struggles between the states and national government. From a historical perspective, the national supremacy principle introduced during this period did not so much narrow the states’ scope of constitutional authority as restrict their encroachment on national powers. 26

DUAL FEDERALISM

The late 1870s ushered in a new phase in the evolution of U.S. federalism. Under dual federalism , the states and national government exercise exclusive authority in distinctly delineated spheres of jurisdiction. Like the layers of a cake, the levels of government do not blend with one another but rather are clearly defined. Two factors contributed to the emergence of this conception of federalism. First, several Supreme Court rulings blocked attempts by both state and federal governments to step outside their jurisdictional boundaries. Second, the prevailing economic philosophy at the time loathed government interference in the process of industrial development.

Industrialization changed the socioeconomic landscape of the United States. One of its adverse effects was the concentration of market power. Because there was no national regulatory supervision to ensure fairness in market practices, collusive behavior among powerful firms emerged in several industries. 27 To curtail widespread anticompetitive practices in the railroad industry, Congress passed the Interstate Commerce Act in 1887, which created the Interstate Commerce Commission. Three years later, national regulatory capacity was broadened by the Sherman Antitrust Act of 1890, which made it illegal to monopolize or attempt to monopolize and conspire in restraining commerce ( Figure 3.9 ). In the early stages of industrial capitalism, federal regulations were focused for the most part on promoting market competition rather than on addressing the social dislocations resulting from market operations, something the government began to tackle in the 1930s. 28

The new federal regulatory regime was dealt a legal blow early in its existence. In 1895, in United States v. E. C. Knight , the Supreme Court ruled that the national government lacked the authority to regulate manufacturing. 29 The case came about when the government, using its regulatory power under the Sherman Act, attempted to override American Sugar’s purchase of four sugar refineries, which would give the company a commanding share of the industry. Distinguishing between commerce among states and the production of goods, the court argued that the national government’s regulatory authority applied only to commercial activities. If manufacturing activities fell within the purview of the commerce clause of the Constitution, then “comparatively little of business operations would be left for state control,” the court argued.

In the late 1800s, some states attempted to regulate working conditions. For example, New York State passed the Bakeshop Act in 1897, which prohibited bakery employees from working more than sixty hours in a week. In Lochner v. New York , the Supreme Court ruled this state regulation that capped work hours unconstitutional, on the grounds that it violated the due process clause of the Fourteenth Amendment. 30 In other words, the right to sell and buy labor is a “liberty of the individual” safeguarded by the Constitution, the court asserted. The federal government also took up the issue of working conditions, but that case resulted in the same outcome as in the Lochner case. 31

COOPERATIVE FEDERALISM

The Great Depression of the 1930s brought economic hardships the nation had never witnessed before ( Figure 3.10 ). Between 1929 and 1933, the national unemployment rate reached 25 percent, industrial output dropped by half, stock market assets lost more than half their value, thousands of banks went out of business, and the gross domestic product shrunk by one-quarter. 32 Given the magnitude of the economic depression, there was pressure on the national government to coordinate a robust national response along with the states.

Cooperative federalism was born of necessity and lasted well into the twentieth century as the national and state governments each found it beneficial. Under this model, both levels of government coordinated their actions to solve national problems, such as the Great Depression and the civil rights struggle of the following decades. In contrast to dual federalism, it erodes the jurisdictional boundaries between the states and national government, leading to a blending of layers as in a marble cake. The era of cooperative federalism contributed to the gradual incursion of national authority into the jurisdictional domain of the states, as well as the expansion of the national government’s power in concurrent policy areas. 33

The New Deal programs President Franklin D. Roosevelt proposed as a means to tackle the Great Depression ran afoul of the dual-federalism mindset of the justices on the Supreme Court in the 1930s. The court struck down key pillars of the New Deal—the National Industrial Recovery Act and the Agricultural Adjustment Act , for example—on the grounds that the federal government was operating in matters that were within the purview of the states. The court’s obstructionist position infuriated Roosevelt, leading him in 1937 to propose a court-packing plan that would add one new justice for each one over the age of seventy, thus allowing the president to make a maximum of six new appointments. Before Congress took action on the proposal, the Supreme Court began leaning in support of the New Deal as Chief Justice Charles Evans Hughes and Justice Owen Roberts changed their view on federalism. 34

In National Labor Relations Board (NLRB) v. Jones and Laughlin Steel , 35 for instance, the Supreme Court ruled the National Labor Relations Act of 1935 constitutional, asserting that Congress can use its authority under the commerce clause to regulate both manufacturing activities and labor-management relations. The New Deal changed the relationship Americans had with the national government. Before the Great Depression , the government offered little in terms of financial aid, social benefits, and economic rights. After the New Deal, it provided old-age pensions (Social Security), unemployment insurance, agricultural subsidies, protections for organizing in the workplace, and a variety of other public services created during Roosevelt’s administration.

In the 1960s, President Lyndon Johnson ’s administration expanded the national government’s role in society even more. Medicaid (which provides medical assistance to the indigent), Medicare (which provides health insurance to the elderly and some people with disabilities), and school nutrition programs were created. The Elementary and Secondary Education Act (1965), the Higher Education Act (1965), and the Head Start preschool program (1965) were established to expand educational opportunities and equality ( Figure 3.12 ). The Clean Air Act (1965), the Highway Safety Act (1966), and the Fair Packaging and Labeling Act (1966) promoted environmental and consumer protection. Finally, laws were passed to promote urban renewal, public housing development, and affordable housing. In addition to these Great Society programs, the Civil Rights Act (1964) and the Voting Rights Act (1965) gave the federal government effective tools to promote civil rights equality across the country.

While the era of cooperative federalism witnessed a broadening of federal powers in concurrent and state policy domains, it is also the era of a deepening coordination between the states and the federal government in Washington. Nowhere is this clearer than with respect to the social welfare and social insurance programs created during the New Deal and Great Society eras, most of which are administered by both state and federal authorities and are jointly funded. The Social Security Act of 1935, which created federal subsidies for state-administered programs for the elderly; people with disabilities; dependent mothers; and children, gave state and local officials wide discretion over eligibility and benefit levels. The unemployment insurance program, also created by the Social Security Act, requires states to provide jobless benefits, but it allows them significant latitude to decide the level of tax to impose on businesses in order to fund the program as well as the duration and replacement rate of unemployment benefits. A similar multilevel division of labor governs Medicaid and Children’s Health Insurance. 36

Thus, the era of cooperative federalism left two lasting attributes on federalism in the United States. First, a nationalization of politics emerged as a result of federal legislative activism aimed at addressing national problems such as marketplace inefficiencies, social and political inequality, and poverty. The nationalization process expanded the size of the federal administrative apparatus and increased the flow of federal grants to state and local authorities, which have helped offset the financial costs of maintaining a host of New Deal- and Great Society–era programs. The second lasting attribute is the flexibility that states and local authorities were given in the implementation of federal social welfare programs. One consequence of administrative flexibility, however, is that it has led to cross-state differences in the levels of benefits and coverage. 37

NEW FEDERALISM

During the administrations of Presidents Richard Nixon (1969–1974) and Ronald Reagan (1981–1989), attempts were made to reverse the process of nationalization—that is, to restore states’ prominence in policy areas into which the federal government had moved in the past. New federalism is premised on the idea that the decentralization of policies enhances administrative efficiency, reduces overall public spending, and improves policy outcomes. During Nixon’s administration, general revenue sharing programs were created that distributed funds to the state and local governments with minimal restrictions on how the money was spent. The election of Ronald Reagan heralded the advent of a “devolution revolution” in U.S. federalism, in which the president pledged to return authority to the states according to the Constitution. In the Omnibus Budget Reconciliation Act of 1981, congressional leaders together with President Reagan consolidated numerous federal grant programs related to social welfare and reformulated them in order to give state and local administrators greater discretion in using federal funds. 38

However, Reagan’s track record in promoting new federalism was inconsistent. This was partly due to the fact that the president’s devolution agenda met some opposition from Democrats in Congress, moderate Republicans, and interest groups, preventing him from making further advances on that front. For example, his efforts to completely devolve Aid to Families With Dependent Children (a New Deal-era program) and food stamps (a Great Society-era program) to the states were rejected by members of Congress, who feared states would underfund both programs, and by members of the National Governors’ Association, who believed the proposal would be too costly for states. Reagan terminated general revenue sharing in 1986. 39

Several Supreme Court rulings also promoted new federalism by hemming in the scope of the national government’s power, especially under the commerce clause. For example, in United States v. Lopez , the court struck down the Gun-Free School Zones Act of 1990, which banned gun possession in school zones. 40 It argued that the regulation in question did not “substantively affect interstate commerce.” The ruling ended a nearly sixty-year period in which the court had used a broad interpretation of the commerce clause that by the 1960s allowed it to regulate numerous local commercial activities. 41

However, many would say that the years since the 9/11 attacks have swung the pendulum back in the direction of central federal power. The creation of the Department of Homeland Security federalized disaster response power in Washington, and the Transportation Security Administration was created to federalize airport security. Broad new federal policies and mandates have also been carried out in the form of the Faith-Based Initiative and No Child Left Behind (during the George W. Bush administration) and the Affordable Care Act (during Barack Obama’s administration).

Finding a Middle Ground

Cooperative federalism versus new federalism.

The challenges of the 1930s led many to question the merits of dual federalism, where the states and the national governments exercised exclusive authority in distinctly delineated spheres of jurisdiction. The result was the birth of cooperative federalism. In this view of federalism, the jurisdictional boundaries between the national and state governments were eroded to allow for greater cooperation between both governments. While this expansion of national government power was crucial in tackling the problems of the Great Depression, environmental degradation, and civil rights abuses, many resented the federal incursions into what had earlier been state matters. These concerns led to the emergence of new federalism in the 1970s and '80s. New federalism was premised on the idea that the decentralization of policies enhanced administrative efficiency and improved outcomes. Rather than simply a return to the old dual federalism model, new federalism continued much of the federal spending but rolled back many of the restrictions on what states could do with their federal funds.

Cooperative federalism has several merits:

• Because state and local governments have varying fiscal capacities, the national government’s involvement in state activities such as education, health, and social welfare is necessary to ensure some degree of uniformity in the provision of public services to citizens in richer and poorer states.
• The problem of collective action, which dissuades state and local authorities from raising regulatory standards for fear they will be disadvantaged as others lower theirs, is resolved by requiring state and local authorities to meet minimum federal standards (e.g., minimum wage and air quality).
• Federal assistance is necessary to ensure state and local programs that generate positive externalities are maintained. For example, one state’s environmental regulations impose higher fuel prices on its residents, but the externality of the cleaner air they produce benefits neighboring states. Without the federal government’s support, this state and others like it would underfund such programs.

New federalism has advantages as well:

• Because of differences among states, one-size-fits-all features of federal laws are suboptimal. Decentralization accommodates the diversity that exists across states.
• By virtue of being closer to citizens, state and local authorities are better than federal agencies at discerning the public’s needs.
• Decentralized federalism fosters a marketplace of innovative policy ideas as states compete against each other to minimize administrative costs and maximize policy output.

Which model of federalism do you think works best for the United States? Why?

Link to Learning

The leading international journal devoted to the practical and theoretical study of federalism is called Publius: The Journal of Federalism . Find out where its name comes from.

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Foundations of U.S. Federalism

by Lee Rosenthal and Gregory P. Joseph

What precisely is American federalism? In their seminal work on federal jurisdiction, Felix Frankfurter and Wilber Katz allude to a “dynamic struggle” between federal and state power, the ebb and flow of competing, sometimes conflicting, spheres of federal and state power and influence. In many respects, the story of American government is the story of how that struggle has been resolved.

The antecedents of American federalism trace to colonial days, when the concept of divided sovereign power began to take shape. At the beginning of the Revolutionary War, the thirteen colonies declared themselves to be free and independent states. During the hostilities and at the War’s end, the newly formed states recognized that they needed to operate together to function adequately on the new national stage and to enter the world stage.

America’s first attempt to codify federalism — the Articles of Confederation of 1781 — failed. Replaced by the Constitution of 1787, this sturdy document and the government it established have survived the tenuous early days of the Republic, a Civil War, serious economic depressions, America’s involvement in two World Wars, and 227 years of innumerable internal and external challenges. This paper briefly outlines how American federalism developed and how it serves as the basic organizing principle of American government.

American Federalism: Prerevolutionary Underpinnings

Reflecting on America’s early political development, Alexis de Tocqueville commented that “[i]n America . . . it may be said that the township was organized before the county, the county before the state, the state before the union.” 1 America’s earliest political associations were forged at a local level. Early colonists found themselves separated from their sovereign’s authority and protection by a vast ocean and from their fellow colonists by a vast geographic expanse. As a consequence, they organized and largely governed their day-to-day lives independently and locally.

In 1643, the first American effort to create a political union among the colonies began in Boston. Faced with the need to defend and maintain security over a large territory — and with little hope of receiving aid from England due to the “sad distractions” of the English Civil War — the New England settlers found themselves “convinced . . . of the necessity of banding together to resist destruction. . . .” 2  Delegates from Massachusetts, New Plymouth, Connecticut, and New Haven formed the New England Confederation, “a firm and perpetual league of friendship and amity for offense and defense, mutual advice and succor upon all just occasions, both for preserving and propagating the truth and liberties of the Gospel and for their own mutual safety and welfare.” 3  Their union lasted four decades, until James II folded these colonies into the new Dominion of New England in 1684. 4

Approximately a century after forming the New England Confederation, the colonies again found the need to confederate due to mutual pressing concerns, including relations with Native Americans and each other and the possibility of a French attack. Representatives from the British North American Colonies adopted the Albany Plan of Union on July 10, 1754. The Plan provided that each colony would select members of a Grand Council and the British government would appoint a “president General.” 5   One of the most prominent Plan supporters was Benjamin Franklin. His well-known “Join, or Die” political sketch, first published in Franklin’s Pennsylvania Gazette on May 9, 1754, shows a snake cut into eight pieces. Each piece is labeled with the initials of one of the colonies, except that the four New England colonies are represented by “N.E.” at the snake’s head. 6 “Join, or Die” later became a rallying cry for the Revolutionary War and is perhaps the earliest pictorial representation of the nation’s budding federalism. Neither the New England Confederation nor the Albany Plan of Union sought to sever or even to weaken ties with England. To the contrary, Franklin hoped that the Albany Plan would increase the British participation in the colonies. “Britain and her Colonies should be considered as one Whole, and not as different States with separate Interests.” 7  The New England Confederation, and the Albany Plan of Union — even though it failed — formed precedent for the idea that the colonies could join together to pursue mutual interests, while simultaneously retaining individual power over day-to-day political activities.

The Impact of the Revolutionary War: An Impetus to Federalism and the Failure of the Articles of Confederation

The need for some degree of centralization among the various colonies became clear during the Revolutionary War. The demands of raising the army, putting it under a central command, supplying it, and raising funds for it exceeded state and local government capabilities. The revolutionaries recognized that some confederation was needed, but they remained deeply suspicious of centralized power. 8  The implications of failure were not lost on the revolutionaries. In 1775, Silas Dean wrote to Patrick Henry that, “[i]f a reconciliation with G Britain take place, it will be obtained on the best terms, by the Colonies being united, and be the more like to be preserved, on just and equal Terms; if no reconciliation is to be had without a Confederation We are ruined to all intents and purposes.” 9 The wartime urgency and the necessity of union, combined with the fear of a new overarching sovereign, led the revolutionaries to ratify the Articles of Confederation on March 1, 1781. The Articles left the states as the source of sovereign power but created a new central government with its powers derived from the consent of the states. 10

Americans were cautious in creating this new centralized government. “Whatever their collective commitments to new government, the revolutionaries were in no mood to issue blank checks in the form of another strong central government that could become as harmful as the one they fought to remove.” 11  The central government under the Articles was relatively feeble. The states delegated the central government limited powers and even more limited resources. That government was unable to levy taxes or regulate commerce and depended on the states for revenue; there was no executive and no independent judiciary; there were no standing land or sea forces; and any change to the Articles required the states’ unanimous vote. Exercising the limited powers the new government did have, including making treaties and coining money, often required a majority or supermajority vote.

Postrevolutionary Needs

The Articles proved unworkable. Disputes among states were difficult to resolve, and the central government was underfunded and unable to compel delinquent states to pay their shares of common expenditures. By 1784, a disagreement over the use of the Potomac River highlighted these problems:

First, all the other States were asked to agree to send delegates to the meeting, and all the States hardly ever agreed to do anything; second, if the meeting did take place it must agree upon a report to the States, and there was no reason to expect greater harmony in this assemblage than there was in the Continental Congress, where discord reigned; third, if a plan should be agreed upon, under the terms of the call of the meeting every State must accept it before it could become effective, and it seemed preposterous to expect such unanimity from such antagonistic elements. But affairs were rushing to a crisis, and it was clear that something must be done to save the Union from disintegration and America from disgrace. Far-seeing men began seriously to apprehend that soon the people who had won a glorious victory against Great Britain would fall back under the yoke of that or some other foreign power. The most dangerous and demoralizing inclinations of weak human nature were becoming more and more in the ascendancy in the State governments — a tendency to pass law by which the fulfillment of contracts might be avoided, to stamp paper with figures and promises and call it money, to repudiate debts and avoid obligations of honest men. 12 The challenge was to preserve state sovereignty within a national polity that could operate on a world stage, resolve interstate differences, and facilitate common interests. Fears that a central government would accumulate too much power and erode state sovereignty persisted, along with the fear that no central authority could govern such a huge expanse of territory.

The solution the Framers posited and the states adopted was the federalism embodied in the Constitution. “The Framers split the atom of sovereignty. The genius of their idea was that American citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” 13   One scholar has described this federalism “as a new-modeled creation cobbled together out of a mix of necessity (the existence of the states) and theory (the belief that republics could not be easily maintained across a large territory).” 14   The basic structural characteristics of this “more perfect union” formed the basis of the system of American government that continues to the present.

Developing “A More Perfect Union”

Between May and September of 1787, the Constitutional Convention met in Philadelphia to address and try to remedy the failures of the Articles of Confederation. Although the word “federalism” appears nowhere in the Constitution, it pervades the structure of the government the document creates.

Article I, Section 8 specifically enumerates the powers of Congress. At the time of the founding, there was little controversy that many of these powers were best suited for national regulation, including the power to provide for a common defense, declare war, raise an army and maintain a navy, regulate naturalization, coin money, regulate international commerce, and punish piracy and violations of international law. 15 Other powers in Article I, Section 8, however, have proved controversial and have been interpreted to permit the expansion of the federal government and restrictions on powers of the states. The Commerce Clause, which empowers Congress to “regulate commerce . . . among the several states . . . ,” 16  is among the most controversial. “Commerce” can be read restrictively, to refer to a category of activities distinct from, for example, manufacturing, farming, or mining, preventing the federal government from using the Commerce Clause to regulate these and similar activities. This narrow reading is consistent with the Supreme Court’s interpretation for the first century after ratification, and with current scholarship on the original meaning of the Clause. 17 The Commerce Clause can also be, and has been, read to allow Congress to regulate any activity that in the aggregate has an effect on a national market, even if the conduct is purely intrastate. 18 The Constitution’s Taxation Clause, which provides Congress with the power to tax and spend to “provide for the . . . general Welfare of the United States,” 19 similarly has been “controversial since it first saw the light of day.” 20  Does this phrase mean that Congress can spend only in connection with the powers otherwise granted to Congress or for any good purpose? Does it permit Congress to regulate through spending? These questions have been the subject of heated debate, 21 and the answers have had a substantial impact on the balance of federal and state power. 22

Finally, the Necessary and Proper Clause, which grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” its other enumerated powers, 23 has profound federalism implications, depending on how broadly or narrowly the term “necessary” is interpreted. 24   In addition to Article I, Section 8, other parts of the Constitution provide key features of the federalist system. Article I, Section 10 prohibits states from regulating in certain areas. Article VI makes the “Constitution, and the Laws of the United States . . . and all Treaties made . . . the supreme Law of the Land.” Under the constitutional structure, all powers the Constitution neither delegated to the federal government nor prohibited to the states are reserved to the states or to the people. This structure was later made explicit in the Tenth Amendment.

In their Federalist Papers , Alexander Hamilton, James Madison, and John Jay promoted state ratification of the Constitution. In Federalist No. 9, Hamilton attempted to assuage the concerns that the states would lose sovereignty under the new Constitution:

So long as the separate organization of the members be not abolished . . . though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty . . . and leaves in their possession certain exclusive and very important portions of sovereign power. 25

In Federalist No. 51, Hamilton argued that federalism would help limit the ability of the proposed new central government to abuse its powers:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. 26 The Federalist Papers repeatedly address concerns that the proposed federal government would run roughshod over the states. 27   Federalist No. 39 focused on the limited powers of the federal government and the continuing sovereignty of the states:

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. . . .

[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact . . . . 28 Federalist No. 39 maintained that there must be some arbiter to resolve disputes among the states and that this limited sacrifice of state sovereignty was preferable to resolution by “the sword and a dissolution of the compact.” Equally noteworthy is the distinction drawn between a national and federal government, the former indicative of a boundless overarching power, the latter representing a government of limited enumerated powers.

While the Federalist Papers emphasized that the states retained their sovereignty, the authors stressed that some limits on state sovereignty were essential for the welfare of the American people:

[I]f, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? 29

There was fervent opposition to the federalism built into the Constitution. Robert Yates and John Lansing, New York’s delegates to the Constitutional Convention, wrote to New York Governor George Clinton on Dec. 21, 1787, that, in addition to lacking authority to consider the idea of a new government, a central authority would also oppress faraway citizens:

[W]e entertained an opinion that a general government, however guarded by declarations of rights, or cautionary provisions, must unavoidably, in a short time, be productive of the destruction of the civil liberty of such citizens who could be effectually coerced by it, by reason of the extensive territory of the United States, the dispersed situation of its inhabitants, and the insuperable difficulty of controlling or counteracting the views of a set of men (however unconstitutional and oppressive their acts might be) possessed of all the powers of government, and who, from their remoteness from their constituents, and necessary permanency of office, could not be supposed to be uniformly actuated by an attention to their welfare and happiness . . . . 30

They were also concerned that “the expense of supporting” the new government “would become intolerably burdensome” and that many citizens would be “necessarily . . . unknown” to the national representatives given the size of the new country. 31

The antifederalists were well aware that the stakes were high:

If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. . . . But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty — if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory. 32

Many antifederalists, fearful of a powerful central government, demanded a Bill of Rights, which, in 1791, became the first ten amendments to the Constitution.

The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Writing in 1833, Justice Joseph Story noted that the Ninth Amendment “was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others . . . .” 33 The Tenth Amendment 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.” The Tenth Amendment made explicit that “what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty.” 34

On June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and it became effective. 35  According to one scholarly view, federalism was “the greatest of American contributions to the art of government.” 36  Alexis de Tocqueville celebrated this singular achievement: “This Constitution . . . rests upon a novel theory, which may be considered as a great invention in modern political science . . . . [A] form of government has been found out which is neither exactly national nor federal . . . . [T]he new word which will one day designate this novel invention does not yet exist.” 37

Federalism In Practice: The Early Precedents

The federal courts quickly became the arbiter of federalism, defining the relative powers of the federal and state governments. In 1810, the Supreme Court, then a young institution still establishing its authority, ruled in Fletcher v. Peck 38  that Georgia’s legislature could not invalidate a contract because the federal Constitution did not permit bills of attainder or ex post facto laws. Chief Justice John Marshall carefully noted that the Court did not intend any “disrespect of the legislature of Georgia, or of its acts.” 39  Despite this deferential tone, Fletcher v. Peck established the principle that the Supreme Court has the power to strike down an unconstitutional state law.

In 1816, the Supreme Court ruled that it could also override state courts in Martin v. Hunter’s Lessee . 40  Four years earlier, the Supreme Court had ruled in Fairfax’s Devisee v. Hunter’s Lessee 41  that the Jay Treaty between the United States and Britain precluded Virginia from appropriating the property of a loyalist. The Virginia Supreme Court ruled that it was not bound by the Supreme Court’s ruling, stating: “The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court . . . .” 42  In Martin , the Supreme Court reemphasized that it walked carefully when it reviewed state-court judgments. “The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us.” 43  The Supreme Court again balanced this respect and deference with the recognition that “[t] he constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’” 44  The Supreme Court ruled that state courts were subject to its appellate jurisdiction on constitutional matters. By 1816, the Supreme Court had declared that it could overrule state courts and invalidate unconstitutional state laws.

That same year, Congress chartered the Second Bank of the United States, a private corporation that handled all fiscal transactions for the federal government. Two years later, Maryland passed legislation to impose a tax on the Bank, which Bank employee James M’Culloch refused to pay. The Maryland state courts upheld the legality of the tax. In M’Culloch v. Maryland , 45  the Supreme Court made two critical rulings. First, it declared that the Necessary and Proper Clause of Article I, Section 8 of the Constitution granted Congress discretion in choosing the means by which to execute its enumerated powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 46 Despite the absence of an enumerated power to incorporate, the Supreme Court held that creating the Bank was constitutional under Article I, Section 8 as “necessary and proper” to carry out Congress’s other enumerated powers. Second, the Court concluded that while Article I, Section 8 gave Congress the power to create the Bank, Article VI’s Supremacy Clause meant that Maryland lacked the power to tax that Bank. “The government of the Union, though limited in its powers, is supreme within its sphere of action . . . and its laws, when made in pursuance of the constitution, form the supreme law of the land.” 47

In 1824, one of the most significant cases on congressional powers came before the Supreme Court. Gibbons v. Ogden 48  involved competing steamboat ferry owners whose vessels operated in the waters between New York and New Jersey. Ogden obtained an exclusive license from the State of New York authorizing him to operate along the contested route and sought an injunction to stop Gibbons from operating along the same route. In response, Gibbons argued that a 1793 act of Congress regulating coastal commerce allowed him to compete with Ogden. He lost in the trial and appellate courts in New York, but the Supreme Court reversed. The Court’s decision for Gibbons rested on its first interpretation of the Commerce Clause, which provides that “Congress shall have power . . . [t]o regulate commerce . . . among the several States . . . .” 49

The Court found that the word “commerce” included navigation among the states, and the word “among” before the phrase “the several States” meant that Congress’s commerce power did not “stop at the external boundary line of each State, but may be introduced into the interior.” 50 The New York law granting Ogden an exclusive license was a “nullity” in light of Congress’s conflicting act and the Constitution’s Supremacy Clause. 51 Gibbons significantly expanded the authority of the federal government by recognizing Congress’s broad power to regulate commercial activity. By the Civil War, the federal courts had established several key principles of federalism, including the power of federal courts to invalidate unconstitutional state laws, to nullify conflicting state-court rulings, and to ensure the supremacy of federal law enacted within the enumerated powers the Constitution delegated to the federal government. Nonetheless, during this period, the federal government remained small and had little impact on the lives of most citizens. Most Americans identified more with their states than with the nation.

The Civil War and Reconstruction

Civil war: federalism in crisis.

The Civil War threatened the survival of the American experiment. Could states legitimately claim a right to secede from the nation? President Lincoln vehemently opposed the idea. “Plainly, the central idea of secession, is the essence of anarchy.” 52   There was the bond of geography: “Physically speaking, we cannot separate.” 53 And there was the bond of the constitution itself: “[N]o State, upon its own mere motion, can lawfully get out of the Union.” 54 Secessionists strongly disagreed. Future Confederate President Jefferson Davis, announcing his departure from the United States Senate following Mississippi’s decision to secede, declared: “I have for many years advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union.” 55

  He explained:

Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever. 56

The South’s defeat in the Civil War greatly expanded the power of the federal government and “destroyed the doctrine that the Constitution was a compact among sovereign states, each with the right to interpose or nullify an act of Congress, and each with the ultimate right to secede legally from the Union.” 57   Under modern conceptions of federalism, states retain sovereignty. The Civil War, however, removed any doubt that the federal government — which derives its sovereign power from “the People,” not the states — is supreme when acting within the scope of its enumerated powers. “The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals, and for other constitutional ends.” 58

Post Civil War: Reconstructing Federalism

When the Civil War ended, the country entered “Reconstruction,” a period that included rebuilding the roles of the federal and state governments. There was significant disagreement in the country about how to treat the former Confederate states, implicating whether the basic relationship between the federal and state governments that existed before the War was to be restored, or whether it was necessary to make fundamental alternations in that relationship to prevent the continuation of the causes of the conflict.

Ultimately, three constitutional amendments, commonly referred to as the Reconstruction Amendments, were ratified in the five years after the Civil War ended, altering the balance of federalism in America. The Thirteenth Amendment abolished slavery 59   and the Fifteenth Amendment guaranteed African Americans the right to vote. 60   The Fourteenth Amendment imposed substantial restrictions on state power and expanded the power of the federal government. 61

Section 1 of the Fourteenth Amendment, which overruled the Supreme Court’s 1857 ruling in Dred Scott v. Sandford 62  holding that African Americans were not entitled to any of the rights of citizenship, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” and prohibits states from passing any law that abridges “the privileges or immunities of citizens of the United States.” 63  The breadth and meaning of the phrase “privileges or immunities” remains uncertain. One theory is that the phrase was intended to be limited to certain natural rights, such as property ownership. Others argue that the phrase was intended to extend to all positive law, whether provided by state law or the Bill of Rights. 64  However, “the standard view of the effect intended by the drafters of the Privileges or Immunities Clause seems to be that it ‘has been a mystery since its adoption.’” 65

Section 1 of the Fourteenth Amendment also prohibits the states from depriving “any person of life, liberty, or property, without due process of law,” or “deny[ing] to any person within its jurisdiction the equal protection of the laws.” 66 The Due Process Clause has since been interpreted to incorporate almost all of the provisions of the Bill of Rights against the states, 67 and the Due Process and Equal Protection Clauses have since been interpreted to restrict or bar state regulation in diverse areas, including contraception, 68  abortion, 69  and same-sex marriage. 70 Significantly, Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Fourteenth Amendment, providing a potentially broad grant of federal power.

The restriction of state sovereignty was a principal basis for the opposition to the Fourteenth Amendment, as reflected in a published letter of Interior Secretary Orville Browning that President Andrew Johnson — a Reconstruction opponent — reportedly approved:

The object and purpose are manifest. It is to subordinate the State judiciaries in all things to Federal supervision and control; to totally annihilate the independence and sovereignty of State judiciaries in the administration of State laws, and the authority and control of the States over matters of purely domestic and local concern. . . . [I]f adopted, every matter of judicial investigation, civil or criminal, however insignificant, may be drawn into the vortex of the Federal judiciary. 71

Supporters of the Fourteenth Amendment found Browning’s attack to be little more than the same states’ rights argument that had led to, and been defeated by the Union’s victory in, the Civil War:

In a few words the great fear of Mr. Browning is that this amendment in its operation will do away with State sovereignty, legislative and judicial, and will put the legislatures and courts of the several States under Congress and the federal courts . . . . We hold that this old Southern theory of our government was demolished at Petersburg and surrendered at Appomattox Court House with Lee’s army; and so we dismiss this branch of the argument. 72 The Fourteenth Amendment was ratified in July 1868. By 1870, however, support for a very strong version of Reconstruction had begun to wane. As part of this trend, the Supreme Court narrowly interpreted the Privileges or Immunities Clause when it first addressed the Fourteenth Amendment in the Slaughter-House Cases . 73  These cases concerned a Louisiana law permitting only one slaughterhouse in the New Orleans area, ostensibly to promote health and safety. Competing butchers were allowed to slaughter, but only at the approved slaughterhouse. Critics contended that the state law unconstitutionally deprived the other butchers of the “privilege” of practicing their profession, violating their “privileges or immunities” under the Fourteenth Amendment.

The Supreme Court ruled that the Privileges or Immunities Clause protected the privileges of United States citizenship but did not require the states to grant its citizens any particular privileges. The Court stressed that it considered these questions as vital to federalism and therefore to the nation:

No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. 74 The Court analyzed the historical underpinnings of the Fourteenth Amendment, emphasizing the “pervading purpose” of the Reconstruction Amendments as freeing the slaves, securing that freedom, and protecting the new freemen from oppression. The Court refused to interpret the Privileges or Immunities Clause as a dramatic general reworking of the federal-state balance:

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights — the rights of person and of property — was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. 75 The Equal Protection Clause of Section 1 of the Fourteenth Amendment was effectively nullified when the Supreme Court ruled in 1896 that “separate, but equal facilities” were constitutional in Plessy v. Ferguson , authorizing state-sanctioned segregation. 76  It was not until 1954 that the Supreme Court reversed that decision in Brown v. Board of Education , ruling that “separate educational facilities are inherently unequal.” 77

Progressive Era: Federalism Grows

Rapid industrialization in the late nineteenth and early twentieth centuries raised a variety of economic and social issues that in turn produced a series of political reforms. This period has been described as characterized by a “growing conviction that government at all levels ought to intervene in the socioeconomic order to enact antitrust and regulatory legislation, labor and welfare measures, and tax reform.” 78   The nation adopted several constitutional amendments, including the Sixteenth, which authorized direct federal income taxes, and the Seventeenth, which provided for the citizens in each state to elect their senators directly rather than through their state legislatures. Federal power continued to expand and become entrenched.

The Sixteenth Amendment: Taxation

The Sixteenth Amendment, ratified on Feb. 3, 1913, is considered the first Progressive Era constitutional amendment. In 1895, in Pollock v. Farmers’ Loan & Trust Company , 79   the Supreme Court had invalidated a federal income tax as an unconstitutional direct tax because it was not apportioned to the states based on their respective populations. The Sixteenth Amendment overturned this ruling. 80 Some opponents saw this as a federal “power grab” designed to further weaken the states:

A hand from Washington will be stretched out and placed upon every man’s business; the eye of the federal inspector will be in every man’s counting house. . . . An army of Federal inspectors, spies and detectives will descend upon the state. . . . I do not hesitate to say that the adoption of this amendment will be such a surrender to imperialism that has not been since the Northern states in their blindness forced the fourteenth and fifteenth amendments upon the entire sisterhood of the Commonwealth. 81 Following the Sixteenth Amendment, the federal government began using its expanded resources to pass legislation approving federal funding for social welfare programs, including the 1921 Sheppard Towner Act to fund child and maternity care, described as the “first venture of the federal government into social security legislation.” 82   Over time, the Sixteenth Amendment significantly impacted the balance of federal-state power. Together with an expansive interpretation of the congressional spending power, the taxing power permitted the substantial growth of the federal government in myriad areas it previously had not occupied or regulated.

The Seventeenth Amendment: Direct Election of Senators

The Seventeenth Amendment, adopted on May 31, 1913, provided for the voters of each state to elect their Senators directly, rather than having state legislatures select them. This abrogated one of the original, fundamental structural protections for the states by affording direct state influence over the operations of the federal government.

Incorporating the Bill of Rights

The Reconstruction Amendments profoundly impacted the federal-state balance by applying the Bill of Rights through the Fourteenth Amendment (“incorporating” the Bill of Rights in the Fourteenth Amendment) to limit or invalidate state action. Before the Civil War, the Supreme Court held that the Bill of Rights did not apply to the states. In 1833 the Supreme Court ruled in Barron v. City of Baltimore 83   that the Constitution’s Fifth Amendment prohibition against government confiscation of property without just compensation was a limit only on the power of the federal government. “Had the people of the several States, or any of them, required changes in their Constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.” 84   Years after the Civil War, in 1875, the Court ruled that the First Amendment right to free assembly and the Second Amendment right to bear arms did not apply to the states. 85

  In so holding, the Court emphasized the existence of more than one sovereign in the federal system:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. 86

This changed over time, as the Supreme Court slowly applied specific protections afforded by the Bill of Rights to the states. The Court relied on the commandment in the Fourteenth Amendment’s Due Process Clause that no state may “deprive any person of life, liberty or property, without due process of law.” In 1925, the Supreme Court used the Clause to apply the First Amendment to the states. In Gitlow v. New York , 87   the Court stated: “For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” 88   In 1931, the Supreme Court relied on the Clause to remove any doubt that the First Amendment rights of freedom of the press applied to the states 89   and, in another case, to recognize that a defendant’s right to legal representation in capital cases applied to the states. 90 As recently as 2010, the Court recognized that the Second Amendment applies to the states through the Fourteenth Amendment, restricting the states’ ability to regulate gun ownership. 91

Expanding Federal Power: The New Deal

After his election in 1933, President Franklin Roosevelt initiated a series of economic and regulatory programs to address the Great Depression. Congress passed the National Industrial Recovery Act, authorizing the promulgation of fair competition codes. The Roosevelt administration adopted a series of these codes, including one governing the poultry industry. That led to the Schechter Poultry Corporation case, invalidating the legislation as exceeding constitutional limits on federal powers.

The Schechter Poultry Corporation was charged with violating the Live Poultry Code. Schechter sued, claiming that the federal government had exceeded its authority by issuing the code. The Supreme Court agreed, holding that Article I of the Constitution vested the Congress, not the President, with the power to legislate, and the National Industrial Recovery Act unconstitutionally authorized the President to do so. The Court also held that the Code regulated intrastate commerce, making the Code unconstitutional because the Commerce Clause authorized Congress to regulate only interstate commerce. 92 Between 1933 and 1936, the Supreme Court invalidated other pieces of New Deal legislation. In 1936, buoyed by his landslide reelection, President Roosevelt proposed a plan that would reshape the Court, allowing him to select additional justices who would approve his policies. Dubbed “court packing” by his critics, his plan was opposed even by some of his fervent supporters. It was never enacted, in part because the Supreme Court began approving Roosevelt’s New Deal legislation. 93   A series of decisions gradually recognized the Commerce Clause as providing constitutional authorization for expanding federal government power.

In 1937, the Supreme Court ruled in NLRB v. Jones & Laughlin Steel Corporation 94   that Congress may regulate isolated economic activities, like labor relations, under the Commerce Clause, because that activity has a “close and substantial relationship” to interstate commerce. In United States v. Darby , 95   the Court found the Fair Labor Standards Act constitutional under the Commerce Clause, barring states from enacting lower standards to obtain a commercial advantage over other states. In Wickard v. Filburn , 96   the Supreme Court declared that the Commerce Clause empowered federal regulation of wheat grown by a farmer for his own use, on his own farm, that never crossed state lines, because of its effect on interstate commerce. “A new era of judicial construction had been launched” and “[a]reas of authoritative action that previously had been left to the states’ sphere of sovereignty or to the private sector now fell within the powers of Congress.” 97

Federalism Today

How America interprets the balance of federal and state power has changed over two hundred years. Those changes reflect, and helped us survive, challenges that almost destroyed the nation. How best to strike that balance continues to pervade critical aspects of modern American government, including healthcare, race, civil liberties, the environment, and foreign policy. 98 Federalism also directly affects tax policy, 99   elections, 100 and domestic relations. 101 Yet more than 200 years after the nation’s founding, fundamental questions implicating federalism remain unsettled. That is nowhere more apparent than in the Supreme Court’s June 2015 decision on same-sex marriage, Obergefell v. Hodges . 102

Historically, the view had been that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the States and not the laws of the United States.” 103   Over time, Supreme Court decisions began to recognize limitations on the states’ traditional power to regulate marriage. In Loving v. Virginia , 104   for example, the Supreme Court applied the Fourteenth Amendment to overturn a Virginia prohibition on interracial marriage. In Kirchberg v. Feenstra , 105   the Court similarly applied the Fourteenth Amendment to strike down state laws deeming the husband “head and master” of the household.

The Supreme Court initially declined to apply Fourteenth Amendment principles to state restrictions on same-sex marriage. The first time the Supreme Court addressed same-sex marriage, it issued a “one-line summary decision . . . in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.” 106 As recently as two years ago, in United States v. Windsor , 107 the Supreme Court relied on the states’ primacy in domestic relations to strike down a congressional attempt to define marriage as “a legal union between one man and one woman as husband and wife” for purposes of federal statutory law. 108   This year, however, the Court held in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” 109   The definition of marriage is no longer the exclusive province of the states. 110 Recent jurisprudence under the Second Amendment, addressing the right to bear arms, presents another example of the fluid nature of American federalism. For years, states were thought to have virtually unbridled authority to regulate the ownership, possession and use of firearms within their borders. That understanding changed dramatically in a short period. In 2008, the Supreme Court held in District of Columbia v. Heller 111   that the Second Amendment conferred an individual right to keep and bear arms, precluding the District of Columbia from banning handguns in the home and requiring firearms to be kept inoperable at all times. Subsequently, in McDonald v. City of Chicago , 112   the Court ruled that the Second Amendment applies to the states through the doctrine of incorporation. Together, Heller and McDonald dramatically altered firearms regulation by prohibiting the states from banning handgun possession outright, and by circumscribing the states’ ability to regulate firearms to an extent that remains to be determined.

In addition to these examples, Commerce Clause jurisprudence continues to present a source of contested but expansive federal power, with uncertain scope. In 2000, for example, the Supreme Court ruled in United States v. Morrison 113   that the federal Violence Against Women Act’s civil remedy for victims of gender-motivated violence exceeded congressional power under the Commerce Clause. By contrast, in 2005, the Court concluded in Gonzales v. Raich 114   that federal criminalization of intrastate marijuana growers and users did not violate the Commerce Clause. Perhaps most notably, in National Federation of Independent Business v. Sebelius , 115   the Court held that the Patient Protection and Affordable Care Act was constitutional under Congress’s power to tax, but was not a proper use of the Commerce Clause power because although the federal government can regulate interstate commerce, it cannot compel it. 116 Recent interpretations of the Supremacy Clause also illustrate some of the shifting contours of federalism. Under the preemption doctrine, when Congress acts within the scope of its enumerated powers, or a federal agency acts within the scope of its statutory mandate, their action may preempt conflicting state laws or, if federal action is sufficiently pervasive, may even bar state regulation within that field. 117   Over the past decade, state laws have been held preempted under this doctrine in such divergent areas as aviation, 118   food and drug regulation, 119   immigration, 120   trucking 121   and locomotive equipment, 122   arbitration agreements, 123   regulation of emissions, 124   state age-verification requirements for the shipment and delivery of tobacco, 125   and even the treatment and processing nonambulatory animals in a slaughterhouse. 126   At the same time, preemption has been denied in multiple other contexts. 127

As this discussion suggests, the only safe prediction about the future of American federalism is that none can be made with certainty. But while the interpretation of the balance of federal and state power has changed from the colonial period to the present, federalism continues to be a foundational principle defining America and a principal tool used to build its government.

The Supreme Court continues to look to the Framers for guidance in resolving important questions raising federalism issues or implicating federalism concerns. In District of Columbia v. Heller , 128   for example, the Court noted that “[d]uring the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” 129   The Court echoed the concerns America’s founders had over 200 years ago about the danger to democracy posed by the new federal government. “But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.” 130

As the nation has grown and become established, so have both federal and state power. That path has been neither smooth nor linear. Dispute and even armed conflict have marked the way. But throughout, the Constitution has served as the source of federal and state government powers and their limits. The courts continue to be the first, and often last, arbiters of the struggle to define both. That has worked so far, although far from perfectly or, at times, even well. But no one has devised an alternative approach, much less a better way.

The problems of federalism, like many aspects of the work judges across legal systems confront, are real. A great judge and legal scholar, Benjamin Kaplan of Massachusetts, described one aspect of why judges’ work is so difficult and so compelling. Rules and principles, however long established and seemingly clear, cannot “solve [the] problems fully and forever. If the problems are real ones, they can never be solved. We are merely under the duty of trying continually to solve them.” 131

The judiciary has many grave responsibilities. Shaping and protecting federalism continue to be among the most important and enduring of those obligations. It is a responsibility and a joy that we in the United States and the United Kingdom share.

Related Reading: The Emergence of the American Constitutional Law Tradition

• Alexis de Tocqueville, Democracy in America ch. II (Henry Reeve trans., Bantam Classics 2004) (1835).
• Alison L. LaCroix, The Ideological Origins of American Federalism 21 (2011).
• Articles of Confederation of the New England Confederation of 1643.
• LaCroix,  supra  note 2, at 21–22.
• Albany Plan of Union of 1754, http://avalon.law.yale.edu/18th_century/albany.asp
• Georgia and Delaware (then part of Pennsylvania) were also omitted.
• Letter from Benjamin Franklin to Peter Collinson, The Papers of Benjamin Franklin (May 28, 1754), http://franklinpapers.org .
• John Witherspoon made this point succinctly in a July 30, 1776, debate with Benjamin Franklin: “We all agree that there must and shall be a Confederation, for this War. It will diminish the Glory of our Object, and depreciate our Hope. It will damp the Ardor of the People. The greatest danger We have is of Disunion among ourselves.” Notes of Debates in Congress (1776),  in  1 Classics of American Political and Constitutional Thought: Origins through the Civil War 303 (Scott J. Hammond et al. eds., 2007).
• LaCroix,  supra  note 2, at 128.
• See  Articles of Confederation and Perpetual Union of 1777 (ratified Mar. 1, 1781), http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=127.
• Larry N. Gerston, American Federalism: A Concise Introduction 24 (2007).
• Gaillard Hunt, The Life of James Madison 93–94 (1902).
• U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
• Alison L. LaCroix,  The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology , 28 L. & Hist. Rev. 451, 452 (2010).
• See  U.S. Const. art. I, § 8, cl. 1, 3, 4, 10–13.
• U.S. Const. art. I, § 8, cl. 3.
• See United States v. Lopez , 514 U.S. 549, 553–54 (1995); Randy E. Barnett,  The Original Meaning of the Commerce Clause , 68 U. Chi. L. Rev. 101 (2001).
•   See, e.g. ,  Gonzales v. Raich , 545 U.S. 1, 15–21 (2005) (“Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”).
• U.S. Const. art. I, § 8, cl. 1.
• Robert G. Natelson,  The General Welfare Clause and the Public Trust: An Essay in Original Understanding , 52 U. Kan. L. Rev. 1, 3 (2003).
• Id . at 3–10.
• See infra  p. 28 (discussion of the Patient Protection and Affordable Care Act).
• U.S. Const. art. I, § 8, cl. 18.
• The Federalist No. 9 (Alexander Hamilton).
• The Federalist No. 51 (Alexander Hamilton).
• The Federalist Nos. 26, 31 (Alexander Hamilton).
• The Federalist No. 39 (James Madison).
• The Federalist No. 45 (James Madison).
• Letter from Robert Yates and John Lansing to George Clinton, Governor of New York (Dec. 21, 1787), http://www.constitution.org/afp/yatesltr.htm.
• Letter from Brutus to the Citizens of the State of New York (Oct. 18, 1787), http://www.constitution.org/afp/brutus01.htm.
• Joseph Story, Commentaries on the Constitution 3:§ 1898 (1833), http://press-pubs.uchicago.edu/founders/documents/amendIXs9.html.
•   Id . at § 1900.
• See  U.S. Const. art. VII. The remaining four of the original thirteen states completed ratification of the Constitution by May 29, 1790.
• Gerston,  supra  note 11, at 6 (quoting Leslie Lipson, The Democratic Civilization 143 (1964)).
• Tocqueville,  supra  note 1, at ch. VIII.
• 10 U.S. 87 (1810).
• Id.  at 134.
• 14 U.S. 304 (1816).
• 11 U.S. 603 (1812).
• Martin , 14 U.S. at 323.
• Id.  at 324.
• 17 U.S. 316 (1819).
• Id.  at 421.
•   Id.  at 405–06.
• 22 U.S. 1 (1824).
• U.S. Const. art. I, § 8.
• Gibbons , 22 U.S. at 194.
• Id.  at 210.
• Abraham Lincoln Inaugural Address (Mar. 4, 1861), http://www.abrahamlincolnonline.org/lincoln/speeches/1inaug.htm.
• Letter from Jefferson Davison to the United States Senate (Jan. 21, 1861), http://jeffersondavis.rice.edu/Content.aspx?id=87.
• David B. Walker, The Rebirth of Federalism: Slouching toward Washington 74 (2d ed. 2000).
• New York v. United States , 505 U.S. 144, 181 (1992).
• U.S. Const. amend. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”).
• U.S. Const. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”).
• U.S. Const. amend. XIV.
• 60 U.S. 393 (1857).
• U.S. Const. amend. XIV, § 1.
• See  Note,  Congress’s Power to Define the Privileges and Immunities of Citizenship , 128 Harv. L. Rev. 1206, 1207 (2015) (citations omitted).
• John Harrison,  Reconstructing the Privileges or Immunities Clause , 101 Yale L.J. 1385, 1387 n.5 (1992) (citing Robert H. Bork, The Tempting of America 166 (1989)).
• See, e.g. ,  McDonald v. City of Chicago , 561 U.S. 742, 750 (2010).
• Griswold v. Connecticut , 381 U.S. 479 (1965);  Eisenstadt v. Baird , 405 U.S. 438 (1972).
• Roe v. Wade , 410 U.S. 113, 164 (1973);  Planned Parenthood v. Casey , 505 U.S. 833 (1992).
• Obergefell v. Hodges , 135 S. Ct. 2584 (2015).
• John E. Nowak,  The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments , 75 Colum. L. Rev. 1413, 1457–58 (1975) (citing The Cincinnati Commercial, Oct. 26, 1866, at 2, col. 4).
• Id.  at 1462–63 (citing New York Herald, Oct. 25, 1866, at 6, col. 4).
• 83 U.S. 36 (1872).
• Id.  at 67.
• Id.  at 82.
• 163 U.S. 537 (1896).
• 347 U.S. 483, 495 (1954).
• John D. Buenker,  The Ratification of the Federal Income Tax Amendment , 1 Cato J. 183, 184 (1981).
• 57 U.S. 429 (1895).
• Buenker,  supra  note 78, at 185.
• Roy G. Blakey & Gladys C. Blakey, The Federal Income Tax 70 (The Lawbook Exchange Ltd., 2006) (quoting Richmond Times-Dispatch, Mar. 3, 1910).
• J. Stanley Lemons,  The Sheppard-Towner Act: Progressivism in the 1920s , 55 J. Am. Hist. 776, 776 (1969).
• 32 U.S. 243 (1833).
• Id.  at 249.
• United States v. Cruikshank , 92 U.S. 542 (1875).
• Id.  at 549.
• 268 U.S. 652 (1925).
• Id.  at 666.
• Near v. Minnesota , 283 U.S. 697, 707 (1931) (“It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”).
• Powell v. Alabama , 287 U.S. 45 (1932).
• McDonald v. City of Chicago , 561 U.S. 742 (2010).
• A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495 (1935).
• Walker,  supra  note 57, at 92.
• 301 U.S. 1, 37 (1937).
• 312 U.S. 100 (1941).
• 317 U.S. 111 (1942).
• In 2011, the Supreme Court held that the federal government’s attempt to prosecute a woman who tried to poison her husband’s mistress pursuant to the Chemical Weapons Treaty could be challenged on the grounds that it violated the Tenth Amendment and basic principles of federalism: “States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . . Fidelity to principles of federalism is not for the States alone to vindicate.”  Bond v. United States , 131 S. Ct. 2355, 2364 (2011).
• Neb. Dep’t of Revenue v. Loewenstein , 513 U.S. 123 (1994).
• Perry v. Perez , 132 S. Ct. 934 (2012).
• Rose v. Rose , 481 U.S. 619 (1987).
• 135 S. Ct. 2584 (2015).
• In re Burrus , 136 U.S. 586, 593–94 (1890).
• 388 U.S. 1 (1967).
• 450 U.S. 455 (1981).
• Obergefell , 135 S. Ct. at 2598 (citing  Baker v. Nelson , 409 U.S. 810 (1972)).
• 133 S. Ct. 2675 (2013).
• Id.  at 2683, 2691–92.
• Obergefell , 135 S. Ct. at 2604.
• The dissents in  Obergefell  emphasized the federalism implications of the Court’s decision.  See id.  at 2611 (Roberts, J., dissenting) (“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”);  id.  at 2643 (Alito, J., dissenting) (“The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not . . . . The majority today makes that impossible.”).
• 554 U.S. 570 (2008).
• 561 U.S. 742 (2010).
• 529 U.S. 598 (2000).
• 545 U.S. 1 (2005).
• 132 S. Ct. 2566 (2012).
• In dissent, four justices maintained that the Commerce Clause supplied the necessary Congressional power, emphasizing federalism issues.  See id.  at 2615 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“The Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’ . . . Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable . . . . The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation ‘in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.’”) (citations omitted);  see also id.  at 2609 (“Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm . . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”).
• See Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1594–95 (2015).
• See Northwest, Inc. v. Ginsberg , 134 S. Ct. 1422 (2014).
• See PLIVA, Inc. v. Mensing , 131 S. Ct. 2567 (2011).
• See Arizona v. United States , 132 S. Ct. 2492 (2012).
• See Am. Trucking Ass’ns, Inc. v. City of Los Angeles , 133 S. Ct. 2096 (2013).
• See Kurns v. R.R. Friction Prods. Corp. , 132 S. Ct. 1261 (2012).
•   See Marmet Health Care Ctr., Inc. v. Brown , 132 S. Ct. 1201 (2012).
• See Am. Elec. Power Co. v. Connecticut , 131 S. Ct. 2527 (2011).
• See Rowe v. N.H. Motor Transport Ass’n. , 552 U.S. 364 (2012).
• See Nat’l Meat Ass’n v. Harris , 132 S. Ct. 965 (2012).
• See, e.g., Oneok, Inc. v. Learjet, Inc. , 135 S. Ct. 1591, 1591 (2015) (state antitrust claims arising from natural gas pricing);  CTS Corp. v. Waldburger , 134 S. Ct. 2175 (2014) (state statutes of repose in certain environmental cases);  Chadbourne & Parke LLP v. Troice , 134 S. Ct. 1058 (2013) (state law class action arising from bank certificates of deposit).
• Id.  at 598.
• Id.  at 599.
• Benjamin Kaplan,  A Prefatory Note , 10 B.C. Indus. & Com. L. Rev. 497, 500 (1969).

Also In This Edition

• Table of Contents
• Judicial Honors (Spring 2017)
• A Model Trial Judge: U.S. District Judge Sim Lake
• Cain questions court funding, highlights best practices for proportionality
• Saving Our Profession: It’s Up to Us
• Judicial Excellence after Earl Warren
• Why We Read the Scalia Opinion First
• Rebuild our Courts: State Chief Justices Call for Action to Achieve Civil Justice for All
• Mindfulness and Judging
• #Engage: It’s Time for Judges to Tweet, Like, & Share
• A Speech Code for Lawyers?
• Hold the Parentheticals, Please
• Picking Judges: How Judicial-Selection Methods Affect Diversity in State Appellate Courts
• National Security. Civil Liberties. Can We Have Both?
• Lastly: A Judge Honors the Activist Who Brought Her to Jail
• As I See It: Updates from the Center for Judicial Studies
• Salary by Committee
• Editor’s Note: Relentlessly Relevant

About Lee Rosenthal

Lee Rosenthal is chief judge of the U.S. District Court for the Southern District of Texas. She serves as vice president of the American Law Institute and as a member of the Bolch Judicial Institute Advisory Board.

About Gregory P. Joseph

Gregory P. Joseph, partner at Joseph Hage Aaronson LLC, is a past president of the American College of Trial Lawyers; former chair of the American Bar Association Section of Litigation; and a former member of the Advisory Committee on the Federal Rules of Evidence.

Why Federalism Matters

Subscribe to governance weekly, pietro s. nivola pietro s. nivola former brookings expert.

October 1, 2005

• 19 min read

“What do we want from federalism?” asked the late Martin Diamond in a famous essay written thirty years ago. His answer was that federalism— a political system permitting a large measure of regional self-rule—presumably gives the rulers and the ruled a “school of their citizenship,” “a preserver of their liberties,” and “a vehicle for flexible response to their problems.” These features, broadly construed, are said to reduce conflict between diverse communities, even as a federated polity affords inter-jurisdictional competition that encourages innovations and constrains the overall growth of government.

Alas, as Professor Diamond and just about anyone else who has studied the subject would readily acknowledge, the promise and practice of federalism are frequently at odds. A federal republic does not always train citizens and their elected officials better than does a unitary democratic state. Nor are federations always better at preserving liberties, managing conflicts, innovating, or curbing “big” government.

Whatever else it is supposed to do, however, a federal system should offer government a division of labor. Perhaps the first to fully appreciate that benefit was Alexis de Tocqueville. He admired the decentralized regime of the United States because, among other virtues, it enabled its national government to focus on primary public obligations (“a small number of objects,” he stressed, “sufficiently prominent to attract its attention”), leaving what he called society’s countless “secondary affairs” to lower levels of administration. Such a system, in other words, could help the central government keep its priorities straight.

Federalism’s several supposed advantages are weighed in this first of two Brookings Policy Briefs. A subsequent one will delve more deeply into the facet of particular interest to de Tocqueville: a sound allocation of competences among levels of government. For arguably, it is this matter above all that warrants renewed emphasis today, because America’s central government with its vast global security responsibilities is overburdened. 

Policy Brief #146

Ensuring Unity Sometimes nations face a stark choice: allow regions to federate and govern themselves, or risk national dissolution. Clear examples where federalism is the answer exist. Belgium would probably be a partitioned state now if Flanders had not been granted extensive self-government. If under Italy’s constitution, Sardinia, a large and relatively remote Italian island, had not been granted significant autonomy, it might well have harbored a violent separatist movement—like the one plaguing a neighboring island, Corsica, a rebellious province of unitary France.

Where truly profound regional linguistic, religious, or cultural differences persist, however, federating is by no means a guarantee of national harmony. Canada, Spain, and the former Yugoslavia are wellknown cases of federations that either periodically faced secessionist movements (Quebec), or have had to struggle with them continually (the Basques), or collapsed in barbarous civil wars (the Balkans). Iraq seems headed for the same fate. The Sunni minority there is resisting a draft constitution that would grant regional autonomy not only to the Kurds in the north but to Shiite sectarians in the oil-rich south. So far, proposed federalism for Iraq is proving to be a recipe for disaccord, not accommodation.

In much of America’s own history, federalism did not ease this country’s sectional tensions. On the contrary, a long sequence of compromises with the southern states in the first half of the nineteenth century failed to prevent the Civil War. Then, through the first half of the twentieth century, additional concessions to states’ rights did little to dismantle the South’s repulsive institution of racial apartheid. Southern separatism was subdued by a military defeat, not diplomatic give-and-take, and only further assertions of central power—starting with the Supreme Court’s school desegregation decision in 1954—began altering the region’s corrosive racial policies.

If we fast-forward to present day America, the thesis that federalism is what holds the country together seems no less questionable, though for a different reason. For all the hype about the country’s “culture wars,” the fact is that socially and culturally, the contemporary United States has become a remarkably integrated society, particularly when compared to other large nations such as India, Indonesia, and Nigeria, or even some smaller European states. Thanks largely to massive interregional migrations, economic dynamism, and ease of assimilation, contrasts between America’s deep South and the rest of the country seem minor today compared to, say, the continuing cultural chasm between the north and south of Italy. In America, where examples of religiously or ethnically distinct jurisdictions are mild ones, like Utah and Hawaii, it seems hard to argue that the nation’s fifty states represent keen territorial diversity, and that they are the secret to this country’s cohesion. Put more generally, the sub-national entities of an increasingly mobile and assimilative society such as ours tend to demand less independence than they once did, and how much of it they get may not make as much difference for national unity.

Laboratories of Democracy

In principle, empowering citizens to manage their own community’s affairs is supposed to enhance civic engagement in a democracy. Its “free and popular local and municipal institutions,” argued John Stuart Mill, provide “the peculiar training of a citizen, the practical part of the political education of a free people.” From this, informed deliberation and a pragmatic ability to respect both the will of the majority and the rights of minorities—in short, fundamental democratic values—are inculcated.

But in the real world of local politics, these results are often elusive. Prior to the Voting Rights Act of 1965, southern blacks got a “political education” all right, only not the kind Mill had in mind. Presently, even if it no longer perpetrates wholesale disenfranchisements, community governance can fall short in other ways: it edifies few people when few participate. Keep in mind that the average municipal election in the United States engages less than a third of the local electorate. And the smaller the community’s scale, the smaller the share of participants. At best, one in ten registered voters shows up at New England’s quaint town meetings.

If local self-government interests average citizens less than it should, maybe at least it still has much to teach their elected officials. Supplying thousands of state and local elective offices, a federal system like America’s creates a big market for professional politicians. Many of them (for example, state governors and big-city mayors) have demanding jobs. Their challenges help prepare the nation’s pool of future political leaders.

There is no question that those who attain high public office in the United States mostly rise through the ranks of the federal system’s multiple tiers, and have been schooled therein. Fifty-six senators in the current Congress were former state legislators or holders of state-wide elective offices. Four of America’s last five presidents have been governors. It is by no means clear, though, that the ex-governors who worked their way up federalism’s ladder outshine, for example, the national leaders of the United Kingdom. In the twentieth and twenty-first centuries, America elevated such former governors as Franklin D. Roosevelt, Ronald W. Reagan, and George W. Bush to the presidency. Were they better equipped than Britain’s leadership (think Winston Churchill, Margaret Thatcher, or Tony Blair)?

Not only that, but there also is some question just how relevant the lessons learned in, for example, the statehouses of relatively small states—like Georgia, Arkansas, or Vermont—are to the men and women who move from there onto the national, or international, stage. As a one-term governor of Georgia, Jimmy Carter had successfully reorganized that state’s modest bureaucracy and improved its budgetary performance. But the managerial magic he had worked in Georgia proved of limited use when, as president, Carter turned his attention to Washington’s bureaucratic behemoths, such as the Department of Health, Education and Welfare.

Or consider Bill Clinton’s presidency. Not infrequently, its cosmopolitan aspirations and impressive achievements were buried by the rest of this ex-governor’s agenda, which sometimes seemed incongruously steeped in parochial concerns. Clinton’s long speeches, we might recall, delved into the enforcement of truancy laws, the use of school uniforms, the math tests of eighth graders, the need to connect hospitalized children to the Internet, the marshaling of work-study students as reading tutors, the ability of medical insurance to cover annual mammograms, the revitalization of community waterfronts, the appropriate hospital stay for women after a mastectomy, the work of local development banks, the record of Burger King and other businesses in creating jobs for welfare recipients, and so on—in sum, preoccupations suited to governors, county supervisors, hospital administrators, or school boards. But to a world leader?

In 2004, another very good governor, Howard Dean, mounted a spirited campaign for the Democratic party’s presidential nomination. Dean pointed to his accomplishments in Vermont, a state that had (as Mark Singer observed in a January 2004 profile in The New Yorker ) a population smaller than metropolitan Omaha and an annual budget of barely a billion dollars. For a time, he became the front runner, the considerable limitations of his small-state political background notwithstanding. What was some of that experience like? According to an article in The New York Times (also in January 2004) reflecting on Dean’s gubernatorial years, “The profoundly local aspect of his job was clear in 2002, when he said, ‘I can assure you, of all the things that I had to live with…the most difficult were the cascades of calls in the summer of ’93 and ’94 about how long the wait was at the Department of Motor Vehicles.’”

No matter how seasoned and capable a governor may be, travails like these are not the same as those likely to be faced by anyone who aspires to lead the country, never mind the international community. Granted, there is no job that can adequately prepare a wouldbe president. Montpelier is not Washington, nor for that matter is Sacramento or Austin. Other things equal, however, a stint as the chief executive of a large place (like California or Texas) may offer a somewhat better test. Yet, more or less indiscriminately, the process of political recruitment in the United States seems to regard states large and small as equally promising springboards.

Policy Innovation

What about the states as laboratories for other experiments—the testing of new public policies, for instance?

Yes, there have been important policy innovations that had their origins, as Justice Louis Brandeis famously said, in a few courageous states. California has long been the pacesetter in the regulation of air quality. Texas provided a model for recent federal efforts to boost the performance of public schools (the No Child Left Behind Law). Wisconsin pioneered, among other novelties, the income tax and a safety net for the unemployed years before these ideas became national law. Yet, while myopic Washington insiders often pay too little attention to initiatives occurring outside the Beltway, aficionados of state government often devote too much. The significance of experimentation at the state and local level should be neither overlooked nor overstated.

Take the now-legendary example of welfare reform. Thanks to liberal use of federal administrative waivers in the early 1990s, the states took the lead in revising the nation’s system of public assistance. They were widely credited with setting the stage for the historic national legislation of 1996—and also for securing a dramatic decline in caseloads. How much of the decline, however, could be attributed to the actions of the states, both before and after the 1996 law, is actually a matter of considerable debate. Most of the caseload reduction had less to do with inventive state policies than with a strong economy and expanded federal aid (most notably, the Earned Income Tax Credit) to low-income persons who entered the workforce. In sum, although state experiments were undoubtedly instructive and consequential, other fundamentals were more so. One suspects that what holds for the welfare story also applies to some other local inventions—for example, smart growth strategies, school reform, or the deregulation of electric utilities—the impact of which state politicians sometimes exaggerate.

Competitive Federalism

Does federalism necessarily deliver leaner, more efficient government? There is reason to think that it could. The states are constitutionally obligated to balance their budgets. To spend, these governments have to tax—and that unpleasant requirement supposedly disciplines profligate politicians. So does interstate competition. Presumably few jurisdictions will indulge in lavish social programs that are magnets for dependents from neighboring jurisdictions, and that could cause overtaxed residents and businesses to exit.

The federated political structure of the United States does indeed appear to have some restraining effect, at least when compared to the unchecked welfare states of Europe. Whereas there, the beneficiaries of unemployment compensation, for instance, often seem entitled to limitless support, the American state-run model maxes out at six months, and ordinarily replaces only a portion of a jobless person’s lost wages. Why? Part of the reason is that no state in our locallyadministered system can afford to let its benefits get too far out of line with those of competing states.

That said, contrary to the wishes of conservatives and the fears of liberals, devolution does not inexorably shrink “big government.” In fact, measured in terms of public employment, it is the state and local sector that has been swelling. With roughly three million employees, the federal payroll today is about the same as it was a half a century ago, but the number of state employees quadrupled to five million. Nor has the central government’s spending outpaced that of the states and localities. Their outlays, only some of which are strictly mandated by Washington, more or less match federal ones.

The scope of government depends not just on how many people it employs or dollars it disburses but on what it ultimately does. But even by that criterion, the states are looming large. Phenomena such as the explosion of discretionary Medicaid spending for the “medically needy,” the work of state attorneys general that yielded a weighty legal settlement with the tobacco industry in 1998, the widening assault on improprieties in corporate governance, and increasingly aggressive measures to curb air pollution (including greenhouse gases), among other bold activities emanating from the states, suggest that, like it or not, much of the locus of vigorous government in recent years has shifted to state capitals.

In fact, so active have been the statehouses in the past decade that conservatives now frequently seem of two minds about federalism. They champion decentralization (when it suits them). But because decentralized government is not smaller, only situated differently, they also dissent. Confronting the surge of state activism, Republicans increasingly have favored national preemption of state powers in areas as diverse as tort law, land use regulation, and family policy. The proposed constitutional amendment barring marriages among gays is the latest case in point. Much as Roe v. Wade nationalized in a sweeping stroke the rules for abortions, the same-sex marriage amendment would toss into the scrap heap another traditional prerogative of the states: their control of matrimonial law.

When Washington Does It All

Opinions are bound to differ on which level of government should have the last word about marriages or abortions. More puzzling is how the central government has come to meddle incessantly in matters that are ordinarily much more mundane, often meeting little or no resistance. Contemporary American federalism badly needs a realignment here. For the often indiscriminate preoccupation of national policymakers with the details of local administration is not just wasteful; it can be irresponsible.

Let us glance at a small sample of local functions now monitored by federal agencies and courts. Federal law these days is effectively in the business of determining the minimum drinking age for motorists, setting the licensing standards for bus and truck drivers, judging the fitness tests for recruits of local police or fire departments, overseeing spillages from thousands of city storm sewers, requiring asbestos inspections in classrooms, enforcing child support payments, establishing quality standards for nursing homes, removing lead paint from housing units, replacing water coolers in school buildings, ordering sidewalk ramps on streets, deciding how long some unruly students in public schools can be suspended, purifying county water supplies, arresting carjackers, mandating special education programs for preschoolers, influencing how much a community has to pay its snowplow operators or transit workers, planning athletic facilities at state universities, supplying communities with public works and reimbursements for nearly any kind of natural disaster, telling localities in some states how to deploy firefighters at burning buildings, instructing passengers where to stand when riding municipal buses, and so on.

Several of these illustrations may sound farcical, but none is apocryphal. The directives for firefighters, for example, are among the many fastidious standards formulated by the Occupational Safety and Health Administration. The pettifogging about where to stand in buses is a Department of Transportation regulation, which, believe it or not, reads as follows:

• Every bus, which is designed and constructed so as to allow standees, shall be plainly marked with a line of contrasting color at least 2 inches wide or equipped with some other means so as to indicate to any person that he/she is prohibited from occupying a space forward of a perpendicular plane drawn through the rear of the driver’s seat and perpendicular to the longitudinal axis of the bus. Every bus shall have clearly posted at or near the front, a sign with letters at least one inch high stating that it is a violation of the Federal Highway Administration’s regulations for a bus to be operated with persons occupying the prohibited area.

Tangents like these are baffling. Why should a national cabinet department or regulatory bureaucracy be bothered with how “standees” ride local buses or how a town’s firefighters do their jobs? If municipal transit authorities or fire departments cannot be left to decide such particulars, what, if anything, are local governments for? Surely, most of the matters in question—putting out a fire, taking a bus ride, disciplining a troublemaker in school, removing hazards like asbestos or lead from a school or a house—rarely spill across jurisdictions and so do not justify intervention by a higher order of government.

Nor can a plausible case be made that central overseers are needed for each of these assignments because communities would otherwise “race to the bottom.” How many states and localities, if left to their own devices, would practice fire prevention so ineptly that they require tutelage from a federally approved manual? Before Congress acted to rid the Republic of asbestos, the great majority of states already had programs to find and remove the potentially hazardous substance. Long before the U.S. Environmental Protection Agency promulgated expensive new rules to curb lead poisoning, state and municipal code enforcement departments were also working to eliminate this danger to the public health.

Why the paternalists in Washington cannot resist dabbling in the quotidian tasks that need to be performed by state and local officials would require a lengthy treatise on bureaucratic behavior, congressional politics, and judicial activism. Suffice it to say that the propensity, whatever its source, poses at least two fundamental problems.

The first is that some state and local governments may become sloppier about fulfilling their basic obligations. The Hurricane Katrina debacle revealed how ill-prepared the city of New Orleans and the state of Louisiana were for a potent tropical storm that could inundate the region. There were multiple explanations for this error, but one may well have been habitual dependence of state and local officials on direction, and deliverance, by Uncle Sam. In Louisiana, a state that was receiving more federal aid than any other for Army Corps of Engineers projects, the expectation seemed to be that shoring up the local defenses against floods was chiefly the responsibility of Congress and the Corps, and that if the defenses failed, bureaucrats in the Federal Emergency Management Agency would instantly ride to the rescue. That assumption proved fatal. Relentlessly pressured to spend money on other local projects, and unable to plan centrally for every possible calamity that might occur somewhere in this huge country, the federal government botched its role in the Katrina crisis every step of the way—the flood prevention, the response, and the recovery. The local authorities in this tragedy should have known better, and taken greater precautions.

Apart from creating confusion and complacency in local communities, a second sort of disorder begot by a national government too immersed in their day-to-day minutia is that it may become less mindful of its own paramount priorities.

Consider an obvious one: the security threat presented by Islamic extremism. This should have been the U.S. government’s first concern, starting from at least the early 1990s. The prelude to September 11, 2001 was eventful and ominous. Fanatics with ties to Osama bin Laden had bombed the World Trade Center in 1993. Muslim militants had tried to hijack an airliner and crash it into the Eiffel Tower in 1994. U.S. military barracks in Dhahran, Saudi Arabia, were blown up, killing nearly a score of American servicemen in 1996. Courtesy of Al Qaeda, truck bombings at the American embassies in Tanzania and Kenya in 1998 caused thousands of casualties. Al Qaeda operatives attacked the USS Cole in 2000.

And so it went, year after year. What is remarkable was not that the jihadists successfully struck the Twin Towers again in the fall of 2001 but that the United States and its allies threw no forceful counterpunches during the preceding decade, and that practically nothing was done to prepare the American people for the epic struggle they would have to wage. Instead, the Clinton administration and both parties in Congress mostly remained engrossed in domestic issues, no matter how picayune or petty. Neither of the presidential candidates in the 2000 election seemed attentive to the fact that the country and the world were menaced by terrorism. On the day of reckoning, when word reached President George W. Bush that United Airlines flight 175 had slammed into a New York skyscraper, he was busy visiting a second-grade classroom at an elementary school in Sarasota, Florida.

The government’s missteps leading up to September 11th, in short, had to do with more than bureaucratic lapses of the kind identified in the 9/11 Commission’s detailed litany. The failure was also rooted in a kind of systemic attention deficit disorder. Diverting too much time and energy to what de Tocqueville had termed “secondary affairs,” the nation’s public servants from top to bottom grew distracted and overextended.

To be sure, the past four years have brought some notable changes. Fortifying the nation’s security and foreign policy, for instance, remains a problematic work in progress, but is at least no longer an item relegated to the hind sections of newspapers and presidential speeches. Nonetheless, distraction and overextension are old habits that the government in Washington hasn’t kicked. Controversies of the most local, indeed sub-local, sort—like the case of Terri Schiavo—still make their way to the top, transfixing Congress and even the White House.

The sensible way to disencumber the federal government and sharpen its focus is to take federalism seriously—which is to say, desist from fussing with the management of local public schools, municipal staffing practices, sanitation standards, routine criminal justice, family end-of-life disputes, and countless other chores customarily in the ambit of state and local governance. Engineering such a disengagement on a full scale, however, implies reopening a large and unsettled debate: What are the proper spheres of national and local authority?

How to think through that dilemma will be the subject of my next Policy Brief .

Governance Studies

Suzanne Maloney

April 8, 2024

Nicol Turner Lee, Renée Cummings, Lisa Rice

Emily Gustafsson-Wright, Elyse Painter

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Unit 4 Essay Advice: "How significant is Federalism in the United States?"

Last updated 22 Mar 2021

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This Study Note lists many of the key terms you would need to understand and use if you answered this question in the exam, and also 10 super examples to help you gain the highest possible marks.

Make sure you can explain each of the terms below:

• Federal Government
• State Government
• Article I of the Constitution
• Article II of the Constitution
• Article IV of the Constitution
• Federal Supremacy
• Block Grants
• Elastic Clause
• 10th Amendment
• Cooperative Federalism
• New Federalism
• Dual Federalism
• Executive Power
• Limited Government
• Commerce Clause

Contemporary Examples

Federalism is significant in the United States:

• Federalism has allowed states to make decisions on a local level and in effect become ‘policy labs’ such as pollution permits in California in 2008
• Federalism allows better representation of people, allowing those who voted for the party other than the Presidents’ to feel represented such as Florida, New Mexico, Illinois, Iowa and Wisconsin that have Republican Governors but voted Democratic in 2012 Presidential election
• The State of Colorado legalised cannabis in 2014, which shows the flexibility of Federalism in the United States

Federalism is not significant in the United States:

• President Obama has seen a reduction in the significance of federalism, moving from states as a welfare provider to the Federal Government with the Affordable Care Act 2010
• George W Bush’s presidency saw huge rises in Federal Government power with the PATRIOT Act and expansion of education and Medicare, resulting in more power to the centre.
• Federalism promotes regionalism over patriotism as seen in the efforts made by some to get Texas to secede in 2015

Historical Examples

Federalism is significant in the United States :

• Federalism itself was a compromise by the Founding Fathers who wanted a balanced system of government after the failed Articles of Confederation.
• Federalism has allowed the Federal Government to support states financially for projects which they would otherwise be unable to afford on their own. The Tennessee Valley Authority is a good example.
• There was a huge rush of power to the Federal Government during the 1930s as a result of the New Deal programme instituted by Franklin D Roosevelt.
• Federalism allowed states to give different rights to minorities in the state. Southern states ignored the 14th and 15th amendments until the Civil Rights Act of 1964
• Quasi-Federalism
• States' Rights

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128 Federalism Essay Topics & Examples

Need to write a federalism essay? Looking for good federalism topics and samples for inspiration? This article is a great place to start!

⭐ Federalism Essay Prompts: Federalism in the United States

🏆 best federalism topics & essay examples, 🎓 good research topics about federalism, 🔍 federalism essay topics: simple & easy, 💡 most interesting federalism topics to write about, ❓ federalism essay questions.

What is federalism? Essay writing always starts with research, and we can help you with it. In short, federalism is a mode of government that combines general and regional governments. Your argumentative federalism essay can focus on federalism’s importance. Or, you can show your understanding of a unique system of governance in the United States.

In this article, you will find 74 excellent federalism essay topics and research ideas. You can also read our samples and use our free topic generator !

With its extensive territory and large population, the US required a robust government to sustain its infrastructure and grow into the global superpower it is today. However, its unique circumstances at the time of the formation made methods that were standard at the time inapplicable, forcing the Founding Fathers to innovate.

As a result, even two hundred years later, each state retains a considerable degree of independence. Your essay can cover any of the many different topics of federalism and its theoretical and practical applications:

• You can center your essay on the conflicting ideas of Aristotelian happiness and utilitarianism, with the Republican and Democratic parties representing the options, respectively. The purpose of a country is to make sure that its citizens are as happy and comfortable as they can be. However, the task becomes complicated when the question of what happiness means is taken into consideration.
• The emergence of the United States as a federation is a great federalism essay topic that can be explained by the circumstances of the nation’s formation. After fighting off the British in the Revolutionary War, the territory that would become the United States remained a loose alliance of small states, which can be considered a confederation. However, the system was ultimately non-viable, and the Founding Fathers had to create a more centralized country by creating and ratifying the Constitution.
• Alternatively, you can focus on the role if Constitution and its history. At first, many states formed anti-federalist movements and opposed the initiative, but eventually, they agreed to it after their concerns were addressed in the Bill of Rights. The Constitution has been amended many times, but its core has remained unchanged. The United States is still a federation, and its states can adopt many critical laws without requiring the approval of the central government.
• Discuss the idea of federalism in other countries that do not currently use it, providing examples. How much do the United States’ unique circumstances contribute to its ability to maintain a federation?
• Talk about examples of other federations that currently exist or have existed in the past. Some of their models differ considerably from that used in the United States.
• Discuss the idea of confederations and the reason why few to no countries can be classified as one despite their titles.

Find more ideas and excellent federalism essay samples below!

• Federalism System, Its Advantages and Disadvantages The system causes government to have control of itself because of great rivalry of power between the state and the nation.
• Cooperative Federalism in the USA A vivid example of the implementation of the concept of dual federalism is the United States of America in the form in which they were initially formed.
• Federalism Advantages and Disadvantages This paper discusses the advantages and disadvantages of a federal system of government. A federal government can either be centralized where the central government has broad powers compared to state or provincial powers, or a […]
• Federalism of the United States The end result showed that the federal government was using publicly owned land, which in the end, belonged to all citizens of the United States, thus the local state government had to make sure the […]
• Federalist Paper Number 10 It is one of the most influential papers and it talks about faction and the role of government in regulating it as well as liberty. According to him, legislation should be put in place to […]
• Costs and Benefits of Federalism Conflicts between the state and national government in the running of the United States is one of the major costs of federalism. Federalism leads to the formation of small political units that help in the […]
• The United States Federalism and Political Culture Having established the central values of the United States’ political culture, it is worth discussing how some of them align with the concepts of federalism and anti-federalism. Therefore, it can be concluded that federalism is […]
• “American Federalism” Article by Derthick This article considers the issue of the effective distribution of powers between the central and federal administrations. Thus, it shows the division of powers between the national and federal administrations in 1965-1980 and the current […]
• Healthcare Regulations and Federalism’s Impact Although the ACA established the regulations for getting the coverage on federal levels, the government had to allow local policy-making due to the high autonomy of many regions.
• The Account of the Pros and Cons of Federalism To conclude, federalism and devolution are rather efficient forms of the state government provided they are properly implemented in the country.
• The Federalist Papers to Understand the United States Constitution The purpose of the federalist papers was to convince the people of New York to ratify the proposed constitution because most of the other states had already done so.
• The Impact of Fiscal Federalism on Financial Operations The ADA requirements influenced the fiscal and budgetary operations of American College Health Association in terms of enforcement of employment rights and observing the rights of employers and students with disabilities.
• American Federalism: Why It Is Good for the Nation? In conclusion, it is necessary to note that historical, political, and cultural peculiarities of the United States make federalism the most appropriate type of governance for the country.
• The Major Eras of American Federalism The second category consists of the powers, which are “not delegated to [the national government of] the United States by the Constitution, nor prohibited by it to the states” and are referred to as the […]
• Fiscal Federalism: The Performance of Third-Party Implementers In the article ‘Public Performance and Management Review,’ the research question is “what can states do to maximize the performance of third-party implementers in the context of fiscal federalism?” The theory included a review of […]
• 10th Amendment & Federalism The 10th Amendment reads “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people”.
• The Constitutional Debate About Government and Federalism The government provided for by this document was weak and this necessitated drafting of the American constitution after Shays Rebellion in the spring of 1787. There have been major changes in the media and technology […]
• The Current State of Federalism in the 21st Century The outcome of the civil war of the 60-is of the XIX century was the doctrine of eternal union, recognizing the U.S.as a single state, created by the will of the entire American people, excluding […]
• Federalism, Intergovernmental Relations, Fragmegration Finally there will be an analysis made of the difference in the theory of Fenno, Dahl and Lowi as compared to the normal text book definitions in regard to representation and legislation.
• Constitutionalism and Federalism in State Politics The Constitution highlighted the fundamentals of American federalism and testified the domination of the centralization. As it can be view, the problem of centralization and decentralization was of great concern in the course of the […]
• Federalism and Medical Marijuana Needless to say, United States faced political and social challenges as well, and the disputes over federalism and over the legal use of marijuana in medicine are still the most burning and controversial issues in […]
• Federalists, Anti-federalist, and Republican Debate Generally, the state, that: It gave too much authority to the nationwide administration at the expenditure of the state management. Of these criticisms, the lack of a bill of rights was the most efficient.
• Political Science. The Federalist Papers The inspiration for this constitution, the framework, the framers, and the people who opted to choose the right path and inspiration, is the subject for this paper.
• Federalism Implications for Medicaid in California An example used to compare and contrast the two metaphors is the system of Medicaid as controlled by the federal government and by the state government.
• Federalism and Gun Control in the United States 2 Each type of government possesses a set of duties and powers that it can exercise in the region, and the relationship between the levels is established in the Constitution.
• Federalism: Policy Issues and Recommended Changes The concept of federalism is a well-known political trend, and the emphasis on its promotion is the practice that leaders of many states adhere to and develop.
• Constitutional Convention of 1787 and Federalism James Madison was the key player on the issue of commerce under the Articles of the Confederation. He wanted the states to maintain the standards for the success of the social programs he wanted to […]
• Federalism and Government Styles in the United States It is because the individual at the top is held accountable by the leaders of the local authorities. Top on the list is the fact that the division of power between the central government and […]
• Presidential Power in Hamilton’s Federalist No. 70 The analogy presented in the Federalist paper number seventy formed the basis of the present-day powerful executive in the United States.
• Judicial Branch in Hamilton’s Federalist Papers In this context, the purpose of the judicial branch should not be misunderstood and viewed with reference to the purposes of the executive and legislative branches.
• Aristocracy Assailed: The Ideology of Backcountry Anti-Federalism The author examines the views of the consensus historians and the attitudes of the anti-federalists towards the idea of American democracy.
• Contemporary American Federalism Dual federalism is a system characterized by a national government that only governs by the rules that have been laid out in the constitution, national and state governments that are supreme in their allocated spheres […]
• Federalist Paper No. 51 He states that all the different arms of the government, as per the constitution, should be independent of one another though they should work in the direction of achieving the same constitutional goals it was […]
• The Aggranoff’s Version of Federalist No. 44 Provision of the relevant leadership and administrative is by implementing policies and procedures that are standard in relation with what the nation anticipates. Additionally, evaluation of citizens’ performance in the work field and confirming whether […]
• Significance of Anti-Federalist Papers Therefore, it is important to note that the anti-federalist paper served as an alternative voice by helping to pinpoint spheres that needed to be rectified to ensure that the constitution that was in the process […]
• No Child Left behind Act: Federalism Concept Based on the three branches of a federal government, the legislative branch is bestowed with the responsibility of making the law.
• Federalism and Policy Formulation This should be made with regard to views of the stakeholders since every federal government’s view must be represented in formulating the policies.
• Current Issue in Federalism This has triggered the debate to shift from the state courts and legislatures to the federal courts with the interest groups looking for the best platform to present their case.
• Federalism and separation of powers In the American constitution, specific powers were bestowed upon the national government and in the tenth amendment of 1791, it stated “the powers not delegated to the United States by the constitution, nor prohibited by […]
• The Bill of Rights and the Anti-Federalist Concerns The Effects of the Bill of Rights Due to these facts and the essence of the Bill of Rights, it can be said that the efforts of the Anti-Federalists were not in vain.
• Federalism in the United States The power assignments of the national government comprises of both implied and expressed powers. The Implied powers permit the central government to come up with decisions, which are not part of the expressed powers.
• The Case for a Federalism Amendment The main agenda here is the evenness or equality on how the powers are shared between the federal government and the states governments without interfering with the rights of their people. For instance, the states […]
• Modern American Federalism Development and evolution of democracy over the centuries has been focusing on devolution of central powers of government to increase independence of the local states.
• The Evolution of American Federalism Madison alone wrote over 20 articles on the subject and helped in the development and ratification of the US constitution and the 39th article as well as Federalist 51 is regarded as the most indicative […]
• Federalism in United States Federalism is therefore defined as a coordination of the regime in which control and the influence of power is partitioned with an attempt to distribute it in the central government and the constituent supporting units.
• An Overview of the Change of Federalism and the Great Depression
• The Implications of Elections for Federalism in Iraq: Toward a Five-Region Model
• A Look at Power Shifts in Intergovernmental Relations as a Result of Fiscal Federalism
• The Major Role Federalism Has Played in Our Government
• Understanding the Political Ideology of Federalism and the Role of the Federal Government
• An Initial Evaluation of Revenue-Sharing Arrangements in the New South African Fiscal Federalism
• A Comparison of Federalism and Anti-Federalism and Their Arguments
• Using Benefit-Cost Criteria for Settling Federalism Disputes: An Application to Food Safety Regulation
• Adjusting To Economic Growth In Toronto Amalgamation And Federalism
• Why Is Federalism Is The Best Option For The Philippines
• Advantages And Disadvantages Of American Federalism
• An Analysis of the Essential Principles of Federalism in the United States Government
• An Analysis of the Three Examples of How Federalism Which Evolved From Its Origins To the American Political System
• The Political Economy of Immigration Enforcement: Conflict and Cooperation under Federalism
• A Fiscal Federalism Analysis of Debt Policies by Sovereign Regional Governments
• An Evaluation of Federalism and the Civil War in America
• What Is Federalism And How Does It Relate To State Governments And Other Forms Of Governance
• Beyond National Standards: Reconciling Tension between Federalism and the Welfare State
• An International Multi-Level System of Competition Laws: Federalism in Antitrust
• Understanding Federalism Based on the Section: Picket-Fence Federalism
• The Possible Impact of Federalism in the Government of America
• The Tragedy of the Commons or the Curse of Federalism
• A Research on American History: Federalism in the United States
• An Overview of the Power Shift in Intergovernmental Relations as a Result of Fiscal Federalism
• The National Schoolmarm: No Child Left Behind and the New Educational Federalism
• The Relation of Federalism and Poverty in the US
• A Report on the Methods of the Constitution to Guard Against Tyranny: Federalism, Separation of Powers, Checks and Balances, and Equal Representation
• Walking in the Shadow of Pressman and Wildavsky: Expanding Fiscal Federalism and Goal Congruence Theories to Single-Shot Games
• A Description of Federalism as a Type of Government Where Power is Separated Between a National Government and Various Regional Governments
• A Description of the Federalist Papers and Federalism
• Asymmetric Information and Regional Transfers: Federalism versus Devolution
• The Role Of Federalism And Its Effect On American Government
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• Chicago (A-D)
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The Roles of State and Federal Governments

A discussion of the roles of the state and federal governments, and their concurrent and exclusive powers.

Social Studies, Civics

President James Madison

“[T]he 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,” Madison.

Painting by Gilbert Stuart from the U.S. Library of Congress

The United States is a constitution -based federal system, meaning power is distributed between a national ( federal ) government and local (state) governments. Although the Supremacy Clause states that the Constitution , federal laws, and treaties are the “supreme law of the land,” according to the Supreme Court, it is clear that the Constitution created a federal government of limited powers. The Supreme Court has noted that “every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution .” These limited powers are set forth as what are termed “enumerated powers” in Article I, Section 8 of the Constitution . These enumerated powers include, among other things, the power to levy taxes , regulate commerce, establish a uniform law of naturalization , establish federal courts (subordinate to the Supreme Court), establish and maintain a military, and declare war. In addition, the Necessary and Proper Clause has been interpreted by the Supreme Court to define “implied powers,” those which are necessary to carry out those powers enumerated in the Constitution . In McCulloch v. Maryland , Justice John Marshall set forth the doctrine of implied powers, stating, that a government entrusted with great powers must also be entrusted with the power to execute them. While the Constitution thus grants broad powers to the federal government, they are limited by the 10th Amendment, which states that “[t]he 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.” As James Madison explained, “[t]he 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.” These reserved powers have generally been referred to as “police powers,” such as those required for public safety, health, and welfare. Finally, certain powers are called concurrent powers, which the states and the federal government both may exercise. These can include, for example, setting up courts, levying taxes , and spending and borrowing money. Typically, these are powers necessary for maintenance of public facilities. As can be appreciated, one of the difficulties in the federal system is determining which entity, if any, has the power to legislate in a particular realm. In general, the problem of conflicting laws between the states and the federal government has given rise to what is called the doctrine of preemption. Under this doctrine, based on the Supremacy Clause, if a state or local law conflicts with a federal law, the state or local law must give way (unless the federal law is itself unconstitutional , in other words, it exceeds the power of the federal government). As Justice Marshall put it in McCulloch v. Maryland , “[s]tates have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government.” Under this doctrine, the Supreme Court has indicated that the Supremacy Clause may entail preemption of state law either by express provision, by implication, or by a conflict between federal and state law. If there is an express provision in the legislation , or if there is an explicit conflict between the state law at issue and the federal law, the state law provision is immediately invalid. Field preemption occurs when Congress legislates in a way that is comprehensive to an entire field of an issue. Impossibility preemption occurs when it would be impossible for someone to comply with both state and federal laws. Purposes and objectives preemption occurs when the purposes and objectives of the federal law would be thwarted by the state law.

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Handout A: What Is a Federal Republic? (Background Essay)

The Founders were always cautious about government power. They wrote the Constitution to make a strong government, but also to limit its authority. One way they did this was by creating a federal republic. The national government was given specific powers and others remained with the states or the people. These two separate powers – the national government and state governments – could co-exist because the national government was given only those powers listed in the Constitution.

Among these were the powers to regulate commerce between states, to coin money, to raise armies, and to collect taxes. The states have their own laws, but they are also subject to the laws of the federal government. This type of political system is called federalism. This separation makes states better able to create laws based on the will of their citizens. States could also come up with new ideas and experiments. If and when they succeeded, other states could use these tested ideas in their own governments.

Another way federalism was applied in the Constitution was in the U.S. Congress. The people would be represented in the House of Representatives. States would be equally represented in the Senate, with each state legislature selecting two Senators. In this manner, both the states and the people would have a say in federal laws.

The Federalist/Anti-Federalist Debate

The two major political groups at the time of the Founding were the Federalists and the Anti-Federalists. They disagreed about the new distribution of power. Many Anti-Federalists had been happy with the Articles of Confederation and feared that the central government created by the Constitution would take over the states. They believed that the states should keep more power, and they argued that the new Constitution should not be ratified. They did not like the vague phrases about Congress’s powers, like “necessary and proper” and “general welfare.” They worried these words might be interpreted as broad grants of power to allow the federal government to interfere with the powers of the states and the liberties of the people. They also believed that the Constitution needed a bill of rights that listed some of Americans’ specific rights and prohibited the national government from engaging in specific actions.

Federalists favored the Constitution as written. They supported a strong but limited central government with some of the powers formerly exercised by state governments. They believed that state powers and individuals’ rights were protected under the Constitution because the central government’s role was limited by the list of enumerated powers and the list of denied powers. The Constitution did not list powers of states because it was assumed the states kept all the powers given to them by their state constitutions except those given to the federal government and those powers denied to states in the Constitution.

The Tenth Amendment

The Federalists eventually won the debate when the Constitution was ratified [approved] in 1788, but calls for a bill of rights continued. In fact, eight states not only ratified the Constitution but also submitted lists of proposed amendments. The one amendment proposed by all became the Tenth Amendment.

The Tenth Amendment states: “The powers not delegated [given] to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Founders included the Tenth Amendment to support the constitutionally-limited nature of the federal government. It states again that the states and the people keep all powers not given by the Constitution to the federal government. If a power is not given to the federal government, it remains with the states or the people.

Changes to Our Federal System

The Seventeenth Amendment further changed the balance of federalism when it was added to the Constitution in 1913. The Seventeenth Amendment let the people of each state directly elect Senators to U.S. Congress. State governments would no longer be represented in one house of Congress. Supporters of this change believed it would result in less corruption and more democracy. Critics argued that the change would result in more federal laws that degraded [damaged] the power of states or that mandated state spending with no federal funding attached.

The Fourteenth Amendment, ratified after the Civil War in 1868, dramatically altered the federal republic created by the Founders. By limiting the types of laws states could pass, the amendment weakened state sovereignty. About sixty years after it was passed, the Supreme Court began using the Fourteenth Amendment to apply Bill of Rights limits to the states. Until the 1920s, the Bill of Rights applied only to the federal government. This expansion of the Fourteenth Amendment became the basis for equal protection under federal law for all individuals in the states, too.

Legislation also changed the balance of power between the national government and the states. After the Civil War, a majority of states enacted Jim Crow laws requiring racial segregation. By September 1949, only fifteen U.S. states lacked segregation laws. The U.S. armed forces and much of the federal government were also segregated. In response to state segregation laws, many argued for more federal power. They pointed to the legal inequality and violation of natural rights caused by such laws. They claimed a strong federal government could correct such wrongs. They argued that states often commit wrongful acts, and that the federal government should correct these wrongs. Others disagreed, arguing that the federal government did nothing to protect citizens’ rights over decades of segregation. The 1954 Supreme Court case Brown v. Board of Education struck one of the first major blows against segregation. Just ten years later, the Civil Rights Act (1964) and the Voting Rights Act (1965) closed the curtain on the Jim Crow era. These laws and the enforcement of them came almost a century after the passage of the Fourteenth Amendment.

The Debate over Federalism

Debates over federalism often turn to other topics. Critics of federalism argue that a strong national government is needed to address unequal treatment by states. They state that the many different state laws across the country also can make it difficult for individuals and families who travel or move.

Supporters of federalism, however, argue that individuals and families who dislike the laws in one state have the freedom to move to a different state with different laws. States can make policies that meet the needs of their citizens, or adopt successful policies from other states. What is acceptable for people in some states—casinos and gambling, for example—may not be welcome in others. Finally, some supporters of federalism ask: Why would the people elected to federal offices protect people’s rights any better than people in state offices would? The answer to these questions, they say, is not to trust certain leaders more than others, but to hold all officials accountable to the requirements set by the Constitution.

The Founders believed, like many political philosophers, that the desire for power was natural. This power could be used to do bad things as easily as it could be used to do good things. The American federal system was designed to prevent abuses of power and to protect freedom.

Neither a very strong federal system nor complete state independence is perfect. Finding the right balance of power has been important to liberty—as well as controversial—throughout our history.

Comprehension Questions

• What is federalism?
• What does the Tenth Amendment state?
• How did the Fourteenth and Seventeenth Amendments change the system of federalism originally established in the Constitution?
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If you are a teacher searching for essay topics to assign to your U.S. government or civics class or looking for ideas, do not fret. It is easy to integrate debates and discussions into the classroom environment. These topic suggestions provide a wealth of ideas for written assignments such as  position papers , compare-and-contrast essays , and  argumentative essays . Scan the following 25 question topics and ideas to find just the right one. You'll soon be reading interesting papers from your students after they grapple with these challenging and important issues.

• Compare and contrast what is a direct democracy versus representative democracy. 
• React to the following statement: Democratic decision-making should be extended to all areas of life including schools, the workplace, and the government. 
• Compare and contrast the Virginia and New Jersey plans. Explain how these led to the Great Compromise .
• Pick one thing about the U.S. Constitution including its amendments that you think should be changed. What modifications would you make? Explain your reasons for making this change.
• What did Thomas Jefferson mean when he said, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants?" Do you think that this statement still applies to today's world? 
• Compare and contrast mandates and conditions of aid regarding the federal government's relationship with states. For example, how has the Federal Emergency Management Agency delivered support to states and commonwealths that have experienced natural disasters?
• Should individual states have more or less power compared to the federal government when implementing laws dealing with topics such as the legalization of marijuana  and abortion ? 
• Outline a program that would get more people to vote in presidential elections or local elections.
• What are the dangers of gerrymandering when it comes to voting and presidential elections?
• Compare and contrast the major political parties in the United States. What policies are they preparing for upcoming elections?
• Why would voters choose to vote for a third party, even though they know that their candidate has virtually no chance of winning? 
• Describe the major sources of money that are donated to political campaigns. Check out the Federal Election Regulatory Commission's website for information.
• Should corporations be treated as individuals regarding being allowed to donate to political campaigns?  Look at the 2010 Citizens United v. FEC ruling on the issue. Defend your answer. 
• Explain the role of social media in connecting interest groups that have grown stronger as the major political parties have grown weaker. 
• Explain why the media has been called the fourth branch of government. Include your opinion on whether this is an accurate portrayal.
• Compare and contrast the campaigns of U.S. Senate and House of Representatives candidates.
• Should term limits be instituted for members of Congress? Explain your answer.
• Should members of Congress vote their conscience or follow the will of the people who elected them into office? Explain your answer.
• Explain how executive orders have been used by presidents throughout the history of the U.S. What is the number of executive orders issued by the current president?
• In your opinion, which of the three branches of the federal government has the most power? Defend your answer.
• Which of the rights guaranteed by the First Amendment do you consider the most important? Explain your answer. 
• Should a school be required to get a warrant before searching a student's property? Defend your answer. 
• Why did the Equal Rights Amendment fail? What kind of campaign could be run to see it passed?
• Explain how the 14th Amendment has affected civil liberties in the United States from the time of its passage at the end of the Civil War.
• Do you think that the federal government has enough, too much or just the right amount of power? Defend your answer.
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Texas immigration controversy rekindles fight over Arizona’s ‘show me your papers’ law

T he legal battle over a controversial Texas immigration law could eventually give the Supreme Court a chance to revisit a historic ruling that largely struck down Arizona’s “show me your papers” law and reaffirmed the federal government’s “broad, undoubted power” over immigration.

Texas’ SB 4, which allows state officials to arrest and detain people they suspect of entering the country illegally, was back in court Wednesday at the 5th US Circuit Court of Appeals in New Orleans.

The law is on hold after three judges blocked it while they consider whether it is constitutional. That same panel heard arguments on Wednesday.

The majority ruling in the 2-1 decision last month leaned heavily on the 2012 Supreme Court case known as Arizona v. United States, in which the high court struck down several provisions of an Arizona law, SB 1070, intended to deter illegal immigration.

Legal experts believe the Texas case could eventually give the majority-conservative Supreme Court an opportunity to take another look at the federal government’s long-held control over immigration policy.

“This would be probably one of the most radical changes the Supreme Court has made in the immigration field,” said Andrew Schoenholtz, a professor at Georgetown Law and an expert on immigration law, referring to the possibility that the high court overturns its 2012 ruling. “It’s that much of a change that Texas is asking for.”

When he signed the law, Texas Republican Gov. Greg Abbott acknowledged that the issue could end up back at the Supreme Court.

“We think that Texas already has the constitutional authority to do this, but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case,” Abbott told CNN’s Rosa Flores.

Denise Gilman, a professor at the University of Texas School of Law, agreed that the state’s goal is to get the justices to reverse the Arizona decision.

“It would have been incredibly difficult for the 5th Circuit to let this law stand under existing Supreme Court precedent,” she said. “The Supreme Court is another matter. The Supreme Court can overturn its own precedent, and that’s clearly what the state of Texas wants it to do.”

SB 4 was initially blocked by a federal judge in late February in a pair of cases brought by the Biden administration, two immigrant advocacy groups and El Paso County. Texas quickly appealed that decision to the 5th Circuit. In the meantime, the Supreme Court had allowed the state to enforce the law for a brief time on March 19, only for the appeals court to put it back on hold hours later.

‘Show me your papers’ law

The Arizona law is a high-profile example of what happens when states attempt to take immigration policy into their own hands.

Then-Arizona Republican Gov. Jan Brewer signed the Support Our Law Enforcement and Safe Neighborhoods Act, known as SB 1070, into law in 2010.

Chief among the law’s provisions was one that allowed police to check a person’s immigration status during traffic stops or other law enforcement actions if the official had “reasonable suspicion” to believe the person was in the country unlawfully. That part of SB 1070 led critics to dub it the “show me your papers” law.

SB 1070 also made it a state crime for “unauthorized immigrants” to fail to carry registration papers and other government identification; forbade people unauthorized for employment in the US to apply, solicit or perform work; and authorized police to arrest undocumented immigrants without a warrant when “probable cause” existed that they committed a crime that made them deportable.

Legal challenges to the law quickly ensued. The Supreme Court upheld the “show me your papers” part of the law and struck down the three other parts.

Perhaps most importantly, the majority ruling penned by Justice Anthony Kennedy reaffirmed the federal government’s authority over immigration matters. The five-justice bloc said that “federal power to determine immigration policy is well settled” and that its “authority rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization.’ ”

“The National Government has significant power to regulate immigration,” Kennedy wrote. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”

Gilman said the court’s decision in Arizona is significant because Texas’ SB 4 essentially contains the concepts the court struck down in that case.

“The (Arizona) law that made a crime out of immigration status was struck down by the Supreme Court as being in conflict with federal authority to govern immigration enforcement,” she said. “And that’s a really significant part of what the Texas law has in place.”

Among the three justices who dissented in the 2012 case, two are still on the court: Justices Clarence Thomas and Samuel Alito. Justice Antonin Scalia died in 2016. (Justice Elena Kagan disqualified herself from the 2012 case.)

Jessica Bulman-Pozen, a professor at Columbia Law School who specializes in federalism, said the arguments pushed by Texas in defense of SB 4 hew most closely to the dissent penned by Scalia, which concluded that Arizona’s law was enacted in an effort to enforce federal immigration law “more effectively.”

“The court did not think that was right as a descriptive matter about what was happening in Arizona, and I think it’s even more clearly incorrect here with respect to Texas,” Bulman-Pozen said, referring to the majority’s rejection of Arizona’s argument that it was attempting to address the Obama administration’s alleged inaction on immigration issues.

“The idea that what (Texas is) doing is in fact vindicating some kind of congressional judgment or congressional law against an executive that’s not enforcing (those laws), I don’t think that that’s a fair description of what’s happening here,” she said.

Abbott cited the Scalia dissent when he signed the law.

“Remembering that Justice Scalia wrote a dissenting opinion in that case, pretty much laying out a pathway that he thought would be a legal way for a state to go about the process of enforcing immigration laws,” Abbott told CNN.

Oldham’s dissent

A considerable amount of daylight exists between the divided 5th Circuit panel that is weighing the legality of SB 4.

“Supreme Court authorities and the detailed statutory scheme governing who will be permitted to remain in the United States and removal procedures strongly indicate that Congress ‘occupies [the] entire field’ of unlawful entry and reentry of noncitizens as well as removal,” Chief Judge Priscilla Richman wrote in a decision that was joined by Circuit Judge Irma Carrillo Ramirez.

But Circuit Judge Andrew Oldham – a former Alito clerk – wrote in a lengthy dissent last week that he would have let Texas enforce the law while the legal challenges continue.

Oldham leaned into a more limited reading of the Supreme Court’s 2012 decision in Arizona, saying it “certainly does not suggest States may never supplement any federal immigration laws.”

He argued the Arizona decision leaves some room for parts of SB 4 to withstand scrutiny, particularly the policy that allows Texas judges to order immigrants to be deported.

“The Arizona Court did not hold – as plaintiffs seem to believe – that the State was preempted from the field of removal because of ‘some brooding federal interest’ like foreign policy or national security,” wrote Oldham, who was also previously general counsel to Abbott.

Texas’ attorneys have raised those same claims.

“Arizona did not find that state laws concerning entry and removal were field preempted, and nothing in Arizona precludes States from regulating entry and reentry or issuing return orders,” the attorneys wrote.

Whether those arguments have any salience before the nation’s highest court if the case comes before the justices is another question.

“To the extent the court revisited Arizona in this context, it would basically be making states authorities with respect to entry and removal in the immigration space. And that would be an extreme departure from precedent in our nation’s history,” Bulman-Pozen said. “It’d be quite shocking.”

This story has been updated with additional details.

CNN’s Rosa Flores contributed to this report.

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Judge Rejects Trump Dismissal Effort in Classified Documents Case

Judge Aileen Cannon ruled that the former president cannot escape prosecution by arguing that the Presidential Records Act allowed him to claim secret government material as his own property.

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By Alan Feuer

A federal judge on Thursday rejected for now one of former President Donald J. Trump’s central efforts to dismiss charges that he had mishandled classified documents after leaving office.

The judge, Aileen M. Cannon, ruled that Mr. Trump could not escape prosecution by arguing that he had converted the highly sensitive records he took from the White House into his personal property under a law known as the Presidential Records Act.

In a terse three-page order , Judge Cannon said that the statute, which was put in place after the Watergate scandal to ensure that most records from a president’s time in office remained in the possession of the government, “does not provide a pretrial basis to dismiss” the case.

The decision was a victory of sorts for the special counsel, Jack Smith, who has persistently argued that the Presidential Records Act should have nothing to do with the criminal prosecution of a former president accused of removing national security documents from the White House and then obstructing efforts to retrieve them.

But it may not be the final word on the subject.

Last month, Judge Cannon made a curious request to Mr. Trump’s lawyers and Mr. Smith’s prosecutors, asking them to send her proposed jury instructions about how the Presidential Records Act might affect the central allegation against Mr. Trump: that he took “unauthorized possession” of the documents by removing them from the White House.

Judge Cannon seemed to be exploring the idea that if the act really did permit Mr. Trump to make the documents personal, then he could not be said to have had “unauthorized possession” of them.

But in court papers filed this week, Mr. Smith pushed back hard against that move . He repeated his position that the Presidential Records Act did not permit Mr. Trump to make the documents his own and had absolutely no relevance to the case — even when it came to writing jury instructions.

In his filing, Mr. Smith asked Judge Cannon to follow a normal course of action and decide the legal question of whether the Presidential Records Act was relevant to the case in the context of Mr. Trump’s motion to dismiss, not in conversations about jury instructions. (Jury issues are usually hashed out on the eve of a trial and Judge Cannon has not set a trial date.)

In her ruling on Thursday, Judge Cannon agreed with Mr. Smith that the act was not enough to dismiss the case outright. But she appeared to disagree with him when it came to jury instructions, suggesting that those discussions would continue and that Mr. Trump might eventually be able to raise a Presidential Records Act defense at trial.

Mr. Smith’s demand for the “finalization of jury instructions” before “the presentation of trial defenses and evidence” was “unprecedented and unjust,” she wrote.

Legal experts have expressed concern that if Judge Cannon crafts instructions for the jury based on Mr. Trump’s interpretation of the Presidential Records Act, it could be seen as an attempt to nudge eventual jurors toward an acquittal.

Jury instructions that adopt Mr. Trump’s position on the act could also give the judge sufficient legal wiggle room to acquit Mr. Trump herself at the end of a trial by declaring the government had failed to prove its case.

But in her order, Judge Cannon defended her decision to ask both sides for their dueling takes on jury instructions.

Her request, she wrote, should be interpreted as “a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”

Mr. Trump’s lawyers had first advanced their claims based on the Presidential Records Act in court papers two months ago , arguing that the law allowed him to designate even secretive briefing materials prepared for him by the military and intelligence community as private records that he could do with as he pleased.

But from the start, their position was legally dubious.

Judge Cannon herself balked at the idea during a hearing last month in Federal District Court in Fort Pierce, Fla., telling the lawyers that their expansive interpretation would effectively “gut” the act. And during an earlier stage of the classified documents case, the federal appeals court that sits over the judge agreed, writing that Mr. Trump “neither owns nor has a personal interest in” the documents at issue.

While Judge Cannon’s order was largely silent on the reasons she reached her decision, it could have a follow-on effect on another one of Mr. Trump’s attempts to have the classified document case dismissed.

In a separate motion, Mr. Trump’s lawyers have claimed that he is immune from prosecution for any official acts he took as president. Later this month, the Supreme Court will consider that assertion in the context of Mr. Trump’s other federal case, in which he stands accused of plotting to overturn the 2020 election.

His lawyers have argued that the official act that provides Mr. Trump immunity in the classified documents case is his claimed conversion into personal property, under the Presidential Records Act, of the materials he is charged with removing from the White House.

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer

Our Coverage of the Trump Documents Case

The justice department has filed federal criminal charges against former president donald trump over his mishandling of classified documents..

The Indictment: Federal prosecutors said that Trump put national security secrets at risk  by mishandling classified documents and schemed to block the government from reclaiming the material. Here’s a look at the evidence .

The Co-Defendants: While Trump plays the leading role in the case, the narrative as laid out by prosecutors relies heavily on supporting characters  like Carlos De Oliveira  and Walt Nauta .

Obstruction: The Mueller report raised questions about whether Trump had obstructed the inquiry into the ties between the former president’s 2016 campaign and Russia. With prosecutors adding new charges  in the documents case, the subject is back .

The Judge: Judge Aileen Cannon , a Trump appointee who showed favor to the former president earlier in the investigation, has scant experience  running criminal trials. Can she prove her critics wrong ?

A Slow Pace: Cannon has allowed unresolved issues to build up on her docket, and that appears to have kept her from making a prompt decision on the timing of the case. It is one of several factors that have stirred concern about her decision-making .