American Federalism: Punching Holes in the Myth

AMERICAN FEDERALISM: PUNCHING HOLES IN THE MYTH Book Review ofSAFEGUARDING FEDERALISM: HOW STATES PROTECT THEIR INTERESTS IN NATIONAL POLICYMAKING By John D. Nugent. Norman, Oklahoma: University of Oklahoma Press, 2009. Pp. 344. $45.00. Political myths are persistent, and the myth of American federalism' s supposed twentieth-century decline is a tale that persists despite empirical evidence to the contrary. A new book by Connecticut College's John Nugent punches a few more holes in the myth, but it is yet to be seen whether the widely accepted version of this nation's modern federalism will be altered. The myth is typically as follows: In 1787, the states agreed to a convention to repair the failed Articles of Confederation, but instead that convocation proposed an entirely new constitution - one creating a limited but robust national government with a powerful executive, improved taxing authority, and strong control over specified areas like foreign affairs, war, commerce among the states, the post office, currency, and navigation. But the states were left with governing the rest of Americans' day-to-day lives. States controlled the laws relating to public order, property, contracts, and domestic life, and they provided public services such as roads and transport, public records, and most courts. According to what became known as the sovereignty doctrine of federalism, state and federal activities were thus neatly split for 150 years; the national government remained sovereign within its sphere of enumerated powers, and the sovereign state governments, closer to home, dutifully provided most public services. The Supreme Court policed this neat division until the late 1930s, when the Court buckled under pressure from President Franklin Roosevelt and a New Deal Congress, allowing a massive expansion of the national government into areas previously off-limits: economic activities within the states, labor relations, workplace safety, market regulation, agricultural production, welfare, social services, and public works.1 The role of the states supposedly withered. Beginning with World War II, followed by the civil rights era and President Johnson's Great Society, even more programs and powers shifted to the nowdominant federal government. This centralization and growth would have continued unabated but for President Ronald Reagan's cutbacks coupled with Chief Justice Rehnquist' s efforts to return to dual sovereignty's distinct separation of powers between the national government and the states. This is the history of federalism as widely understood by most legal academics and by educated Americans in general - both liberals and conservatives alike. One reason this view is so persistent is, as Nugent points out,2 because the political parties have a common stake in this misconception. Republicans want the public to believe they can rescue the country from a national government that is much too big and powerful, while Democrats would like voters to feel that the federal government (led by their party) can cure virtually all social and economic ills. Further, a truly national press developed in the twentieth century, featuring stories about the national government that were inherently bigger and could sell more papers across the country. As the Washington Post's Richard Cohen has written, [f]ew journalists have become nationally famous, not to mention rich, covering state or local governments.3 During the past fifty years, a handful of academics have methodically punched holes in the standard tale of modern American federalism. Their careful research has received only modest attention, and accordingly has had only a modest impact on the myth. In 1962, Temple University Professor Daniel Elazar published detective work revealing that in the early nineteenth century, the states constantly begged for federal help to finance public works projects such as the Dismal Swamp Canal, highways across the Appalachians, and canals to open the west for development. …