The Ambiguity of

American Federal Theory*

Rozann Rothman
University of Illinois at Urbana-Champaign

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Introduction
The multiple interpretations of American federalism have gen-
erated varying degrees of discomfort for historians, legal and political
scholars, and politicians since the possibility of union was first
broached. Theories of American federalism are entwined with the
events of American history, yet scholars tend to compartmentalize
styles of federalism. Labels such as "dual federalism," or "coopera-
tive federalism," or the "new federalism," were coined to cover the
activities of particular historical periods. Catalogues of textbook
definitions have been compiled.1 There have been historical analyses
of what federalism meant to the Framers,2 demands for recognition
that the federalism of the Framers is dead3, and declarations that
federalism is an obstacle to progress.4 More recently, the focus
shifted to intergovernmental relations, i.e., the systematic study of
how the system works. This strategy circumvents the conceptual
confusion generated by the continuing argument about the meaning

See for example, Richard H. Leach, American Federalism (New York: W.W. Norton,
1970), Chapter 1; and Michael D. Reagan, The New Federalism (New York: Oxford Uni-
versity Press, 1972), Chapter 1.
Martin Diamond, "What the Framers Meant by Federalism," in A Nation of States, ed.
Robert A. Goldwin (Chicago: Rand McNally, 1974), pp. 25-42.
William Riker, Federalism: Origin, Operation, Significance (Boston: Little Brown and
Co., 1974); James L. Sundquist with the collaboration of D.W. Davis, Making Federalism
Work (Washington: Brookings Institution, 1969).
William Riker, Federalism; Harold Seidman, Politics, Position and Power (New York:
Oxford University Press, 1975), pp. 161-189.

*/ would like to thank Professors Judson James and Vincent Ostrom for their helpful
criticism of an earlier draft.

©PUBLIUS, The Journal of Federalism, The Center for The Study of Federalism, Summer 1978

103
104 Rozann Rothman

of federalism and provides invaluable data on increasing interdepen-

dence and changing modes of interaction. However, die approach
tends to overlook the attraction of federal values and their cumula-
tive effect on policy making and implementation.
The starting point of this essay on federal theory is the conceptual
confusion surrounding the interpretation of federalism. Conceptual
confusion can be viewed as a resource, implying a richness of mean-
ing and the kinds of continuing usage which indicate the centrality
and viability of American federalism. This perspective treats fed-

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eralism as "a sort of uneasy combination of all of these uses
[although] the assumptions and implications of some of its ordinary
uses may not be at all compatible with the assumptions and implica-
tions of others of these ordinary uses."s Using this approach, the
political origin of interpretations of federal theory and the effects of
these understandings on American conceptions of the constraints and
opportunities of federalism can be explored.
History and Theory
The justification for this approach is found in the ambiguities of
Constitution making and the conflicts in American history. American
federalism was a by-product of the compromises of Constitution
making, but the Constitution quickly acquired a patina of sanctity
while the federal structure became the battleground on which diverse
interests competed. John Marshall legitimized one conception of the
powers granted by the Constitution in his famous dictum in McCul-
loch v. Maryland6, but the decision failed to moot the dispute over
ultimate authority or sovereignty in the federal systems.
The focusing of conflict into a dispute over sovereignty was not
accidental. Patrick Riley notes that 17th century theories of fed-
eralism developed in opposition to the doctrine of sovereignty which
claimed that there ought to be a power internally supreme and ex-
ternally independent within a given policy.
Federalism, then viewed in the light of political philosophy, can more
plausibly be understood as having arisen as an alternative to, and (more
precisely) in opposition to, the existence of the monolithic power of the
sovereign states of post 16th century modernity. The oddness of all federal
theory—its dependence on the concept of sovereignty (as in the doctrine
of "state's rights" or state autonomy), despite its real opposition to sove-
reignty in national states as productive of suppression of local autonomy—

S
Hanna Pitkin, ed., Representation (New York: Atherton Press, 1969), p. 16.
6
McCullocb v. Maryland, 4 Wheat, 316, 4L Ed. 579 (1819).
 The Ambiguity of American Federal Theory 105

is due to its having seized on the very concept (sovereignty) which it

actually opposed, to defend its position more securely. That is, its oddity
is due to federalism's having defined the autonomy of its territorial units
in terms of sovereignty, whereas in fact it would have done better to try to
overturn the idea of sovereignty tout court. All efforts to divide what
could only be conceived precisely in terms of total unity drew federal
theory into constant paradox and contradiction.7
In theory, American federalism did not conform to this pattern.
Sovereignty was located in the people; they created governments and
could create as many as they chose.8 The theory neatly evaded the
paradox described by Riley but the ideological controversies of the

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early Republic, as well as the practical obstacles to implementing the
people's sovereignty eventually drew American theory into a similar
paradox and contradiction. The compromises of Constitution making
and the resulting trade-offs among advocates of a national govern-
ment, advocates of some national government and delegates who
advocated restraints on power were the source of these later para-
doxes. As Martin Diamond showed, the Framers so modified the
meaning of federalism that the older concept was vitiated. There was
a difference between a league and a government and the primary
objective of the Framers was the creation of a government. But the
product was not a national government of the traditional variety.
The meaning of national was altered in the give-and-take of
debate9 —territorial representation was instituted, the sphere of the
national government was defined by its delegated powers, and the
stipulation "by law" was added to the provision for creating the
officers of the national government. These along with other modifi-
cations altered the conventional definition of national sovereignty to
suit the-circumstances of the American states.

The closest approximation to a declaration of sovereignty in the

Constitution is the Supremacy Clause, which does not locate sove-

Patrick Riley, "Three 17th Century German Theorists of Federalism: Althusius, Hugo,
and Liebnitz," Pubtius 6 no. 3 (Summer 1976): 10 (his emphasis).
^Federalist Nos. 39 & 46 in The Federalist, ed. Edward Earle (New York: Modern
Library 1941); Gordon Wood, The Creation of the American Republic 1776-1787 (Chapel
Hill: University of North Carolina Press, 1969), pp. 524-547. A typical example of the
utility of the evasion is the following: "During the Federalist era, the dominant analysis saw
the people of the nation as a whole as the source of the Constitution's authority. This
enabled the Federalists to urge an expansive role for the national government notwith-
standing the fact that parts of their program trenched on the perogatives of the state; since
the state could not be considered sovereign, the question of the scope of national power
could be resolved independently of the powers of the states. "Developments in the L a w -
Section 1983 and Federalism,"Harvard Law Review 90, no. 6 (April 1977): 1138.
Rozann Rothman, Acts and Enactments: Tbe Constitutional Convention of 1787
(Philadelphia: Center for the Study of Federalism, 1974), p. 134.
106 Rozann Rothman

reignty in government. It states that "the Constitution and the Laws

of the United States which shall be made in pursuance thereof . . .
shall be the supreme law of the land . . ." 10 It was the Constitution
and the laws made in pursuance thereof which were supreme, not the
national government, its branches nor the state governments. This
formulation circumvented the divisive question of the location of an
internally supreme power, but because no arbiter was officially
designated, the evasion compounded the conceptual confusion which
surrounds the meaning of American federalism. During the conven-
tion, Madison's proposal for a national negative on state actions was

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defeated repeatedly, the hints that Hamilton offered in The Federalist
concerning the role of the federal judiciary were just that, while the
assertion that states could or should judge the constitutionality of
national actions was still a few years in the future. The events of
American history answered the question that the Framers left open,
but the answers were shaped by particular circumstances and partisan
conflicts with the contending partisans asserting the constitutional
purity of their respective doctrines.
The ambiguity concerning sovereignty is the origin of contending
views of the intentions and objectives of the Framers and the source
of dichotomous theories regarding the nature of the Union. The
national theory of American federalism claimed:
that a single sovereign power, the people of the United States created both
the federal and state governments, delegating to each a certain limited
authority . . . The compact theory, on the other hand, takes a different
view of the same events . . . the colonies became separate independent
polities when they cast loose from Britain and only thereafter entered into
an agreement to have a general government for certain limited purposes. n
Traditional interpretations separated the theories, but the separa-
tion increased conceptual confusion because it overlooked the basic
assumption of the compact theory which derived state sovereignty
from the people. Each theory could be supported by interpretations
of historical events and drew legitimacy from the diverse priorities
represented by these interpretations. But the ambiguity of the data
permitted the linkage of the theories as well as their separation. The
Convention's formulation was that the people who lived in the states
ratified the Constitution, but ratification by 9 states sealed the agree-
ment. 12 On the one hand, Madison could use the claim that the

!°U.S., Constitution, Article VI.

Samuel H. Beer, "Federalism, Nationalism and Democracy," American Political
Science Review 72, no. 1 (March 1978): 12.
Rothman, Acts and Enactments, Chapter V.
 The Ambiguity of American Federal Theory 107

foundation was federal I3 to reassure opponents; on the other hand,

the linkage of the people and the states was the wedge which over-
came the obstacle of state sovereignty and facilitated the transforma-
tion of a league into a government. The formulation could move to
the national theory or to the compact theory, but Madison balanced
the theories and designated the proposed Constitution as "Neither a
national nor a federal Constitution." 14
Consensus cost something and dichotomous views of the Constitu-
tion garnered supporters as the controversy over the nature of the
Union intensified and the respective positions hardened. Unionists

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and states lighters sought and found support for their claims in the
historical data, the intentions of the Framers and selections from The
Federalist. Contending partisans shared the same assumptions and
the sovereign people continued to receive their theoretical due. The
controversy focused on which government was the "real" trustee of
the people's sovereign power. Was it the national government, the
Supreme Court, or the state governments? The logic of the national
theory was stated forcefully by Daniel Webster:
The people, then, sir, erected this government. They gave it a Constitution,
and in that Constitution, they have enumerated the powers which they
bestow on it. They have made it a limited government. They have defined
its authority. They have restrained it to the exercise of such powers as are
granted; and all others, they declare, are reserved to the states or the
people . . . Who, then, shall construe this grant of the people? . . . With
whom do they repose this ultimate right of deciding on the powers of the
government? Sir, they have settled all this in the fullest manner. They have
left it with the government itself, in its appropriate branches. Sir, the very
chief end, the main design for which the whole Constitution was framed
and adopted, was to establish a government that should not be obliged to
act through State agency, or depend on State opinion and State discre-
tion. 1S
The people were sovereign, but the right of construing their grant
belonged to the national government. Southerners were not per-
suaded and continued to defend the compact theory of the Union.
Just as nationalists relegated the people to the background by their
stress on the national government so did Southerners stress the states
rather than the people who in theory created both state and national
governments. The Southerners defended nullification and eventually
the rhetoric culminated in secession.
13
Federalist No. 39, p. 246.
"ibid, p. 250.
1S
Daniel Webs
Webster, Second Speech on Foot's Resolution (Reply to Senator Hayne,
January 26. 1830).
108 Rozann Rothman

Whatever the theoretical merits of the argument, the Civil War

eliminated the threat that Southern theory offered to the existence
of the Union. But the travail of war failed to alter American under-
standings of the nature of the Union. In Texas v. White, 16 the
majority maintained that Texas could not terminate its obligations as
a state. It had entered into an indissoluble relation and the act was
final. "The Constitution in all its provisions, looks to an indestruc-
tible Union of indestructible States." Dissenting justices claimed that
a haze of legal fictions prevented the majority from recognizing the
facts. If the dissenters were correct, then, Texas v. White offers
evidence of the continued need for and attraction of the original

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constitutional linkage.
The logic of the paradox can be explained by stressing the practi-
cal linkage rather than the theoretical opposition of the national
theory and the compact theory. Although the Constitution can be
viewed as the product of an amalgamation of contradictory impera-
tives, the major objective of the Convention was achieved when a
league was transformed into a government. The transformation was
intended to transfer conflict from a trial at arms to a trial before the
magistrate.17 However, allegiance to republican principles guaranteed
that the new government would be conceived in the terms of con-
tract theory. In Federalist No. 39, Madison argued that the proposed
government did not possess the usual attributes of sovereignty. Madi-
son did not claim that this limitation was the mark of a federal
government, he merely claimed that the proposed government could
not be deemed national.
But if the government be national with regard to the operation of its
powers, it changes its aspect again when we contemplate it in relation to
the extent of its powers. The idea of a national government involves in it,
not only an authority over the individual citizens, but an indefinite
supremacy over all persons and things, so far as they are objects of lawful
government. Among a people consolidated into one nation, this supremacy
is completely vested in the national legislature. Among communities
united for particular purposes, it is vested partly in the general and partly
in municipal legislatures. In the former case, all local authorities are sub-
ordinate to the supreme; and may be controlled, directed, or abolished by
it at pleasure. In the latter, the local or municipal authorities form distinct
and independent portions of the supremacy, no more subject, within their
respective spheres, to the general authority, than the general authority is

i6
Texas v. White, 7 Wallace 726 (1869).
1
C C Tansill, ed., Documents Illustrative of the Formation of the Union of American
States (Washington, D.C.: Washington Government Printing Office, 1927), pp. 438-439.
 The Ambiguity of American Federal Theory 109

subject to them within its own sphere. In this relation, then, the proposed
government cannot be deemed a national one; since its jurisdiction extends
to certain enumerated objects only, and leaves to the several States a
residuary and invoilable sovereignty over all other objects. 18
The hedge of sovereignty with contract theory is a traditional
feature of liberal thought, but American theory added a reliance on
an organized people as the central prop of the contract. In Federalist
No. 46 Madison stresses the role of an organized people in preventing
the proposed government from extending its power beyond due
limits.

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But ambitious encroachment of the federal government, on the authority
of the State governments, would not excite the opposition of a single State,
or of a few States only. They would be signals of general alarm. Every
government would espouse the common cause. A correspondence would
be opened. Plan of resistance would be concerted.
Shades of Revolution! Even a strong federal army in the service of
ambition could not prevail.
. . .the existence of subordinate governments, to which the people are
attached, and by which the militia officers are appointed, forms a barrier
against the enterprises of ambition more insurmountable than any which a
simple government of any form can admit of. M
Stress on an organized people, represented by state governments, was
the core of the Southern position and practical consequences were
manifested in the Kentucky and Virginia resolutions, the tariff con-
troversy, the conflict over slavery, the debate over the nature of the
Union and eventually, in secession. The 20-20 vision of hindsight
suggests the defects of reliance on an organized people to police the
boundaries of the contract if the objective was the establishment of a
government. The argument that the people possessed ultimate sove-
reignty was useful in allaying opposition to the new constitution, but
the failure to specify an arbiter (albeit for good political reasons) was
the source of divergent interpretations of governmental power.21
Reliance on the people was mandated by republican theory, but
reliance on an organized people subverted efforts to transform a
league into a government. Madison, for all his emphasis on the
people, was aware of the difficulty and his forebodings are scattered

18
Federalist No. 39, pp. 248-249.
19
Federalist No. 46, p. 309.
^W.p.311.
Walter H. Bennett, American Theories of Federalism, (University: University of
Alabama Press, 1964), pp. 85-89.
110 Rozann Rothman

throughout The Federalist. " In Federalist No. 39, the pragmatic

appeal of utilizing the federal judiciary as the arbiter is stated
explicitly.
It is true that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide, is to be established
under the general government. But this does not change the principle of
the case. The decision is to be impartially made, according to the rules of
the Constitution; and all the usual and most effectual percautions are
taken to secure this impartiality. Some such tribunal is clearly essential to
prevent an appeal to the sword and a dissolution of the compact; and that

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it ought to be established under the general rather than under the local
government, or to speak more properly, that it could be safely established
under the first alone, is a position not likely to be combatted. 23
Madison proved to be a poor prophet. Precisely because the Constitu-
tion was so easily accepted as fundamental law, the question of who
was to serve as arbiter in jurisdictional conflicts became a major
source of controversy. The Kentucky and Virginia Resolutions of-
fered the states as arbiters and John Marshall in Marbury v. Madison
advanced the cause of the Supreme Court; Marshall was supported by
Hamilton's analysis in Federalist No. 78, but the logic, although
persuasive, was not totally convincing. Designation of the Supreme
Court as arbiter was challenged by Thomas Jefferson, Andrew Jack-
son and John Taylor of Carolina, among others. Taylor advocated a
laissez faire approach to jurisdictional conflicts; federal law would be
effective except where challenged and in case of challenges, the issue
would remain in abeyance until either Congress or the people sub-
mitted amendments. As the Southern position hardened, John C.
Calhoun took the principle one step further, demanding that in cases
of conflict, unanimity was necessary before action could be taken. M
Alternatives to the court as arbiter of the federal system drew
strength from familiar arguments which urged the priority of the
principle of limited government. However, the work of the Constitu-
tional Convention entwined recognition of the need for an energetic
government with the belief in checking governmental power.2S The
constraints on an energetic government inherent in the proposals of
Taylor and Calhoun as well as theoretical arguments, gave the Court
advantages in the competition for arbiter, just as recognition of the
" S e e for example, Federalist Nos. 10, 49, 50, 51.
Federalist No. 39, p. 249.
C.'William Hill, "Contrasting Themes in the Political Theories of Jefferson, Calhoun
and John Taylor of Caroline," Publius 6, no. 3 (Summer 1976): 85. See also Walter H.
Bennett, American Theories, pp. 14O-151.
Rothman, Acts and Enactments, pp. 52-81.
 The Ambiguity of American Federal Theory 111

need to provide for the exigencies of Union gave supporters of a

national government advantages during the Constitutional Con-
vention.
This brief sketch suggests the kinds of conceptual confusion which
complicate the interpretation of American federalism. American fed-
eral theory was born justifying the creation of a government and is
laden with the compromises of pragmatic politics. The theory suc-
cessfully evaded the pitfalls of sovereignty by locating sovereignty in
the people rather than in government. The strategy linked opposed
conceptions of the Union and perhaps increased American tolerance

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for paradox.26 However, the ambiguity concerning sovereignty
motivated further explication of the opposing conceptions of the
nature of the Union.
The attempt to separate the theories exacerbated tensions as the
North and the South affirmed the correctness of their respective
interpretations. Seccession and civil war were the ultimate outcomes
of dichotomous views of the nature of the Union, but Texas v. White
reaffirmed the linkage of the theories.
The ambiguity about sovereignty was deeply embedded in the
Constitution and shaped the description of the new government.
Federalist No. 39 is a classic example of an "on the one hand, on the
other hand" model of argument. Madison sought a delicate balance
when he claimed that the new government was partly federal and
partly national. Partisan politics in the early Republic and the ideo-
logical confrontations of Federalists and Jeffersonians challenged the
balance and sought to adjust it to suit their respective purposes. But
these challenges did not develop a theoretical alternative. The con-
ceptual challenge came, perhaps inadvertently, from deTocqueville,
who labeled the government "an incomplete national government,
which is neither exactly national nor exactly federal." The con-
ceptual difference is illustrated by the uses to which deTocqueville's
description was put. Martin Diamond argued that "this blending of
federal and national elements would have been utterly impossible
prior to the reduction of federalism to a species of decentraliza-
tion." 27 William Riker carried the model to its logical conclusion
when he claimed that an incomplete national government was evolv-
ing into a more complete nation government.28 The contention here
26
Michael Kammen, People of Paradox (New York: Knopf, 1972).
Martin Diamond, "On the Relationship of Federalism and Decentralization," in
Cooperation and Conflict: Readings in American Federalism, eds. Elazar ex. aL (Itasca: F.E.
Peacock, 1969), p. 78.
28
William Riker, Federalism, pp. 5-8, 49-84.
112 Rozann Rothman

is that analytically a government which is partly national and partly

federal is not the equivalent of an incomplete national government.
The first formulation circumvents the question of sovereignty while
the second locates sovereignty in the national government. The
hybrid formulation suggests a matrix model of American federalism
with powers distributed among multiple centers. In contrast, the
notion of an incomplete national government suggests an hierarchical
model with powers derived from the apex down a pyramid.29
Clarity about these models is essential for each conception comes
equipped with divergent prescriptions for action in the federal

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system. However, pragmatic circumstances have produced a judicious
mixture of the two concepts in the conduct of American politics.
The next section contrasts the divergence of dieory with inter-
dependence in practice. The contrast also suggests the values which
constrain acceptance of either theory in to to.
The Models and Their Prescriptions for Action
The hierarchical thrust of the model of an incomplete national
government derives from the concern to protect and strengthen
national power. The imperative has been present since the Constitu-
tional Convention and was summarized by Hamilton in Federalist
No. 23. Hamilton discussed the question of how much power the
new government needed and advocated as much power as was neces-
sary to perform its appointed tasks.30 The grant of delegated powers
presumably controlled the list of tasks, but die grant was ambiguous
and could be interpreted to fit new circumstances. However, inter-
pretation of the Supremacy Clause allowed the national government
to become the judge of the scope of its powers. The transfer was
effected rhetorically in McCullocb v. Maryland, but die full effect
was obscured by Marshall's emphasis on distinct spheres of action.
. . . The government of the United States though limited in its powers, is
supreme within its sphere of action . . . and its laws, when made in
pursuance of the constitution, form the supreme law of the land, anything
in the constitution or laws of any state, to the contrary notwithstanding.31
The logic which mandated the supremacy of the national govern-
ment was consistent; no general government could act if the states
held controlling power. State supremacy would subvert the founda-
tions of the general government. In the words of John Marshall:
29
Daniel J. Elazar, "Federalism v. Decentralization," Publius 6, no. 4 (Fall 1976):
1O-12.
30
'Federalist No. 23, p. 145.
31
McCuttocb v. Maryland, 4 Wheat, 316, 405 (1819).
 The Ambiguity of American Federal Theory 113

. . . If the controlling power of the states be established; if their supremacy

as to taxation be acknowledged; what is to restrain their exercising this
control in any shape they may please to give it? . . . The question is, in
truth, a question of supremacy; and if the right of the states to tax the
means employed by the general government be conceded, the declaration
that the constitution, and the laws made in pursuance thereof, shall be the
supreme law of the land, is empty and unmeaning declamation . . . M

Southern defenders of the compact theory feared the worst from

these decisions, but perhaps they cried wolf too soon. Nothing in
Marshall's opinion threatened the existing balance. State sovereignty

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was a myth but state autonomy was preserved. The supremacy of the
federal government was affirmed but contained by the narrow inter-
pretation of national powers. From this perspective, "dual fed-
eralism" was a marvelous invention which offered reassurance to
contending partisans that they could have the best of both worlds, a
national government with the power to meet the exigencies of
Union, yet so checked and constrained that it could not impinge
upon the people's liberties. But the price of the invention was a
conception of intergovernmental relations which diverged from the
data. Theory dominated interpretation of the data and federal tasks
were sharply distinguished from state tasks, despite abundant
evidence that in the 19th century, functions were shared.33 The gap
between theory and practice contributed to the conceptual con-
fusion surrounding the American theory of federalism. The con-
fusion persists despite the shift to theories of cooperative federalism
which assume the sharing of functions. As will be discussed below,
later manifestations of confusion coalesce around the difficulty of
distinguishing between sharing of functions and sharing of power and
can be understood as variations on the earlier ambiguity concerning
sovereignty. Here, however, the utility and attraction of the concept
of "dual federalism" is stressed because adherence to the concept
contained and channeled the consequences of Civil War.
It is ironic yet appropriate that "dual federalism" reemerged as the
dominant constitutional theory in the post Civil War period.
Although reconstruction appeared to be the acme of theories of
national supremacy, radical Republicans accepted the premise of the
territorial inviolability of the states. The defeated southern states
were under the control of the federal government until they com-
plied with the commands of Congress, for example, ratification of

32
ibi<t
Daniel J. Elazai, The American Partnership (Chicago: University of Chicago, 1962).
114 Rozaon Rotbman

the 14th Amendment. However, when the demands were met, the
states were readmitted to the Union and resumed their former status
as equal members of the Union. Given the trauma of war, the out-
come is surprising but it is a measure of the strength and appeal of
traditional ideas about the nature of the Union. The continued exist-
ence of a Union of States in the North generated the logical impera-
tives for reconstruction of the state system in the South, and
strongly held preconceptions thwarted the imposition of objectives
requiring the extensive and continuous exercise of national power.34

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The continued reliance on "dual federalism" in the decades after
reconstruction was a logical consequence of the re-establishment of
the status quo ante. The outcome of the civil war ended the claim of
state sovereignty, but the polities that composed the federal system
maintained their fundamental political integrity. It was not until dual
federalism was put to a new use in the 1880s and the Supreme Court
used the concept to protect industrial capitalism from regulation that
the legitimacy of the concept was eroded. This interpretation created
a no-man's land in which neither federal nor state governments could
act to remedy inequities.
By 1937, the rebellion against the constraints of "dual federalism"
was complete; the belief that the powers of the national government
were limited by its sphere of action was overturned. Generations of
reformers had seen their plans stymied by the Court's interpretation
of the complexities of action in a federal system, but court con-
straint ended in the trauma of the Great Depression. The Tenth
Amendment became "a truism, that all is retained which has not
been surrendered,"35 and a new consensus developed on the ex-
panded scope of federal power and responsibility. Circumstances
mandated the triumph of the national theory of federalism, but
triumph failed to end conceptual confusion.
Three distinct but related contemporary interpretations of the
national theory have emerged. These theories start with similar
assumptions; the United States has become a single nation, American
problems are national and require national solutions and there is

Rozann Rothman, "Federalist Response to an Intransigent Problem," forthcoming.

See also, Daniel J. Elazar, "Civil War and the Presentation of American Federalism," Publius
1, no. 1 (Spring 1971): 51.
3S
United States v. Darby, 312, U.S. 100, p. 124, (1941). Walter Berns, "The Meaning of
the Tenth Amendment," in A Nation of States, ed. Robert A. Goldwin (Chicago: Rand
McNally, 1974), p. 141, makes a persuasive case that reliance on the 10th Amendment
means abandonment of the essential element in the states sovereignty theory.
 The Ambiguity of American Federal Theory 115

little reason to preserve the autonomy of the states. In other words,

the new theories go beyond the traditional interpretation of national
supremacy and advocate the hierarchical model to increase the ef-
ficiency of the system. William Riker's analysis of American fed-
eralism 36 explicitly raises the question of whether the costs of the
federal bargain are too high.
It seems clear on the basis of both theory and example that uniform
national decision making is invariably more efficient, i.e., less costly in
undesired impositions on other people than is local decision making . . .

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Since constituent governments are invariably minorities in the nation, the
maintenance of federal guarantees to constituent units assures that the
whole society must bear some extra and unnecessary external costs.
Riker's analysis differs from more traditional versions of national
theory which assumed diversity and argued that strong national
power could bring order out of chaos. Instead there is the suggestion
that the costs of diversity are too great and abrogation of the guaran-
tees to constituent units becomes a strategy to reduce costs.
James Sundquist does not offer a theoretical argument for the
hierarchical model but insists that historically the locus of policy
making has shifted from the states and localities to the national
government. In contrast to the past, when federal agencies acted as
technical advisors rather than as initiators or controllers of federal
programs, at present, "the federal grant is conceived as a means of
enabling the federal government to achieve its objectives . . . as a
matter of administrative convenience, the federal government
executes the program through state or local governments rather than
through its own field offices, but the motive force is federal..." 37
Certain consequences follow from this shift. "Achievement of a
national objective requires close federal control over the content of
the program."38 The theory assumes the preeminence of national
objectives, but practical considerations mandate sharing the imple-
mentation of programs, and the trend to sharing is irreversible. Sund-
quist, however, confines sharing to functions, and assumes national
dominance with respect to powers. Problems require "a national
solution that states and communities are mandated, by one means or
another to carry out—usually by inducements strong enough to
produce a voluntary response but sometimes by more direct, coercive

36
WiUiam Riker, Federalism, p. 147.
James Sundquist, Making Federalism Work, p. 4.
38
Ibid., p. 5
116 Rozann Rothman

means.39 The only difficulty with the theory is that it fails to resolve
the basic dilemma of:
. . . how to achieve goals and objectives that are established by the
national government through the action of other governments, state and
local, that are legally independent and politically may be even hostile.
Those state and local governments are subject to no federal discipline ex-
cept through the granting or denial of federal aid. And that is not very
useful, because to deny the funds is in effect to veto the national objec-
tive itself. *°
With this concession to reality, the hierarchical theory stumbles on

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the fact of state and local autonomy.
Michael Raegan's advocacy of permissive federalism does not
stumble over any concessions to the operative reality of the federal
system. He argues that the trend is toward further development of
the notion of a national community and continued ideological ac-
ceptance of the corollary proposition that it is proper for the goals
and standards of public services to be set by the national government
as a basis for uniform rights of citizens no matter where they live. 41
Although Raegan recognizes "that there is a sharing of power and
authority between the national and state governments,. . . the state's
share rests upon the permission and permissiveness of the national
government."42
The shift from supremacy of the Constitution to the hierarchical
model removes the contradictions of practice from theoretical con-
siderations, but the sleight of hand compounds confusion and
minimizes the utility of the theory for students of intergovernmental
relations. As Raegan notes:
. . . the increase in federal government activities does not represent a shift
of function in the sense of taking things away from the states; rather it
means a new sharing of functions the states previously took care of alone.
This may be less a matter of centralization in federal hands than the
creation of semi-permanent tensions and a fluctuating pattern in the dis-
tribution of power as the two levels of government simultaneously co-
operate and contend with one another for policy and control in these
jointly operated areas. *

^ , p. 12.
Michael Raegan, New Federalism, p. 155.
4
*Ibi<l, p. 163.
43
I b i 4 , p. 18.
 The Ambiguity of American Federal Theory 117

The realities of American practice differ markedly from the

hierarchical model. And, if as Raegan notes, there is a fluctuating
balance of power, can the state's share depend on the permissiveness
of the federal government? National governments have rarely been
known to surrender power, and if Riker is correct, the trend is in
quite the opposite direction. The theory of permissive federalism
assumes the sharing of functions rather than powers. But Raegan
used the word "power," in his description of the fluctuating balance.
Is the difficulty merely semantic, or is it indicative of substantive
confusion?

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The accumulated habits and practices of almost 200 years of fed-
eral government have created the confusion about powers and func-
tions. What is the place of "local autonomy" in the federal system?
How ought the fact of "local autonomy" be weighted?
In the American case, . . . simple evidence of national government involve-
ment in a particular field tells us little or nothing about the relative
strength of the various power centers in policymaking, administration or
what have you. The primary diffusion of power makes "involvement" take
on many different meanings. As those involved in the governmental pro-
cess well know, even apparently unilateral programs may be substantially
shaped by the other governments through the political process. As those
working in local government also know, he who pays the piper does not
necessarily call the tune, certainly not in proportion to the amount of
money spent. **
Both powers and functions are shared and attempts to locate power
exclusively in the national government pose analytical and empirical
difficulties.
As some theorists moved to the hierarchical model, students of
intergovernmental relations found increasing evidence of inter-
dependence in the system.4S Notwithstanding pronouncements of a
tilt toward Washington, the gap between theory and practice persists,
and the argument continues. Ironically, the rhetoric used by the
current combatants, despite the differences in purpose, resembles the
rhetoric of the pre-Civil War period in the insistence on a dichoto-
mous view of the nature of the Union. Although the South was
vehement in its defense of state sovereignty, the compact theory
collapsed when confronted with the North's willingness to use force
to preserve the Union and its government. In similar fashion, the

Elazar, "Federalism v. Decentralization," p. 13.

4S
See for example, P.N. Glendening and MJfi.' Reeves, Pragmatic Federalism (Pacific
Palisades: Palisades Publishers, 1977).
118 Rozann Rothman

advocates of the hierarchical model vehemently defend national pre-

rogratives, but the model stumbles on the rock of local autonomy.
Faced with the necessity of implementing federal programs, con-
cessions to local autonomy are at least expedient whether that
autonomy is founded on a sharing of functions or a sharing of
powers.
This brief sketch suggests the limited utility of dichotomous
theories of American federalism. Embedded values and beliefs, such
as the belief in a government so checked and constrained that it
cannot impinge on the people's liberties, the need for an energetic

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government, and reliance on the people, are entwined in the theory
of American federalism. Pragramatic circumstances, as well as belief
in limited government may have necessitated the half-way house of
Madison, a constitution and a government that were partly federal
and partly national. Or perhaps the half-way formulation resulted
from the deliberate evasion of the problem of sovereignty. Whatever
the reason, a delicate balance locating sovereignty in the people was
the solution to the dilemma. The balance has been subject to tension
and the exigencies of 200 years of republican government resulted in
shifts in emphasis that could be interpreted either as a fluctuating
pattern of distributed powers or used to separate the theories into
opposing interpretations. But whatever the current interpretation of
national power, the political integrity of the states remains em-
bedded in the American theory of federalism.
Recognition of the integrity of the states in theory can minimize
the gap between theory and practice and help to explain the reversals
in constitutional theory. Before the Civil War, Southerners adhered
to the compact theory of the Union as a strategy to limit the scope
and impact of national power. Yet in this same period, Southerners
advocated extension of national power when the issue was the Fugi-
tive Slave Law. Thus, the South could be considered as the constitu-
tional innovator. The declaration that the 10th Amendment was a
truism symbolized a new consensus that American problems were
national and required national solutions. But less than 40 years later,
in Maryland v. Wirtz,46 Justice Harlan, who opposed judicially
ordered reapportionment, upheld the extension of minimum labor
standards to schools and hospitals operated by states. The opinion
was a defense of the scope of the commerce clause.
The court will not carve up the commerce power to protect enterprises
indistinguishable in their effect on commerce from private business simply

^Maryland v. Wirtz, 392, U.S. 183 (1968).

 The Ambiguity of American Federal Theory 119

because these enterprises happen to be run by the States for the benefit of
their citizens.47
A dissenting opinion, written by Justice Douglas, who had fought
to expand the 14th Amendment to insure all citizens equal protec-
tion of the law; argued that extension of minimum labor standards to
enterprises operated by the states was a serious invasion of state
sovereignty. If constitutional federalism raised no limits to the com-
merce power, in connection with the regulation of state activities,
then the national government could devour the essentials of state
sovereignty, though that sovereignty was attested by the 10th

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Amendment.48
Maryland v. Wirtz was overruled by the decision in National
League of Cities v. Usery, 49 which held "that the commerce clause
did not authorize application of the Fair Labor Standards Act to
state and city employees exercising traditional government func-
tions."50 These developments were summed up by Judge Friendly:
"Whatever the verdict of history may be, these decisions at least are a
sure sign that the judicial tide with respect to national power may
ebb as well as flow."si Such reversals are anything but rare in the
annals of constitutional interpretation. They can be condemned as
inconsistent or derided as the products of conceptual confusion. If
the compact theory is taken as the true basis of American federalism
or if the national theory of federalism is interpreted as mandating a
hierarchical model of federalism, the reversals are inexplicable. But
when the reversals are viewed as the consequence of shifts in a
delicate balance and the continual reordering of priorities in light of
present circumstances, explanation becomes feasible. If the national
theory of federalism is laden with concessions to the existence of the
states, it is not unreasonable to assume that these concessions influ-
ence decision making. Moreover, the reversals can be viewed as mea-
sures of the strength and continuing import of the values that were
present at the creation of the American federal system.
How important are these values at any given time? Justice Black, a
strong defender of civil liberties, gave an answer in Younger v.
Harris. " Writing for the majority, Black reversed the District Court

47
Ibid., p. 198.
48
Ibid., p. 204.
49
426, U.S. 833 (1976).
S0
Henry J. Friendly, "Federalism: A Forward," Yale Law Review 86, no. 6 (May 1977):
1032.
51
Ibid., p. 1033.
S2
401, U.S. 37, (1971).
120 Rozann Rothman

that held that the California Syndicalism Act should be enjoined

because it inhibited the exercise of First Amendment rights. The
reversal was based on a long standing public policy which opposes
federal court interference with state court proceedings. The roots of
this policy are found in notions of equity and comity. Comity man-
dates a proper respect for state functions and a recognition of the
fact that the entire country is made up of a Union of separate state
governments. Comity draws strength from the belief that the
national government will fare best if the states and their institutions
are left free to perform their separate functions in separate ways.

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According to Black, "Our Federalism" does not mean blind defer-
ence to states rights anymore than it means centralization of control
over every important issue. The national government, although
anxious to protect federal rights and federal interests, must endeavor
to do so in ways that will not unduly interfere with the legitimate
activities of the states.S3 There is a fine line between the national
theory of federalism and permissive federalism. Awareness of the line
imposes certain constraints and what may appear to be a logical
conclusion of theory often proves to be inoperative in practice.
Justice Douglas again dissented, this time to protect national
standards in the area of civil liberties. Douglas argued that the Civil
War amendments made the denial of civil liberties a national concern
to be remedied by national action.S4 The priorities shift with the
issues and the argument continues. Prestigious law journals again
devote whole issues to the dilemmas of federalism and the complexi-
ties of action in a federal system.ss The revival of the debate testifies
to the strength of the values that underscore attachment to fed-
eralism and the persistence of the dilemma. The kinds of issues where
federalism makes a difference testifies to its centrality in American
theory.
Conclusion
The creation and development of the theory of American fed-
eralism was influenced by contradictory imperatives—the demand for
liberty and recognition of the need for an energetic government. The
former injected elements of contract theory into the foundation of
American government and the latter provided the government with
power and discretion. For the Framers, the time was propitious and

53
Ibid., pp. 43-45.
p. 57.
Harvard Law Review 90, no. 6 (April 1977); Yale Law Review 86, no. 6 (May 1977).
 The Ambiguity of American Federal Theory 121

they seized the moment. S6 How often does the opportunity to rise
above accident and force present itself in the annals of history? But
the grand design of the Constitution reeks with expedient com-
promises. The states were present at the creation, the constitution
had to be ratified by the people of nine states, and revolutionary
fears about strong government had to be allayed. The dilemma of
sovereignty summed up the fears and hopes of the period, and neces-
sitated a strategy to evade the dilemma. Sovereignty was located in
the people, but the formulation left the practical questions open.
Although the events of American history determined the answer to

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the question of who was the "real" trustee of the people's sove-
reignty, the ambiguity generated the conceptual confusion which
surrounds the American theory of federalism. The centrality of the
ambiguity is illustrated by the limited impact of historical events on
constitutional theory. Neither the outcome of the Civil War, the
expansion of national power, nor the contemporary recognition that
the name of the game in intergovernmental relations is interdepend-
ence resulted in major modifications in the theory of "Our
Federalism."
The rhetoric of contending partisans draws from and evokes two
hundred years of argument and debate. If perceptions of the world
influence selection of alternatives, the significance of this reliance on
traditional assumptions, arguments and understandings for the opera-
tion of the federal system cannot be underestimated. The current
debate about whether federalism makes a difference sketches these
divergent assumptions and values and the answers depend upon
normative commitment, either to the hierarchical model or the
values of non-centralization. The question can be answered nega-
tively S7 or positively.s8 But the continued salience of the question
suggests that despite contemporary insistence that domestic prob-
lems are national and require national solutions, the core values of
federalism remain strong and viable.
The ambiguity about sovereignty and the continuing argument
have created confusion about the American theory of federalism,
which is typically attributed to vagueness about die meaning and

S6
Hannah Arendt, On Revolution (New York: Viking, 1963), pp. 139-238; Stanley
Elkins and Eric McKitrick, "Young Men of Revolution," Political Science Quarterly 76, no.
2 (June 1961): 181-216.
S7
William H. Riker, "Six Books in Search of a Subject or Does Federalism Exist and
Does it Matter?" Comparative Politics 2 (October 1969).
s8
Vincent Ostrom, "Can Federalism Make a Difference?" Publius 3, no. 2 (Fall 1973):
197-238.
122 Rozann Rothman

uses of the term. Yef when meaning is simplified to reduce con-

fusion, the result is dichotomous theories of federalism which fail to
explain the customary practices of American politics. The alternative
suggests that the meaning of the term is complex and that each use
has a characteristic context and implication.s9 This perspective
facilitates systematic exploration of the complexity of federalism
and emphasizes the interrelation of meaning and usage. The endeavor
produces a richer, more comprehensive understanding of the multiple
relationships that are engrained in the texture of American federal
practice.

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59
Hanna Pitkin, Representation, p. 16.