national authority, but the victory of the Union in the ensuing war showed decisively that states did not retain their sovereignty under the Constitution.
nullification the declaration by a state that a federal law is void within its borders
What would the U.S. government be like today if states had the power of nullification?
The New Deal: National Power Over Business
The Civil War did not settle the question of the proper balance of power between national government and business interests. In the years following the war, the courts struck down both state and national laws regulating business. In 1895 Pollock v. Farmer’s Loan and Trust Co. held that the federal income tax was unconstitutional (until it was legalized by the Sixteenth Amendment to the Constitution in 1913).16 Lochner v. New York (1905) said that states could not regulate working hours for bakers.17 This ruling was used as the basis for rejecting state and national regulation of business until the middle of the New Deal in the 1930s. Hammer v. Dagenhart (1918) said that national laws prohibiting child labor were outside Congress’ power to regulate commerce and therefore were unconstitutional.18
Redefining American Government This highly partisan contemporary cartoon shows President Franklin Roosevelt cheerfully steering the American ship of state toward economic recovery, despite detractors in big business. New Deal policies redefined the scope of both national and state powers.
Granger, NYC — All rights reserved.
Throughout the early years of Franklin Roosevelt’s New Deal, designed amid the devastation of the Great Depression of the 1930s to recapture economic stability through economic regulations, the Supreme Court maintained its antiregulation stance. But the president berated the Court for striking down his programs, and public opinion backed the New Deal and Roosevelt himself against the interests of big business. Eventually the Court had a change of heart. Once established as constitutional, New Deal policies redefined the purpose of American government and thus the scope of national and state powers. The relationship between nation and state became more cooperative as the government became employer, provider, and insurer of millions of Americans in times of hardship. Our Social Security system was born during the New Deal, as were many other national programs designed to get America back to work and back on its feet. A sharper contrast to the laissez-faire policies of the early 1900s can hardly be imagined.
Civil Rights: National Protection Against State Abuse
The national government picked up a host of new roles as American society became more complex, including that of guarantor of individual rights against state abuse.
The Fourteenth Amendment to the Constitution was passed after the Civil War to make sure southern states extended all the protections of the Constitution to the newly freed slaves. In the 1950s and 1960s the Supreme Court used it to strike down state laws that maintained segregated, or separate, facilities for whites and African Americans, from railway cars to classrooms. By the 1970s the Court’s interpretation of the Fourteenth Amendment had expanded, allowing it to declare unconstitutional many state laws that it said deprived state citizens of their rights as U.S. citizens. For instance, the Court ruled that states had to guarantee those accused of state crimes the same protections that the Bill of Rights guaranteed those accused of federal crimes. As we will see in more detail in Chapter 4, the Fourteenth Amendment has come to be a means for severely limiting the states’ powers over their own citizens, sometimes very much against their will.
The trend toward increased national power has not killed the narrative that states should have more power. In the 1970s and 1980s Presidents Richard Nixon and Ronald Reagan tried hard to return some responsibilities to the states, mainly by giving them more control over how they spent federal money. In the next section, we look at recent efforts to alter the balance of federal power in favor of the states.
In Your Own Words
Demonstrate how the flexibility built into the Constitution has allowed it to change with the times.
Federalism Today: A continuing struggle
Clearly, federalism is a continually renegotiated compromise between advocates of strong national government on the one hand and advocates of state power on the other. Making the job of compromise more complex, however, is that, as we have suggested, federalism is not a purely ideological issue; it also reflects pragmatic politics. If a party dominates the federal government for a long time, its members become accustomed to looking to that government to accomplish their aims. Those whose party persists in the minority on the federal level tend to look to the states.19 In short, most of the time people will fight to have decisions made in the arena (national or state) where they are most likely to prevail, or where the opposition will have the greatest difficulty achieving its policy goals.
The Politics of Contemporary Federalism
Although the Supreme Court, since the days of Marbury v. Madison, had endorsed an extension of the range of the national government, the conservative Supreme Court under Chief Justice William Rehnquist passed down a set of decisions beginning in 1991 that signaled a rejection of congressional encroachment on the prerogatives of the states—a power shift that was dubbed “devolution.” However, that movement came to an abrupt stop in 2002 following the attacks of September 11, 2001. The Court continues to have a conservative majority under Chief Justice John Roberts, and that is unlikely to change as long as Donald Trump is president.20
Whether or not the Supreme Court’s decisions give the federal government greater latitude in exercising its powers, the states are still responsible for the policies that most affect our lives. For instance, the states retain primary responsibility for everything from education to regulation of funeral parlors, from licensing physicians to building roads and telling us how fast we can drive on them. Most questions of contemporary federalism involve the national government trying to influence how the states and localities go about providing the goods and services and regulating the behaviors that have traditionally been within their jurisdictions.
Why should the national government care so much about what the states do? There are several reasons. First, from a Congress member’s perspective, it is easier to solve many social and economic problems at the national level, especially when those problems, like race discrimination or air pollution, affect the populations of multiple states. In some instances, national problem solving involves redistributing resources from one state or region to another, which individual states, on their own, would be unwilling or unable to do. Second, members of Congress profit electorally by passing laws and regulations that bring resources like highway funds; welfare benefits; urban renewal money; and assistance to farmers, ranchers, miners, and educators to their states. Doing well by constituents gets incumbents reelected.21 Third, sometimes members of Congress prefer to adopt national legislation to preempt what states may be doing or planning to do. In some cases they might object to state laws, as Congress did when it passed civil rights
