80 Chapter 3Chapter 3 || Federa lismFedera lismthe western territories. In this sense, debates about dual federalism during this time
were really about the legality of slavery, its expansion into new states, and the rights of
former slaves in free states.
Arguments about dual federalism are sometimes framed using the concept
of states’ rights: the idea that states retain some powers under the Constitution
(specifically those reserved by the Tenth Amendment) and can ignore federal policies
that encroach on these powers. The key question is, where does federal authority end
and state authority begin? As this chapter demonstrates, the lines are not always easy to
define and are still being debated today. Some people argue that southern states fought
the Civil War to preserve the concept of states’ rights, but this argument doesn’t tell the
whole story. Southern secessionists were not interested in states’ rights per se; what
they wanted was to continue slavery without federal intervention. States’ rights was a
convenient rationale for their proslavery position.
After the Civil War, constitutional amendments banned slavery (Thirteenth
Amendment), prohibited states from denying citizens due process or the equal
protection of the laws (Fourteenth Amendment), and gave newly freed male
slaves the right to vote (Fifteenth Amendment). Congress also passed the 1875
Civil Rights Act (although it was later overturned by the Supreme Court). The
Fourteenth Amendment was the most important in terms of federalism because it
was the constitutional basis for many of the civil rights laws passed by the federal
government during Reconstruction. The Civil War fundamentally changed the way
Americans thought about the relationship between the national government and the
states: before the war people said “the United States are... ,” but after the war they
said “the United States is.. .” The United States now felt like a unified nation, not
merely a loose collection of states.The Supreme Court and Limited National Government The assertion of
power by Congress during Reconstruction was short-lived, as the Supreme Court soon
stepped in again to limit the power of the national government. In 1873, the Court rein-
forced the notion of dual federalism, ruling that the Fourteenth Amendment did not
change the balance of power between the national and state governments. Specifically,
the Court ruled that the Fourteenth Amendment right to due process and equal treat-
ment under the law applied to individuals’ rights only as citizens of the United States,
not to their state citizenship.^3 By extension, freedom of speech, freedom of the press,
and the other liberties protected in the Bill of Rights applied only to laws passed by
Congress, not to state laws. Here again, these decisions can be read as an articulation of
a theoretical interpretation of the Constitution, but they are also part of a broader, more
concrete debate over how much the government should regulate interactions between
individuals, or between individuals and corporations.
In 1883, the Court overturned the 1875 Civil Rights Act, which had guaranteed
equal treatment in public accommodations. The Court argued that the Fourteenth
Amendment did not give Congress the power to regulate private conduct, such as
whether a white restaurant owner had to serve a black customer; it affected only
the conduct of state governments, not individuals in these states.^4 This narrow
view of the Fourteenth Amendment left the national government powerless to
prevent southern states from implementing state and local laws that led to complete
segregation of blacks and whites in the South (called Jim Crow laws) and the denial
of many basic rights to blacks after northern troops left the South at the end of
Reconstruction.
The Supreme Court also limited the reach of the national government by
curtailing Congress’s authority to regulate the economy through its commercestates’ rights
The idea that states are entitled to a
certain amount of self-government,
free of federal government
intervention. This became a central
issue in the period leading up to the
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