Duquesne Law Review

Volume 43
Number 4 Federalism in the Americas ... and Article 4
Beyond, Part I

2005

Federalism in the United States

D. Brooks Smith

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Recommended Citation
D. B. Smith, Federalism in the United States, 43 Duq. L. Rev. 519 (2005).
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 Federalism in the United States
D. Brooks Smith*

I. INTRODUCTION

In recent years, I have had the privilege of participating in my

capacity as a federal judge in various judicial training programs
and symposia throughout Central and Eastern Europe. One of the
greatest challenges I have faced in describing the administration
of justice in the United States to audiences of judges from other
countries has been to find a coherent explanation of "our federal-
ism." Perhaps that is because federalism is neither mentioned nor
defined in the United States Constitution. Perhaps it is because
notions of federalism are largely historical; federalism finds its
roots in the existence of thirteen independent states whose sepa-
rate identities preceded the existence of a national government,
and historicity alone usually is not regarded as sufficient justifica-
tion to preserve a political order. Or perhaps it is because federal-
ism forces upon our polity a continuing tension - a dynamism that
means that the American people and their government are con-
stantly redefining federalism, even without knowing it at the time.
I must hasten to add that the inadequacy I have so often felt in
describing my country's federal system may, of course, be nothing
more than a function of my own poor powers of description. I view
myself not as a legal scholar, but as a quintessential American
pragmatist, someone whose origins could accurately be described
as a "country lawyer," who has gone on to serve as a judge on
three different courts - one state and two federal. It is that ex-
perience, I would suppose, rather than any pretension to scholar-
ship on my part, that led Professor Barker to invite me to present
the United States model at this symposium.
It is impossible to convey a sense of what federalism means to
the institutions of government, and to the entire polity in the
United States, without some recognition of the history from which

* Judge of the United States Court of Appeals for the Third Circuit. This paper is
adapted from a November 12, 2004 presentation at the Federalism in the Americas Semi-
nar at the Duquesne University School of Law. I thank Professor Robert S. Barker for
inviting me to participate, and the other seminar presenters and commentators for their
remarks and collegiality.

519
520 Duquesne Law Review Vol. 43

federalism arose. Our first experience with national government

began not with our hallowed Constitution, but with the failed Ar-
ticles of Confederation. That document could not have been more
explicit in its declaration of supremacy of each individual state
over the national government. Article II stated, "Each State re-
tains its sovereignty, freedom and independence, and every power,
jurisdiction and right, which is not by this confederation expressly
delegated to the United States, in Congress assembled."' Article
III then provided, "The said states hereby severally enter into a
firm league of friendship with each other, for their common de-
fence, the security of their liberties, and their mutual and general
welfare . *.".."2 And therein lay the problem. States were domi-
nant and almost independent; rather than unite, they formed a
"league of friendship." Congress could requisition states for money
and men, but Congress could not tax individuals or raise armies
directly. 3 State legislatures regularly challenged, and sometimes
rejected, congressional authority. 4 With such anemic national au-
thority contained within the Articles of Confederation, they were
doomed to failure.
Our national founders tried again. But despite the failure of the
Articles, those who continued efforts to forge a national govern-
ment still did not think of themselves primarily as Americans.
They were first and foremost Pennsylvanians and Virginians, New
Yorkers and South Carolinians. They remained reluctant to cede
power, which had for years resided closer to home, to an untried
and inchoate national government. The physical reality of those
times was that states were sparsely populated, making local gov-
ernmental rule most effective and reliable. As Pierce Butler, a
delegate from South Carolina to the Constitutional Convention,
asked rhetorically: "Will a man throw afloat his property and con-
fide it to a government a thousand miles distant?" 5 The architects
and advocates of the United States Constitution believed a priori

1. ARTICLES OF CONFEDERATION, art. II.

2. ARTICLES OF CONFEDERATION, art. III.
3. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 19 (Max Farrand ed.,
1911) [hereinafter Farrand, RECORDS] (Statement of Edmund Randolph) (noting as a defect
of the Articles "that the confederation produced no security against foreign invasion; con-
gress not being permitted to prevent a war nor to support it by their own authority.").
4. RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 72 (1987).
5. 1 Farrand, RECORDS 173. Note Butler's use of the word "property;" while federal-
ism is more often addressed in terms of power, property rights were very much on the
minds of the Founders.
Summer 2005 Federalism in the United States

that their fellow citizens had, as James Madison wrote at the

6
time, a "Natural Attachment" to their states.
In reciting this passage of our country's history, I repeat that
the term "federalism" - like "separation of powers" and "checks
and balances" - does not appear propositionally in the text of the
Constitution. This is not to say, of course, that federalism does
not exist in the American polity. Rather, it is to say that the doc-
trine of federalism emerges from the structure of the governing
institutions that the document erects. Article I vests Congress
with "[a]ll legislative powers herein granted," and then enumer-
ates seventeen specific powers, among them the power to establish
rules of naturalization and bankruptcy, raise and support armies
and navies, regulate commerce among the states, and constitute
courts inferior to the Supreme Court. In explaining and urging
ratification of the Constitution, Madison wrote:
The powers delegated by the proposed Constitution to the
Federal government are few and defined. Those which are
to remain in the State governments are numerous and
indefinite. The former will be exercised principally on
external objects, as war, peace, negotiation, and foreign
commerce; with which last the power of taxation will, for
the most part be connected. The powers reserved to the
several states will extend to all objects which, in the ordinary
course of affairs, concern the lives, liberties, and properties
of the people, and the internal order, improvement, and
7
prosperity of the State.
Madison and other founders intended that the Constitution
guarantee the autonomy of the states, with the result being a kind
of "dual sovereignty." This scheme of dual sovereignty was to
guarantee the authority of the national government in those areas
of governance enumerated in the Constitution, while the states
remained regnant in areas that had not been specifically dele-
gated to the national government.
Structurally, what emerged was a national government com-
posed of three co-equal branches of government. Article I created
a bicameral legislative branch consisting of the House of Repre-
sentatives and the Senate. The larger House of Representatives
would be composed of members directly elected for two-year terms
by the people of the several states. The other body, the Senate,

6. THE FEDERALIST No. 46, at 294 (James Madison) (Clinton Rossiter ed., 1961).
7. THE FEDERALIST No. 45, at 292 (James Madison) (Clinton Rossiter ed., 1961).
522 Duquesne Law Review Vol. 43

would be made up of two senators from each state who would be

chosen by the legislature of their state.8 The executive power of
the United States would reside, under Article II, with the Presi-
dent. Article III placed the judicial power with "one Supreme
Court, and in such inferior courts as the Congress may... estab-
lish."
Co-existing with this national government were the existing
governments of the states, each with its own executive, legislative,
and judicial branches. Thus began the experiment of federalism
that continues today. Yet the current roles of the national and
state governments are not what they were at the time of the na-
tion's founding. Indeed, one cannot credibly gainsay - regardless
of his or her position on the ideological spectrum - that our na-
tional government now dominates policy making, not only in tra-
ditional areas like war and peace, but also on issues pertaining to
social welfare.
I will discuss some of the shifts in power from the states to the
federal government, and some of the issues of federalism which to
this day continue to occupy the attention of courts and scholars. It
is not for me to take sides, but simply to describe as accurately
and dispassionately as I can the tensions within American federal-
ism. I will avoid the issue of the founders' intent. It does not
seem relevant for our purposes here, and it is a thicket that, in
any event, I prefer to avoid. It is enough that my discussion be
both historical and structural, laced with liberal doses of the Su-
preme Court jurisprudence that nourishes our notions of federal-
ism. Yet I do adhere to the view of an American legal scholar who
is now a colleague of mine, serving as a judge on the United States
Court of Appeals for the Tenth Circuit. As Michael McConnell
wrote some years ago, "Whatever the founders' intentions, the
rules they wrote are skewed in favor of national power."9
My approach will be to select a handful of clauses from the Con-
stitution that have marked the moving frontier between the na-
tional government and those of the states. This list is in no way
exclusive, but even if the discussion does not fully capture Ameri-
can-style federalism, at least it should be illustrative of the evolv-

8. The selection process for senators would eventually yield to popular election
through ratification of the Seventeenth Amendment in 1913. See supra text accompanying
note 44.
9. Michael W. McConnell, Federalism:Evaluatingthe Founders'Design, 54 U. CHI. L.
REV. 1484, 1488 (1987) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN
(1987)).
Summer 2005 Federalism in the United States 523

ing tensions in the system and the changing ground rules that
have emerged over time.
The expounding of the founders' rules occurs on the backdrop of
the Supremacy Clause written into Article VI of the Constitution.
It declares, "This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof . . shall be the Su-
preme Law of the Land. . . ." The import of this provision is that
only those laws that are consistent with the Constitution are su-
preme. The federal Constitution is the polestar. If a federal law
comports with the Constitution, to the extent that it contradicts a
state law, the federal law will trump. And it is the federal judici-
ary - a branch of the national government - that has the role of
resolving those disputes when they arise.

II. COMMERCE CLAUSE

It is impossible to undertake any detailed discussion of federal-

ism in the United States without reference to what is known as
the "Commerce Clause," language in the Constitution granting
that "The Congress shall have Power . . . To regulate Commerce
with foreign Nations, and among the several States . . . ."10 To
understand the force that the Commerce Clause has had on
American life and law, it is necessary to briefly survey its invoca-
tion by our Supreme Court over the past 180 years or so.
At the time of the Articles of Confederation, commerce between
the States in the predominantly mercantile economy of the day
was often burdened by artificial trade barriers erected by protec-
tionist-minded states.1 1 Only national control of some kind would
be able to break down those barriers. Giving Congress the power
under the Constitution to regulate commerce became the answer.
Yet the main purposes for which the Commerce Clause has been
invoked have been markedly distinct throughout our history. For
the first ninety years or so following ratification of the Constitu-
tion, Commerce Clause jurisprudence served the purpose of de-
termining just how burdensome state regulations on interstate
commerce could be before they trenched on the federal power to
regulate. In 1824, the Supreme Court had its first opportunity to
define Congress's commerce power in the case of Gibbons v.

10. U.S. CONST. art. 1 § 8.

11. Jesse H. Choper, Taming Congress'sPower Under the Commerce Clause. What Does
the Near FuturePortend?, 55 ARK. L. REV. 731, 756 (2003). States also engaged in protec-
tionist trade battles with foreign countries, which the states, with their fledgling indus-
tries, were ill-equipped to win. Id.
524 Duquesne Law Review Vol. 43

Ogden, which invalidated a New York law granting an exclusive

right to individuals to use steamships on New York's navigable
waters. 12 This was a strong enunciation of federal power by one of
the greatest American jurists, Chief Justice John Marshall. But
Marshall's ruling did not suggest that the federal power enumer-
ated in the Constitution to regulate commerce was absolute. In-
deed, language in the opinion foreshadowed constitutional battles
to come by making explicit that what was not enumerated was
"the exclusively internal commerce of a State.'
A Supreme Court decision in 1853, Veazie v. Moor, reviewed a
state-created steamboat monopoly which regulated wholly inter-
nal commerce.' 4 Veazie upheld a statute adopted in the State of
Maine which granted exclusive licenses to steamboat operators
along a section of the Penobscot River. 15 This reasoning was fol-
lowed in 1867, in The License Tax Cases, when the Supreme Court
declared:

Over [the internal commerce and domestic trade of the States]

Congress has no power of regulation, nor any direct control.
This power belongs exclusively to the States. No interference
by Congress with the business of citizens transacted within a
State is warranted by the Constitution, except such as is
strictly incidental to the exercise of powers clearly granted to
16
the legislature.
And in The Daniel Ball, an 1871 ruling, the distinction between
what was "between states" versus "within state" was made even
clearer: "[W]henever a commodity has begun to move as an article
of trade from one State to another, commerce in that commodity
between the States has commenced." But this movement does not
begin until the articles have been shipped or started for transpor-
tation from the one State to the other. 17
Judicial review in these cases concerned the sovereignty inher-
ent in statehood, and the reach of that sovereignty. Those deci-
sions were not concerned with the authority of Congress to legis-
late. That is, the Supreme Court was addressing only the power

12. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

13. Id. at 195.
14. Veazie v. Moor, 55 U.S. (14 How.) 568 (1853).
15. Id. at 575.
16. License Tax Cases, 72 U.S. (5 Wall.) 462, 470-71 (1867).
17. The Daniel Ball, 77 U.S. (10 Wall.) 557, 565 (1870).
Summer 2005 Federalism in the United States 525

of the Commerce Clause to negate state laws, not assessing its

scope as a font of the national government's regulatory authority.
The Industrial Revolution forced profound economic changes
upon the United States. From 1860 to 1894, the United States
went from being the fourth largest manufacturer in the world to
the largest. The productive capacity of the nation expanded in
steel, coal, and oil. Rail transportation flourished. And new in-
ventions were introduced, such as electric lighting, telephone and
telegraph, and the automobile. The changes were not just eco-
nomic, they were also cultural. There was massive immigration,
mostly from Europe, with attendant population shifts. In 1860,
the U.S. had only eight cities with a population of over 100,000.
By 1900, cities of that size numbered thirty-eight.
In 1887, Congress passed the Interstate Commerce Act, which
provided the model for regulating interstate common carriers and
public utilities.' In 1890, Congress passed the Sherman Antitrust
Act, prohibiting monopolies and businesses from engaging in anti-
competitive behavior. 19 That law was followed by the Federal
Trade Commission Act, 20 and later the Clayton Act, 21 both of
which regulated business practices and were designed to restrain
unfair competition. Thus began a period of robust legislative ac-
tivity in which Congress flexed its collective muscle in furtherance
of its Commerce Clause power. Yet Supreme Court review under
the Commerce Clause in the late Nineteenth and early Twentieth
centuries was not characterized by doctrinal clarity. Recall that
up to this point, the Commerce Clause power had been invoked in
its negative sense to prohibit states from forming regimes in-
tended to give that state advantages in interstate trade. Now
Congress was beginning to use the Commerce Clause as a positive
power to regulate.
In the early cases of this new industrial era, the Court contin-
ued to hold that Congress could not regulate production or manu-
facture. That is, the Court strictly cabined Congress's power to
regulate commerce to exchanges of goods in the interstate mar-
ketplace. Yet as Chief Justice Rehnquist observed of those cases
in his Lopez opinion in 1995 - a case I will refer to shortly - on
mixed questions, "where the interstate and intrastate aspects of

18. 24 Stat. 379 (1887). See Joseph D. Kearney & Thomas W. Merrill, The Great Trans-
formation ofRegulated IndustriesLaw, 98 COLUM. L. REV. 1323, 1331-34 (1998).
19. 26 Stat. 647 (1890).
20. 38 Stat. 717 (1914).
21. 38 Stat. 730 (1914).
 Duquesne Law Review Vol. 43

commerce were so mingled together that full regulation of inter-

state commerce required incidental regulation of intrastate com-
22
merce, the Commerce Clause authorized such regulation."
So we see that in 1895, in United States v. E.C. Knight, the
Court held that the Sherman Act did not apply to the Sugar Trust
'23
because "manufacture" preceded, and was not itself, "commerce.
In Carter v. Carter Coal, the Court held that Congress could not
regulate coal mining labor at the local level because mining was
not commerce. 24 The rationale of that decision? "Mining brings
the subject matter of commerce into existence. Commerce dis-
poses of it. ' ' 25 Yet, between E. C. Knight and Carter Coal, the
Court in the Shreveport Rate Cases rejected the railroads' argu-
ment that because they engaged in intrastate transportation as
well as interstate transportation, Congress could not regulate
them. 26 The Supreme Court declared,

Wherever the interstate and intrastate transactions of carri-

ers are so related that the government of the one involves the
control of the other, it is Congress, and not the State, that is
entitled to prescribe the final and dominant rule, for other-
wise Congress would be denied the exercise of its constitu-
tional authority and the State, and not the Nation, would be
27
supreme within the national field.
In the 1930s, this country's New Deal era, the Supreme Court
began to change its view of the Commerce Clause. Over a mere
two year period, the Court would begin to apply a wholly new test
in its review of congressional actions taken pursuant to the Com-
merce Clause. In 1935, in the case of Schechter Poultry v. United
States, the Court struck down national hours and labor regula-
tions governing the employment of individuals in intrastate busi-
ness because the activity being regulated related to interstate
commerce "only indirectly."28 By 1937, this "direct vs. indirect"
distinction had been abandoned. In NLRB v. Jones & Laughlin

22. United States v. Lopez, 514 U.S. 549, 554 (1995).

23. United States v. E.C. Knight, 156 U.S. 1, 13 (1895). "The fact that an article is
manufactured for export to another State does not of itself make it an article of interstate
commerce, and the intent of the manufacturer does not determine the time when the article
or product passes from the control of the State and belongs to commerce." Id.
24. Carter v. Carter Coal, 298 U.S. 238, 302-03 (1936).
25. Id. at 304.
26. The Shreveport Rate Cases, 234 U.S. 342, 351-52 (1914).
27. Id. at 351-52.
28. Schechter Poultry v. United States, 295 U.S. 495, 551 (1935).
Summer 2005 Federalism in the United States 527

Steel, the Supreme Court upheld the National Labor Relations

Act, holding that where intrastate activities "have such a close
and substantial relation to interstate commerce that their control
is essential or appropriate to protect that commerce from burdens
and obstructions, Congress cannot be denied the power to exercise
that control." 29 Commerce Clause jurisprudence was on a new
path, a path that would follow a fairly straight line for most of the
remainder of the Twentieth Century.
The new era was one of considerable deference to Congressional
action. In United States v. Darby,we see the Supreme Court for
the first time inquiring into whether intrastate activity - the
manufacture and production of goods which formerly were viewed
as preceding commerce - "so affect[s] interstate commerce" as to
make Congressional regulation of it appropriate under the Com-
merce Clause. 30 Darbyheld that Congress indeed had the author-
ity to prohibit interstate shipment of lumber manufactured by
workers who fell outside the federal minimum wage and maxi-
mum hours regulations. 1 And in the famous - and sometimes
maligned - case of Wickard v. Filburn, Congress's power to regu-
late the production and use of homegrown wheat was upheld be-
cause, as the Court reasoned, when viewed in the aggregate "it
exerts a substantial economic effect on interstate commerce, and
this irrespective of whether such effect is what might at some ear-
32
lier time have been defined as 'direct' or 'indirect."'
I leave the subject of the Commerce Clause by noting two recent
Supreme Court decisions which departed from the longstanding
deference to Congress which, as I have said, characterized more
than half of the last century. In 1995, the Supreme Court handed
down United States v. Lopez, holding that the "affecting com-
merce" language did not authorize Congress to pass the Gun Free
School Zone Act, a law which made it a crime to possess a gun
within 1000 feet of a school. 33 The Court reasoned that regulating
guns near schools does not have a sufficient nexus to economic
activity to fall within Congress's Commerce Clause power. 34 And
five years later, in United States v. Morrison, the Court again
struck down an act of Congress, a portion of the Violence Against

29. NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 37 (1937).

30. United States v. Darby, 312 U.S. 100, 118 (1941).
31. Id. at 122.
32. Wickard v. Filburn, 317 U.S. 111, 125 (1942).
33. United States v. Lopez, 514 U.S. 549, 567-68 (1995).
34. Id. at 559-61.
528 Duquesne Law Review Vol. 43

Women Act. 35 The Court declared that the Commerce Clause did
not give Congress authority to provide a federal civil remedy to
victims of gender-motivated violence because the statute did not
36
involve economic activity or interstate commerce.
Were Lopez and Morrison the beginning of a new era of less def-
erence to Congress, and greater scrutiny by the Court, of Con-
gress's actions taken pursuant to the Commerce Clause? Or were
they merely a rearguard action against the ineluctable movement
toward a more powerful national government? My purpose here is
descriptive and not predictive. Furthermore, I do not claim to
know the answer. It must be pointed out that these cases were
decided by a sharply divided Court, and doctrinal trends will be
determined through controversies presented to a Supreme Court
whose membership may change significantly in the coming years.

III. SEVENTEENTH AMENDMENT

There is more, of course, to our federalism-defining Commerce
Clause jurisprudence than time or my abilities will permit me to
discuss. I turn to an event in our constitutional and political his-
tory that represented a major re-allocation of power between the
states and the national government: the ratification of the Seven-
teenth Amendment. We have just witnessed a national election in
which the People, and the States, elected a President and Vice
President. I refer to both the People and the States because the
People vote in their respective states, and then a state's electors -
equal to the number of representatives to Congress from that state
and its two senators - assemble and vote for President. By tradi-
tion, all the electors from a state vote for the candidate who wins
the popular vote of that state. 37 A state speaks with a single, un-
diluted voice in presidential elections, thus combining democracy
and federalism with neither trumping the other.
Prior to ratification of the Seventeenth Amendment in 1913, a
similar combination of democracy and federalism also applied to
representation in Congress.38 Members of the House of Represen-

35. United States v. Morrison, 529 U.S. 598, 617 (2000).

36. Id. at 617.
37. Forty-eight states and the District of Columbia use the winner-take-all system.
Only Maine and Nebraska split their presidential electors; the majority vote-getter in each
congressional district gets the vote of that particular district. See ME. REV. STAT. ANN. tit.
21-A, § 805 (2) (West 1993); NEB. REV. STAT. § 32-714 (1998).
38. To be sure, Congress retains the tension between pure democracy and principles of
federalism. All members of Congress represent their states. However, as I will endeavor to
show, the Seventeenth Amendment muted the ability of states to articulate state preroga-
Summer 2005 Federalism in the United States 529

tatives have always been directly elected by the People. The vot-
ers in each congressional district of a state elect their Representa-
tive to the House. In the original plan of the founders, state legis-
latures, speaking for the States as distinct entities, selected the
senators. 39 This assured that both the People and the States them-
selves would be represented in Congress. Here is how James
Madison described the plan:

The house of representatives will derive its powers from

the people of America, and the people will be represented
in the same proportion, and on the same principle, as they
are in the Legislature of a particular State. So far the
Government is national not federal. The Senate on the
other hand will derive its powers from the States, as
political and co-equal societies; and these will be
represented on the principle of equality in the Senate,
as they now are in the existing Congress. So far the
40
government is federal, not national.

A state legislature's power to appoint senators was intended to

be to federalism what the separation of powers was to the national
government, which is to say, a check on state or federal encroach-
ment by one on the other. 41 State legislatures are better posi-
tioned than the general electorate to watch out for federal en-
croachment. After all, when Congress preempts state laws under
the Supremacy Clause, it is the power of the state legislators
themselves that is diminished. Before the Seventeenth Amend-
ment, it was common for state legislatures to instruct the senators
they appointed how to vote. If a senator chose to disobey the legis-
42
lature, he was likely to have a difficult time getting reelected.
Ratification of the Seventeenth Amendment stripped state legis-
latures of their monitoring function. As a consequence, Congress
became free to legislate more preemptively. It is interesting to

tives in the Senate, which was an important component of the federalism designed by the
founders.
39. U.S. CONST. art. I § 3, cl. 1 (amended 1913).
40. THE FEDERALIST No. 39, at 254-55 (James Madison) (Jacob E. Cooke ed., 1961).
41. Several of these observations on the Seventeenth Amendment are drawn from the
superb academic work of Jay S. Bybee, who is now a judge on the Ninth Circuit. See Jay S.
Bybee, Ulysses at the Mast: Democracy, Federalism,and the Sirens' Song of the Seventeenth
Amendment, 91 NW. U. L. REV. 500 (1997).
42. See id. at 517-28 (discussing mechanisms by which state legislatures ensured that
their senators remained accountable to them).
530 Duquesne Law Review Vol. 43

note that the impact upon federalism did not figure prominently
in the national debate over ratification of the Seventeenth
Amendment. 43 The driving force behind the amendment was the
Populist movement of the 1890s and the "good government" objec-
tives of the Progressive Era. Accounts of senators purchasing
their seats from legislatures, delays in selection of senators, and
the perception of the Senate as a tool of corporate power all con-
44
tributed to the adoption of the Seventeenth Amendment.
Today, election of United States Senators by the legislatures of
their states seems an anachronism. But it would be difficult to
overstate the importance of the Seventeenth Amendment in re-
ordering the balance of power between the states and the national
government.

IV. GENERAL WELFARE CLAUSE

Another source of tension for our federalism is the Constitu-

tion's General Welfare Clause, or the so-called Spending Clause, of
Article I, Section 8. It is a grant to Congress of authority to "lay
and collect Taxes, Duties, Imposts, and Excises, to pay the Debts
and provide for the common Defence and general Welfare of the
United States." A good case can be made that a certain historic
parallelism has been at work with both the Commerce Clause and
the Spending Clause. That is to say, the robustness that each has
enjoyed has been in direct relation to the decline of the states as
the locus of power in the American polity.
Historically, the Spending Clause was largely dormant. There
is no evidence of which I am aware to suggest that the founders
'45
intended for Congress to have "near plenary power of the purse.
And yet no textual restraint was placed on Congress to limit its
power to define "general welfare" broadly. Today, Congress's
spending power is virtually unfettered, and has not been chal-
lenged seriously by the Supreme Court since the 1936 decision in
United States v. Butler.46 In fact, the Court has questioned
whether the definition of "general welfare" is even a justiciable
issue.

43. Id. at 538.

44. Id. at 539-40.
45. Lynn A. Baker, The Spending Power and the FederalistRevival, 4 CHAP. L. REV.
195, 196 (2001).
46. 297 U.S. 1, 78 (1936) (rejecting the notion that the General Welfare Clause gave
Congress unrestricted power to effect through its taxing and spending powers what it is
otherwise prohibited from regulating).
Summer 2005 Federalism in the United States

Justice O'Connor, a frequent exponent of federalism, has writ-

ten:

If the spending power is to be limited only by Congress' notion

of the general welfare, the reality, given the vast financial re-
sources of the Federal Government, is that the Spending
Clause gives "power to the Congress to tear down the barri-
ers, to invade the states' jurisdiction, and to become a parlia-
ment of the whole people, subject to no restrictions save such
47
as are self-imposed.

Justice O'Connor then concluded, "This, of course, as Butler

held, was not the Framers' plan and it is not the meaning of the
48
Spending Clause."
Justice O'Connor's view has not prevailed. These quotes are
from her dissent in South Dakota v. Dole, a 1987 decision in which
the Court held that even if Congress lacks the power to impose a
national minimum drinking age directly, it could nonetheless ac-
complish that objective indirectly by instructing the Secretary of
Transportation to withhold five percent of a state's federal high-
way funds if the state's minimum drinking age was below twenty-
one. 49 And therein lies the tension between Congress and the
states, as well as a challenge for federalism.
Is a state that receives condition-laden federal dollars voluntar-
ily accepting the conditions laid down by the national government,
or is it simply yielding to coercion? The question is not susceptible
to an easy answer. Funds from the national fisc are at issue. One
can argue quite correctly that if states want the benefit of such
assistance, then they must be willing to adhere to reasonable
standards that are made conditions of such acceptance. Yet the
counter to that argument is that "when the federal government
offers the states money, it can be understood as simply offering to
return the states' money to them, often with unattractive condi-
tions attached." 50 The import of this point is that because the
states can only tax the income and property remaining to their
citizens after the federal government has taken its annual share,
what the federal government is really offering the states is noth-

47. South Dakota v. Dole, 483 U.S. 203, 217 (1987) (O'Connor, J., dissenting) (quoting
Butler v. United States, 297 U.S. 1, 78 (1936)).
48. Dole, 483 U.S. at 217 (O'Connor, J., dissenting).
49. Id. at 211-12.
50. Baker, supra note 45, at 214.
532 Duquesne Law Review Vol. 43

ing more than funds they could have obtained themselves through
51
direct taxation - and without the conditions.
And so we see the impact of another Constitutional amendment
on one of the enumerated powers granted to Congress. The Six-
teenth Amendment gave Congress power to tax income. Most im-
portantly, this Amendment gave Congress the means to broaden
its definition of the "general welfare" and to redistribute income in
its furtherance. The Sixteenth and Seventeenth Amendments
were ratified within months of each other, and it can be argued
that these amendments have worked in tandem to give the na-
tional government a much greater role in the formulation of pol-
52
icy, and concomitantly to reduce the power of state governments.
An anecdote from recent political history serves to suggest a
nexus between the Commerce Clause, the Spending Clause, and
the two amendments I have chosen to discuss. Not long after the
Lopez decision striking down the Gun Free School Zones Act on
grounds that Congress had exceeded its authority under the
Commerce Clause, President Clinton announced his continued
determination "to keep guns out of our schools." 53 Certainly, no
one can take issue with such a salutary policy goal. What is inter-
esting for purposes of this discussion is President Clinton's pro-
posed solution. He declared that Congress could "encourage states
to ban guns from school zones by linking Federal funds to enact-
ment of school-zone gun bans." 54 So while the Commerce Clause,
according to the Supreme Court, was insufficient authority for the
national government to address the issue of gun crime around
neighborhood schools - an issue that traditionally would have
been considered local in nature - a popular President was com-
fortable in suggesting that Congress, using its Spending Clause
authority, might still take up the cause.

V. ADVANTAGES OF FEDERALISM

At this point, enough constitutional history; enough constitu-

tional text. A more comprehensive overview of federalism would
include, at a minimum, discussion of the Tenth, Eleventh, and

51. Id. at 213.

52. Ratification of the Sixteenth Amendment was completed on February 3, 1913, the
Seventeenth Amendment on April 8, 1913.
53. Baker, supra note 45, at 221 n.83 (quoting Todd S. Purdum, Clinton Seeks Way to
Retain Gun Ban in School Zones, N.Y. TIMES, Apr. 30, 1995, at Al).
54. Baker, supra note 45, at 222 n.87 (quoting Todd S. Purdum, Clinton Seeks Way to
Retain Gun Ban in School Zones, N.Y. TIMES, Apr. 30, 1995, at Al).
Summer 2005 Federalism in the United States 533

Fourteenth Amendments; more of our Nation's history and the

societal changes it has seen; and constitutional interpretations by
the other branches of government. In any event, constitutional
history is, by itself, insufficient to convey the impact of federalism
on American political life. I will turn to what some see as the
practical advantages of federalism. Justice O'Connor capsulized
these advantages quite well in her opinion in Gregory v. Ashcroft

This federalist structure of joint sovereigns preserves to

the people numerous advantages. It assures a decentralized
government that will be more sensitive to the diverse needs
of a heterogeneous society; it increases opportunity for
citizen involvement in democratic processes; it allows for
more innovation and experimentation in government; and
it makes government more responsive by putting the States
55
in competition for a mobile citizenry.

Let us examine Justice O'Connor's list one item at a time. Are

state governments more sensitive to diverse needs? I would sug-
gest that this is certainly not the conventional wisdom. Indeed,
modern United States history has placed the national government
at the forefront of protecting the rights of minorities, and the fed-
eral courts as the forum for vindicating those rights. Often the
states and their laws have been the source of restrictions on indi-
vidual rights. But let me provide a hypothetical, proposed by
then-Professor McConnell, that supports Justice O'Connor's ar-
gument. 56 Imagine a nation of two states, Virginia and Pennsyl-
vania, each with a population of 100 citizens. In Virginia, 30% of
the population wishes to ban smoking in restaurants; yet, in
Pennsylvania, 80% wants such a ban. A single national rule made
applicable to both states - a ban based on majoritarian preference
- makes 110 people happy but 90 people unhappy. Under state
rulemaking based on the preferences of the state's citizens - re-
sulting in no ban in Virginia and a ban in Pennsylvania - 150
people are happy and only 50 are unhappy. And if the result is
sufficiently important to the unhappy folks, they are, of course,
free to move to the other state to take advantage of their preferred
rule.

55. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

56. This example is taken from McConnell, supra note 9, at 1494.
534 Duquesne Law Review Vol. 43

Justice O'Connor also points out that citizens have greater op-
portunities to participate in the democratic process under a sys-
tem of dual sovereignty. On this point, she is indisputably correct.
One vote has an infinitesimal chance of influencing a presidential
election. And this mathematical reality provides a rational disin-
centive to educate oneself about the candidates. However, this
reasoning applies with less force as elections become more local.
For example, an energized citizen in a small town can wield sig-
nificant influence over a school board or a municipal council, ei-
ther by mustering public opinion or by seeking office herself.
What about innovation and experimentation? More governmen-
tal units mean more approaches to issues affecting the public wel-
fare. For example, a desire to attract industry and taxpayers to a
locale fosters innovation. Much has been made of a trend in re-
cent political history of members of our national legislature leav-
ing Washington to run for governor of their states. Many believe
that the opportunity to wield more influence over policy at the
state level has made these offices more attractive. There is a ca-
veat to the innovation and experimentation argument, however.
Economists would note that a patchwork of liability rules, which
vary from state to state, together with differing zoning regimes
and other diverse laws, cause inefficiency. To the extent that eco-
nomic inefficiencies result from heterogeneous state and local
regulatory regimes, costs to consumers across the nation are in-
creased.
How does the federal structure allow "joint sovereigns" to com-
pete for "a mobile citizenry"? Taxation is one way. Florida has no
inheritance tax. It is a haven for retirees. 5 7 New Hampshire has
neither a state income tax nor a general sales tax. Massachusetts
firms find it easier to recruit people to New Hampshire than to the
Bay State itself, and so Southern New Hampshire has become a
booming high tech area. 58 In another example, one of my law
clerks points out to me that he was living in Washington, D.C.
when he decided to go to law school. He moved across the river to

57. To be sure, many retirees seek Florida's warm climate. However, the general point
is also made by observing that a disproportionate number of military personnel whose duty
stations are frequently changed choose to make Florida their state of residency for tax
purposes. See Lt. Colin A. Kisor, Who's Defending the Defenders?: Rebuildingthe Financial
Protections of the Soldiers' and Sailors' Civil Relief Ac4 48 NAVAL L. REV. 161, 172 n.72
(2001).
58. See Clare Kittrege, High-Tech Tug of War Heats Up in New Hampshire, THE
BOSTON GLOBE (North Edition), Feb. 13, 2003, at 8 (discussing the benefit of New Hamp-
shire tax structure in attracting Massachusetts firms).
Summer 2005 Federalism in the United States 535

Virginia where, because of Virginia's generous support of higher

education, tuition is low for in-state students. He estimates that
he saved about $40,000 while obtaining a law degree and an MBA
as a result of that move.
Finally, there is what Justice O'Connor characterized as the
"principal benefit of the federalist system" - to provide a "check on
abuses of government power."5 9 Even if not in perfect equipoise,
dual governments will at least exert some check on each other. To
the extent that this argument has continuing force, states must
not be mere administrative units of a hegemonic national govern-
ment. They must have some autonomy, and some ability to
counter the actions of the national government. Herein lies the
field where many of our ideological battles are fought in the
United States today. What is the proper role for separate sover-
eigns? And who decides? Most often over the past century, the
arbiter has been the Supreme Court. And just how effective the
Court has been in this role is a matter of debate. Ask certain
United States Senators in recent years, and they would tell you
that the Supreme Court has overreached. On the other hand,
then-Professor Bybee has articulated the contrary view as follows:
"The Court is simply not an adequate braking mechanism for
Congress's own ambitions. Congress, determined to lead, has
wrested the whip handle from the states and found itself unre-
60
strained."
If the Court is not up to the task of preserving federalism, and if
state governments lack the political heft - and the political will -
to assure a continuing role for federalism, then where can an ef-
fective counterbalance to the hegemonic tendencies of the national
government be found? I would suggest that it must be found in
the democratic process. Some observers would regard this as a
gloomy assessment. The citizenry, they would say, is more inter-
ested in substantive policy outcomes than in ethereal notions of
federalism. 6 1 Further, they would say that national politicians are
interested in sending more federal largesse home to their states

59. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

60. Bybee, supra note 41, at 561.
61. Indeed, each of the practical advantages of federalism mentioned by Justice
O'Connor in Gregory,if given free rein, could result in substantive outcomes based more on
demagoguery than logic. Could a locality's smoking ban extend to one's house? What if it
were subsidized low-income housing? Could a school board make astrology part of the
science curriculum? At some point, the benefits of regulatory experimentation will have
negative economic consequences when viewed from the perspective of a broader political
unit. Who is to say state and local experimentation has gone too far?
 Duquesne Law Review Vol. 43

than the states have sent in taxes to the national government.

Why should these politicians consider themselves restrained by
notions that power should be shared with state governments on
the mere authority of doctrine not made explicit in the Constitu-
tion? These are valid points.
But the democratic process, as it plays out at both the national
and state levels, is not without vitality. And I would suggest that
a democratic process infused with genuine debate over the com-
parative competencies of the state and national governments to
effectively address specific issues affecting American life continues
to nourish federalism. The debate may not be termed as explicitly
as this, and it may not result in as coherent a federalism as some
would like, but it is federalism nonetheless.
That debate rages over the role of the national government in
combating street crime. I would be the first to concede that Con-
gress's efforts in recent years have, on this issue, overwhelmed
any respectable notions of federalism. Indeed, I could have lim-
ited this essay to that issue alone. But while Congress has con-
tinued to find it politically popular to legislate against crimes that
traditionally were the concern of state governments, opposition to
this trend has grown. My voice has been part of that opposition.
More importantly, so has Chief Justice Rehnquist's, as well as
groups which oppose such things as mandatory minimum criminal
62
sentences and the explosion in the federal prison population.
This debate will continue.
What about welfare reform? We have watched in recent years
as President Clinton, a Democrat, signed into law the transfer of
substantial discretion back to the states in the administration of
the welfare system. 63 The debate continues as to how government
can best serve the poor, and which level of government has greater
competency to do so.
Or education? A Republican President, George W. Bush, cham-
pioned the No Child Left Behind law which continues a trend of

62. See, e.g., William H. Rehnquist, Welcoming Remarks: National Conferenceon State-
Federal Judicial Relationships, 78 VA. L. REV. 1657, 1660 (1992) ("Although legislative
efforts are necessary in some areas, simple congressional self-restraint is called for in oth-
ers, specifically, the federalization of crimes and creation of new causes of action."); An-
thony M. Kennedy, Speech at the American Bar Association Annual Meeting, August 9,
2003, available at http://www.supremecourtus.gov/publicinfo/ speeches/sp_08-09-03.html ("I
can accept neither the necessity nor the wisdom of federal mandatory minimum sentences.
In too many cases, mandatory minimum sentences are unwise and unjust.").
63. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, 110 Stat. 2105 (1996) (codified as amended in numerous U.S.C. titles).
Summer 2005 Federalism in the United States 537

nationalizing public education, an area which throughout most of

our history has been exclusively the province of state and local
64
governments.
Let me add, parenthetically, that I mention the political affilia-
tion of our last two presidents only because the substantive policy
result is not what intuitively would be expected from either of
them. Democrats are usually regarded as advocating a larger na-
tional government, Republicans as advocating a smaller one. My
examples serve, I believe, to underscore my point that debate
within the democratic process - and just plain politics - ultimately
determines the continuing vitality of federalism.
Same-sex marriage is certainly a hot button issue. Marital law
has always been state law. In the last two years, the state of Mas-
sachusetts, through its own Supreme Judicial Court, and the City
of San Francisco, have given legal sanction to gay marriage. 65 In
the November 2004 elections, the citizens of eleven states voted
for amendments to their state constitutions to ban same-sex mar-
riages. Many same-sex marriage opponents, most of whom, it is
fair to say, would usually oppose most forms of federal interven-
tion on state prerogatives, are aggressively pursuing a federal
constitutional amendment to ban gay marriage. This is the de-
mocratic process, and politics, at work - and it reveals the ten-
sions inherent in our federal system, and the passions they
arouse.
Medical use of marijuana also found its way onto several state
ballots in recent elections. The Bush Administration opposes
medical marijuana. But in the last general election, Montana
voted overwhelmingly to re-elect President Bush while its citizens
also overwhelmingly passed a referendum legalizing medical mari-
juana. 66 I do not know that a more dynamic example of present-
day federalism can be found.

64. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2001) (codi-
fied as amended in scattered sections of 20 U.S.C.).
65. See Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941 (Mass. 2003). The Califor-
nia Supreme Court subsequently abrogated those unions upon its determination that the
local officials had exceeded their authority by issuing marriage licenses to homosexual
couples. Lockyer v. City and County of San Francisco, 95 P.3d 459, 495 (2004).
66. President Bush received 266,000 votes to Senator Kerry's 174,000 votes in Mon-
tana. The medical marijuana initiative in that state passed 276,000 to 171,000. The re-
sults are taken from the Montana Secretary of State's website.
http://sos.state.mt.us/Assets/elections/2004Gen/2004-GenState.pdf. Four other states that
voted for President Bush - Alaska, Arizona, Colorado, and Nevada - already had medical
marijuana laws. The voters of Colorado and Nevada in 2000, like Montana in 2004, voted
for President Bush and passed medical marijuana initiatives.
538 Duquesne Law Review Vol. 43

I earlier expressed my agreement with the proposition that the

constitutional rules written by the founders are "skewed in favor
of national power." This can be said, not only about the constitu-
tional rules, but about the Preamble itself. It begins: "We, the
People of the United States." It does not read: "We, the People of
the Several States," or "We, the Citizens of Thirteen Former Colo-
nies." The Preamble evokes an idea, later captured by President
Lincoln while speaking at Gettysburg, that what the founders had
done was to bring forth "a new nation."
The self-governing citizens of that nation remain the font of fed-
eralism. Concepts of federalism may be supported with constitu-
tional text and appeals to history and tradition. But the People,
acting through the democratic process, remain the force which
defines our federalism. I do not believe that this is a romantic no-
tion. I think it is just plain political reality. Federalism will re-
main a vibrant force in American life and law so long as the Peo-
ple, informed by ongoing debate, believe that states possess cer-
tain competencies that the national government simply cannot
attain. And in my view, the evidence is overwhelming that the
People continue to hold that belief.