The federalism literature has traditionally paid considerable attention to the relationship between the federal government and the states. That relationship has many facets, from legal and financial to political, and has varied from cordial to combative. Although the U.S. Constitution provides some structure for the federal-state relationship, some constitutional provisions are not very clear, and some have been the basis for major controversies over the years.
THE CONSTITUTIONAL FRAMEWORK
One important set of constitutional provisions gives the states a number of guarantees. The national government cannot impose a tax or duty on any state’s exports, grant preferences to the ports of one state over those of another, or require ships heading toward or away from one state to clear or pay duties at another port (Article I, Section 9). States cannot be divided or merged without the consent of the state legislature(s) involved (Article IV, Section 3), and no state can be deprived of equal representation in the U.S. Senate without the state’s consent (Article V).
All states are guaranteed protection against invasion and, at the request of the governor or legislature, against domestic disorder (Article IV, Section 4). The national government apparently has the authority to intervene even without the governor or legislature’s request in order to enforce national laws, protect federal property, or protect the country. That same section guarantees each state a republican form of government, a provision that is subject to various interpretations. The federal courts have been reluctant to hear cases regarding that matter since the mid-1800's. Apparently the guarantee of a republican form of government does not prohibit the states from allowing citizens to vote on public policy issues, a practice that more resembles direct democracy than a republic (which usually emphasizes representative democracy).
The Second Amendment to the Constitution protects each state’s right to have a militia, a provision that has more usually been discussed in cases regarding gun control laws than cases involving state militias. The Eleventh Amendment gives each state immunity from lawsuits in federal courts if the suit is brought by a resident of another state or country unless the state agrees to the suit. Since the mid-1990's, several Supreme Court rulings overturned suits against state governments, even if the state government had been accused of violating federal law. However, the Court has not been consistent in that view. It was willing to hear cases brought by the George W. Bush campaign during the dispute over the 2000 presidential election in Florida and upheld the right of people to sue state governments regarding violations of the Family and Medical Leave Act (FMLA; see Davis and Peltason 2004, 372–74).
RESTRICTIONS ON STATES
Several constitutional provisions regulate or limit state authority in various ways (see Article I, Section 10). The states may not adopt treaties or other international agreements, although they may work to attract foreign firms to locate or invest in the state and to encourage other countries to permit more imports of the state’s products. The states may not tax imports or exports without the approval of Congress, and they may not coin their own money. States are prohibited from impairing the obligations of contracts, but that provision does not ban all types of state regulation of business activity.
Article I, Section 10, also prohibits states from adopting bills of attainder (which punish particular people without a trial) and ex post facto laws (which make an action illegal after it took place). The Reconstruction Amendments (Thirteenth through Fifteenth) had the effect of limiting state authority in a number of ways. The Thirteenth Amendment banned slavery. The Fourteenth Amendment prohibited the states from abridging the privileges and immunities of citizens, and it provided that no state could deprive anyone of life, liberty, or property without due process of law. It also provided that states could not deny anyone equal protection under the law. Those provisions have been the subject of numerous controversies over the years. The Fifteenth Amendment held that the right to vote could not be denied or abridged because of race, color, or previous condition of servitude. After Reconstruction ended, however, the national government conspicuously failed to enforce that amendment for many years. Widespread denial of voting rights of African Americans resulted until the 1960's, when the national government began protecting voting rights more effectively.
Several later amendments also dealt with voting rights. The Nineteenth Amendment gave women the right to vote, and the Twenty-sixth Amendment gave 18-to-20-year-olds the same right. The Twenty-fourth Amendment banned using the poll tax as a requirement for voting in federal elections, and the Supreme Court subsequently extended that protection to voting in all state and local elections, a decision that was based on the equal protection provision of the Fourteenth Amendment.
MUDDYING THE WATERS A BIT
Some constitutional provisions have been sources of major controversies in federalstate relations. Article I, Section 8, gives Congress very broad authority to raise and spend money. Since the 1930's, the courts have generally held that this power enables Congress to attach rules and regulations to federal funds in order to influence state and local government actions, even if Congress does not have the authority to legislate directly to regulate those same actions. Some observers have criticized that broad interpretation, but it has generally prevailed since the mid-1930's.
That same section gives Congress the authority to regulate interstate commerce, but the extent of that authority has provoked considerable debate. The federal courts have sometimes allowed a very broad interpretation of the commerce power by upholding federal law regulating a variety of activities that could affect interstate commerce. However, the courts have sometimes taken a narrower view of the commerce power. In several recent cases, the Supreme Court struck down provisions of federal gun laws and the Violence against Women Act. Part of the justification for those decisions was the assertion that the matters addressed in those laws did not seem adequately related to interstate commerce, although a number of the justices did not agree with those rulings (see Davis and Peltason 2004, 111–14). Some observers felt that the court’s actions reflected a growing inclination to protect the powers of the states from federal encroachment. However, an alternative possibility is that the court’s actions reflect a lack of support for gun control laws and women’s issues.
Additional controversies have erupted over the Necessary and Proper Clause (at the end of Article I, Section 8), which gives Congress the authority to make laws in order to execute the various powers granted to the national government. Some commentators have concluded that the provision should be interpreted narrowly, with “necessary and proper” translated as “essential” or “indispensable.” Other analysts prefer a broader interpretation and contend that the provision includes actions that are helpful or convenient for implementing the delegated powers, not just essential actions.
The Constitution’s Supremacy Clause (Article VI, Section 2) provides that the Constitution, along with the laws and treaties made under its authority, are the supreme law of the land. Although this provision seems fairly clear at first glance, there have sometimes been disputes over whether specific national government actions have exceeded its constitutional authority. Acts of Congress, for example, are part of the supreme law of the land only if they are consistent with the Constitution. The Tenth Amendment, which states that powers not delegated to the national government and not denied to states belong to the states or to the public, has also provoked controversies. Its meaning depends a great deal on how broadly the national government’s powers are interpreted.
THE FEDERAL GOVERNMENT’S ACTIONS
From the mid-1930's through the mid-1990's, the Supreme Court accepted a relatively broad interpretation of the national government’s powers. The Court played important leadership roles in establishing national policies regarding racial segregation, the rights of criminal suspects, and abortion. All of those actions provoked criticism that the Court had exceeded its authority, and some critics complained that the Court was promoting national government expansion at the expense of the states. However, this period was also marked by a dramatic expansion of state governments, which became increasingly active in many domestic policy issues, including education, welfare, health care, and transportation.
The White House and Congress also supported expanding the national government’s role in domestic policy making, although the nature and extent of that support have varied considerably. Franklin Roosevelt and Lyndon Johnson pushed for greater national involvement in many domestic policies, but many other presidents have also helped to foster more national influence, sometimes on a more selective basis. President George W. Bush, who in many respects is quite conservative, has helped expand the national government’s involvement in education and in a variety of programs related to homeland security. He has advocated tighter federal control over some welfare policies, and he has called for a constitutional amendment banning same-sex marriages, in spite of the fact that family law has traditionally been a state responsibility.
CONFLICT WITHIN FEDERAL-STATE RELATIONS
In the history of the American federal system, it is difficult to find a series of events that have tested its fabric more than the fight for racial equality. Looking at the struggle within a historical perspective, from the very beginnings of the nation to the work of the Reverend Dr. Martin Luther King Jr., will show both the abilities and shortcomings of the federal system to address controversies and how changing the scope of conflict can induce changes within the system itself. The scope of conflict includes the size and location of a political conflict, the level(s) of government involved, the branch(es) of government involved, and the political groups involved.
Slavery caused many political conflicts and required a terrible civil war to resolve. Underlying the conflict was the question about which level of government should have the authority over slaves and slave-related issues. From the Constitutional Convention of 1787 to 1860, the southern, proslavery states successfully fought off challenges to shift authority over slavery from the states to the federal government.
During the framing of the Constitution, the question of how the slaves would be counted for the purpose of congressional apportionment and taxing was at the forefront. The slave states wanted slaves to count as full human beings for congressional apportionment, but not to count as part of the state’s human population when it came to matters of taxation. In order to secure the approval of the southern states, the Constitution counted each slave as three-fifths of a human being. This gave the slave states greater representation in the House of Representatives.
The slave states won another important battle in Article I, Section 9, of the U.S. Constitution, which prohibited Congress from stopping slave importation until 1808. This allowed the states to determine the regulations and laws overseeing slave importation for two decades. In scope-of-conflict terms, the national government stayed out of the question of slavery in order to secure the approval of the slave states for a new union.
In the following decades, conflict arose over keeping a balance in Congress between free and slave states. This conflict reached a pitch with Missouri’s application of admission as a slave state in 1819. If accepted, Missouri would have given the slave states a decided advantage in Congress (see Morison 1965, 138). The Missouri Compromise, which admitted Missouri (as a slave state) and Maine (as a free state), addressed the immediate problem without any true resolution of the issue.
The country remained divided between slave states and free states. The scope of conflict remained primarily within the purview of the states; the legal rights of African Americans depended (for the most part) on the individual actions of the state in question. Later compromises relied in part on local preferences regarding slavery. Territorial governments in Utah and New Mexico were organized without reference to slavery (1850). The Kansas-Nebraska Act also relied on local preferences six years later. This transference from the national to the state government, with the federal government deciding “not to decide,” would be the standard solution to the issue of slave versus free state for years to come.
The scope of conflict shifted out of the legislature and into the judiciary when the Supreme Court agreed to hear the case Dred Scott v. Sandford (1857). Dred Scott was a slave who had traveled with his “master” through a territory that was governed as a free, nonslave jurisdiction. Years later, Dred Scott claimed his rights to freedom based on that jurisdiction’s statute. The Supreme Court decided that the statute establishing the Missouri Compromise was unconstitutional; most of the justices held that Congress did not have the authority to prohibit slavery in U.S. territories and that a segment of human beings were nothing more than property. The Court also ruled that slaves could not be citizens and were not entitled to any constitutional protection of their rights. In scope-of-conflict terms, the battle went from the states to the Supreme Court, who proceeded to send the issue back to the states and territories.
These compromises and court decision ultimately failed, and the issue was fought on the battlefields of the Civil War. As a result, the nation adopted the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, which abolished slavery, prohibited the suffrage from being denied based on race, and guaranteed all citizens privileges and immunities and due process of law. These amendments appeared to shift the scope of conflict and give the national government control of these issues. Yet, that is not the case and the scope of conflict continued to be a determining factor in civil rights for nearly a century.
In Plessy v. Ferguson (1896), the Supreme Court determined that the Fourteenth Amendment made all equal in the eyes of the law, but not in social situations. Social equality, in the opinion of this Supreme Court, was an entirely different issue. The Court determined that segregation was legal as long as the accommodations (be they schools, restroom facilities, etc.) were “separate, but equal.” They were in fact separate, but rarely (if ever) equal. From a scope-of-conflict viewpoint, the Supreme Court decided that the national government would not resolve social inequality and left the matter in the hands of the individual state governments. Whether and how the states implemented “separate, but equal” would be a matter for the states.
States saw a more activist national government with the introduction of the New Deal. As the federal government addressed problems of social inequity, the Supreme Court justices shifted their paradigm and allowed the national government to alleviate suffering from social problems. While the “separate, but equal” concept was not overturned at this time, the question of whether “equal” really meant that the implementation was “equal” (i.e., new textbooks in a white school would mean the same new textbooks at the black school) was looked at, yet major change did not come until the 1950's. In Brown v. Board of Education (1954), the Court acknowledged the unfairness found within “separate, but equal.” They ruled that racial segregation in educational institutions was in fact unconstitutional and that the process of desegregation was to occur “with all deliberate speed.” At this point, the scope of conflict would appear to have shifted from the states to the national government, yet another scope-of-conflict issue arose over what “deliberate” speed really meant. To the southern states, it could take a long time. By 1964, only 2 percent of black children in southern schools were attending an integrated facility.
Voting was another issue. Poll taxes, grandfather clauses, and literacy tests were all used to keep segments of the population from voting. These “implementation problems” were addressed in the Voting Rights Act of 1965, which instructed the U.S. attorney general to abolish literacy tests under certain circumstances and send in national workers to register voters under simplified structures. Even so, certain southern states still found ways to circumvent the intent of the federal legislation.
Southern states found additional ways to thwart efforts to provide equality between the races. Through the process of racial gerrymandering, the State of Mississippi was able to fragment the black voting population in such a way that black majorities were not able to elect a black member of Congress until 1986. This serves as another clear lesson that in a federal system, there are many different levels and institutions where political conflicts may be fought. Who controls the debate and determines the outcome is often determined by where the scope of conflict is located.
COOPERATION WITHIN FEDERAL-STATE RELATIONS
On the other side, there is a continuing and increasing amount of cooperative activities between the planes of government. These acts of cooperation are not necessarily evident in any legislation or constitutional provision, but are implemented through less formal, friendly contacts. Letters of concern, e-mails, and text messages all allow players at different levels and branches of government to express concerns and ideas through an informal network that has the features of flexibility and quickness—elements that are not found as often in more formalistic aspects of the federal-state governments. This communication between actors on different levels and in different branches of government also creates the opportunity for technical assistance throughout the various stages of policy making and implementation. Should one branch or level of government have experience in a certain activity, this knowledge base can be used by less experienced actors.
An example of cooperation between federal-state governments is emergency assistance. During times of disaster (such as floods and earthquakes), the interactions between different levels of government can mean the difference, literally, between life and death. Military forces can be used during times of severe unrest to keep order for short periods of time, forest service resources can be dispatched to local entities during times of fires, and communication equipment can be lent out to localities with less resources. While cooperation can occur between different levels and branches of government, it does not necessarily insure that there will be no conflict. National officials may be hesitant to involve troops when the possibility of injury and death to civilians might bring about negative public opinion—though doing nothing also runs that risk as well (Glendening and Reeves 1984, 115). Another example of cooperation between the different levels of government would be sharing the operations of a governmental venture. While the states have a law enforcement function, the national government has a law enforcement role as well, which can result in joint operations and task forces to reduce crime.
In the legislative arena, supporting legislation is yet another example of cooperation between national and state governments. While a state can make a good or activity illegal within its borders, if the good or activity can easily flow across the border, it makes the law less effective. Using supporting legislation from the national government can extend the reach of the state’s law into other jurisdictions, allowing its policies to potentially have more strength. These ventures that have sharing as an element do more than just help efficiency; they also have an important political element.
When a program is implemented by only one level of government, that level of government has all of the responsibility for the success (or failure) of the program. When that implementation is a shared venture and should things take a negative turn, there is an opportunity to share the political blame. In addition, sharing the costs for an expensive program or initiative can make the difference between the success and failure of the program itself.
The federalism literature portrays the relationship between the national government and the states in many different ways. Some observers are impressed by the combative nature of federal-state relations; many discussions of mandates follow that theme. In a related vein, some analysts emphasize the national government’s use of coercive measures to pressure state officials to follow national policies.
Other observers see the federal-state relationship as more cooperative, at least most of the time (see Grodzins 1984). When disagreements do arise, they are more likely to be resolved by bargaining and negotiations, not national government commands. To take one recent example, the nationwide 55 miles per hour speed limit initially suggested a national government imposing its will on the states. Before long, however, reports revealed that some states were doing little to enforce the limit. Although national officials initially tried to encourage greater compliance, the limit was progressively watered down and then repealed altogether. The final outcome indicated that the states are far from helpless when disagreements do arise.
Sue Davis and J. W. Peltason, Understanding the Constitution, 16th ed. (Belmont, CA:Wadsworth/Thomson Learning, 2004); Paris N. Glendening and Mavis Mann Reeves, Pragmatic Federalism, 2nd ed. (Pacific Palisades, CA: Palisades Publishers, 1984); Morton Grodzins, The American System (New Brunswick, NJ: Transaction, 1984). Samuel Eliot Morison, The Oxford History of the American People (New York: Oxford University Press, 1965); David Nice and Patricia Fredericksen, The Politics of Intergovernmental Relations, 2nd ed. (Chicago: Nelson-Hall, 1995); J. Mitchell Pickerill and Cornell W. Clayton, “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2, no. 2 (2004): 233–48; C. Herman Prichett, The American Constitution, 3rd ed. (New York: McGraw-Hill, 1977); and David Walker, The Rebirth of Federalism, 2nd ed. (New York: Chatham House, 1999).
Eric Grulke and David C. Nice
Last updated: 2006
SEE ALSO: Abortion; American System; Brown v. Board of Education; Civil Rights Act of 1875; Civil Rights Act of 1964; Civil War; Constitutional Convention of 1787; Crosscutting Requirements; Crossover Sanctions; Dred Scott v. Sandford; Education; Elections; Federal Courts; Fifteenth Amendment; Fourteenth Amendment; Health Care Policy; Intergovernmental Relations; Interstate Commerce; Johnson, Lyndon B.; Local Government; Missouri Compromise of 1820; Necessary and Proper Clause; New Deal; Plessy v. Ferguson; Privileges and Immunities Clause: Article IV; Privileges and Immunities Clause: Fourteenth Amendment; Reconstruction; Slavery; Supremacy Clause: Article VI, Clause 2; Tenth Amendment; Transportation Policy; Unfunded Mandates; Voting Rights Act of 1965