Federalism and State Powers

During the early years of this nation, many regarded the concept of a strong central government with suspicion and scorn. According to popular political thought, a republican form of government could survive only in a relatively small country. As a result, the Articles of Confederation, the Constitution's predecessor, conferred few powers on the national government. Ratified in 1781, the Articles of Confederation expressly retained the states' "sovereignty, freedom and independence." The states kept all power which was not expressly granted to Congress. Under this scheme, Congress had been deprived of the essential powers to tax and regulate commerce. A financial nightmare arose when the states failed to provide the central government with revenue. Moreover, the Articles of Confederation failed to establish a federal judiciary. Instead, Congress had been authorized to resolve certain types of disputes.

In 1787, a Constitutional Convention was convened for the purpose of remedying the inherent weaknesses under the Articles of Confederation. The delegates debated competing plans: (1) the Virginia Plan, which proposed a strong national government with authority to define its own power, as well as that of the states; and (2) the New Jersey Plan, which favored strong state governments. The New Jersey Plan received little support since it was too similar to the Articles of Confederation.

A heated dispute arose between large and small states over the proper means of determining representation in both chambers of the national legislature. While the large states advocated representation according to population, the small states called for equal representation. They finally settled on a solution known as the Great Compromise, which allowed equal voting power for each state in the Senate and representation by population in the House of Representatives. Many viewed the recognition of state equality as a concession to state sovereignty. In the end, however, the delegates voted in favor of a strengthened central government, with executive, legislative, and judicial branches. Article VI of the Constitution provided that "[t]his 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." Such language would have been unthinkable under the Articles of Confederation, which was so protective of state sovereignty that it referred to the union between the states merely as "a firm league of friendship."

The Constitution was the subject of intense political debate after it was submitted to state conventions for ratification in accordance with Article VII, which required ratification by nine states. Anti-federalists greatly feared that the proposed central government would ultimately obliterate state sovereignty. They also argued that, unlike some state constitutions, the Constitution lacked a bill of rights. In support of the Constitution, Alexander Hamilton, James Madison, and John Jay authored a series of articles known collectively as the Federalist. It is regarded as one of the most significant political documents in this country's history because it sets forth explanations as to the various provisions under the Constitution.

Shortly after the Constitution was ratified in 1788, the Bill of Rights (the first ten amendments) was proposed by Congress and ratified in 1791 by three-fourths of the states, as required under Article V. The Bill of Rights placed limitations on the federal government's ability to infringe upon the personal liberties and fundamental rights of the citizenry. For example, the First Amendment prohibited Congress from enacting laws which abridged the freedom of speech, while the Fourth Amendment forbade unreasonable searches and seizures. However, these limitations were not yet applicable to the states. At that time, the states were constitutionally forbidden only from passing bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, all of which were specifically mentioned under Article I, in the main body of the Constitution.

During the Civil War, the issue of state sovereignty was crucial inasmuch as the Southern states insisted that, as independent entities, they had the right to secede from the Union. The outcome of the Civil War settled once and for all that the ultimate sovereign power of this country was vested in the national government.

Following the Civil War, the Fourteenth Amendment was added to the Constitution. Section 1 provided that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Fourteenth Amendment clearly rendered state citizenship secondary to national citizenship. Moreover, the Fourteenth Amendment made the Bill of Rights applicable to the states, which meant that the states were legally bound to honor and protect their citizens' federally-conferred rights. During subsequent years, Congress has used its constitutionally-granted powers, especially its authority to regulate interstate commerce, to further encroach upon state autonomy.