American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ language dealing with federalism has led to much debate over the relative balance of power between the national government and the states. This disagreement is reflected in two competing interpretations of federalism: dual federalism and cooperative federalism.

      Dual Federalism

      Dual federalism is an interpretation of federalism that favors states’ rights. It views the Constitution as a contract among preexisting states. Under the Constitution, these states willingly delegated certain powers to the new national government, but dual federalists believe that states retain all powers not specifically delegated.

      Dual federalists also believe that the Constitution is a fixed document (rather than a “living” document that is subject to changing interpretations). They emphasize the Constitution’s clearly delineated express powers (such as Congress’s enumerated powers) and believe that the Constitution should be interpreted consistently over time.

      Thus, they reject the idea that judges can use ambiguous language in the Constitution to augment the powers of the national government at the expense of the states. Therefore, they embrace a very narrow interpretation of Congress’s implied powers. To them, the necessary and proper clause allows only a very limited expansion of congressional power to do those things essential to carrying out the enumerated powers. There must, in other words, be a very direct link between enumerated and implied powers.

      Dual federalists also firmly embrace the Tenth Amendment, which they believe stands as a significant limit on the power of the national government and an important protector of states’ rights. They believe that any actions of Congress that go beyond the enumerated powers and a very limited interpretation of the implied powers violate the Tenth Amendment. They further believe that the Supreme Court should employ the Tenth Amendment to rein in the national government and protect the prerogatives of the states.

      When considering the relationship between the levels of government, dual federalists view the national government and the states as dual sovereigns—two relative equals, each of which is supreme in its own sphere.

      Finally, dual federalists believe that the proper role of the Supreme Court is to act as an umpire between these two equals. It should uphold the right of the national government to exercise its express powers but strike down attempts by the national government to use broad readings of constitutional language to intrude upon the reserved powers of the states. They consider such attempts to be power grabs that violate the Tenth Amendment.

      dual federalism An interpretation of federalism that favors states’ rights and regards states and the national government as “dual sovereigns” (two relative equals).

      Cooperative Federalism

      Cooperative federalism is an interpretation of the Constitution that favors national supremacy. Although the term cooperative federalism was coined in the twentieth century, its basic tenets can be used to describe earlier eras, such as the national supremacy associated with the Supreme Court in the early 1800s.¹⁸

      Cooperative federalism views the Constitution as a contract among the people rather than a contract among the states. The dual federalists’ belief that the Constitution was a compact among the states allowed for the possibility that states could secede—leave the Union—as the Confederacy did during the Civil War. The cooperative federalist perspective rejects that possibility and puts ultimate authority with the people rather than with the states.

      Rather than viewing the Constitution as a fixed document, cooperative federalists view the Constitution as an organic—“living”—document. They believe that the Constitution contains ambiguous language for a reason: to allow the document to adapt to changing times. Thus, rather than emphasizing the fixed nature of the express powers of the Constitution, as dual federalists do, cooperative federalists emphasize the ability to expand the power of the national government through a very broad interpretation of the necessary and proper clause. This broad interpretation allows Congress a wider range of implied powers than a dual federalist interpretation would allow: Congress can do anything that is useful or helpful to carry out its enumerated powers. There need only be, in other words, a very tangential link between the enumerated and implied powers.

      In stark contrast with dual federalists, cooperative federalists minimize the significance of the Tenth Amendment. Rather than seeing it as a meaningful limit on the power of the national government, they dismiss the Tenth Amendment as a mere “truism.”¹⁹ In other words, the Tenth Amendment simply states the obvious: Powers that do not belong to the national government belong to the states or the people. Cooperative federalists do not believe that powers of the national government have to be expressly delegated but instead assert that they can include implied and even inherent power (in other words, powers that any sovereign government must hold, whether or not they are expressly enumerated or implied, such as defending its borders or acquiring new territory).

      Quite simply, under a cooperative federalist view, the national government has whatever power it is able to derive—be it from narrowly defined enumerated powers or from broadly construed implied or inherent powers. Unlike the dual federalists, cooperative federalists do not believe the Tenth Amendment can be used to prevent these broad interpretations of implied and inherent powers. This interpretation is what reduces the Tenth Amendment to the truism that states simply have whatever power is left over.

      When considering the relationship between the levels of government, cooperative federalists view the national government as supreme. They see the relationship as strictly hierarchical (as opposed to the system of dual sovereignty that dual federalists espouse).

      Finally, rather than viewing the Supreme Court as an umpire between two dual sovereigns, cooperative federalists consider the Supreme Court to be a player on the national team. Thus, the Supreme Court should uphold broad interpretations of constitutional language (such as the commerce clause or the necessary and proper clause) that can be used to expand the power of the national government at the expense of the states.

      cooperative federalism An interpretation of federalism that favors national supremacy and assumes that states will cooperate in the enforcement of federal regulations.

      Early Precedents: National Supremacy Prevails

      John Marshall, appointed chief justice of the Supreme Court in 1801 by President John Adams, was the longest-serving chief justice in the history of the Supreme Court. He presided over several landmark cases that expanded the power of Congress at the expense of the states. Chief among these are McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), both of which reflected the views of cooperative federalism.

      McCulloch v. Maryland (1819)

      At issue in McCulloch v. Maryland was whether Congress had the authority to create a national bank. The enumerated powers did not specifically give such authority to Congress. Those who said that Congress had the authority anyway, such as Alexander Hamilton, the first secretary of the treasury, embraced a broad cooperative federalist interpretation of the elastic clause and argued that creating a national bank was “necessary and proper” (that is, useful or helpful) to carrying out Congress’s enumerated powers. After all, the Constitution specifically gave Congress the power to collect taxes, borrow money, coin money, and regulate the value of money. Surely, he argued, a national bank would facilitate these enumerated powers.²⁰ Dual federalists who believed Congress did not have authority to create a national bank, such as Thomas Jefferson, argued that a national bank was not absolutely necessary or essential for these enumerated powers to be carried out.

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