the ambiguity of american federal theory - rozann rothman

The Ambiguity ofAmerican Federal Theory*

Rozann RothmanUniversity of Illinois at Urbana-Champaign

Introduction

The multiple interpretations of American federalism have gen-erated varying degrees of discomfort for historians, legal and politicalscholars, and politicians since the possibility of union was firstbroached. Theories of American federalism are entwined with theevents of American history, yet scholars tend to compartmentalizestyles of federalism. Labels such as "dual federalism," or "coopera-tive federalism," or the "new federalism," were coined to cover theactivities of particular historical periods. Catalogues of textbookdefinitions have been compiled.1 There have been historical analysesof what federalism meant to the Framers,2 demands for recognitionthat the federalism of the Framers is dead3, and declarations thatfederalism is an obstacle to progress.4 More recently, the focusshifted to intergovernmental relations, i.e., the systematic study ofhow the system works. This strategy circumvents the conceptualconfusion generated by the continuing argument about the meaning

See for example, Richard H. Leach, American Federalism (New York: W.W. Norton,1970), Chapter 1; and Michael D. Reagan, The New Federalism (New York: Oxford Uni-versity Press, 1972), Chapter 1.

Martin Diamond, "What the Framers Meant by Federalism," in A Nation of States, ed.Robert A. Goldwin (Chicago: Rand McNally, 1974), pp. 25-42.

William Riker, Federalism: Origin, Operation, Significance (Boston: Little Brown andCo., 1974); James L. Sundquist with the collaboration of D.W. Davis, Making FederalismWork (Washington: Brookings Institution, 1969).

William Riker, Federalism; Harold Seidman, Politics, Position and Power (New York:Oxford University Press, 1975), pp. 161-189.

*/ would like to thank Professors Judson James and Vincent Ostrom for their helpfulcriticism of an earlier draft.

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of federalism and provides invaluable data on increasing interdepen-dence and changing modes of interaction. However, die approachtends to overlook the attraction of federal values and their cumula-tive effect on policy making and implementation.

The starting point of this essay on federal theory is the conceptualconfusion surrounding the interpretation of federalism. Conceptualconfusion can be viewed as a resource, implying a richness of mean-ing and the kinds of continuing usage which indicate the centralityand viability of American federalism. This perspective treats fed-eralism as "a sort of uneasy combination of all of these uses[although] the assumptions and implications of some of its ordinaryuses may not be at all compatible with the assumptions and implica-tions of others of these ordinary uses."s Using this approach, thepolitical origin of interpretations of federal theory and the effects ofthese understandings on American conceptions of the constraints andopportunities of federalism can be explored.

History and Theory

The justification for this approach is found in the ambiguities ofConstitution making and the conflicts in American history. Americanfederalism was a by-product of the compromises of Constitutionmaking, but the Constitution quickly acquired a patina of sanctitywhile the federal structure became the battleground on which diverseinterests competed. John Marshall legitimized one conception of thepowers granted by the Constitution in his famous dictum in McCul-loch v. Maryland6, but the decision failed to moot the dispute overultimate authority or sovereignty in the federal systems.

The focusing of conflict into a dispute over sovereignty was notaccidental. Patrick Riley notes that 17th century theories of fed-eralism developed in opposition to the doctrine of sovereignty whichclaimed that there ought to be a power internally supreme and ex-ternally independent within a given policy.

Federalism, then viewed in the light of political philosophy, can moreplausibly be understood as having arisen as an alternative to, and (moreprecisely) in opposition to, the existence of the monolithic power of thesovereign states of post 16th century modernity. The oddness of all federaltheory—its dependence on the concept of sovereignty (as in the doctrineof "state's rights" or state autonomy), despite its real opposition to sove-reignty in national states as productive of suppression of local autonomy—

SHanna Pitkin, ed., Representation (New York: Atherton Press, 1969), p. 16.6McCullocb v. Maryland, 4 Wheat, 316, 4L Ed. 579 (1819).



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is due to its having seized on the very concept (sovereignty) which itactually opposed, to defend its position more securely. That is, its oddityis due to federalism's having defined the autonomy of its territorial unitsin terms of sovereignty, whereas in fact it would have done better to try tooverturn the idea of sovereignty tout court. All efforts to divide whatcould only be conceived precisely in terms of total unity drew federaltheory into constant paradox and contradiction.7

In theory, American federalism did not conform to this pattern.Sovereignty was located in the people; they created governments andcould create as many as they chose.8 The theory neatly evaded theparadox described by Riley but the ideological controversies of theearly Republic, as well as the practical obstacles to implementing thepeople's sovereignty eventually drew American theory into a similarparadox and contradiction. The compromises of Constitution makingand the resulting trade-offs among advocates of a national govern-ment, advocates of some national government and delegates whoadvocated restraints on power were the source of these later para-doxes. As Martin Diamond showed, the Framers so modified themeaning of federalism that the older concept was vitiated. There wasa difference between a league and a government and the primaryobjective of the Framers was the creation of a government. But theproduct was not a national government of the traditional variety.The meaning of national was altered in the give-and-take ofdebate9 —territorial representation was instituted, the sphere of thenational government was defined by its delegated powers, and thestipulation "by law" was added to the provision for creating theofficers of the national government. These along with other modifi-cations altered the conventional definition of national sovereignty tosuit the-circumstances of the American states.

The closest approximation to a declaration of sovereignty in theConstitution is the Supremacy Clause, which does not locate sove-

Patrick Riley, "Three 17th Century German Theorists of Federalism: Althusius, Hugo,and Liebnitz," Pubtius 6 no. 3 (Summer 1976): 10 (his emphasis).

^Federalist Nos. 39 & 46 in The Federalist, ed. Edward Earle (New York: ModernLibrary 1941); Gordon Wood, The Creation of the American Republic 1776-1787 (ChapelHill: University of North Carolina Press, 1969), pp. 524-547. A typical example of theutility of the evasion is the following: "During the Federalist era, the dominant analysis sawthe people of the nation as a whole as the source of the Constitution's authority. Thisenabled the Federalists to urge an expansive role for the national government notwith-standing the fact that parts of their program trenched on the perogatives of the state; sincethe state could not be considered sovereign, the question of the scope of national powercould be resolved independently of the powers of the states. "Developments in the L a w -Section 1983 and Federalism,"Harvard Law Review 90, no. 6 (April 1977): 1138.

Rozann Rothman, Acts and Enactments: Tbe Constitutional Convention of 1787(Philadelphia: Center for the Study of Federalism, 1974), p. 134.



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reignty in government. It states that "the Constitution and the Lawsof the United States which shall be made in pursuance thereof . . .shall be the supreme law of the land . . ."10 It was the Constitutionand the laws made in pursuance thereof which were supreme, not thenational government, its branches nor the state governments. Thisformulation circumvented the divisive question of the location of aninternally supreme power, but because no arbiter was officiallydesignated, the evasion compounded the conceptual confusion whichsurrounds the meaning of American federalism. During the conven-tion, Madison's proposal for a national negative on state actions wasdefeated repeatedly, the hints that Hamilton offered in The Federalistconcerning the role of the federal judiciary were just that, while theassertion that states could or should judge the constitutionality ofnational actions was still a few years in the future. The events ofAmerican history answered the question that the Framers left open,but the answers were shaped by particular circumstances and partisanconflicts with the contending partisans asserting the constitutionalpurity of their respective doctrines.

The ambiguity concerning sovereignty is the origin of contendingviews of the intentions and objectives of the Framers and the sourceof dichotomous theories regarding the nature of the Union. Thenational theory of American federalism claimed:

that a single sovereign power, the people of the United States created boththe federal and state governments, delegating to each a certain limitedauthority . . . The compact theory, on the other hand, takes a differentview of the same events . . . the colonies became separate independentpolities when they cast loose from Britain and only thereafter entered intoan agreement to have a general government for certain limited purposes. n

Traditional interpretations separated the theories, but the separa-tion increased conceptual confusion because it overlooked the basicassumption of the compact theory which derived state sovereigntyfrom the people. Each theory could be supported by interpretationsof historical events and drew legitimacy from the diverse prioritiesrepresented by these interpretations. But the ambiguity of the datapermitted the linkage of the theories as well as their separation. TheConvention's formulation was that the people who lived in the statesratified the Constitution, but ratification by 9 states sealed the agree-ment.12 On the one hand, Madison could use the claim that the

!°U.S., Constitution, Article VI.Samuel H. Beer, "Federalism, Nationalism and Democracy," American Political

Science Review 72, no. 1 (March 1978): 12.Rothman, Acts and Enactments, Chapter V.



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foundation was federalI3 to reassure opponents; on the other hand,the linkage of the people and the states was the wedge which over-came the obstacle of state sovereignty and facilitated the transforma-tion of a league into a government. The formulation could move tothe national theory or to the compact theory, but Madison balancedthe theories and designated the proposed Constitution as "Neither anational nor a federal Constitution."14

Consensus cost something and dichotomous views of the Constitu-tion garnered supporters as the controversy over the nature of theUnion intensified and the respective positions hardened. Unionistsand states lighters sought and found support for their claims in thehistorical data, the intentions of the Framers and selections from TheFederalist. Contending partisans shared the same assumptions andthe sovereign people continued to receive their theoretical due. Thecontroversy focused on which government was the "real" trustee ofthe people's sovereign power. Was it the national government, theSupreme Court, or the state governments? The logic of the nationaltheory was stated forcefully by Daniel Webster:

The people, then, sir, erected this government. They gave it a Constitution,and in that Constitution, they have enumerated the powers which theybestow on it. They have made it a limited government. They have definedits authority. They have restrained it to the exercise of such powers as aregranted; and all others, they declare, are reserved to the states or thepeople . . . Who, then, shall construe this grant of the people? . . . Withwhom do they repose this ultimate right of deciding on the powers of thegovernment? Sir, they have settled all this in the fullest manner. They haveleft it with the government itself, in its appropriate branches. Sir, the verychief end, the main design for which the whole Constitution was framedand adopted, was to establish a government that should not be obliged toact through State agency, or depend on State opinion and State discre-tion. 1S

The people were sovereign, but the right of construing their grantbelonged to the national government. Southerners were not per-suaded and continued to defend the compact theory of the Union.Just as nationalists relegated the people to the background by theirstress on the national government so did Southerners stress the statesrather than the people who in theory created both state and nationalgovernments. The Southerners defended nullification and eventuallythe rhetoric culminated in secession.

13Federalist No. 39, p. 246."ibid, p. 250.1S Daniel Webs

January 26. 1830).

"ibid, p. 250.Daniel Webster, Second Speech on Foot's Resolution (Reply to Senator Hayne,



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Whatever the theoretical merits of the argument, the Civil Wareliminated the threat that Southern theory offered to the existenceof the Union. But the travail of war failed to alter American under-standings of the nature of the Union. In Texas v. White, 16 themajority maintained that Texas could not terminate its obligations asa state. It had entered into an indissoluble relation and the act wasfinal. "The Constitution in all its provisions, looks to an indestruc-tible Union of indestructible States." Dissenting justices claimed thata haze of legal fictions prevented the majority from recognizing thefacts. If the dissenters were correct, then, Texas v. White offersevidence of the continued need for and attraction of the originalconstitutional linkage.

The logic of the paradox can be explained by stressing the practi-cal linkage rather than the theoretical opposition of the nationaltheory and the compact theory. Although the Constitution can beviewed as the product of an amalgamation of contradictory impera-tives, the major objective of the Convention was achieved when aleague was transformed into a government. The transformation wasintended to transfer conflict from a trial at arms to a trial before themagistrate.17 However, allegiance to republican principles guaranteedthat the new government would be conceived in the terms of con-tract theory. In Federalist No. 39, Madison argued that the proposedgovernment did not possess the usual attributes of sovereignty. Madi-son did not claim that this limitation was the mark of a federalgovernment, he merely claimed that the proposed government couldnot be deemed national.

But if the government be national with regard to the operation of itspowers, it changes its aspect again when we contemplate it in relation tothe extent of its powers. The idea of a national government involves in it,not only an authority over the individual citizens, but an indefinitesupremacy over all persons and things, so far as they are objects of lawfulgovernment. Among a people consolidated into one nation, this supremacyis completely vested in the national legislature. Among communitiesunited for particular purposes, it is vested partly in the general and partlyin municipal legislatures. In the former case, all local authorities are sub-ordinate to the supreme; and may be controlled, directed, or abolished byit at pleasure. In the latter, the local or municipal authorities form distinctand independent portions of the supremacy, no more subject, within theirrespective spheres, to the general authority, than the general authority is

i6Texas v. White, 7 Wallace 726 (1869).1 C C Tansill, ed., Documents Illustrative of the Formation of the Union of American

States (Washington, D.C.: Washington Government Printing Office, 1927), pp. 438-439.



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subject to them within its own sphere. In this relation, then, the proposedgovernment cannot be deemed a national one; since its jurisdiction extendsto certain enumerated objects only, and leaves to the several States aresiduary and invoilable sovereignty over all other objects.18

The hedge of sovereignty with contract theory is a traditionalfeature of liberal thought, but American theory added a reliance onan organized people as the central prop of the contract. In FederalistNo. 46 Madison stresses the role of an organized people in preventingthe proposed government from extending its power beyond duelimits.

But ambitious encroachment of the federal government, on the authorityof the State governments, would not excite the opposition of a single State,or of a few States only. They would be signals of general alarm. Everygovernment would espouse the common cause. A correspondence wouldbe opened. Plan of resistance would be concerted.

Shades of Revolution! Even a strong federal army in the service ofambition could not prevail.

. . .the existence of subordinate governments, to which the people areattached, and by which the militia officers are appointed, forms a barrieragainst the enterprises of ambition more insurmountable than any which asimple government of any form can admit of.M

Stress on an organized people, represented by state governments, wasthe core of the Southern position and practical consequences weremanifested in the Kentucky and Virginia resolutions, the tariff con-troversy, the conflict over slavery, the debate over the nature of theUnion and eventually, in secession. The 20-20 vision of hindsightsuggests the defects of reliance on an organized people to police theboundaries of the contract if the objective was the establishment of agovernment. The argument that the people possessed ultimate sove-reignty was useful in allaying opposition to the new constitution, butthe failure to specify an arbiter (albeit for good political reasons) wasthe source of divergent interpretations of governmental power.21

Reliance on the people was mandated by republican theory, butreliance on an organized people subverted efforts to transform aleague into a government. Madison, for all his emphasis on thepeople, was aware of the difficulty and his forebodings are scattered

18Federalist No. 39, pp. 248-249.19Federalist No. 46, p. 309.^W.p.311.

Walter H. Bennett, American Theories of Federalism, (University: University ofAlabama Press, 1964), pp. 85-89.



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throughout The Federalist. " In Federalist No. 39, the pragmaticappeal of utilizing the federal judiciary as the arbiter is statedexplicitly.

It is true that in controversies relating to the boundary between the twojurisdictions, the tribunal which is ultimately to decide, is to be establishedunder the general government. But this does not change the principle ofthe case. The decision is to be impartially made, according to the rules ofthe Constitution; and all the usual and most effectual percautions aretaken to secure this impartiality. Some such tribunal is clearly essential toprevent an appeal to the sword and a dissolution of the compact; and thatit ought to be established under the general rather than under the localgovernment, or to speak more properly, that it could be safely establishedunder the first alone, is a position not likely to be combatted.23

Madison proved to be a poor prophet. Precisely because the Constitu-tion was so easily accepted as fundamental law, the question of whowas to serve as arbiter in jurisdictional conflicts became a majorsource of controversy. The Kentucky and Virginia Resolutions of-fered the states as arbiters and John Marshall in Marbury v. Madisonadvanced the cause of the Supreme Court; Marshall was supported byHamilton's analysis in Federalist No. 78, but the logic, althoughpersuasive, was not totally convincing. Designation of the SupremeCourt as arbiter was challenged by Thomas Jefferson, Andrew Jack-son and John Taylor of Carolina, among others. Taylor advocated alaissez faire approach to jurisdictional conflicts; federal law would beeffective except where challenged and in case of challenges, the issuewould remain in abeyance until either Congress or the people sub-mitted amendments. As the Southern position hardened, John C.Calhoun took the principle one step further, demanding that in casesof conflict, unanimity was necessary before action could be taken.M

Alternatives to the court as arbiter of the federal system drewstrength from familiar arguments which urged the priority of theprinciple of limited government. However, the work of the Constitu-tional Convention entwined recognition of the need for an energeticgovernment with the belief in checking governmental power.2S Theconstraints on an energetic government inherent in the proposals ofTaylor and Calhoun as well as theoretical arguments, gave the Courtadvantages in the competition for arbiter, just as recognition of the

" S e e for example, Federalist Nos. 10, 49, 50, 51.Federalist No. 39, p. 249.C.'William Hill, "Contrasting Themes in the Political Theories of Jefferson, Calhoun

and John Taylor of Caroline," Publius 6, no. 3 (Summer 1976): 85. See also Walter H.Bennett, American Theories, pp. 14O-151.

Rothman, Acts and Enactments, pp. 52-81.



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need to provide for the exigencies of Union gave supporters of anational government advantages during the Constitutional Con-vention.

This brief sketch suggests the kinds of conceptual confusion whichcomplicate the interpretation of American federalism. American fed-eral theory was born justifying the creation of a government and isladen with the compromises of pragmatic politics. The theory suc-cessfully evaded the pitfalls of sovereignty by locating sovereignty inthe people rather than in government. The strategy linked opposedconceptions of the Union and perhaps increased American tolerancefor paradox.26 However, the ambiguity concerning sovereigntymotivated further explication of the opposing conceptions of thenature of the Union.

The attempt to separate the theories exacerbated tensions as theNorth and the South affirmed the correctness of their respectiveinterpretations. Seccession and civil war were the ultimate outcomesof dichotomous views of the nature of the Union, but Texas v. Whitereaffirmed the linkage of the theories.

The ambiguity about sovereignty was deeply embedded in theConstitution and shaped the description of the new government.Federalist No. 39 is a classic example of an "on the one hand, on theother hand" model of argument. Madison sought a delicate balancewhen he claimed that the new government was partly federal andpartly national. Partisan politics in the early Republic and the ideo-logical confrontations of Federalists and Jeffersonians challenged thebalance and sought to adjust it to suit their respective purposes. Butthese challenges did not develop a theoretical alternative. The con-ceptual challenge came, perhaps inadvertently, from deTocqueville,who labeled the government "an incomplete national government,which is neither exactly national nor exactly federal." The con-ceptual difference is illustrated by the uses to which deTocqueville'sdescription was put. Martin Diamond argued that "this blending offederal and national elements would have been utterly impossibleprior to the reduction of federalism to a species of decentraliza-tion."27 William Riker carried the model to its logical conclusionwhen he claimed that an incomplete national government was evolv-ing into a more complete nation government.28 The contention here

26Michael Kammen, People of Paradox (New York: Knopf, 1972).Martin Diamond, "On the Relationship of Federalism and Decentralization," in

Cooperation and Conflict: Readings in American Federalism, eds. Elazar ex. aL (Itasca: F.E.Peacock, 1969), p. 78.

28William Riker, Federalism, pp. 5-8, 49-84.



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is that analytically a government which is partly national and partlyfederal is not the equivalent of an incomplete national government.The first formulation circumvents the question of sovereignty whilethe second locates sovereignty in the national government. Thehybrid formulation suggests a matrix model of American federalismwith powers distributed among multiple centers. In contrast, thenotion of an incomplete national government suggests an hierarchicalmodel with powers derived from the apex down a pyramid.29

Clarity about these models is essential for each conception comesequipped with divergent prescriptions for action in the federalsystem. However, pragmatic circumstances have produced a judiciousmixture of the two concepts in the conduct of American politics.The next section contrasts the divergence of dieory with inter-dependence in practice. The contrast also suggests the values whichconstrain acceptance of either theory in to to.

The Models and Their Prescriptions for Action

The hierarchical thrust of the model of an incomplete nationalgovernment derives from the concern to protect and strengthennational power. The imperative has been present since the Constitu-tional Convention and was summarized by Hamilton in FederalistNo. 23. Hamilton discussed the question of how much power thenew government needed and advocated as much power as was neces-sary to perform its appointed tasks.30 The grant of delegated powerspresumably controlled the list of tasks, but die grant was ambiguousand could be interpreted to fit new circumstances. However, inter-pretation of the Supremacy Clause allowed the national governmentto become the judge of the scope of its powers. The transfer waseffected rhetorically in McCullocb v. Maryland, but die full effectwas obscured by Marshall's emphasis on distinct spheres of action.

. . . The government of the United States though limited in its powers, issupreme within its sphere of action . . . and its laws, when made inpursuance of the constitution, form the supreme law of the land, anythingin the constitution or laws of any state, to the contrary notwithstanding.31

The logic which mandated the supremacy of the national govern-ment was consistent; no general government could act if the statesheld controlling power. State supremacy would subvert the founda-tions of the general government. In the words of John Marshall:

29Daniel J. Elazar, "Federalism v. Decentralization," Publius 6, no. 4 (Fall 1976):1O-12.

30'Federalist No. 23, p. 145.31McCuttocb v. Maryland, 4 Wheat, 316, 405 (1819).



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. . . If the controlling power of the states be established; if their supremacyas to taxation be acknowledged; what is to restrain their exercising thiscontrol in any shape they may please to give it? . . . The question is, intruth, a question of supremacy; and if the right of the states to tax themeans employed by the general government be conceded, the declarationthat the constitution, and the laws made in pursuance thereof, shall be thesupreme law of the land, is empty and unmeaning declamation . . . M

Southern defenders of the compact theory feared the worst fromthese decisions, but perhaps they cried wolf too soon. Nothing inMarshall's opinion threatened the existing balance. State sovereigntywas a myth but state autonomy was preserved. The supremacy of thefederal government was affirmed but contained by the narrow inter-pretation of national powers. From this perspective, "dual fed-eralism" was a marvelous invention which offered reassurance tocontending partisans that they could have the best of both worlds, anational government with the power to meet the exigencies ofUnion, yet so checked and constrained that it could not impingeupon the people's liberties. But the price of the invention was aconception of intergovernmental relations which diverged from thedata. Theory dominated interpretation of the data and federal taskswere sharply distinguished from state tasks, despite abundantevidence that in the 19th century, functions were shared.33 The gapbetween theory and practice contributed to the conceptual con-fusion surrounding the American theory of federalism. The con-fusion persists despite the shift to theories of cooperative federalismwhich assume the sharing of functions. As will be discussed below,later manifestations of confusion coalesce around the difficulty ofdistinguishing between sharing of functions and sharing of power andcan be understood as variations on the earlier ambiguity concerningsovereignty. Here, however, the utility and attraction of the conceptof "dual federalism" is stressed because adherence to the conceptcontained and channeled the consequences of Civil War.

It is ironic yet appropriate that "dual federalism" reemerged as thedominant constitutional theory in the post Civil War period.Although reconstruction appeared to be the acme of theories ofnational supremacy, radical Republicans accepted the premise of theterritorial inviolability of the states. The defeated southern stateswere under the control of the federal government until they com-plied with the commands of Congress, for example, ratification of

32ibi<tDaniel J. Elazai, The American Partnership (Chicago: University of Chicago, 1962).



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the 14th Amendment. However, when the demands were met, thestates were readmitted to the Union and resumed their former statusas equal members of the Union. Given the trauma of war, the out-come is surprising but it is a measure of the strength and appeal oftraditional ideas about the nature of the Union. The continued exist-ence of a Union of States in the North generated the logical impera-tives for reconstruction of the state system in the South, andstrongly held preconceptions thwarted the imposition of objectivesrequiring the extensive and continuous exercise of national power.34

The continued reliance on "dual federalism" in the decades afterreconstruction was a logical consequence of the re-establishment ofthe status quo ante. The outcome of the civil war ended the claim ofstate sovereignty, but the polities that composed the federal systemmaintained their fundamental political integrity. It was not until dualfederalism was put to a new use in the 1880s and the Supreme Courtused the concept to protect industrial capitalism from regulation thatthe legitimacy of the concept was eroded. This interpretation createda no-man's land in which neither federal nor state governments couldact to remedy inequities.

By 1937, the rebellion against the constraints of "dual federalism"was complete; the belief that the powers of the national governmentwere limited by its sphere of action was overturned. Generations ofreformers had seen their plans stymied by the Court's interpretationof the complexities of action in a federal system, but court con-straint ended in the trauma of the Great Depression. The TenthAmendment became "a truism, that all is retained which has notbeen surrendered,"35 and a new consensus developed on the ex-panded scope of federal power and responsibility. Circumstancesmandated the triumph of the national theory of federalism, buttriumph failed to end conceptual confusion.

Three distinct but related contemporary interpretations of thenational theory have emerged. These theories start with similarassumptions; the United States has become a single nation, Americanproblems are national and require national solutions and there is

Rozann Rothman, "Federalist Response to an Intransigent Problem," forthcoming.See also, Daniel J. Elazar, "Civil War and the Presentation of American Federalism," Publius1, no. 1 (Spring 1971): 51.

3 S United States v. Darby, 312, U.S. 100, p. 124, (1941). Walter Berns, "The Meaning ofthe Tenth Amendment," in A Nation of States, ed. Robert A. Goldwin (Chicago: RandMcNally, 1974), p. 141, makes a persuasive case that reliance on the 10th Amendmentmeans abandonment of the essential element in the states sovereignty theory.



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little reason to preserve the autonomy of the states. In other words,the new theories go beyond the traditional interpretation of nationalsupremacy and advocate the hierarchical model to increase the ef-ficiency of the system. William Riker's analysis of American fed-eralism 36 explicitly raises the question of whether the costs of thefederal bargain are too high.

It seems clear on the basis of both theory and example that uniformnational decision making is invariably more efficient, i.e., less costly inundesired impositions on other people than is local decision making . . .Since constituent governments are invariably minorities in the nation, themaintenance of federal guarantees to constituent units assures that thewhole society must bear some extra and unnecessary external costs.

Riker's analysis differs from more traditional versions of nationaltheory which assumed diversity and argued that strong nationalpower could bring order out of chaos. Instead there is the suggestionthat the costs of diversity are too great and abrogation of the guaran-tees to constituent units becomes a strategy to reduce costs.

James Sundquist does not offer a theoretical argument for thehierarchical model but insists that historically the locus of policymaking has shifted from the states and localities to the nationalgovernment. In contrast to the past, when federal agencies acted astechnical advisors rather than as initiators or controllers of federalprograms, at present, "the federal grant is conceived as a means ofenabling the federal government to achieve its objectives . . . as amatter of administrative convenience, the federal governmentexecutes the program through state or local governments rather thanthrough its own field offices, but the motive force is federal..." 37

Certain consequences follow from this shift. "Achievement of anational objective requires close federal control over the content ofthe program."38 The theory assumes the preeminence of nationalobjectives, but practical considerations mandate sharing the imple-mentation of programs, and the trend to sharing is irreversible. Sund-quist, however, confines sharing to functions, and assumes nationaldominance with respect to powers. Problems require "a nationalsolution that states and communities are mandated, by one means oranother to carry out—usually by inducements strong enough toproduce a voluntary response but sometimes by more direct, coercive

36WiUiam Riker, Federalism, p. 147.James Sundquist, Making Federalism Work, p. 4.

3 8 Ibid., p. 5



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means.39 The only difficulty with the theory is that it fails to resolvethe basic dilemma of:

. . . how to achieve goals and objectives that are established by thenational government through the action of other governments, state andlocal, that are legally independent and politically may be even hostile.Those state and local governments are subject to no federal discipline ex-cept through the granting or denial of federal aid. And that is not veryuseful, because to deny the funds is in effect to veto the national objec-tive itself. *°

With this concession to reality, the hierarchical theory stumbles onthe fact of state and local autonomy.

Michael Raegan's advocacy of permissive federalism does notstumble over any concessions to the operative reality of the federalsystem. He argues that the trend is toward further development ofthe notion of a national community and continued ideological ac-ceptance of the corollary proposition that it is proper for the goalsand standards of public services to be set by the national governmentas a basis for uniform rights of citizens no matter where they live. 41

Although Raegan recognizes "that there is a sharing of power andauthority between the national and state governments,. . . the state'sshare rests upon the permission and permissiveness of the nationalgovernment."42

The shift from supremacy of the Constitution to the hierarchicalmodel removes the contradictions of practice from theoretical con-siderations, but the sleight of hand compounds confusion andminimizes the utility of the theory for students of intergovernmentalrelations. As Raegan notes:

. . . the increase in federal government activities does not represent a shiftof function in the sense of taking things away from the states; rather itmeans a new sharing of functions the states previously took care of alone.This may be less a matter of centralization in federal hands than thecreation of semi-permanent tensions and a fluctuating pattern in the dis-tribution of power as the two levels of government simultaneously co-operate and contend with one another for policy and control in thesejointly operated areas. *

^ , p. 12.Michael Raegan, New Federalism, p. 155.

4*Ibi<l, p. 163.4 3 Ib i4 , p. 18.



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The realities of American practice differ markedly from thehierarchical model. And, if as Raegan notes, there is a fluctuatingbalance of power, can the state's share depend on the permissivenessof the federal government? National governments have rarely beenknown to surrender power, and if Riker is correct, the trend is inquite the opposite direction. The theory of permissive federalismassumes the sharing of functions rather than powers. But Raeganused the word "power," in his description of the fluctuating balance.Is the difficulty merely semantic, or is it indicative of substantiveconfusion?

The accumulated habits and practices of almost 200 years of fed-eral government have created the confusion about powers and func-tions. What is the place of "local autonomy" in the federal system?How ought the fact of "local autonomy" be weighted?

In the American case, . . . simple evidence of national government involve-ment in a particular field tells us little or nothing about the relativestrength of the various power centers in policymaking, administration orwhat have you. The primary diffusion of power makes "involvement" takeon many different meanings. As those involved in the governmental pro-cess well know, even apparently unilateral programs may be substantiallyshaped by the other governments through the political process. As thoseworking in local government also know, he who pays the piper does notnecessarily call the tune, certainly not in proportion to the amount ofmoney spent. **

Both powers and functions are shared and attempts to locate powerexclusively in the national government pose analytical and empiricaldifficulties.

As some theorists moved to the hierarchical model, students ofintergovernmental relations found increasing evidence of inter-dependence in the system.4S Notwithstanding pronouncements of atilt toward Washington, the gap between theory and practice persists,and the argument continues. Ironically, the rhetoric used by thecurrent combatants, despite the differences in purpose, resembles therhetoric of the pre-Civil War period in the insistence on a dichoto-mous view of the nature of the Union. Although the South wasvehement in its defense of state sovereignty, the compact theorycollapsed when confronted with the North's willingness to use forceto preserve the Union and its government. In similar fashion, the

Elazar, "Federalism v. Decentralization," p. 13.4SSee for example, P.N. Glendening and MJfi.' Reeves, Pragmatic Federalism (Pacific

Palisades: Palisades Publishers, 1977).



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advocates of the hierarchical model vehemently defend national pre-rogratives, but the model stumbles on the rock of local autonomy.Faced with the necessity of implementing federal programs, con-cessions to local autonomy are at least expedient whether thatautonomy is founded on a sharing of functions or a sharing ofpowers.

This brief sketch suggests the limited utility of dichotomoustheories of American federalism. Embedded values and beliefs, suchas the belief in a government so checked and constrained that itcannot impinge on the people's liberties, the need for an energeticgovernment, and reliance on the people, are entwined in the theoryof American federalism. Pragramatic circumstances, as well as beliefin limited government may have necessitated the half-way house ofMadison, a constitution and a government that were partly federaland partly national. Or perhaps the half-way formulation resultedfrom the deliberate evasion of the problem of sovereignty. Whateverthe reason, a delicate balance locating sovereignty in the people wasthe solution to the dilemma. The balance has been subject to tensionand the exigencies of 200 years of republican government resulted inshifts in emphasis that could be interpreted either as a fluctuatingpattern of distributed powers or used to separate the theories intoopposing interpretations. But whatever the current interpretation ofnational power, the political integrity of the states remains em-bedded in the American theory of federalism.

Recognition of the integrity of the states in theory can minimizethe gap between theory and practice and help to explain the reversalsin constitutional theory. Before the Civil War, Southerners adheredto the compact theory of the Union as a strategy to limit the scopeand impact of national power. Yet in this same period, Southernersadvocated extension of national power when the issue was the Fugi-tive Slave Law. Thus, the South could be considered as the constitu-tional innovator. The declaration that the 10th Amendment was atruism symbolized a new consensus that American problems werenational and required national solutions. But less than 40 years later,in Maryland v. Wirtz,46 Justice Harlan, who opposed judiciallyordered reapportionment, upheld the extension of minimum laborstandards to schools and hospitals operated by states. The opinionwas a defense of the scope of the commerce clause.

The court will not carve up the commerce power to protect enterprisesindistinguishable in their effect on commerce from private business simply

^Maryland v. Wirtz, 392, U.S. 183 (1968).



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because these enterprises happen to be run by the States for the benefit oftheir citizens.47

A dissenting opinion, written by Justice Douglas, who had foughtto expand the 14th Amendment to insure all citizens equal protec-tion of the law; argued that extension of minimum labor standards toenterprises operated by the states was a serious invasion of statesovereignty. If constitutional federalism raised no limits to the com-merce power, in connection with the regulation of state activities,then the national government could devour the essentials of statesovereignty, though that sovereignty was attested by the 10thAmendment.48

Maryland v. Wirtz was overruled by the decision in NationalLeague of Cities v. Usery, 49 which held "that the commerce clausedid not authorize application of the Fair Labor Standards Act tostate and city employees exercising traditional government func-tions."50 These developments were summed up by Judge Friendly:"Whatever the verdict of history may be, these decisions at least are asure sign that the judicial tide with respect to national power mayebb as well as flow."si Such reversals are anything but rare in theannals of constitutional interpretation. They can be condemned asinconsistent or derided as the products of conceptual confusion. Ifthe compact theory is taken as the true basis of American federalismor if the national theory of federalism is interpreted as mandating ahierarchical model of federalism, the reversals are inexplicable. Butwhen the reversals are viewed as the consequence of shifts in adelicate balance and the continual reordering of priorities in light ofpresent circumstances, explanation becomes feasible. If the nationaltheory of federalism is laden with concessions to the existence of thestates, it is not unreasonable to assume that these concessions influ-ence decision making. Moreover, the reversals can be viewed as mea-sures of the strength and continuing import of the values that werepresent at the creation of the American federal system.

How important are these values at any given time? Justice Black, astrong defender of civil liberties, gave an answer in Younger v.Harris. " Writing for the majority, Black reversed the District Court

47Ibid., p. 198.48Ibid., p. 204.49426, U.S. 833 (1976).S0Henry J. Friendly, "Federalism: A Forward," Yale Law Review 86, no. 6 (May 1977):

1032.51Ibid., p. 1033.S2401, U.S. 37, (1971).



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that held that the California Syndicalism Act should be enjoinedbecause it inhibited the exercise of First Amendment rights. Thereversal was based on a long standing public policy which opposesfederal court interference with state court proceedings. The roots ofthis policy are found in notions of equity and comity. Comity man-dates a proper respect for state functions and a recognition of thefact that the entire country is made up of a Union of separate stategovernments. Comity draws strength from the belief that thenational government will fare best if the states and their institutionsare left free to perform their separate functions in separate ways.According to Black, "Our Federalism" does not mean blind defer-ence to states rights anymore than it means centralization of controlover every important issue. The national government, althoughanxious to protect federal rights and federal interests, must endeavorto do so in ways that will not unduly interfere with the legitimateactivities of the states.S3 There is a fine line between the nationaltheory of federalism and permissive federalism. Awareness of the lineimposes certain constraints and what may appear to be a logicalconclusion of theory often proves to be inoperative in practice.

Justice Douglas again dissented, this time to protect nationalstandards in the area of civil liberties. Douglas argued that the CivilWar amendments made the denial of civil liberties a national concernto be remedied by national action.S4 The priorities shift with theissues and the argument continues. Prestigious law journals againdevote whole issues to the dilemmas of federalism and the complexi-ties of action in a federal system.ss The revival of the debate testifiesto the strength of the values that underscore attachment to fed-eralism and the persistence of the dilemma. The kinds of issues wherefederalism makes a difference testifies to its centrality in Americantheory.

Conclusion

The creation and development of the theory of American fed-eralism was influenced by contradictory imperatives—the demand forliberty and recognition of the need for an energetic government. Theformer injected elements of contract theory into the foundation ofAmerican government and the latter provided the government withpower and discretion. For the Framers, the time was propitious and

5 3 Ibid., pp. 43-45.p. 57.

Harvard Law Review 90, no. 6 (April 1977); Yale Law Review 86, no. 6 (May 1977).



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they seized the moment.S6 How often does the opportunity to riseabove accident and force present itself in the annals of history? Butthe grand design of the Constitution reeks with expedient com-promises. The states were present at the creation, the constitutionhad to be ratified by the people of nine states, and revolutionaryfears about strong government had to be allayed. The dilemma ofsovereignty summed up the fears and hopes of the period, and neces-sitated a strategy to evade the dilemma. Sovereignty was located inthe people, but the formulation left the practical questions open.Although the events of American history determined the answer tothe question of who was the "real" trustee of the people's sove-reignty, the ambiguity generated the conceptual confusion whichsurrounds the American theory of federalism. The centrality of theambiguity is illustrated by the limited impact of historical events onconstitutional theory. Neither the outcome of the Civil War, theexpansion of national power, nor the contemporary recognition thatthe name of the game in intergovernmental relations is interdepend-ence resulted in major modifications in the theory of "OurFederalism."

The rhetoric of contending partisans draws from and evokes twohundred years of argument and debate. If perceptions of the worldinfluence selection of alternatives, the significance of this reliance ontraditional assumptions, arguments and understandings for the opera-tion of the federal system cannot be underestimated. The currentdebate about whether federalism makes a difference sketches thesedivergent assumptions and values and the answers depend uponnormative commitment, either to the hierarchical model or thevalues of non-centralization. The question can be answered nega-tively S7 or positively.s8 But the continued salience of the questionsuggests that despite contemporary insistence that domestic prob-lems are national and require national solutions, the core values offederalism remain strong and viable.

The ambiguity about sovereignty and the continuing argumenthave created confusion about the American theory of federalism,which is typically attributed to vagueness about die meaning and

S6Hannah Arendt, On Revolution (New York: Viking, 1963), pp. 139-238; StanleyElkins and Eric McKitrick, "Young Men of Revolution," Political Science Quarterly 76, no.2 (June 1961): 181-216.

S7William H. Riker, "Six Books in Search of a Subject or Does Federalism Exist andDoes it Matter?" Comparative Politics 2 (October 1969).

s8Vincent Ostrom, "Can Federalism Make a Difference?" Publius 3, no. 2 (Fall 1973):197-238.



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uses of the term. Yef when meaning is simplified to reduce con-fusion, the result is dichotomous theories of federalism which fail toexplain the customary practices of American politics. The alternativesuggests that the meaning of the term is complex and that each usehas a characteristic context and implication.s9 This perspectivefacilitates systematic exploration of the complexity of federalismand emphasizes the interrelation of meaning and usage. The endeavorproduces a richer, more comprehensive understanding of the multiplerelationships that are engrained in the texture of American federalpractice.

59

Hanna Pitkin, Representation, p. 16.



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