States' Rights, Nullification, and War
When Abraham Lincoln was elected president in 1860, those fears led to secession, or withdrawal from the Union, by 11 Southern slave states. The states took this action despite there being no provision in the Constitution permitting it.
The difference between the federal and confederal systems was emphasized by the split, with the seceding states forming the Confederate States of America, in opposition to the federal Union. Secession triggered the beginning of the American Civil War in 1861. So while slavery and states' rights were the issues that led to the war, the very existence of the United States was at stake. As Lincoln would state in his Gettysburg Address, the war would test whether the nation could long endure. The defeat of the Confederacy in 1865 established that the national government had the power to maintain the Union and discredited the ideas of secession and nullification.
Interposition Proposed and Overturned
Years later, the idea of interposition was revived when Southern opposition arose to the Supreme Court's decision in Brown v. Board of Education (1954), which ordered an end to racial segregation in public schools. Several states issued resolutions of "interposition and nullification" declaring the court's decision unconstitutional. The governor and legislature of Arkansas sued to prevent implementation of a federal court order to desegregate schools in Little Rock. They asked that the order be delayed. The U.S. Supreme Court, in Cooper v. Aaron (1958), unanimously denied the state's claim, stating "the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation." Interposition was denied.
Dual versus Cooperative Federalism
Some of these court decisions rested on the commerce clause. For example, the Supreme Court upheld the National Labor Relations Act in NLRB v. Jones and Laughlin (1937) on commerce clause grounds. Between then and 1995, the court sided with a broad interpretation of the commerce clause in every challenge. Beginning in the 1990s, however, the court limited the government's reliance on the commerce clause to justify legislative action.
Key Supreme Court Decisions and the Commerce Clause, 1985–2012
|South Dakota v. Dole (1985)||South Dakota challenged a federal law that withheld highway funds from any state that did not raise the drinking age to 21. The Supreme Court ruled that the federal government had the authority to mandate a higher drinking age on the grounds of "general welfare."|
|United States v. Lopez (1995)||In 1990 Congress passed the Gun-Free School Zones Act, which banned carrying a gun in a school zone. Lopez contended that his conviction for breaking the law was unconstitutional because Congress exceeded its power under the commerce clause in passing the law. The court agreed on the grounds that carrying a gun was not an economic activity and thus the commerce clause did not apply.|
|United States v. Morrison (2000)||Congress relied on the commerce clause and the 14th Amendment to pass the Violence Against Women Act. Two males objected to a lawsuit brought against them under this law for sexual assault of a woman. The court ruled that the law did not involve an activity affecting interstate commerce.|
|Raich v. Gonzalez (2005)||Despite a federal law banning marijuana, California passed a law permitting citizens to grow it. The Supreme Court ruled that Congress could overrule this law under the commerce clause, as it soon became an item of interstate commerce.|
|NFIB v. Sebelius (2012)||The Affordable Care Act stated that any citizen who did not buy a specified amount of health insurance would be fined. The Supreme Court ruled that this violated the commerce clause, saying that Congress does not have the authority to force people to buy something.|
Dual versus Cooperative Federalism
Fiscal federalism is a theory of government that addresses how financial issues and functions are effectively divided among different levels of government, such as state and national. When the federal government attaches regulations to matched funds, as with AFDC, it can exercise considerable control over state action. It can be even more forceful when supplying all the funding for a program. In the 1980s, for instance, the federal government attached raising the age for drinking alcohol to 21 as a condition a state must meet before it could receive federal highway funds. Many conservative thinkers argue that fiscal federalism significantly encroaches on state powers, distorting the federal system.
In the 1970s a new judicial federalism began to arise—increasing the involvement of the judicial branch in the process of defining rights and laws. This judicial federalism occurs primarily at the state level, with state supreme courts interpreting state constitutions to provide more rights than the federal Constitution offers. There is considerable disagreement about how extensive judicial federalism should be.
Attempts to balance federal power, state sovereignty, and individual rights continue, as will the tension between those who want more federal control and those who value state power and individual liberty.