DUAL FEDERALISM

edward s. corwin devised the term "dual federalism" to describe a constitutional theory enunciated by the Supreme Court and by many commentators on the constitution at various times (and to various purposes) in the nation's history—a theory concerning the proper relationships between the national government and the states. This theory, Corwin wrote, embodied four postulates of constitutional interpretation: "1. The national government is one of enumerated powers only; 2. Also, the purposes which it may constitutionally promote are few; 3. Within their respective spheres the two centers of government are 'sovereign' and hence 'equal'; 4. The relation of the two centers with each other is one of tension rather than collaboration."

This theory gives enormous importance to the tenth amendment, with its declaration that powers not delegated to the national government and not prohibited to the states by the Constitution "are reserved to the States respectively, or the people." (The articles of confederation had reserved to the states powers that were not "expressly delegated" to Congress.) Confronted with the competing concept of national authority in the Constitution's supremacy clause, proponents of dual federalism have insisted that the Tenth Amendment holds a superior position. The taney court, especially in the license cases, often portrayed the states' reserved powers as a constitutional limitation on the legitimate authority of Congress. In the post-civil war period, the Court built another constitutional monument to dual federalism theory in its doctrine of intergovernmental immunities. In the hands of a conservative, property-minded judiciary in the late nineteenth century, dual federalism became a potent instrument for invalidation of federal regulatory measures. In hammer v. dagenhart (1918) the Court's majority took an extreme view of the Tenth Amendment, declaring that it forbade even a federal regulation of interstate commerce when the regulation's purpose was to invade the province of the states' reserved powers.

A series of decisions in the late 1930s, however, put to rest the formal constitutional theory of dual federalism. The Court's revised interpretations of the commerce power, the contract clause, and the taxing and spending power all rejected Tenth Amendment limitations on national authority. Meanwhile, the Court also validated the administrative innovations of cooperative federalism, in the form of extensive programs of federal grants-in-aid to the states.

The only serious reappearance of dual federalism theory in post-new deal constitutional law has been in national league of cities v. usery (1976), in which a concept of inviolable powers and functions of the "states as states" became a limitation on congressional regulatory power, in this instance the power to establish wages and hours for municipal workers.

Harry N. Scheiber
(1986)

Bibliography

Corwin, Edward S. 1950 The Passing of Dual Federalism. Virginia Law Review 36:1–24.

Mason, Alpheus Thomas 1968 Federalism: Historic Questions and Contemporary Meanings. The Role of the Court. In Valerie, Earl, ed., Federalism: Infinite Variety in Theory and Practice. Itasca, Ill.: F. E. Peacock Publishers.

Scheiber, Harry N. 1978 American Federalism and the Diffusion of Power. University of Toledo Law Review 9:619–680.