The Shadow Powers of Article I

By LaCroix, Alison L. | The Yale Law Journal, April 2014 | Go to article overview

The Shadow Powers of Article I

LaCroix, Alison L., The Yale Law Journal


What does American federalism require? Most observers agree on a few general principles: federalism in some form is a fundamental ingredient of the U.S. Constitution; at minimum, federalism means that the powers of the federal government are not unlimited; the exercise of those powers must be grounded in text, structure, or practice; and the states should be understood as having a definite and meaningful identity, ranging from co-equal sovereign to regulatory partner. A commitment to federalism requires, in short, that Americans constantly measure their messy legal and political structure against a hazily defined and capacious idea upon which there is little agreement beyond the fact that many of the Founders regarded federalness as one of the nation's essential attributes. Today, federalism means, at a minimum, viewing both the states and the federal government as legitimate sources of legal and political authority, but little consensus exists as to what that general principle of multiplicity should mean in practice. (1)

Where is American federalism to be found in the Constitution? The word is never mentioned in the document itself, in either the 1787 text or the amendments. But commentators have long recognized that the text, structure, and underlying logic of the Constitution assume and endorse a federal system of government. (2) Modern constitutional law typically focuses on three main textual and doctrinal sources of federalism: (1) the enumeration principle (Article I); (2) judicial review of state law by the Supreme Court (Article III plus the Supremacy Clause of Article VI, Clause 2); and (3) the Supremacy Clause itself, especially the requirement that the Constitution, laws, and treaties of the U.S. are the supreme law of the land and bind judges in the states. (3)

A related but distinct potential locus of federalism in both text and doctrine is the Tenth Amendment, which states, "The 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." (4) Beginning in the 1930s, and gaining new vigor in the 1970s, the Tenth Amendment became the touchstone for the view that federalism means taking the states seriously as sovereigns. (5) Indeed, for many judges and commentators, the mere invocation of the Tenth Amendment amounts to a normative statement about the value of the states in the federal structure and the concomitant limits on federal power. (6) In some cases, the Tenth Amendment is treated as a constitutional guarantee of "the province of state sovereignty" (7) and "local power always existing" in the states; (8) in others, it is "but a truism that all is retained which has not been surrendered." (9)

How do we know what federalism ought to look like today? Following the invalidation of the Child Labor Act in Hammer v. Dagenhart in 1918, and continuing for much of the twentieth century, the paradigmatic federalism question as framed by the Supreme Court was the correct balance between Congress's power to legislate under Article I, on one hand, and the states' large, ill-defined, and perhaps exclusive regulatory domain on the other. (10) In Hammer, Justice Day, writing for the Court, set forth the robust view of the Tenth Amendment that echoed down through decades of case law:

   In interpreting the Constitution, it must never be forgotten that
   the nation is made up of states to which are entrusted the powers
   of local government.... The power of the states to regulate their
   purely internal affairs by such laws as seem wise to the local
   authority is inherent and has never been surrendered to the general
   government. (11)

Justice Holmes's dissenting opinion, in contrast, crystallized the opposing argument from Article I:

   I should have thought that the most conspicuous decisions of this
   Court had made it clear that the power to regulate commerce and
   other constitutional powers could not be cut down or qualified by
   the fact that it might interfere with the carrying out of the
   domestic policy of any State. … 

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Shadow Powers of Article I


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.