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the federal bank, that would imply it had the power to destroy it, making Maryland supreme over the national government and violating the Constitution’s supremacy clause, which makes the national government supreme.

      McCulloch v. Maryland the Supreme Court ruling (1819) confirming the supremacy of national over state government

      Marshall continued this theme in Gibbons v. Ogden in 1824.¹³ In deciding that New York did not have the right to create a steamboat monopoly on the Hudson River, Marshall focused on the part of Article I, Section 8, that allows Congress to regulate commerce “among the several states.” He interpreted commerce very broadly to include almost any kind of business, creating a justification for a national government that could freely regulate business and that was dominant over the states.

      Gibbons v. Ogden the Supreme Court ruling (1824) establishing national authority over interstate business

      Gibbons v. Ogden did not immediately establish national authority over business. Business interests were far too strong to meekly accept government authority, and subsequent Court decisions recognized that strength and a prevailing public philosophy of laissez-faire. The national government’s power in general was limited by cases such as Cooley v. Board of Wardens of Port of Philadelphia (1851),¹⁴ which gave the states greater power to regulate commerce if local interests outweigh national interests, and Dred Scott v. Sanford (1857),¹⁵ which held that Congress did not have the power to outlaw slavery in the territories.

      The Civil War: National Domination of the States

      The Civil War represented a giant step in the direction of a stronger national government. The war itself was fought for a variety of reasons. Besides the issue of slavery and the conflicting economic and cultural interests of the North and the South, the war was fought to resolve the question of national versus state supremacy. When the national government, dominated by the northern states, passed legislation that would have furthered northern interests, the southern states tried to invoke the doctrine of nullification. Nullification was the idea that states could render national laws null if they disagreed with them, but the national government never recognized this doctrine. The southern states also seceded, or withdrew from the United States, as a way of rejecting 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

      Description

      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

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