American Democracy in Context. Joseph A. Pika
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among the states. Therefore, Congress’s power is largely limited to regulating the transportation of these goods and commodities across state lines. Cooperative federalists believe the commerce clause gives Congress the authority to regulate anything that has even an incidental effect on interstate commerce. Thus, in the twentieth century, cooperative federalist interpretations of the commerce clause expanded Congress’s power to include regulation of the workplace (including the passage of minimum wage laws and maximum hour laws), which dual federalists insist should fall to states under their police powers.
Gibbons v. Ogden set an early precedent for a broad reading of commerce clause power. The case dealt with whether navigation and the transportation of people (rather than of goods and commodities) across state lines were subject to regulation by Congress. Why did this become a question? Aaron Ogden operated a steam-powered ferryboat between New Jersey and New York. The state of New York controlled who could navigate in those waters, and Ogden operated his boat with a state-sanctioned license (part of a steamboat monopoly). Soon thereafter, he faced competition from another ferryboat operated by Thomas Gibbons. Instead of a state-sanctioned license, Gibbons had a federal license granted to him by Congress. Unhappy with the competition, Ogden obtained an injunction from a New York state court to prevent Gibbons from operating his steamboat without a state-sanctioned license. Gibbons appealed, arguing that a license from Congress trumped a state-sanctioned one.
Even in the nineteenth century, the waterways around New York City were bustling, making control of ferry service across the Hudson a contentious issue.
In an opinion again written by Chief Justice Marshall, the Supreme Court embraced the broad interpretation of Congress’s commerce clause power and determined that Congress did have the power to issue the license.23 Having concluded that Congress had the power to regulate navigation—not only the transportation of goods and commodities—and thus to issue the license to Gibbons, the Court then used the supremacy clause to conclude that New York State could not grant a steamboat monopoly that would render that license void. To do so would interfere with Congress’s commerce clause power.
Again, this broad interpretation of the commerce clause has had profound long-term consequences. It paved the way for post-1937 rulings by the Supreme Court that allowed Congress to use the commerce clause to pass legislation dealing with everything from minimum wage laws to racial discrimination in restaurants.
The Resurgence of States’ Rights
Although the Supreme Court under John Marshall solidly embraced the idea of national supremacy, the debate over federal power versus states’ rights was far from settled. Indeed, it remained one of the most significant and divisive political issues of the 1800s. John Marshall’s successor as chief justice, Roger Taney, moved the Supreme Court in a decidedly dual federalist direction. The most notorious ruling of the Taney Court—and possibly the most notorious Supreme Court ruling of all time—came in the infamous Dred Scott case of 1857 (see Chapter 5). Embracing dual federalism, the Court concluded that Congress had exceeded its powers when it abolished slavery in the territories. By insisting that the issue of slavery be left to individual states, the Court effectively ruled out a national legislative solution to the issue. In so doing, the ruling helped to precipitate the Civil War.
Nullification, Secession, and the Civil War
The debate over slavery was the overriding political issue in the days leading up to the Civil War, and states’ rights came to be used as a justification to maintain it. Andrew Jackson’s vice president, John C. Calhoun, an outspoken proponent of states’ rights, proposed that states should be able to invalidate federal laws that they believed to be unconstitutional through the process of nullification.
Matthew Whitaker, who served as the acting attorney general in the Trump administration after Jeff Sessions resigned, was among those who had earlier advocated a controversial proposal to use the now-discredited doctrine of nullification to invalidate the Affordable Care Act (Obamacare).
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nullification The concept that states can invalidate federal laws that they believe to be unconstitutional.
In contrast with Calhoun, President Jackson—sympathetic to states’ rights but convinced that nullification would destroy the Union—rejected the idea of nullification. Undeterred, Calhoun continued to advocate his nullification doctrine. As a result, South Carolina issued a formal Ordinance of Nullification in 1832.24 Jackson’s continued opposition to nullification led Calhoun to resign as his vice president the next month. Congress went on to pass legislation that authorized the use of military force against states that refused to enforce federal law.25 Advocates of nullification lost the battle, but the seeds of Southern discontent had been sown.
In the decades that followed, slavery further inflamed relations between the national government and the Southern states. The election of Abraham Lincoln as president in 1860 proved to be the last straw. He had made it clear in the campaign that he supported efforts at the national level to prohibit slavery. Building on the concept of nullification and the ideas of coequal sovereignty inherent in dual federalism, Southern states now claimed the right of secession, the ability to withdraw from the Union. South Carolina formally exercised that right on December 20, 1860, and eleven others quickly followed suit. Together, the states that seceded formed the Confederate States of America.
The defeat of the Confederacy in the Civil War seemed to establish once and for all that states cannot secede, a view endorsed by the Supreme Court in Texas v. White (1869).26 Nonetheless, fringe movements at both ends of the political spectrum continue to embrace the idea of secession. Today, the Texas Nationalist Movement calls for the secession of Texas.27 As of 2009, it claimed that more than 250,000 Texans had signed up in support of that goal.28 Vermont’s secessionist party, called the Second Vermont Republic,29 ran a slate of nine candidates in statewide elections in 2010. If you think such candidates never win, look to Alaska. There a candidate representing the Alaska Independence Party,30 Walter Joseph Hickel, drew enough support to be elected governor in 1990. That party’s 2006 attempt to place an initiative on the ballot calling for Alaska to secede from the United States was blocked by a ruling of the Alaska Supreme Court, which held that any attempt at secession violated the U.S. Constitution.31
The modern Texas Nationalist Movement depicts the federal government as an oppressive force and calls for the secession of Texas.
J. G. Domke / Alamy Stock Photo
The Rise and Fall of National Power in the Wake of the Civil War
The so-called Civil War Amendments to the Constitution—the Thirteenth (1865), Fourteenth (1868), and Fifteenth Amendments (1870)—greatly expanded the power of the national government. They prohibited slavery, prevented states from abridging the right to vote on account of race, and prohibited states from depriving any person of due process of the law or the equal protection of the laws. Each contained an enabling clause, which expanded Congress’s power to enforce the provisions of these amendments.
Although it did not happen immediately, the Fourteenth Amendment also paved the way for the incorporation of the Bill of Rights—in other words, making the provisions of the Bill of Rights binding upon states as well as the federal government (see Chapter 4). Thus, the long-term effect of the Fourteenth Amendment has been