O’Connor and Sabato
Continuity and Change
In this chapter we will cover…
1. The Roots of the Federal System
2. The Powers of Government in the Federal
3. The Evolution and Development of
4. Federalism and the Supreme Court
1. The Roots of the Federal System
• The Framers worked to create a political
system that was halfway between the failed
confederation of the Articles of Confederation
and the tyrannical unitary system of Great
• The three major arguments for federalism are:
1. the prevention of tyranny;
2. the provision for increased participation in politics;
3. and the use of the states as testing grounds or
laboratories for new policies and programs.
Federalism is a political system in
which power is divided and shared
between the national/central
government and the states
(regional units) in order to limit the
power of government.
2. The Powers of Government
in the Federal System
The distribution of powers in the federal
system consists of several parts:
– exclusive powers
– shared powers (concurrent powers)
– denied powers
– enumerated powers (Article I, sec.8))
– and implied powers (elastic clause)
Article I, Section 8
The enumerated powers of the central government
include the power to:
• lay and collect taxes
• provide for the national defense and make
regulations for the military
• regulate commerce with foreign nations, among
the states, and with Indian tribes
• coin money and regulate the value thereof
• declare war
• establish post offices
• issue copyrights and patents
• The central government may make all
laws which shall be necessary and
proper for carrying into execution the
• The necessary and proper clause has
often been used to expand the powers of
the national government (elastic clause).
• Most come from the Tenth Amendment that
says: "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."
– These are often referred to as reserve or police
powers (affecting health, safety, and morals)
• Concurrent powers such as the right to tax,
borrow money, establish courts, and make and
enforce laws are powers shared with national
• Article I, section 9 lays out powers denied
to the central government.
– For example: give preference to ports of
one state over another
• Article I, section 10 lays out the powers
denied to the states.
– For example: enter into treaties,
alliances, or confederations
Relations among the States
• The Framers wanted a single country, not
thirteen squabbling semi-countries.
• Article IV requires states to give “full
faith and credit” to each others’ laws and
• States are also required to extradite
criminals if asked by another state.
• States recognize drivers’ and marriage
licenses, custody rulings, etc.
3. The Evolution and
Development of Federalism
• The allocation of powers in our federal system
has changed dramatically over the years.
• The Supreme Court in its role as interpreter of
constitution has been a major player in the
redefinition of our Federal system.
– McCulloch v. Maryland (1819)
– Gibbons v. Ogden (1824)
– Dred Scott v. Sandford (1857)
McCulloch v. Maryland (1819)
• McCulloch was the first major decision by the
Supreme Court under Chief Justice John Marshall
about the relationship between the states and the
• The Court upheld the power of the national
government to establish a national bank and denied the
right of a state to tax the bank. “The power to tax is
the power to destroy.”
• The Court’s broad interpretation of the necessary and
proper clause paved the way for later rulings
upholding expansive federal powers.
Gibbons v. Ogden (1824)
• The Gibbons case centered on the conflict between the
states and the powers of Congress.
• Could New York grant a monopoly concession on the
navigation of the Hudson River? The Hudson River
forms part of the border between New York and New
Jersey and the U.S. Congress also licensed a ship to sail
• The main constitutional question in Gibbons was about
the scope of Congress' authority under the Commerce
Clause (Article I, sec. 8: “to regulate commerce with
foreign nations, and among the several states, and with
the Indian tribes”)
• In Gibbons, the Court upheld broad congressional
power over interstate commerce.
Dred Scott v. Sandford (1857)
• The Supreme Court articulated the idea of dual
federalism in which separate but equally powerful
levels of government is preferable, and the national
government should not exceed its enumerated powers.
• The Taney Court held that Mr. Scott was not a U.S.
citizen and therefore not entitled to sue in federal court.
• The case was dismissed and Scott remained a slave.
• Chief Justice Roger Taney further wrote that Congress
had no power to abolish slavery in the territories and
slaves were private property protected by the
Constitution. MO Compromise was unconstitutional.
The Civil War and Beyond
• Dual federalism remained the Supreme
Court's framework for federalism and the
prevailing notion in the Reconstruction
and Progressive Eras.
• Dual federalism finally ended in the 1930s,
when the crisis of the Great Depression
demanded powerful actions from the
• Prior to the 1930s, many scholars used the analogy of a
layer cake to describe federalism.
– Each layer had clearly defined powers and responsibilities.
• By the New Deal, the analogy of a marble cake seemed
more appropriate because the lines of authority were
much more mixed. National government becomes major
player in domestic policy. There is major shift in money
from federal government to state/local governments.
• Marble cake federalism is often called cooperative
federalism and has a much more powerful national
government. States have a cooperative role, as did cities.
• Grants-in-aid monies flooded states for public works
projects, work programs, relief agencies (alpabetocracy)
Federal Grant-in-Aid Outlays, 1940-2005
Creative (Regulated) Federalism
• Increase in Categorical Grants: allocation of
federal money to the states for a specific
purpose (e.g., poverty programs, welfare,
Federal leadership saw these grants as a way to
compel individual states to behave in ways
desired by the national government. If the
states refused to cooperate with the federal
government, it would withhold funds (e.g.,
interstate highway funds & speed limit)
New Federalism: Reagan Revolution
Drastic cuts in federal domestic programs and
income taxes in an attempt to reestablish the
primacy of the states. For the first time in
thirty years, federal aid to state and local
governments declined. His idea was that
federal government had gotten too big.
States should have more responsibility and
Issues during 1980’s-90’s
• Revenue sharing & matching funds
• Block grants: monies allocated to states for
broad purpose, such as education or poverty,
with few regulations on administering funds
• Unfunded mandates: laws that direct states &
localities to comply with federal regulations,
e.g., clean air laws & public access for disabled
• State budgetary constraints: recession,
constitutional requirement for balanced budget
• Intergovernmental lobby groups: NGA, USCM
The Devolution Revolution
Devolution = delegation of power & responsibility
Clinton Era reaction to growth in power of the national government
due to Republican majority in both houses of Congress
• President Clinton: responsibility to administer
federal programs as chief executive
• SOH Gingrich: roll back scope of federal
government and give back of power to the states
• Contract with America: shift responsibilities to
states; Unfunded Mandate Reform Act of 1995
• Gore’s Presidental Task Force on Reinventing
Government - traditional Republican issue
4. Federalism and the Supreme Court
• Poll after poll showed that Americans
began to think that the national government
was too big, too strong, and too distant to
understand their concerns.
• U.S. Supreme Court, once again, played a
role in interpreting this new form of
• Cases involving abortion, gun control,
environment, use of commerce clause,
right to sue.
• Generally handing back power to the states
• Majority pro-states’ rights; 5-4 decisions
• Webster v. Reproductive Health Services
(1989) and Casey v. Planned Parenthood
(1992): states can restrict abortion laws
• U.S. v. Lopez (1995): federal law cannot
regulate guns within 1000 of a school BUT
• Bush v. Gore (2000): upheld deadline for
selection of electors; struck down FL SC
Summary – Key Points to Remember
• Federalism is an important concept of the American
system of government meant to limit the power of the
• The notion of Federalism has changed drastically since
the New Deal in the 1930’s.
• In the 1960’s and 1970’s the scope of federal domestic
policies and programs increased steadily.
• In the 1980’s Reagan began a rollback of federal
funding for programs and funding to states.
• In the mid-1990’s Republican Congress promised to
reduce the size and scope of the national government
and “return power to the states.”