Federalism and the Tenth Amendment
The term federalism refers to the division of power and responsibility between the states and the national government. Implicit in the structure of the Constitution and reaffirmed by the Tenth Amendment, the principles of dual sovereignty—commonly called federalism—limit the powers of the national government in three significant ways. First, as the Eleventh Amendment confirms, the states retain their immunity from suit. Second, dual sovereignty limits Congress’s power to enforce the Fourteenth Amendment. Third, federalism limits Congress’s ability to regulate interstate commerce. The origins of federalism in the Constitution and early Supreme Court rulings are discussed in this entry, along with the Court-ordered limitations on Congress’s power to enforce the Fourteenth Amendment or to regulate interstate commerce.
In The Federalist No. 51, James Madison wrote, “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments.” By dividing sovereignty between the national government and the states, Madison said, the Constitution ensured that “a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” Thus, as the Supreme Court said in Texas v. White (1868),
The preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
This division of sovereignty between the states and the national government “is a defining feature of our Nation’s constitutional blueprint,” according to a more recent ruling in Federal Maritime Commission v. South Carolina State Ports Authority (2002). The division of power between dual sovereigns, the states and the national government, is reflected throughout the Constitution’s text as well as its structure.
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,
the Supreme Court said in Gregory v. Ashcroft (1991). In other words, although the Constitution gives vast power to the national government, the national government remains one of enumerated, hence limited, powers. Indeed, “that these limits may not be mistaken, or forgotten, the constitution is written,” according the landmark Marbury v. Madison (1803) ruling.
Because the federal balance of powers is so important, the Supreme Court has intervened to maintain the sovereign prerogatives of both the states and the national government. In order to preserve the sovereignty of the national government, the Court has prevented the states from imposing term limits on members of Congress and instructing members of Congress as to how to vote on certain issues. Similarly, it has invalidated state laws that infringe on the right to travel, that undermine the nation’s foreign policy, and that exempt a state from generally applicable regulations of interstate commerce.
Conversely, recognizing that “the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere” (Gregory v. Ashcroft, 1991) and that “the erosion of state sovereignty is likely to occur a step at a time” (South Carolina v. Baker, 1988), the Court declared that the national government may not compel the states to pass particular legislation, to require state officials to enforce federal law, to dictate the location of a state’s capital, to regulate purely local matters, or to abrogate a state’s sovereign immunity.
Development of the Concept
Adopted at the time of the Civil War, the Fourteenth Amendment diminishes the states’ sovereign authority while enhancing the power of the national government. First, both the Equal Protection Clause and the Privileges or Immunities Clause impose substantive restrictions on the states. Moreover, although the Bill of Rights originally did not apply to the states, the Due Process Clause incorporated most of the provisions of the Bill of Rights. Second, the Fourteenth Amendment Enforcement Clause gives Congress the authority to enact legislation that enforces the substantive guarantees of the Fourteenth Amendment against the states. Consequently, if the states have engaged in conduct that violates the Fourteenth Amendment, then Congress can take remedial action to correct the violation and to prevent future violations.
However, there are limits on Congress’s power to enforce the Fourteenth Amendment. In City of Boerne v. Flores (1997), the Supreme Court applied the “congruence and proportionality” test, which involves three questions. First, the Court must identify “the scope of the constitutional right at issue.” Second, after identifying the right at issue, the Court must determine whether Congress identified “a history and pattern of unconstitutional . . . discrimination by the States.” Third, if there is a pattern of constitutional violations by the states, the Court determines whether the Congress’s response is proportionate to the finding of constitutional violations.
The Court has identified three broad categories of activity that Congress may regulate under the Commerce Clause. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though a threat may come only from intrastate activities. Third, Congress may regulate intrastate activities having a substantial relation to interstate commerce. The Court has stated that this last category includes only those activities that are economic in nature.
The test for determining whether an intrastate activity substantially affects interstate commerce varies depending on whether the regulated activity is economic in nature. If the intrastate activity is economic in nature, the impact of all similar activity nationwide is considered. Conversely, if the intrastate activity is not economic in nature, its impact on interstate commerce must be evaluated on an individualized, caseby- case basis. In other words, does the activity have anything to do with “commerce” or any sort of economic enterprise? Is it an essential, or indeed any, part of a larger regulation of economic activity?
While Congress may regulate the states when they engage in general commercial activities, Congress may not regulate the states when they act in their sovereign capacities. As the Court wrote in Printz v. United States (1997),
Even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . The Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.
William E. Thro
- Hurd, W. H., & Thro, W. E. (2004). Federalism and the separation of powers: The federalism aspect of the Establishment Clause. Engage: The Journal of the Federalist Society’s Practice Groups, 5(2), 62–68.
- Thro, W. E. (2003). A question of sovereignty: A review of John T. Noonan, Jr.’s Narrowing the nation’s power: The Supreme Court sides with the states. Journal of College & University Law, 29, 745–765.
- Thro, W. E. (2003). That those limits may not be forgotten: An explanation of dual sovereignty. Widener Law Journal, 12, 567–582.
- Wilkinson, J. H., III (2001). Federalism for the future. Southern California Law Review, 74, 523–540.
- City of Boerne v. Flores, 521 U.S. 507 (1997).
- Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002).
- Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
- Marbury v. Madison, 5 U.S. (1 Cranch) 137, (1803).
- Printz v. United States, 521 U.S. 898 (1997).
- South Carolina v. Baker, 485 U.S. 505, 533 (1988).
- Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868).