of September 11, 2001, and the recession that began in 2008, the demands made on the different levels of government have shifted, too. When we talk about federalism in the United States, we are talking about specific constitutional rules and provisions, but we are also talking about a fairly continuous evolution of how those rules are understood. Consequently, the norms underlying federalism provide less of a fixed standard against which we can measure actual behavior; the norm is that although the federal government is supreme, the relationship is characterized by flexibility.
Two trends are apparent when we examine American federalism throughout our history. One is that American government in general is growing in size, at both the state and national levels. We make many more demands of government than did, say, the citizens of George Washington’s time, or Abraham Lincoln’s, and the apparatus to satisfy those demands has grown accordingly. But within that overall growth, a second trend has been the gradual but uneven strengthening of the national government at the expense of the states.
The increase in the size of government shouldn’t surprise us. One indisputable truth about the United States is that, over the years, it has gotten bigger, more industrialized, more urban, and more technical. As the country has grown, so have our expectations of what the government will do for us. We want to be protected from the fluctuations of the market, from natural disasters, from unfair business practices, and from unsafe foods and drugs. We want government to protect our “rights,” but our concept of those rights has expanded beyond the first ten amendments to include things like economic security in old age, a minimum standard of living for all citizens, a safe interstate highway system, and crime-free neighborhoods. These new demands and expectations create larger government at all levels, but particularly at the national level, where the resources and will to accomplish such broad policy goals are more likely to exist.
The national government has grown so large, so quickly, that the proper balance of power between the national and state governments is a central and controversial political issue today, and one that has traditionally divided the liberals and conservatives we spoke of in Chapter 1. Liberals believe a strong central government can solve society’s problems, especially economically, and conservatives believe that “big government” causes more problems than it solves. People in the latter category, like the Anti-Federalists at the founding, would prefer to see power and the distribution of government services located at the state or local level, closer to the people being governed. From 2000 to 2006, and again after 2016, however, with Republicans holding the reins of power in both the legislative and the executive branches, the conservative distaste for big government waned somewhat, as they were the ones dictating the actions of that government. President George W. Bush’s No Child Left Behind Act, for instance, took away many of the prerogatives of local school districts to decide whether to engage in regular testing of students, and yet the law enjoyed the support of many conservatives. Also, as we have noted, many conservatives have begun to argue for an expanded national role in regulating morals, if not the economy, and the need to address national security issues after September 11 stepped up conservative calls for bigger government solutions in that arena as well. Some Republicans themselves have noted that, once they come to Washington, conservatives could be “as bad as liberals” about enforcing the national will on states.11 After President Barack Obama was elected and the Democrats passed the stimulus bill and health care reform, however, Republicans quickly returned to their traditional views and decried the return of “big government.” Both Democrats and Republicans are more willing to entertain the possibility of national government action when they are the ones controlling the national government.
The growth of the national government’s power over the states can be traced by looking at four moments in our national history: the early judicial decisions of Chief Justice John Marshall (1801–1835), the Civil War, the New Deal, and the civil rights movement and the expanded use of the Fourteenth Amendment from the 1950s through the 1970s. Since the late 1970s, we have seen increasing opposition to the growth of what is called “big government” on the part of citizens and officials alike, but most of the efforts to cut it back in size and to restore power to the states have been unsuccessful.
John Marshall: Strengthening the Constitutional Powers of the National Government
John Marshall, the third chief justice of the United States, was a man committed to the Federalist narrative about strong national power. His rulings did much to strengthen the power of the national government both during his lifetime and after. The 1819 case of McCulloch v. Maryland set the tone. In resolving this dispute about whether Congress had the power to charter a bank and whether the state of Maryland had the power to tax that bank, Marshall had plenty of scope for exercising his preference for a strong national government. Congress did have the power, he ruled, even though the Constitution didn’t spell it out, because Congress was empowered to do whatever was necessary and proper to fulfill its constitutional obligations. Marshall did not interpret the word necessary to mean “absolutely essential,” but rather he took a looser view, holding that Congress had the power to do whatever was “appropriate” to execute its powers. If that meant chartering a bank, then the necessary and proper clause could be stretched to include chartering a bank. Furthermore, Maryland could not tax the federal bank because “the power to tax involves the power to destroy.”12 If Maryland could tax the federal bank, that would imply it had the power to destroy it, making Maryland supreme over the national government and violating the Constitution’s supremacy clause, which makes the national government supreme.
McCulloch v. Maryland the Supreme Court ruling (1819) confirming the supremacy of national over state government
Marshall continued this theme in Gibbons v. Ogden in 1824.13 In deciding that New York did not have the right to create a steamboat monopoly on the Hudson River, Marshall focused on the part of Article I, Section 8, that allows Congress to regulate commerce “among the several states.” He interpreted commerce very broadly to include almost any kind of business, creating a justification for a national government that could freely regulate business and that was dominant over the states.
Gibbons v. Ogden the Supreme Court ruling (1824) establishing national authority over interstate business
Gibbons v. Ogden did not immediately establish national authority over business. Business interests were far too strong to meekly accept government authority, and subsequent Court decisions recognized that strength and a prevailing public philosophy of laissez-faire. The national government’s power in general was limited by cases such as Cooley v. Board of Wardens of Port of Philadelphia (1851),14 which gave the states greater power to regulate commerce if local interests outweigh national interests, and Dred Scott v. Sanford (1857),15 which held that Congress did not have the power to outlaw slavery in the territories.
The Civil War: National Domination of the States
The Civil War represented a giant step in the direction of a stronger national government. The war itself was fought for a variety of reasons. Besides the issue of slavery and the conflicting economic and cultural interests of the North and the South, the war was fought to resolve the question of national versus state supremacy. When the national government, dominated by the northern states, passed legislation that would have furthered northern interests, the southern states tried to invoke the doctrine of nullification. Nullification was the idea that states could render national laws null if they disagreed with them, but the national government never recognized this doctrine. The southern states also seceded, or withdrew from the United
