American Democracy in Context. Joseph A. Pika
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as “dual sovereigns” (two relative equals).
Cooperative Federalism
Cooperative federalism is an interpretation of the Constitution that favors national supremacy. Although the term cooperative federalism was coined in the twentieth century, its basic tenets can be used to describe earlier eras, such as the national supremacy associated with the Supreme Court in the early 1800s.18
Cooperative federalism views the Constitution as a contract among the people rather than a contract among the states. The dual federalists’ belief that the Constitution was a compact among the states allowed for the possibility that states could secede—leave the Union—as the Confederacy did during the Civil War. The cooperative federalist perspective rejects that possibility and puts ultimate authority with the people rather than with the states.
Rather than viewing the Constitution as a fixed document, cooperative federalists view the Constitution as an organic—“living”—document. They believe that the Constitution contains ambiguous language for a reason: to allow the document to adapt to changing times. Thus, rather than emphasizing the fixed nature of the express powers of the Constitution, as dual federalists do, cooperative federalists emphasize the ability to expand the power of the national government through a very broad interpretation of the necessary and proper clause. This broad interpretation allows Congress a wider range of implied powers than a dual federalist interpretation would allow: Congress can do anything that is useful or helpful to carry out its enumerated powers. There need only be, in other words, a very tangential link between the enumerated and implied powers.
In stark contrast with dual federalists, cooperative federalists minimize the significance of the Tenth Amendment. Rather than seeing it as a meaningful limit on the power of the national government, they dismiss the Tenth Amendment as a mere “truism.”19 In other words, the Tenth Amendment simply states the obvious: Powers that do not belong to the national government belong to the states or the people. Cooperative federalists do not believe that powers of the national government have to be expressly delegated but instead assert that they can include implied and even inherent power (in other words, powers that any sovereign government must hold, whether or not they are expressly enumerated or implied, such as defending its borders or acquiring new territory).
Quite simply, under a cooperative federalist view, the national government has whatever power it is able to derive—be it from narrowly defined enumerated powers or from broadly construed implied or inherent powers. Unlike the dual federalists, cooperative federalists do not believe the Tenth Amendment can be used to prevent these broad interpretations of implied and inherent powers. This interpretation is what reduces the Tenth Amendment to the truism that states simply have whatever power is left over.
When considering the relationship between the levels of government, cooperative federalists view the national government as supreme. They see the relationship as strictly hierarchical (as opposed to the system of dual sovereignty that dual federalists espouse).
Finally, rather than viewing the Supreme Court as an umpire between two dual sovereigns, cooperative federalists consider the Supreme Court to be a player on the national team. Thus, the Supreme Court should uphold broad interpretations of constitutional language (such as the commerce clause or the necessary and proper clause) that can be used to expand the power of the national government at the expense of the states.
cooperative federalism An interpretation of federalism that favors national supremacy and assumes that states will cooperate in the enforcement of federal regulations.
Early Precedents: National Supremacy Prevails
John Marshall, appointed chief justice of the Supreme Court in 1801 by President John Adams, was the longest-serving chief justice in the history of the Supreme Court. He presided over several landmark cases that expanded the power of Congress at the expense of the states. Chief among these are McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), both of which reflected the views of cooperative federalism.
McCulloch v. Maryland (1819)
At issue in McCulloch v. Maryland was whether Congress had the authority to create a national bank. The enumerated powers did not specifically give such authority to Congress. Those who said that Congress had the authority anyway, such as Alexander Hamilton, the first secretary of the treasury, embraced a broad cooperative federalist interpretation of the elastic clause and argued that creating a national bank was “necessary and proper” (that is, useful or helpful) to carrying out Congress’s enumerated powers. After all, the Constitution specifically gave Congress the power to collect taxes, borrow money, coin money, and regulate the value of money. Surely, he argued, a national bank would facilitate these enumerated powers.20 Dual federalists who believed Congress did not have authority to create a national bank, such as Thomas Jefferson, argued that a national bank was not absolutely necessary or essential for these enumerated powers to be carried out.
Congress embraced Hamilton’s position and created the First Bank of the United States in 1791 and the Second Bank of the United States in 1816. To express its opposition, the state of Maryland then passed legislation to tax all banks operating in the state that were not chartered by the state. James McCulloch, the head of the Baltimore branch of the Second Bank, refused to pay the tax. This led to a lawsuit between McCulloch and Maryland that ended up in the Supreme Court.
The Court confronted two legal questions when deciding McCulloch v. Maryland: Did Congress have the authority to create a national bank? And if so, did the state of Maryland have the authority to tax the Baltimore branch of that bank? The Court unanimously decided that Congress did have the authority to create a national bank. It concluded that creating the bank was a legitimate exercise of Congress’s implied powers. In so doing, the Court embraced Hamilton’s broad, cooperative federalist interpretation of the necessary and proper clause. By assuming that the necessary and proper clause allows Congress to do those things that are appropriate (as opposed to essential) to carrying out its enumerated powers and consistent with the spirit (as well as the letter) of the Constitution, the ruling paved the way for Congress to significantly expand its powers and to do so at the expense of the states.
With regard to the second question, the Court concluded that the state of Maryland could not tax the Baltimore branch of the national bank without violating the supremacy clause. As Marshall stated, “the power to tax involves the power to destroy.”21 States “have no power, by taxation or otherwise, to retard, impede, burden or in any manner control the operations of the constitutional laws enacted by Congress.”22 Since Congress has the authority to create a national bank, a state cannot punish that bank, discourage its operation within its borders, or seek to destroy it through taxation. To do so would violate the supremacy of national law.
The Supreme Court’s answers to these legal questions had profound consequences. Its broad interpretation of the necessary and proper clause remains, to this day, an important source of congressional power. In addition, the limit on the power of states to tax the national bank became an important precedent that continues to prevent states from retaliating against or otherwise impeding other entities created by Congress, such as regulatory agencies, that operate within states.
Gibbons v. Ogden (1824)
In Gibbons v. Ogden, the Marshall Court again ruled in favor of broad national power, this time in relation to the commerce clause of the Constitution (Article I, Section 8). Now the debate focused on how broadly to read the enumerated powers of the commerce clause, which gives Congress the authority to regulate interstate commerce. But what, exactly, does this authority entail?
commerce clause Article I, Section 8 of the Constitution, which gives Congress the authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Dual federalists believe the commerce clause gives Congress only those powers essential