William_T._Bianco,_David_T._Canon]_American_Polit

The evolving concept of federalism 79

The Emergence of States’ Rights and Dual Federalism

Under Marshall’s successor, Chief Justice Roger Taney, Court decisions involving

federalism shifted to reflect a new concept: dual federalism. According to the system

of dual federalism, the national and state governments are considered distinct, with

little overlap in their activities or the services they provide. In this view, the national

government’s activities are confined to powers strictly enumerated in the Constitution.

Dual federalism was expressed most consequentially in the Dred Scott v. Sandford

decision of 1857. Dred Scott was a slave who had lived for many years with his owner in

the free state of Illinois and the free Wisconsin Territory but was living in Missouri, a

slave state, when his master died. Scott petitioned for his freedom under the Missouri

Compromise, which had made slavery illegal in any free state. The Court did not grant

Scott his freedom. Its majority decision held that slaves were not citizens but private

property; therefore, the Missouri Compromise’s ban on slavery in certain territories

violated the Fifth Amendment because it deprived people (slave owners) of their

property without the due process of law. Put another way, the Dred Scott decision said

that state law, not federal, determined the legal status of slaves.

Contrasting Marshall’s decisions in favor of national power with Taney’s decisions

in favor of state power highlights the policy significance of judicial decisions.

While we can’t be sure whether Marshall and Taney based their decisions on their

interpretations of the Constitution or their views on concrete policy questions (for

example, whether or not slavery was moral), the fact is that their decisions had strong

policy consequences. The Taney Court’s decision that the Missouri Compromise

was unconstitutional is consistent with a dual federalism interpretation of the

Constitution—but it also sustained the legality of slavery in southern states and

halted attempts by representatives from the North to limit the spread of slavery into

In the early 1800s, the Supreme Court

confirmed the national government’s

right to regulate commerce between

the states. The state of New York

granted a monopoly to a ferry

company serving ports in New York

and New Jersey, but this was found

to interfere with interstate commerce

and was therefore subject to federal

intervention.

The Dred Scott decision, covered

here in Frank Leslie’s Illustrated

Newspaper, was the subject of much

public interest when it was handed

down in 1857. The decision inflamed

tensions between slave states and

nonslave states and vindicated those

who saw state law as superior to

federal law.

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