The States of the U.S. are supposed to be sovereign entities that run their own affairs with very little to no input or oversight from the federal government.  Of course, that isn’t how things are run today.  The states have completely subjugated themselves to the federal government and allowed its citizens to be ruled.  So, how did the states lose their sovereignty and self-rule?

Well, almost immediately after the Constitution had been ratified, the attack on the sovereignty of the States began and much, if not all of it, was perpetrated by the judiciary in the form of judicial review.  (If you would like to learn more about this topic, “Government by Judiciary” by Raoul Berger is an excellent source.  You can download it for free HERE.)  It’s important to realize when the biggest blow to dual federalism happened and the increase in the Federal Governments power and growth accelerated.  It happened in the 20th Century.

This primarily happened from a change in how the Constitution was viewed.  It changed from a Constitution of Rights, both State and private, and was replaced by the view of a Constitution of Powers being granted to the federal government.  Or, what has been deemed as the “implied powers” doctrine.

More specifically, the Federal System had shifted base in the direction of a consolidated national power while, within the National Government itself, an increased flow of power in the direction of the President has ensued.

How Did This Happen? 

Well, it happened primarily because the attitude of the court changed toward certain facts of Constitutional interpretation having to do with the Federal System, and which in their totality they compromised duel federalism when dealing with the relation between the federal government and the states. 

The compromised Constitutional facts are as follows:

  1. The federal government is one of enumerated powers only
  2. It is only allowed to spend money for the purpose of carrying out these enumerated things
  3. Within their respective spheres the two centers of government are “sovereign“ and hence “equal“ and
  4. The relation of the two centers with each other is one of tension rather than collaboration.

The Federal Government Is One Of Enumerated Powers Only

Today the idea of the “enumerated powers” concept as a rule of constitutional interpretation has been diminished on every front.   As stated earlier, the state sovereignty concept was immediately attacked as soon as the people had safely ratified the Constitution.  These attacks usually took the forms of distortions of the General Welfare Clause and the Necessary and Proper Clauses of the Constitution in relation to the federal government’s enumerated powers.

One of the earliest things that we can point to for the view of the expansion of the federal power and spending was in 1791 when Alexander Hamilton issued his Report on Manufactures.  Here, Hamilton outlined the powers that the federal government would have in taxing.

“…It is therefore of necessity left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare and for which, under that description, an appropriation of money is requisite and proper.  And there seems to be no room for a doubt that whatever concerns the national interest of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards an application of money.”

But, in Federalist #17 (BEFORE the constitution was ratified) Hamilton wrote that:

“the supervision of agriculture and of other concerns of a similar nature. . . which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction [federal government]” 

So, which is it?  Does the Federal government have the authority or doesn’t it have the authority to cross into the state’s sphere on taxing?

Hamilton also stated in Federalist #34 that:

“The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.”

So, on the one hand, we have Hamilton stating that the federal government will have no power or desire to interfere in agriculture or other things relating to local concerns and on the other hand we have him stating that these now are in the realm of the federal government’s prerogative.

So, which of these opinions is weightier: the one intended to explain the Constitution’s intent to the people as they were deciding whether or not to ratify, or the opposite opinion given suddenly and after the people’s decision had safely been made?

I think it’s pretty easy to see, that the people had a bait and switch played on them. 

But, Hamilton’s report is used on most occasions for citing why the federal government has authority to do many of the things it does.   But, it’s not all Hamilton’s fault.  Historically, the question on the taxing power of congress has shifted back and forth and sometimes even with the same people.

Jefferson Concurred with Hamilton’s assertion of the federal power and even acted on it through the Louisiana Purchase and then later upon more reflection pronounced it disgraceful.

Madison showed that he did not agree with the expansive taxing power when he vetoed the Bonus Bill in 1806.

“If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided by the bill can not confer that power.  The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.” ~ Madison’s Veto of Federal Public Works Bill

Monroe vetoed a bill to fund and collect tolls on the Cumberland Road, thereby rejecting the expansive taxing nature early in his presidency then turned around and endorsed it in his famous message of May 4, 1822.

“To the appropriation of the public money to improvements… I do not see any well-founded constitutional objection.” ~ Views of the President of the United States on the Subject of Internal Improvements

So, you can see, that unless you understand the original intent of the Constitution, our own history can be confusing as to what to believe concerning the federal government’s powers.

And, don’t think for a minute that that ignorance won’t be exploited by our media talking heads.

The Federal Government Is Only Allowed To Spend Money For The Purpose Of Carrying Out These Enumerated Things

We now must ask the question:  “Did the framers of the Constitution apportion the powers between the state and the federal government so as to keep the Federal government from doing on a national scale what the states were already doing on a local scale?

Sometimes when people read the Preamble of the Constitution, it can sound like that is what the framers did envision.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” ~ The Preamble to the US Constitution

But, the key question on the matter is, was Congress going to be allowed to levy and collect taxes for things that weren’t in its sphere of power?

Very early on in our history, this question was broken down into two questions.  First, was Congress allowed to lay and collect tariffs for any but revenue purposes?  And, secondly, was it entitled to spend what it got from taxes on things other than what it was allowed to under its enumerated powers.

Well, the Supreme Court in 1923 sidestepped these constitutional questions and did it with considerable agility in the case of Frothingham v. Mellon and Massachusetts v. Mellon. 

The cases were consolidated and heard simultaneously by the Supreme Court. The plaintiffs in the cases, Frothingham and Massachusetts, sought to prevent certain federal government expenditures which they considered to violate the Fifth Amendment.

Well, in the first case, the Supreme Court instructed Massachusetts, that it could not interpose on behalf of its citizens.  Since its citizens were also citizens of the United States they could rely on getting adequate protection against the National Government from the national courts concerning their constitutional rights.

The court then turned to Mrs. Frothingham’s case and informed her that her interest as a taxpayer was much too trivial to entitle her to the interposition of the national courts.

Finally, in 1928 the Supreme Court got around to giving their view on the subject and decided that yes, the federal government did have the authority to tax and to spend outside of its sphere. And what did they point to that gave them this revelation?

You guessed it, Hamilton’s Report on Manufactures in 1791.

Within Their Respective Spheres The Two Centers of Government Are “Sovereign“ And Hence “Equal”

Well, this question is to be determined by 2 texts of the constitution itself.

The first part is Article VI, clause 2, known as the Supremacy Clause which reads as follows:

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

And, the second part is the tenth amendment which states: 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It was the intention of the Federal Convention that national laws, needed to be superior within their sphere otherwise, they could just keep the articles of confederation.  They had just defeated a powerful adversary and were scared of outside aggressors.

As Madison later phrased the matter, State power should be

“no ingredient of national power” ~ 2 Annals of Congress col. 1891 (1790-91)

This was also John Marshall’s theory.  The principal of national supremacy was in his estimation one of the most fundamental axioms of constitutional interpretation. In McCulloch vs. Maryland he stated

“If any one proposition could command the assent of mankind, one might expect it would be this; that the government of the Union, though limited in its powers, is supreme within its sphere of action” ~ McCulloch v. Maryland (1819)

Yet no one is denying the Supremacy of the Constitution.  And national supremacy doesn’t conflict with the 10th Amendment either.

But, slowly over the course of years the judiciary, through Supreme Court cases, has picked apart the guarantee to the states that it and the federal government were equal sovereigns:

Hunter v. Martin (Va. 1814)

Martin v. Hunter Lessee (US 1816)

New York v. Miln (US 1837)

The License Cases (US 1837)

But, even at this point there were still a few areas that the states were left alone.  These were the means of production like mining, agriculture, manufacturing and the employee/employer relationship.

That is, until President Roosevelt and the New Deal came along.  During the time of the New Deal was when the last vestiges of federalism were swept away.  It was during this time that FDR was instituting his court pack threat to the Supreme court that the last bit of sovereignty the states had disappeared.  Today, there is absolutely no concept of Federal equilibrium with the states in any ingredient of national legislation.

And Finally…

The Relation of the Two Centers With Each Other Is One of Tension Rather Than Collaboration

Discussing this point in today’s political climate is pretty much doomed with the emergence of the “Cooperative Conception”. 

According to this concept, the National Government and the States are mutually complementary parts of a single governmental mechanism intended to solve problems through governmental force.

National Government has brought its strengthened powers over interstate commerce and communications to the point of taking over local policies of the States.  This federal power, always in the guise of the public good, acts like a wrecking ball and wreaks havoc on state and local control.

Since the power to regulate “commerce among the States” has been deemed “exclusive“ to Congress and the federal sphere of power, a State is frequently unable to stop the flow of commerce from sister States even when it threatens to undermine local legislation.

Congress has even intervened on the State’s policing powers by making certain crimes like theft, racketeering, kidnapping, also crimes against the National Government when these activities extend beyond state boundaries.

Justifying such legislation, the Court has said:

“Our dual form of government has its perplexities, state and Nation having different spheres of jurisdiction…but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nations are adapted to be exercised, whether independently or concurrently to promote the general welfare, material and moral.” ~ Hoke v. U.S., 227 (1913)

(For a greater understanding of the “one people” concept and its major pitfalls, watch this video.)

Secondly, the National Government holds out inducements, primarily of a monetary nature, to the States in what is referred to as “grants-in-aid“.  These monetary inducements seduce the states to use their reserved powers to support certain objectives of national policy.  In other words, the greater financial strength of the National Government is joined to the wider coercive powers of the States.

Thus since 1911, Congress has voted money to subsidize all kinds of things from forest-protection to education, industrial to experimentation, highway construction and so forth.  All the States have to do is appropriate equal sums for the same purpose.

The only hitch being that they promise to jump through every single hoop laid down by Congress.

Since the concept of “Cooperative Conception” was introduced, the national government’s superior fiscal resources (through the Federal Reserves power to print money) have been used to constantly concentrate their power over local policies and supervision.

With the changes that have happened to the concept of dual Federalism, the system has been overwhelmed and submerged.  Today the question faces us of whether the States can be saved for any useful purpose?

As it stands now, the states serve very little function in the overall system other than just another governmental body of red tape and taxation.  Yet, it is very important to remember that no constitutional amendments have been passed altering the dynamics between the state and the federal government.  Everything that has transpired has happened in the judiciary and not through any movement by we the people in the form of amending the constitution.

Just as the second amendment guarantees that the federal government has no business interfering with our right to keep and bear arms.  The tenth amendment guarantees that the federal government will not be allowed to interfere in state matters.  The powers not enumerated in the constitution remain in the states or the people.

The sad plight of the states in our union is the fact that they don’t realize their own power and sovereignty.  They ask permission from those who will never give it.  And seek authority to act where it already exists.


The majority of this article was derived from:  Corwin, Edward S. The Passing of Dual Federalism. Virginia: U of Virginia, 1950. Print.

as well as the book: Federalism:  The Founders’ Design by Raoul Berger