Federalism in America: Beyond the Tea Partiers

We hear a lot today about federalism, the doctrine that emphasizes the rights and powers of the states versus those of the federal government. The political Right expresses alarm at the dramatic expansion in central government power that began under George W. Bush during the 2008 financial crisis and that continued during Barack Obama's first eighteen months in office, first through the government's bailouts of financial institutions and the auto industry and then through the passage of the landmark national health care bill. Liberal groups, on the other hand, have turned to federalism in response to the perceived failure of the federal government during the Bush years to address major economic, social, and ecological challenges. Progressive Californians, for example, have been pushing ecologically friendly bills in their state, given the obstructions such legislation has faced in Congress. Massachusetts enacted its own government health care bill in response to a long period of federal inaction on the issue. Many gay marriage and marijuana legalization advocates now believe that they can accomplish more in state rather than national arenas. These advocates want to "free" their states from the grasp of federal authority on the issues that matter most to them. In this essay I explore the historical background to the current interest in federalism and argue that the powers possessed by state governments throughout the nineteenth and early twentieth centuries were more capacious, influential, and resilient than we customarily recognize them to have been. The durability of the states as a force in economic, social, and cultural affairs can only be understood by reference to an expansive and constitutionally sanctioned doctrine of police power. Police power endowed state governments (but not the federal government) with broad authority over civil society for at least the first 150 years of the nation's existence. The Civil War posed a sharp challenge to this doctrine, and, for a time, it seemed as though Reconstruction would inter it. But in the late nineteenth century, state legislatures, backed by the federal courts, rehabilitated this doctrine to attack and, in many cases, to reverse the centralization of power in the federal government that the Civil War seemed to have done so much to advance. Federalism finally did weaken in the 1930s and 1940s, but not until the 1960s and 1970s can we say that the central government had superseded the states as the premier center of political authority in America. Federalism's demise, then, is still a relatively recent phenomenon, a fact that fuels the hopes of those who want to see it revived.