The structure of the U.S. federal system that emerged from the federal constitutional convention of 1787 was the product of extensive deliberation about which institutional arrangements would promote effective governance and secure individual liberty. Some delegates sought to establish a federal government with complete authority to act “in all cases which require uniformity” and to empower Congress to veto state legislative acts (James Madison, Letter to George Washington, April 16, 1787). Other delegates preferred to boost federal power in more modest ways; they balked at authorizing Congress to veto state laws, levy and collect taxes, and regulate elections, because they feared this would lead to a consolidation of power in the federal government (The Address and Reasons of Dissent of the Minority of the Convention, of the State of Pennsylvania, to Their Constituents, December 12, 1787. Patrick Henry, Remarks at Virginia Ratifying Convention, June 5, 1788).

The Constitution did not go as far in strengthening federal authority as some delegates preferred, but it nevertheless increased federal power in ways that generated significant concern on the part of other delegates. Article I, section 8 makes clear that the federal government exercises enumerated rather than plenary powers, although the final clause in this section empowers Congress to make all laws that are “necessary and proper for carrying into execution” these and other powers. The understanding, set forth by James Madison in Federalist 45, was that the federal government’s powers were “few and defined,” whereas state government powers were “numerous and indefinite.” Madison explained: “The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state” (Publius (James Madison), Federalist 45, January 26, 1788)).

As for how the balance of power between the federal and state governments would be superintended, the convention rejected Madison’s repeated efforts to give Congress a veto over state laws (Federal Constitutional Convention, Debate on National Veto of State Laws, June 8, 1787). Instead, the Constitution declares in the supremacy clause (Article VI) that federal constitutional provisions and congressional acts passed in pursuance of the Constitution take precedence over contrary state constitutional provisions and laws. The expectation, expressed by several delegates during the convention debates and set out explicitly by Madison in Federalist 39, was that the U.S. Supreme Court would be responsible for adjudicating “controversies relating to the boundary between the two jurisdictions,” by invalidating state acts encroaching on federal power and barring enforcement of federal acts exceeding the legitimate bounds of federal authority (Publius (James Madison), Federalist 39, January 16, 1788)).

State Governments and Federalism

A leading controversy during the three quarters of a century following the Constitution’s ratification centered on the role of state officials in superintending these boundaries and determining when federal officials exceeded their authority. On various occasions, officials in the southern, New England, and midwestern states contended that Congress or the federal executive or judiciary had acted illegitimately and sought redress for these violations. State officials generally grounded these claims in a view of the Constitution as a compact among states and an understanding that states as parties to the compact could determine when the compact had been violated and remedy the violation. In response to the Alien and Sedition Acts of 1798, the Virginia and Kentucky legislatures issued resolutions declaring these acts to be unconstitutional and making a case for state interposition to bring about their repeal (Virginia General Assembly, Resolutions, December 21, 1798). Other state legislatures responded to the Virginia and Kentucky Resolutions by contending that determinations about the constitutionality of federal acts were entrusted to the federal judiciary and not state officials (Massachusetts Legislature, Response to the Virginia Resolutions, February 13, 1799). However, the Virginia General Assembly mounted a vigorous defense of state interposition in a report issued in 1800 (Virginia General Assembly, Report of 1800, January 7, 1800). A decade later, it was the turn of New England states to advance claims about the unconstitutionality of federal acts and the role of state governments in bringing about their repeal, this time in response to the Embargo Act of 1807 and various acts enforcing the embargo during Thomas Jefferson’s presidency (Massachusetts Legislature, Resolutions Regarding the Enforcement Act for the Embargo, February 15, 1809) as well as measures taken to prosecute the War of 1812 during Madison’s presidency (Resolutions Adopted by the Hartford Convention, January 4, 1815).

Some officials in the antebellum era embraced nullification. This doctrine was defended forcefully by John Calhoun (Vice President John C. Calhoun, Fort Hill Address, July 26, 1831) and espoused most notably by a South Carolina convention in response to the Tariff Act of 1832 (South Carolina Ordinance of Nullification, November 24, 1832), but it was denounced by President Andrew Jackson (President Andrew Jackson, Proclamation Regarding the Nullifying Laws of South Carolina, December 10, 1832). Despite efforts by nullification advocates to draw support for this doctrine from the 1798 Madison-authored Virginia Resolution and Jefferson-authored Kentucky Resolution, Madison disputed these claims. In various writings in the 1830s, Madison sought to distinguish interposition, which he saw as requiring coordinate state action and proceeding through constitutional channels to bring about the repeal of federal acts, from any notion that a state could on its own declare federal acts null and void (James Madison, Letter to Edward Everett, August 28, 1830).

Eventually, eleven southern states, drawing on the compact theory undergirding the doctrines of interposition and nullification, seceded from the Union. South Carolina took the lead by adopting a secession ordinance in December 1860 (South Carolina Declaration of the Causes of of Secession, December 24, 1860). Ten other states followed during the next six months. President Abraham Lincoln, however, denied that secession was “consistent with the Constitution,” arguing that there was no “express law” allowing for secession in the Constitution and, moreover, “nothing should ever be implied as law which leads to unjust or absurd consequences” as the doctrine of secession did (President Abraham Lincoln, Message to Congress in Special Session, July 4, 1861).

Constitutional Amendments and Federalism

Adjustments to the balance of federal and state power have taken place in part through amendments to the U.S. Constitution. Occasionally, amendments have protected state autonomy. The Tenth Amendment (1791), enacted as part of a package of amendments intended to allay Antifederalist concerns in the immediate aftermath of the Constitution’s ratification, confirmed that the federal government can only exercise powers delegated by the Constitution (U.S House of Representatives, Debate on Amendments to the Constitution, August 18 and 21, 1789). The Eleventh Amendment (1795) overruled a U.S. Supreme Court ruling in Chisholm v. Georgia (1793) that permitted individuals to file federal lawsuits against unconsenting states; the amendment made clear that states enjoy sovereign immunity against these lawsuits.

Amendments have served more often as vehicles for expanding rather than limiting federal authority, beginning with the three Civil War Amendments: the Thirteenth Amendment (1865), Fourteenth Amendment (1868), and Fifteenth Amendment (1870). No amendment has been more consequential than the Fourteenth Amendment, which barred states from abridging “the privileges or immunities of citizens of the United States” or denying any persons “due process of law” or “equal protection of the laws” (Senator Jacob Howard, Speech Introducing the Fourteenth Amendment, May 23, 1866). A trio of Progressive Era amendments contributed to further expansion of federal power. The Sixteenth Amendment (1913), enacted in response to a U.S. Supreme Court decision overturning a congressionally enacted individual income tax, authorized Congress to impose such a tax. The Seventeenth Amendment (1913) changed the process of selecting U.S. senators by taking away that power—and potential means of influence—from state legislatures and providing for direct popular election of senators. The Eighteenth Amendment (1919) enacted a policy of nationwide prohibition (discussed in William H. Stayton, “Our Experiment in National Prohibition: What Progress Has It Made?,” 1923), though it was repealed nearly a decade and a half later by the Twenty-First Amendment (1933).

Congress and Federalism

Congressional statutes have also played important roles in expanding the federal role in policymaking, or in some cases returning policy authority to the states. The question of whether to charter a national bank dominated U.S. politics during the nation’s first half century and engaged the attention of multiple presidents (see Secretary of State Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National bank, February 15, 1791, for Jefferson’s Opinion on the Constitutionality of the Bill for Establishing a National Bank, submitted for the consideration of President George Washington) and eventually the U.S. Supreme Court; but this was in the first instance a matter for Congress to decide. Members of Congress debated not only the expediency of chartering a national bank but also whether doing so was a legitimate exercise of federal power. These debates took place in the 1790s when the First National Bank was established. The debates picked up again in the 1810s when the bank’s charter was not renewed. Eventually, the Second National Bank was established, and its legitimacy was upheld by the U.S. Supreme Court in McCulloch v. Maryland (1819). In the 1830s Congress approved a renewal of the bank’s charter, but the bill was vetoed by President Jackson.

Congress has continued through the years to adopt a dual approach of considering the expediency as well as the constitutionality of proposed policies. To provide a recent example, when Congress passed the Affordable Care Act of 2010, the law was challenged in federal court and upheld in part and modified in part by the U.S. Supreme Court in a 2012 ruling in NFIB v. Sebelius (Chief Justice John Roberts, National Federation of Independent Business v. Sebelius, June 28, 2012). Senators debated whether various provisions of the act were legitimate exercises of federal authority, with some contending that Congress lacked the power to require individuals to purchase health insurance and others defending Congress’ authority to mandate health coverage.

Presidents and Federalism

Presidents have also shaped the balance of federal and state authority, in part by signing or vetoing congressional laws. Presidents in the early nineteenth century repeatedly vetoed internal improvement bills that sought to fund construction or improvement of roads, canals, rivers, and harbors. Although these projects enjoyed broad support among members of Congress, a number of presidents concluded that they exceeded the boundaries of federal authority. Madison issued the first veto of an internal-improvement act. Other presidents also wielded their veto pen for this purpose, including James Monroe, Andrew Jackson, Martin Van Buren, John Tyler, James Polk (President James Polk, Veto Message on Rivers and Harbors Bill, August 3, 1846), Franklin Pierce, and James Buchanan. Presidents in this era also vetoed other bills seen as expanding federal power beyond what was authorized by the Constitution. In addition to Jackson’s veto of a bill reauthorizing the national bank, Pierce vetoed a bill funding asylums for mentally ill persons and Buchanan vetoed homestead legislation as well as legislation creating land grant colleges (President James Buchanan, Veto Message Regarding Land Grant Colleges, February 24, 1859), though the latter two measures were reenacted and signed into law during the next administration.

In the early twentieth century, presidents began to take an active role in promoting passage of legislation, at times with an eye to expanding federal authority and at other times with the aim of devolving authority to state governments. President Theodore Roosevelt, along with other officials and thought leaders in the Progressive Era, pressed for an expansive view of federal authority that would authorize enactment of congressional statutes regulating corporations and protecting workers at a time when states were unable or unwilling to act (President Theodore Roosevelt, Address at the Dedication Ceremony of the New State Capitol Building at Harrisburg, Pennsylvania, October 4, 1906). As Elihu Root noted in a 1906 address, “The Federal anti-trust law, the anti-rebate law, the railroad rate law, the meat-inspection law, the oleomargarine law, the pure-food law, are examples of the purpose of the people of the United States to do through the agency of the national government the things which the separate state governments formerly did adequately but no longer do adequately” (Secretary of State Elihu Root, “How to Preserve the Local Self-Government of the States,” December 12, 1906).

Several other twentieth-century presidents advocated increasingly expansive understandings of federal authority. During the Great Depression, Franklin Roosevelt persuaded Congress to enact various components of his New Deal program, including old-age benefits, unemployment insurance, aid to disabled persons and needy children, and maximum-hours and minimum-wage requirements. In the 1960s, at Lyndon Johnson’s urging, Congress enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965 and also established Medicare and Medicaid in 1965 to provide health-care coverage for senior citizens and poor persons.

Some presidents have called for returning policy authority to state governments. Upon taking office in 1969, for example, President Richard Nixon called for a “New Federalism.” He argued: “For a third of a century, power and responsibility have flowed toward Washington, and Washington has taken for its own the best sources of revenue. We intend to reverse this tide, and to turn back to the states a greater measure of responsibility” (President Richard Nixon, Address to the Nation on Domestic Programs, August 8, 1969). President Ronald Reagan in his First Inaugural Address in 1981 vowed “to curb the size and influence of the federal establishment and to demand recognition of the distinction between the powers granted to the federal government and those reserved to the states or to the people.” However, it has proved more difficult to enact policies limiting federal authority than expanding it. Nixon and Reagan experienced some success but also encountered significant obstacles in persuading Congress to enact measures shifting policy responsibility to state governments.

As Americans—and their representatives in Congress—have become evenly divided and increasingly polarized in their political views, sometimes making it impossible for legislation to pass, presidents have come to rely on executive actions to shape the balance of federal and state authority. Federal policymaking increasingly takes place via executive orders and agency regulations and guidance documents. On a number of occasions, presidents have issued executive orders for the purpose of expanding federal power and accomplishing policy goals unattainable in Congress. Several recent presidents, however, most notably Reagan, issued executive orders calling on executive departments and agencies to formulate and implement policies according significant deference to state governments (President Ronald Reagan, Executive Order 12612, October 26, 1987). Executive departments and agencies can also issue waivers from statutory requirements, thereby increasing the degree of states’ flexibility in complying with elementary and secondary education laws and Medicaid program requirements.

The executive branch also exercises significant discretion in establishing priorities for enforcing federal laws. After state governments began enacting laws eliminating criminal penalties for medicinal marijuana and then recreational marijuana, for example, the U.S. Department of Justice under President Barack Obama issued memoranda to U.S. attorneys making clear that while marijuana remained illegal under the federal Controlled Substances Act, it was not a federal government priority to prosecute many marijuana offenses in states that have legalized marijuana (Office of the Deputy Attorney General, Guidance Regarding Marijuana Enforcement, August 29, 2013).

The Supreme Court and Federalism

Although state government actions, federal constitutional amendments, congressional statutes, and presidential executive acts all shape the federal-state balance of power, U.S. Supreme Court decisions play a critical role in policing the boundaries of federal and state authority. In a number of high-profile rulings through the years the Supreme Court reviewed congressional acts expanding federal authority and either upheld them and gave them the imprimatur of the federal judiciary or invalidated them and thereby limited expansion of federal power.

During the Reconstruction Era, the Supreme Court limited federal authority to protect civil rights. Congress passed the Civil Rights Act of 1875, which barred racial discrimination in public accommodations, public conveyances, and public amusements. However, the Supreme Court in the Civil Rights Cases (1883) overturned these provisions on the ground that the Fourteenth Amendment authorized Congress to prohibit racial discrimination by state governments but did not reach private actors (Justice Joseph Bradley, Civil Rights Cases, October 15, 1883).

In the 1930s, the Supreme Court initially blocked congressional laws that regulated the economy but eventually relented and allowed many of these measures to take effect. Congress enacted a wide range of New Deal policies regarding social insurance, labor, and agriculture. The Supreme Court initially invalidated several of these measures, leading Congress to reconfigure and reenact some of these policies in ways that eventually overcame the Court’s objections. However, from 1937 onward the Supreme Court upheld each New Deal program that came before the Court and signaled a willingness to grant substantial deference to Congress when determining whether statutes were constitutionally authorized. In Wickard v. Filburn (1942) the Supreme Court went so far as to sustain the authority of federal officials, relying on the Agricultural Adjustment Act of 1938 and drawing support from the commerce power and the necessary and proper clause, to prohibit a farmer from growing extra wheat for his own consumption (Justice Robert H. Jackson, Wickard v. Filburn, November 9, 1942).

In the 1960s, the Supreme Court upheld civil and voting rights acts, including some measures that the Court had blocked in the Reconstruction Era. After Congress passed the Civil Rights Act of 1964, the Court in Heart of Atlanta Motel, Inc. v. United States (1964) sustained the law’s ban on racial discrimination as a legitimate exercise of congressional power pursuant to the commerce clause. Congress also enacted, and the Supreme Court in South Carolina v. Katzenbach (1966) upheld as a legitimate exercise of Congress’ power pursuant to the Fifteenth Amendment, the Voting Rights Act of 1965, whose various provisions included a requirement that certain states and localities discontinue voting tests and other exclusionary devices and obtain preapproval from federal officials before making changes to their voting rules (Chief Justice Earl Warren and Justice Hugo Black, South Carolina v. Katzenbach, March 7, 1966).

Recent Supreme Court rulings under Chief Justices William Rehnquist and John Roberts have limited congressional power, in part by declaring that the commerce power is not a plenary grant of federal authority but rather is subject to certain limits. For instance, in United States v. Lopez (1995), the Court held that the commerce power is not broad enough to authorize Congress to prohibit possession of all guns in and around schools. (Congress responded by amending the Gun Free School Zones Act to prohibit possession in or around schools of guns that have moved in or otherwise affect interstate or foreign commerce.)

The Rehnquist and Roberts Courts also issued rulings that barred Congress from “commandeering” state and local officials by directing them to undertake various tasks. For instance, in Printz v. United States (1997) (Justice Antonin Scalia, Printz v. United States, June 27, 1997), the Supreme Court ruled that Congress could not order state and local officials to conduct background checks on handgun purchases. The Court concluded that doing so would violate the principle of dual sovereignty, an understanding that both the federal government and state governments are sovereign in various respects and that the federal government cannot encroach on powers reserved to state governments.

In recent years, the Supreme Court has also considered whether Congress exceeded its authority pursuant to the spending power when it required states to adopt policies as a condition of receiving federal grants. In South Dakota v. Dole (1987) the Court allowed Congress to require states to raise their legal drinking age to twenty-one or risk losing a percentage of their federal transportation funding (Chief Justice William Rehnquist, South Dakota v. Dole, June 23, 1987). However, in NFIB v. Sebelius (2012) the Court for the first time found that Congress had exceeded its authority pursuant to the spending power by acting in a coercive fashion when it held that Congress could not require states to increase eligibility for Medicaid coverage or risk losing the entirety of their federal Medicaid funding (Chief Justice John Roberts, National Federation of Independent Business v. Sebelius, June 28, 2012).

Supreme Court decisions have also shaped the federal-state balance of power by reviewing state laws. In fact, decisions reviewing state laws have played a greater role in shaping the development of American federalism than decisions reviewing congressional statutes and are issued much more frequently. Most Supreme Court cases reviewing the legitimacy of state laws are rooted in challenges grounded in various clauses of the Fourteenth Amendment. In the first important ruling of this kind, in the Slaughter-House Cases (1873), the Court declined to issue an expansive reading of the privileges or immunities clause or the due process and equal protection clauses. Most important, the Court held that the drafters of the Fourteenth Amendment could not have intended in crafting the privileges or immunities clause to “transfer the security and protection” of most civil rights “from the states to the federal government,” because that would turn the Court into “a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those right” (Justice Samuel F. Miller, Slaughter-House Cases, April 14, 1873).

In the twentieth century, the Supreme Court began to rely on the Fourteenth Amendment’s due process and equal protection clauses to review and invalidate state laws. In a series of decisions the Court held that the due process clause incorporates many of the provisions in the federal Bill of Rights and therefore requires state governments to be bound by these provisions. States were thus required to revise their procedures for prosecuting criminal defendants, change their death penalty laws in various ways, and discontinue state-sponsored prayer in public schools. Meanwhile, the Court relied on the equal protection clause to require states to end public-school segregation and to draw legislative districts on an equal population basis. Justice John Marshall Harlan II argued in a 1969 lecture that “these developments have resulted in bringing within the sweep of federal power much that has hitherto been left to the states” (Justice John Marshall Harlan II, Introduction to an Essay on Robert H. Jackson’s Influence on Federal-State Relationships, 1969).

Supreme Court decisions reviewing state laws have generally increased federal supervision of state laws and led to more uniformity in state policies; but some Court decisions reversed federal supervision and returned policy authority to state governments. In Roe v. Wade (1973), the Supreme Court interpreted the due process clause as guaranteeing a right to abortion and barring states from banning abortions prior to the point of fetal viability, which was understood at the time to take place after the second trimester of pregnancy. However, in Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned this ruling and held that the U.S. Constitution does not protect abortion rights, thereby returning full discretion for abortion policymaking to states (Justice Samuel Alito, Dobbs v. Jackson Women’s Health Organization, June 24, 2022). It should be noted, though, as Supreme Court Justice William Brennan stressed in a 1977 article, that state constitutions can require a higher level of protection for rights than is guaranteed by the U.S. Constitution and by U.S. Supreme Court rulings (Justice William J. Brennan Jr., “State Constitutions and the Protection of Individual Rights,” January 1977). Therefore, state constitution-makers and state judges in interpreting state constitutions can guarantee abortion rights as well as other rights, even when the U.S. Supreme Court declines to do so.

Advantages and Disadvantages of Federalism

Although governing institutions and officials play a role in shaping the balance of federal and state power, Madison argued in Federalist 46 that “ultimate authority … resides in the people alone; and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other” (Publius (James Madison), Federalist 46, January 29, 1788)). The development of American federalism therefore depends crucially on the degree to which the public is persuaded by the advantages or rather the disadvantages of a system that apportions sovereignty between federal and state governments and entrusts state officials with significant responsibility for governing.

Federalism can be seen as “an obstacle to effective government” because it is “too slow-moving and cumbersome to deal with the intricate social and economic problems of an increasingly interdependent society,” as the Kestnbaum Commission noted in its 1955 report (Report of the Commission on Intergovernmental Relations (Kestnbaum Commission), June 28, 1955), although the commission did not favor that position. Federalism has also been associated with inequality. Decentralization of authority permitted southern states to maintain slavery and state-sponsored racial discrimination for much of American history (see Platform of the States’ Rights Democratic Party, August 14, 1948, for the 1948 Platform of the States’ Rights Democratic Party, which supported “segregation of the races” and “local self-government”). Moreover, federalism continues to allow states to pursue divergent approaches to significant policies in the contemporary era.

But federalism is not without its virtues. President Calvin Coolidge, for example, considered federalism “the greatest American contribution to the organization of government over great populations and wide areas” and “the essence of practical administration for a nation placed as ours is” (President Calvin Coolidge, Memorial Day Address at Arlington National Cemetery, May 30, 1925). Supreme Court Justice Louis Brandeis argued in his dissenting opinion in New State Ice Co. v. Liebmann (1932): “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country” (Justice Louis Brandeis, New State Ice Co. v. Liebmann, March, 21, 1932). Supreme Court Justice Sandra Day O’Connor took note of this same advantage, along with others, in her opinion in Gregory v. Ashcroft (1991), arguing, “This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the states in competition for a mobile citizenry … . Perhaps the principal benefit of the federalist system is a check on abuses of government power” (Justice Sandra Day O’Connor, Gregory v. Ashcroft, June 20, 1991).

The Kestnbaum Commission touted these and still other advantages of federalism in its 1955 report: “In helping to bolster the principle of consent; in facilitating wide participation in government; in furnishing training grounds for leaders; in maintaining the habit of local initiative; in providing laboratories for research and experimentation in the art of government; in fostering competition among lower levels of government; in serving as outlets for local grievances and for political aspirations—in all these and many other ways, the existence of many relatively independent and responsible governments strengthens rather than weakens our capacity for government.”