American Federalisms: From New Foundations to New Federalism

Erin Ryan

in Federalism and the Tug of War Within

Published in print December 2011 | ISBN: 9780199737987
Published online January 2012 | e-ISBN: 9780199918652 | DOI:
American Federalisms: From New Foundations to New Federalism

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Chapter three reviews the history of American federalism as a story of competition between compelling principles in tension with one another, stretching the legal framework in one direction and then overcorrecting in another. Visualizing operative federalism theory as a four-dimensional pendulum, the chapter describes it swinging freely over time among the independent federalism values—pointing to a favorite at one period in history and another in a different era. Ongoing uncertainty about how judicial doctrine should resolve these issues is reflected by the Court’s vacillating case law over this time period. Chapter three traces the swing of the pendulum through American history, casting its arc in terms of shifting theories about how best to balance competing values. Its fluidity reflects the combined forces of gradual ideological oscillation and occasionally violent tug of war as social events impact the evolution of interpretive federalism theory. The chapter begins with the difficulties that the pioneers of American federalism faced in deciphering what their new concept of dual sovereignty would mean in practice, from the national bank to the southern nullification challenges to the Civil War. Dual federalism emerged as the theoretical touchstone of the nineteenth century, establishing the classical idealism for which later dualist models would yearn. Even so, the challenges of jurisdictional overlap were clear as early as the Federalist Papers and the Constitutional Convention’s replacement of the Articles of Confederation. The chapter then explores federalism’s tug of war during the second half of American history, focusing on the twentieth century. It reviews the Progressive and Lochner eras, the Great Depression and the New Deal, the Civil Rights Movement and Great Society eras that led to the entrenchment of cooperative federalism under the Warren Court, and finally the New Federalism challenge under the Rehnquist Court.

Keywords: american history; legal history; federalism history; federalism theory; federalist Papers; dual sovereignty; dual federalism; classical dualism; national bank; nullification; civil War; constitutional Convention; articles of Confederation; progressive era; lochner era; lochnerism; great Depression; new Deal; civil Rights Movement; great Society; cooperative federalism; warren Court; new Federalism; rehnquist Court

Chapter.  19360 words. 

Subjects: Constitutional and Administrative Law

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