This article provides the broad historical context necessary to understand contemporary developments in federalism doctrine. It shows that dual federalism has a long and varied history and that federalism is a content-neutral principle to which both sides in major political contests have appealed. It seeks to show that the predominant perspective on federalism today-that it is an inherently conservative principle-is the result of historical misperception. This article reinterprets the history of American federalism in light of recent historical scholarship concerning various periods: principally the country's founding; slavery, the Civil War, and Reconstruction; the late nineteenth-century social question; and the Progressive Era.
Since 1976, and especially in the last few Supreme Court terms, legal scholars have detected a "new federalism." Several decisions suggest that Congress can no longer exercise virtually unlimited control over the nation' s socioeconomic life from its power to "regulate commerce among the States."1 These decisions point toward a revival of the constitutional principle of "dual federalism," in which both federal and state governments enjoy sovereign powers.2
From the ratification ofthe Constitution until the New Deal, a consensus held that the national government was one of limited, enumerated powers and that the states reserved the vast bulk of ordinary government functions. The Tenth Amendment stated this principle, that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."3 In the early years of the twentieth century, the "progressive era," this dual system began to erode as Congress began to exercise local or "police powers" - the general power to legislate on matters concerning the safety, health, welfare, and morals of the people.4 The Supreme Court and the American people were fundamentally ambivalent about this development, favoring greater national power but deeply divided about how far it should go.5 The economic crisis of the Great Depression and political realignment of the New Deal swept that ambivalence away.6 After 1937, the Supreme Court no longer struck down acts of Congress regulating economic activity as beyond the delegated powers of the Constitution.7 The Court and informed public opinion accepted all regulation as coming under Congress's power "to regulate commerce among the States."
Suddenly, in 1976, the Court reopened the federal question. In National League of Cities v. Usery* it held that Congress could not impose the Fair Labor Standards Act on state employees.9 To do so limited an "attributeQ of sovereignty attaching to every state government."10 Ten years later, in Garcia v. San Antonio Metropolitan Transit Authority,11 the Court overturned National League of Cities and declared that it would no longer act as the umpire in settling federal-state boundary disputes, leaving such conflicts to the political branches.12 After another decade, the Court effectively overruled Garcia, striking down the Gun-Free School Zones Act.13 Congress could not claim that the criminalization of the possession of a firearm within one thousand feet of a school was a regulation of commerce among the states.14 Two years later, the Court held that Congress could not compel state officers to help enforce the Brady Handgun Violence Prevention Act.15 In 2000, the Court struck down the Violence Against Women Act on similar grounds.16 "Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims," the court declared.17
All of these decisions were 5-4, and nobody knows what they may amount to.18 It is far too early to predict the future or to sort out profitably the intricate legal distinctions of this tumultuous and closely divided set of cases. …