American Democracy in Context. Joseph A. Pika
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of course, have to get along with each other. Bitter rivalries had existed among the states during the Articles of Confederation as they jostled for economic advantage. Mindful of this, the framers of the Constitution took effort to include provisions for states to resolve disputes and to assure that states recognize each other’s contracts and judicial decrees. Article IV contains three clauses that focus on relationships among the states.
First, the full faith and credit clause requires each state to give “full Faith and Credit … to the public Acts, Records, and judicial Proceedings of every other State.” As the Supreme Court has explained, each state existed under the Articles of Confederation as an “independent foreign entity” that was “free to ignore obligations created under the laws or by the judicial proceedings” of other states. The full faith and credit clause meant to change that by making states “integral parts of a single nation.”14 In particular, the clause ensures that things such as contracts and judicial decrees from one state are recognized and honored in every other state (thus preventing a contract made in one state from becoming void after crossing state lines). A primary purpose of the clause was to protect commerce and trade, since interstate business transactions depend upon enforceable contracts. Recently, however, some gun rights advocates have suggested that Congress use the full faith and credit clause to mandate “concealed-carry reciprocity.” Such reciprocity would allow the resident of a state that allows the carrying of concealed weapons to obtain “non-resident” permits to carry them when they travel—even in states that prohibit their own residents from carrying concealed weapons.15
full faith and credit clause The requirement of Article IV, Section 1 of the Constitution that requires states to recognize “the public Acts, Records, and judicial Proceedings of every other state.”
privileges and immunities clause A provision of Article IV, Section 2 of the Constitution that forbids a state from denying citizens of other states the rights it confers upon its own citizens.
extradition clause A provision of Article IV, Section 2 of the Constitution that requires states to return (extradite), upon request, a fugitive who has fled the law to the state that has jurisdiction over the crime.
interstate compacts Contracts between two or more states that create an agreement on a particular policy issue.
Second, the privileges and immunities clause forbids a state from denying citizens of other states the rights it confers on its own citizens. Thus, a citizen of one state cannot be precluded from traveling through or residing in other states or, while there, be prohibited from purchasing property or denied the protection of the law.
Third, the extradition clause deals with someone who is charged with a crime in one state but flees justice. If that person is found in another state, the extradition clause requires that state to return (extradite), upon request, that person to the state where the crime was committed.
In addition, Article I allows states, with the consent of Congress, to enter into interstate compacts. Interstate compacts are contracts between two or more states that create an agreement on a particular policy issue. Rarely used before the twentieth century, interstate compacts have become common since World War II. Over 200 such compacts are currently in operation, most of which have been created in the past 75 years. In general, there are three broad types of interstate contracts:
border compacts, which establish or alter the boundaries of states;
advisory compacts, which create a commission to study a problem and then issue a report offering advice to the respective states; and
regulatory compacts, which establish an administrative agency to develop rules and regulations governing a particular issue.16
Interstate compacts cover a broad range of policy issues, including conservation, resource management, transportation, education, mental health, civil defense, and emergency management. A famous example of a regulatory compact is the Port Authority of New York and New Jersey, created in 1921 to build, maintain, and operate bridges and tunnels between the two states. Over the next two decades, the Port Authority built, among others, the George Washington Bridge, the Goethals Bridge, the Holland Tunnel, and the Lincoln Tunnel. The Port Authority was also charged with building terminals, piers, airports, and even the World Trade Center in Manhattan—all designed to improve commerce and trade.17
The Bayonne Bridge, which connects Bayonne, New Jersey, with Staten Island, New York, is operated by the Port Authority of New York and New Jersey, an example of an interstate compact.
Bill Wright / The LIFE Images Collection / Getty Images
Finally, Article III, Section 2 of the Constitution gives the Supreme Court the authority to resolve disputes among states, such as those involving water rights. Such disputes are among the few types of cases that can actually be initiated before the Supreme Court under its original jurisdiction (see Chapter 14) rather than coming to the Supreme Court on appeal.
Competing Interpretations of Federalism
As we have already discussed, ambiguity in constitutional language dealing with federalism has led to much debate over the relative balance of power between the national government and the states. This disagreement is reflected in two competing interpretations of federalism: dual federalism and cooperative federalism.
Dual Federalism
Dual federalism is an interpretation of federalism that favors states’ rights. It views the Constitution as a contract among preexisting states. Under the Constitution, these states willingly delegated certain powers to the new national government, but dual federalists believe that states retain all powers not specifically delegated.
Dual federalists also believe that the Constitution is a fixed document (rather than a “living” document that is subject to changing interpretations). They emphasize the Constitution’s clearly delineated express powers (such as Congress’s enumerated powers) and believe that the Constitution should be interpreted consistently over time.
Thus, they reject the idea that judges can use ambiguous language in the Constitution to augment the powers of the national government at the expense of the states. Therefore, they embrace a very narrow interpretation of Congress’s implied powers. To them, the necessary and proper clause allows only a very limited expansion of congressional power to do those things essential to carrying out the enumerated powers. There must, in other words, be a very direct link between enumerated and implied powers.
Dual federalists also firmly embrace the Tenth Amendment, which they believe stands as a significant limit on the power of the national government and an important protector of states’ rights. They believe that any actions of Congress that go beyond the enumerated powers and a very limited interpretation of the implied powers violate the Tenth Amendment. They further believe that the Supreme Court should employ the Tenth Amendment to rein in the national government and protect the prerogatives of the states.
When considering the relationship between the levels of government, dual federalists view the national government and the states as dual sovereigns—two relative equals, each of which is supreme in its own sphere.
Finally, dual federalists believe that the proper role of the Supreme Court is to act as an umpire between these two equals. It should uphold the right of the national government to exercise its express powers but strike down attempts by the national government to use broad readings of constitutional language to intrude upon the reserved powers of the states. They consider such attempts to be power grabs that violate the Tenth Amendment.
dual federalism An interpretation of federalism that favors states’