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What's Happened to American Federalism?

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Polity

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Notes

  1. For a classic argument about the shift from dual federalism, see Edward S. Corwin, “The Passing of Dual Federalism,” Virginia Law Review 36 (1950): 1–24. Other famous federalism studies have built on Corwin's work. For example, see Morton Grodzins, The American System; a New View of Government in the United States (Chicago: Rand McNally, 1966). See also Samuel H. Beer, “The Modernization of American Federalism,” Publius 3 (1973): 49–95. For a more recent argument about the importance of the New Deal, see John Joseph Wallis and Wallace E. Oates, “The Impact of the New Deal on American Federalism,” in The Defining Moment: The Great Depression and the American Economy in the Twentieth Century, ed. Michael D. Bordo, Claudia Goldin, and Eugene Nelson White (Chicago: University of Chicago Press, 1998), 155–80. Textbooks about American government also describe the New Deal shift from dual to cooperative federalism. For example, see Kenneth Dautrich, David A. Yalof, David F. Prindle, and Charldean Newell, American Government: Historical, Popular, and Global Perspectives, Texas Edition (Boston: Cengage Learning, 2009), 71–75.

  2. John Kincaid, “From Cooperative to Coercive Federalism,” Annals of the American Academy of Political and Social Science 509 (1990): 139–52. See also Joseph Francis Zimmerman, Contemporary American Federalism: The Growth of National Power (London: Leicester University Press, 1992), 9.

  3. Typically, opponents of an expansive and expanding federal government have argued that states should be freed once again to enact policies in accordance with the preferences of their own populations, and that state autonomy would prevent tyranny by a leviathan-like central state. For example, see Robert H. Bork, The Tempting of America: The Political Seduction of the Law, 1st Touchstone ed. (New York: Simon & Schuster, 1991). Others have defended national power and centralized governance through the argument that states should not be major centers of political power because, absent centralized regulation, states will engage in a “race to the bottom” and compete for capital by gutting their labor and environmental protections and scaling back redistributive taxation. Modern economic life, the critics of state autonomy insist, requires a modern and therefore centralized state. See, for example, Paul E. Peterson, The Price of Federalism (Washington, DC: Brookings Institution, 1995). Some contend that states are likely to marginalize and oppress minority populations, and to violate national norms of equality and justice. For two examples, see Matthew Holden and National Conference of Black Political Scientists, The Changing Racial Regime, National Political Science Review, V. 5 (New Brunswick, NJ: Transaction Publishers, 1995); Suzanne Mettler, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca, NY: Cornell University Press, 1998), 13–15.

  4. Martha Derthick, Keeping the Compound Republic: Essays on American Federalism (Washington, DC: Brookings Institution Press, 2001), 3.

  5. For studies of the empirical relationship between federalism and the American party system, see Sidney M. Milkis and Jesse H. Rhodes, “George W. Bush, the Party System, and American Federalism,” Publius 37 (2007): 478–503; Larry Kramer, “Understanding Federalism,” Vanderbilt Law Review 47 (1994): 1458–1562. Another empirical study of federalism's development is Robert C. Lieberman and John S. Lapinski, “American Federalism, Race and the Administration of Welfare,” British Journal of Political Science 31 (2001): 303–29.

  6. Malcolm Feeley and Edward L. Rubin, Federalism: Political Identity and Tragic Compromise (Ann Arbor: University of Michigan Press, 2008), 25.

  7. Ibid., 51.

  8. Ibid., 39.

  9. Ibid., 122.

  10. Ibid., 149.

  11. John Douglas Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking (Norman: University of Oklahoma Press, 2009), 225.

  12. Ibid., 41.

  13. Theda Skocpol, “Bringing the State Back In: Strategies of Analysis in Current Research,” in Bringing the State Back In, ed. Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (New York: Cambridge University Press, 1985).

  14. Kimberley S. Johnson, Governing the American State: Congress and the New Federalism, 1877–1929, Princeton Studies in American Politics (Princeton: Princeton University Press, 2007), 163.

  15. Ibid., 10.

  16. John Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006); Douglas S. Reed, “Popular Constitutionalism: Toward a Theory of State Constitutional Meanings,” Rutgers Law Review 30 (1999): 871–932; Michael Paris, Framing Equal Opportunity: Law and the Politics of School Finance Reform (Stanford, CA: Stanford Law Books, 2010); Amy Bridges, “Managing the Periphery in the Gilded Age: Writing Constitutions for the Western States,” Studies in American Political Development 22 (2008): 32–58; Emily Zackin, “‘To Change the Fundamental Law of the State’: Protective Labor Provisions in U.S. Constitutions,” Studies in American Political Development 24 (2010): 1–23.

  17. G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998), Dinan, The American State Constitutional Tradition; Christian G. Fritz, “The American Constitutional Revision: Preliminary Observations on State Constitution-Making in the Nineteenth Century West,” Rutgers Law Journal 25 (1994): 945–98.

  18. Robert F. Williams, The Law of American State Constitutions (Oxford; New York: Oxford University Press, 2009), 228.

  19. See Ibid., 5–8; Feeley and Rubin, Federalism, 116.

  20. Feeley and Rubin, Federalism, 116.

  21. New York's “Forever Wild” guarantee is one such provision. See Philip Terrie, “Forever Wild Forever: The Forest Preserve Debate at the New York State Constitutional Convention of 1915,” New York History 70 (1989): 251–74.

  22. Feeley and Rubin argue about the true meaning of federalism because they believe it has important implications for the judicial doctrine of federalism. They contend that the Supreme Court's federalism doctrine is based on a nostalgic vision of a federal republic, which has not existed in America for quite some time. Since American politics no longer uses a genuinely federal system, they argue, judicial decisions made in the name of federalism lack “an identifiable core and a convincing principle by which that core might be defined” (126). They consequently claim that the Court's federalism decisions are “as incoherent as any creed that impels its devotees to pay obeisance to an empty shrine” (149).

  23. For another recent book on federalism that emphasizes the need to move beyond the idea that states are culturally distinct from one another, see Robert A. Schapiro, Polyphonic Federalism: Toward the Protection of Fundamental Rights (Chicago: University of Chicago Press, 2009).

  24. Tarr, Understanding State Constitutions. See also Fritz, “The American Constitutional Revision: Preliminary Observations on State Constitution-Making in the Nineteenth Century West.”

  25. Johnson, Governing the American State, 22–23.

  26. For a further discussion of the gains, particularly from a constitutional perspective, by state governments during the New Deal see Stephen Gardbaum, “New Deal Constitutionalism and the Unshackling of the States,” The University of Chicago Law Review 64 (1997): 483–566.

  27. Richard Briffault, “What About the ‘Ism’—Normative and Formal Concerns in Contemporary Federalism,” Vanderbilt Law Review 47 (1994): 1306.

  28. J. S. Berke, “Recent Adventures of State School Finance—Saga of Rocket Ships and Glider Planes,” School Review 82 (1974): 183–206. For other examples of this phenomenon, see Paris, Framing Equal Opportunity: Law and the Politics of School Finance Reform; and Charles A. Johnson and Bradley C. Canon, Judicial Policies: Implementation and Impact (Washington, DC: CQ Press, 1984).

  29. Gloria Sefton, “California's Not Dreamin’: Federal Inaction on Greenhouse Gas Regulation Provides an Opening for the State to Regulate,” Whittier Law Review 30 (2008): 101–18.

  30. Jessica Bulman-Pozen and Heather K. Gerken, “Uncooperative Federalism,” Yale Law Journal 118 (2009): 1256–1311.

  31. Mary C. Segers and Timothy A. Byrnes, Abortion Politics in American States (Armonk, NY: M.E. Sharpe, 1995).

  32. Judith Resnik, “Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry,” Yale Law Journal 115 (2006): 1564–1671.

  33. Kramer, “Understanding Federalism,” 1504.

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  1. Hunter College, City University of New York,

    Emily Zackin

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The author would like to thank Debbie Becher, Justin Crowe, Eric Lomazoff, and the two reviewers at Polity for their valuable feedback on this piece. Thank you also to Andrew Polsky for inviting me to write it, and to Cyrus Zirakzadeh for working with me to publish it.

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Zackin, E. What's Happened to American Federalism?. Polity 43, 388–403 (2011). https://doi.org/10.1057/pol.2011.4

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