Guest Essayist: Joerg Knipprath

In 1976, Americans celebrated a bicentennial, the anniversary of a revolution against an intrusive, heavy-handed, and unresponsive national government. Repeated petitions and remonstrances by the people’s elected local representatives had been dismissed and ignored by the political elite who controlled that far-away national government, and who considered the people ignorant bumpkins. Among the causes of revolution listed in the published indictment of that elite in 1776 had been the chief executive’s use of his quill to veto beneficial laws; his failure to enforce laws properly enacted; his actions and obstructions that clashed with pressing immigration issues; his expansion of uncontrolled bureaucracies, when he “erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance”; his policies that failed to secure the frontier and protect the inhabitants there against violence by marauders; and his encouragement of “domestic insurrections” that threatened social peace. Yet that chief executive had not acted alone. The legislature of that distant government had passed unconstitutional laws, such as those that overrode the people’s own local laws and altered fundamentally the constitutional relationship between the national government and theirs.

In response, the people acting through their states had declared independence and, after a war, had gained peace and recognition, again acting through their states. They also had formed a “perpetual union,” better to protect themselves against foreign danger and to pursue objects of common benefit. After a few years, they had revised their arrangement “in Order to form a more perfect Union.” But theirs was a federal union. The constitutional arrangement divided sovereignty between a general government the people had created and their home states, with the former given specific tasks, while the latter retained all residual powers. The resultant structure had both “national” and “confederal” features as detailed by James Madison in No. 39 of The Federalist. The Supreme Court described this arrangement as “an indestructible Union, composed of indestructible States” in 1869 in Texas v. White.

While each might be indestructible, the constitutional boundaries between the general government and the states shifted markedly over two centuries. The original framework of dual sovereignty brought a creative (and, apropos of the Civil War, sometimes destructive) tension to constitutional interpretation and American politics. The Civil War and the Reconstruction Era Amendments (13th to 15th) enhanced the national government’s constitutional position at the expense of the states. However, even those amendments did not give Congress general authority to legislate. As the Supreme Court affirmed in The Civil Rights Cases in 1883, these amendments do not supplant the essence of the federalism summarized in the 10th Amendment, that powers not delegated to the United States are retained by the states.

The erosion of the states’ status relative to Congress began with the Progressive Era in the early 20th century, but occurred more profoundly with the New Deal in the 1930s. As the Supreme Court effectively abandoned traditional federalism jurisprudence, Congress expansively used its powers to tax, spend, and regulate interstate commerce, enhanced further through broad application of the necessary and proper clause. As well, the virtual disappearance of the “non-delegation” doctrine from constitutional analysis fostered the explosion of bureaucratic rule in the modern administrative state. On a different field, the more frequent reliance by Presidents on the Constitution’s vague executive powers even in quotidian matters also shifted power to the growing national capital. The essence and reality of federalism changed so fast that Justice Harlan Fiske Stone could write dismissively in U.S. v. Darby Lumber Co. in 1941 that the 10th Amendment “states but a truism”–one of a much-weakened federalism.

So far did this corrosion of structural federalism go that Congress, relying on the Commerce Clause, amended the Fair Labor Standards Act (FLSA) and applied wage and overtime regulations to certain employees at state and local schools and hospitals. The Court in 1968 in Maryland v. Wirtz agreed, just as it had done in Darby Lumber regarding private firms. Justices William Douglas and Potter Stewart dissented, arguing that the law was a serious invasion of state sovereignty. When the arch-New Dealer Douglas warns of the threat of the “National Government devour[ing] the essentials of state sovereignty,” something is truly amiss.

Perhaps recalling the reasons for the celebrations in 1976, the Court in National League of Cities v. Usery overturned, by 5-4, the 1974 amendments of the FLSA that further extended national wage and hour standards to almost all state and local government employees. As before, these amendments were based on Congress’s seemingly unbounded power to regulate interstate commerce. Justice William Rehnquist concluded, however, that the essential sovereignty of the states limited even Congress’s enumerated powers. Here, Congress unconstitutionally interfered with integral operations of “traditional governmental functions.” The 8-year-old Wirtz case was expressly overruled.

The Bicentennial was barely over when the Court got cold feet over its newly re-found federalism. In several opinions, the justices began to backtrack from the constitutional federalism of National League of Cities to the “congressional federalism,” as Douglas had called it, of the previous decades. That path culminated in Garcia v. San Antonio Metropolitan Transit Authority, a 5-4 decision in 1985. The case revisited the FLSA’s wage and hour provisions, this time to determine a municipal transit system’s status as a traditional government function. Justice Harry Blackmun declared the “traditional government function” test unworkable as a line between state and national authority. A related older test had sought to distinguish between (protected) governmental and (unprotected) proprietary functions of state. The latter would be those functions commonly done by private individuals, and which, if done by the state in a particular instance, Congress could reach. Blackmun deemed that test unworkable, as well. Since the Court had long recognized Congress’s power to legislate wages and hours under the Commerce Clause, and since Blackmun disregarded structural federalism, the transit system was subject to the FLSA. National League of Cities, nine years old, was overruled.

Blackmun did not stop there. He announced that judicial review in this area was altogether unnecessary, since the political process protected against Congressional acts that undermined state sovereignty. As an example, he discussed the significant amount of funding for mass transit that the states and cities had received from Congress. He further characterized this political solution as evident from the Constitution’s text and the writings of The Federalist. He observed that “the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself….The States were vested with indirect influence over the House of Representatives and the Presidency by their control of electoral qualifications and by their role in Presidential elections….They were given more direct influence in the Senate, where each State received equal representation and each Senator was to be selected by the legislature of his State.” For Blackmun, on a constitutional level, the states were mere adjutants of the national government.

Other than a brief reference to the 17th Amendment and a prompt dismissal of its impact, Blackmun’s analysis fails to address the significant changes that have occurred since the Convention of 1787 and the cited writings of Madison. The impact of the 17th Amendment, which provides that Senators are elected by the voters, not by the state legislatures, cannot be easily dismissed. The Senators’ electoral constituencies no longer are the legislatures that represent the state governments in their sovereign capacities, but the states’ voters. This gives Senators incentive to enhance their political influence by increasing the influence of the central government over the states. Moreover, the states’ control over voter qualifications, which in 1787 was essentially unrestricted, has been severely curtailed by the 15th, 19th, 24th, and 26th Amendments, as well as by the Supreme Court’s creative constitutionalism under the 14th Amendment’s Equal Protection Clause. The growth of the national government in relation to the states, measured by the increase in respective budgets, also tells a tale of divergent expansion beginning during the Progressive Era. Perhaps the timing is coincidental, but it is likely that these changes in the states’ control over the electoral process affected this trend.

Justice Lewis Powell wrote the main dissent. He accused the majority of mere lip service to the principle of federalism. He pointed out that Senators and Representatives, once elected, are members of the federal government. Powell could not foresee that, a decade later in another case, U.S. Term Limits, Inc. v. Thornton, a five-member majority of the Court would emphasize that very point to strike down an Arkansas term limit amendment. Similarly, the fact that states have some hypothetical control over the selection of presidential electors does not make the modern Presidency a bulwark of state sovereignty. As to Blackmun’s reasoning that Congress gave the states funding, Powell declared that the states’ “role in our system of government is a matter of constitutional law, not of legislative grace.” Put another way, states as courtiers seeking handouts from the Congressional sovereign is not the Framers’ federalism.

Justice Rehnquist, the author of National League of Cities, wrote a brief dissent and concluded acidly, “I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court.” His remark proved to be prophetic. Seven years after Garcia, the federalism worm turned in New York v. U.S. (1992), reinforced in its reasoning by Printz v. U.S. (1997). Neither case overruled Garcia. However, in New York, Justice O’Connor, writing for 6 members, effectively limited Garcia to scenarios where the state is acting in a proprietary rather than a sovereign capacity. This was precisely the distinction that Blackmun had rejected in his Garcia opinion.

New York and Printz are William Rehnquist’s vision of a revitalized federalism made real by the Supreme Court. Rehnquist cobbled together the narrow majority that so unexpectedly produced National League of Cities. Though he lost Garcia, he continued his quest when he became Chief Justice and gained new allies that replaced the older New Deal-nursed generation of justices. With O’Connor, a former state legislator and judge, Antonin Scalia (the author of Printz), Anthony Kennedy, and Clarence Thomas, Rehnquist had a generally dependable majority to advance a more robust constitutional federalism. The strategy bore fruit not only in the cases mentioned, but also in the strengthening of the states’ immunity from suit by protecting it against Congressional curtailment in Seminole Tribe v. Florida (Rehnquist) and Alden v. Maine (Kennedy), restricting Congress’s powers under the commerce clause and the 14th Amendment in Lopez v. U.S. (Thomas) and U.S. v. Morrison (Rehnquist). There was also a powerful pro-federalism dissent by Thomas in U.S. Term Limits, Inc., when Kennedy abandoned his usual collaborators.

The Rehnquist Court’s “New Federalism” appears to have carried forward to the Roberts Court, although three of that earlier majority have left, and John Roberts as well as Samuel Alito were picked more for their background as defenders of executive powers. Neil Gorsuch, if confirmed, is said to have a strong philosophical commitment to a vital federalism.  In New York, Justice O’Connor emphasized what has been written too often to count, from the early debates on the Constitution to today: “The Constitution does not protect the sovereignty of the States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between the federal and state governments for the protection of individuals. Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

Garcia v. San Antonio Metropolitan Transit Authority (1985) Supreme Court decision:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Wow, the 1st paragraph gets one thinking.

    I have often, and long, thought that one of the costs of slavery was the loss of State’s rights as intended by the Founders. Such seems to the result of people using a good and proper right to justify unrighteous actions and behavior.

    As Barb Zack notes in Deb re., people today are using 1st Amendment right to free speech to loot, burn, riot, etc. Ironically these same people deny the right of free speech to others who want peaceably express their opinions. Others are using to 14th Amendment as cover for all types of behavior that if extrapolated to its ultimate conclusion means that there can be no laws governing or restricting a person’s happiness or behavior.

    One cannot wonder when “what a man sows, that shall he reap” will come to fruition. We humans think that the reaping of bad/foolish action/behavior is accompanied by immediate reaping and consequences. But as Lincoln’s noted in the2nd inaugural address slavery existed for 250 years before, “The Almighty has His own purposes. “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” … in the providence of God, must needs come, but which, having continued through His appointed time, as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? … Yet, if God wills that it continue until all the wealth piled by the bondsman’s 250 years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the LORD are righteous altogether.”

    If we shall suppose that using BoR to justify … is one of those offenses, …Woe unto the world because of offenses, what will be the judgment? The ceasing of USA from the face of the earth?


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