Kwon Bumjoon Kwon Prof. Jaechun Kim GISA 224 9 March, 2015

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Bumjoon Kwon Prof. Jaechun Kim GISA 224 9 March, 2015 Understanding the Growing Power of the Federal Government in the U.S. INTRODUCTION Federalism in the United States is a recurring theme not only in the day-to-day functional relationship between the state and federal governments, but also frequently appearing in the talking points constantly running on the split screen cable news shows. And the average Americans are often reminded of this system of their government when they watch some federal agents traveling to a remote American town to take over investigation from the local or state law enforcement authorities on their favorite crime investigation soap opera. In fact, since the independence and the signing of the Constitution more than two centuries ago, federalism, and the ideas, principles, and beliefs behind it have been one of the principal sources of division, conflicts, and contests. Before and during the revolutionary war against the British tyranny, the struggle was between the pro- and anti-revolutionary forces; in 1787, at the time of writing the Constitution, the struggle was between the Federalists and the Antifederalists; and today, the struggle is between the Democrats and the Republicans, each representing competing economic, social, and sectoral interests.1 Therefore, this institutional mechanism which “seeks to limit government by dividing it into two levels – national and state – each with sufficient independence, or sovereignty, to compete with each other, thereby restraining the power of both” has been in the making for more than two centuries and still evolving. Considering this, it would not be an overstatement to say that federalism has operated as the backbone of the U.S. society and its political system. And as such, one cannot attempt to understand the American political culture without its distinct characteristics and evolvement of federalism. However, federalism as we know it today – or, the balance of power relationship between the federal and state governments to be more precise – is not the same as the federalism of 1787, or that of the early- or the mid-twentieth century. Gradually but increasingly throughout the nation’s history, the federal government has gained much more power and authority relative to the states, due in large part to the supremacy clause of Article VI of the Constitution, which provided that national laws and treaties “shall be the supreme Laws of the Land,” superior to the laws of any state or local governments.2 Similarly, the necessary and proper clause of Article I, Section 8 of the Constitution provided Congress with the authority to make all laws “necessary and proper” to carry out its expressed powers, giving the federal government much leeway for expansion.3 This, however, does not necessarily indicate that the state and local governments have become increasingly irrelevant in their functional operations or obsolete in terms of political importance to their respective constituents. In effect, “For nearly a century and a half, virtually all of the fundamental policies governing the lives of Americans were made by the state legislatures, not by Congress,” and “the states continued to be more important than the national government.”4 1

Theodore J. Lowi, Benjamin Ginsberg, and Kenneth A. Shepsle, American Government: Power and Purpose, 8th Ed. (New York: W.W. Norton & Company, 2004), p. 36. 2 Ibid., p. 53. 3 Ibid., p. 80. 4 Ibid.

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Even today, this is true to a certain extent, especially regarding the local politics and the policy areas over which the states have almost exclusive jurisdiction. Nonetheless, it is clear that the expansive tendency of the federal government began to show most apparently in the early- to the mid-twentieth century. And since then, the path dependent nature of institution building worked in favor of the continuous growth of the federal government. What caused this gradual shift in the balance of power between the state and federal governments? Which factors – both domestic and international – can possibly explain this phenomenon? This paper will attempt to answer these questions by examining some of the pertinent characteristics and features of federalism in the U.S. first, and then identifying both domestic and international sources which have significantly contributed to the growth of the U.S. federal government vis-à-vis the states. The findings below will demonstrate that a) the effects of the Great Depression as well as the shifting hegemonic role from Britain to the U.S. in the interwar period of the early twentieth century, and b) the Civil Rights movement of the 1950s-60s and the race relations in the U.S. more broadly have contributed – both individually and cumulatively – to the strengthening of the federal government and expansion of its powers and authorities much beyond the scope of what the Founding Fathers originally envisioned. FEDERALISM AND OTHER LIMITS ON POWER The founding of the United States of America and the subsequent political development of its government into a web of highly intricate and yet sufficiently effectual systems of the present-day political machinery present a truly unique experience. The core principles found in the language of the U.S. Constitution, such as federalism, the separation of powers, and individual rights have served not only as the bedrock of designing the U.S. political system but also as the prime models for other governments to watch and follow. And these principles are still very much apparent and relevant today in the day-to-day operation of the government and political activities in American society as they were more than two centuries ago, although not once are these principles specifically mentioned by name in the Constitution.5 Interpretations of the Constitution have varied since the early days of the formation of the union. However, the U.S. Constitution has often been described by those who have interpreted it in a more pragmatic and liberal manner as a living document, suggesting that it can and should be understood and adopted to fit the constantly changing socioeconomic and sociopolitical currents of the nation, and of course, “in Order to form a more perfect Union” for posterity.6 For the delegates at the Constitutional Convention held in 1787 in Philadelphia, the pitfall of creating a powerful central government was naturally felt even as the need for a stronger form of political integration among the thirteen states through a design that is far more legitimate, organized, effective, and centralized than under the Articles of Confederation was evident.7 Before adopting the Constitution, “the relationship between Congress and the states under the Articles of Confederation was much like the contemporary relationship between the United Nations and its member states, a relationship in which virtually all governmental powers are retained by the states.”8 In Federalist, No. 15, Alexander Hamilton fervently argues in favor of federalism as such:

5 6 7 8

Ibid., p. 77. Ibid., p. A13 Ibid., p. 43. Ibid., p. 41.

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It must in truth be acknowledged that…there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy…We have neither troops, nor treasury, nor government…Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is private credit the friend and patron of industry? The most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money…the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either.9

Therefore, after much deliberation and compromise, a federalist form of government, or more specifically, dual federalism was instituted by the Constitution in which “most fundamental powers were shared between the federal and state governments,” each retaining sufficient level of sovereignty over its distinct jurisdictions.10 The principles of separation of powers, checks and balances, and individual rights were also instituted in the Constitution to limit the power of the newly created federal government. Adopting a republican form of government, the founders placed the utmost significance to the legislature. And due to their inevitable suspicion toward a tyranny, the founders were careful not to confer overwhelming level of authority to the executive branch, thus limiting the power of president. Further, the Founding Fathers were fearful of the tyranny of the majority, and development of numerous political factions for that matter. While stating that “we must extend the authority of the Union to the persons of the citizens, the only proper objects of government,” Hamilton was not hesitant to express his distrust of men “because the passions of men will not conform to the dictates of reason and justice, without constraint.”11 Therefore, the framers hoped that the new executive branch will be “capable of timely and decisive action to deal with public issues and problems.”12 Safeguarding the legislative body from the tyranny of the majority, the framers divided it into two chambers where the members of the Senate were originally to be chosen through indirect election. Similarly, an indirect voting mechanism called Electoral College was instituted for selection of the president. The newly created federal government, therefore, had its safeguards all around, including from the overexpansion of the federal government. Or, at least the framers believed that it did. THE TURNING POINT It is difficult and rather impossible to put a finger on the exact point in history from which the U.S. federal government began to expand relative to its state counterparts in terms of the scope of power and jurisdictions. Nonetheless, both domestic and international events occurring in the 1920s-40s provided an impetus for the federal government to grow beyond its traditional boundaries of jurisdiction. In this regard, it can also be said that the growth of the U.S. federal government was thanks in large part to the longest serving president in the U.S. history, Franklin D. Roosevelt, who was the sitting president during most of this period, serving twelve years from 1933 to 1945, and who has consistently been polled by Americans to be one of the most admired presidents in the U.S. history.

“The Federalist Papers: No. 15,” http://avalon.law.yale.edu/18th_century/fed15.asp. (Search date: March 2, 2015) 10 Theodore J. Lowi, Benjamin Ginsberg, and Kenneth A. Shepsle, op. cit., p. 84. 11 op. cit. 12 Theodore J. Lowi, Benjamin Ginsberg, and Kenneth A. Shepsle, op. cit., p. 52. 9

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The Roosevelt presidency began in the midst of the Great Depression when the unemployment rates were still increasing at an unprecedented level, investors had lost their confidence in the market, money circulation at its nadir, individuals were losing their homes, and companies were going bankrupt across the country. From an international perspective, Charles Kindleberger attributes the causes of the Great Depression in the interwar period to the hegemonic vacuum created by the declining British influence and reluctance of the United States to lead at the time. In this regard, “the 1929 depression was so wide, so deep and so long because the international economic system was rendered unstable by British instability and United States’ unwillingness to assume responsibility for stabilizing it.”13 The magnitude of the problem created by the Great Depression was beyond the state governments’ mandates or capacity. And during the campaign, FDR had run on the New Deal platform to reform the country’s financial and banking sectors, and the fiscal policies, and also to institute nationwide social security programs. The Social Security Act of 1935 was the first farreaching package of pension and welfare programs enacted by Congress for a variety of groups of people, including the elderly, people with disability, and the unemployed. Therefore, the urgency presented by the Great Depression required a far reaching action by the federal government. And by taking up the task, the Roosevelt administration had greatly contributed to creating a “bigger” government. Another significant aspect about the first half of the twentieth century is that the U.S. emerged out of the Second World War as the global hegemonic power, much willing and able to shape the order of the post-war world, and in most part doing away with its age-old sobriquet, isolationist. FDR was an active promoter of the United Nations and the Bretton Woods financial institutions, and saw an increasing role of the U.S. in international affairs. The ensuing Cold War against the Soviet Union also required the first major reshuffling of the federal government soon after in the late 1940s, resulting in the creation of the National Security Council under the executive branch, dissolving of the War Department, which then led to the creation of the Department of Defense, and also the creation of the Central Intelligence Agency. The Office of the President of the U.S. since then grew both in terms of size and mandate, unlike anything that the framers had in mind. THE CIVIL RIGHTS MOVEMENT AND THE RACE RELATIONS IN AMERICA It would be difficult to say, of course, whether the framers of the Constitution were aware of the possibility that the U.S. society would one day become a truly multiethnic, multicultural, and multiracial one – they probably never imagined. If they had any idea that the race relations would one day become a major source for a bloody civil war and gradual federal enlargement, would they have written the Constitution somewhat differently? It is hard to tell. In any case, after the Civil War, the resulting Fourteenth Amendment in 1868 did much more than providing the “equal protection” clause, granting millions of former AfricanAmerican slaves the equal citizenship rights. By being rather explicit in saying that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…,” it created a federal “supremacy” clause, constitutionally and unprecedentedly recognizing the supreme authority of the federal government over individual rights.14 The dual-sidedness of the American federalism since then began to tilt toward the federal government, although it would take nearly another century before the federal

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Charles P. Kindleberger, The World in Depression (Berkeley: University of California Press, 1973), pp. 291292. 14 B. J. Dierenfield, The Civil Rights Movement (London: Pearson Education, 2008), p. 140.

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government start asserting its constitutional “supremacy” over the states during the Civil Rights Movement of the 1950s-1960s. The landmark Supreme Court decision of Brown v. Board of Education (1954), which overturned the century-old practice of racial segregation in public schools angered many southern white conservatives. Condemning the Brown decision, a hundred and one southern members of Congress even issued the “Southern Manifesto,” which read, “We decry the Supreme Court’s encroachments on rights reserved to the States and to the people, contrary to established law, and to the Constitution…(We) demand that the reserved rights of the States and of the people be made secure against judicial usurpation.”15 A few years after the Brown decision, a classic example of the backlash of dual federalism unfolded in the Little Rock Crisis in 1957, which ultimately escalated into a confrontation between the chief executives of the state and federal governments, between Governor Orval Faubus of Arkansas and President Eisenhower. At first, Faubus deployed the Arkansas National Guards to reinstate segregation at Little Rock Central High School, thereby blocking the nine AfricanAmerican students from attending the newly integrated school under the Brown decision. Nonetheless, President Eisenhower called the Arkansas National Guards under the federal command, ordering the National Guards to instead protect the “Little Rock Nine” so that they could attend the school without experiencing violent harassment from the local mobs, thereby asserting the supremacy of the federal law.16 Considering this, the significance of the Little Rock Crisis is both on what legal measures had been available to the president and on his ability and willingness to expand the federal authority upon those preexisting measures. Both the Fourteenth Amendment and the Brown decision had availed the president to carry out his constitutional duty of enforcing law by calling Arkansas National Guards under his command to protect the integration of Central High. The President’s action not only signaled to the other Southern states that racial segregation could not survive but also began to demonstrate and assert federal supremacy. During the Johnson administration, a number of civil rights legislations passed in Congress, including the Voting Rights Act of 1965, which essentially placed the state voter registration rules under the federal control, barring literacy tests, and physical and economic intimidation at the polls.17 The Voting Rights Act definitely helped secure more African-American votes for the Democrats, but its consequences are beyond merely broadening of the constituency base. It was rather placing the future electoral politics under the federal watch. The consequences have been of course a “bigger” government. CONCLUSION Since the founding of the nation, the federal-state relationship has been a great controversy. Revolving around the principles of federalism, each side has been advancing its causes and justifying its position on a number of constitutional grounds on a number of different issues. The general trend of balance of power has been tilting toward the federal government, however, and quite rapidly over the past century. Considering both historical periods explored here, perhaps it was absolutely necessary for the federal government to claim more authority, during the periods of both the Great Depression and the Civil Rights Movement. Especially during the Civil Rights era, vicious racial oppression legally implemented by some of the Southern states was done “rightly” under the state sovereignty

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Emphasis added. Ibid., p, 141. Ibid., pp. 35-37. Ibid., pp. 118-123.

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and the “states’ rights” principle. In this regard, expansion of the federal authority to protect individual rights from the state tyranny was necessary to “establish justice, (and) insure domestic tranquility.”18 Extraordinary circumstances required extraordinary measures. And constitutionally, the federal government found sufficient grounds for justification within the Constitution. If anything the growth of the U.S. federal government has taught us, it is that institution building is highly path dependent, in which case it can be argued that despite all the efforts and intention to limit the power of the federal government vis-à-vis the states, the Constitution since the beginning had in fact all the necessary elements for the future growth of the federal government. Surely, the framers had no idea. And more than two centuries ago, of course, they had no idea that the United States of America would grow this big, and would require a matching size federal government to lead the country as well as the world. In the aftermath of both the September 11 attacks and the financial crisis of 2008, measures have been drawn up and policies have been implemented which indicated yet again increasing federal control and presence into the state jurisdiction and private spheres. Republicans have incessantly voiced their fear of any more federal programs, including the Affordable Care Act, often dubbed as the Obamacare. And the Tea Party coalition is the latest testament to the growing public dissatisfaction with the “big government.” The debate still continues therefore – and rather vibrantly – on the perennial question of how much power is the appropriate amount for the federal government, and of what is the right balance between the state and federal governments. The American federalism is still in the making.

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Theodore J. Lowi, Benjamin Ginsberg, and Kenneth A. Shepsle, American Government: Power and Purpose, 8th Ed. (New York: W.W. Norton & Company, 2004), p. A13.

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References Dierenfield, B. J. The Civil Rights Movement. London: Pearson Education, 2008. Kindleberger, Charles P. The World in Depression. Berkeley: University of California Press, 1973. Lowi, Theodore J., Ginsberg, Benjamin, and Shepsle, Kenneth A. American Government: Power and Purpose. 8th ed. New York: W.W. Norton & Company, 2004. “The Federalist Papers: No. 15.” http://avalon.law.yale.edu/18th_century/fed15.asp. (Search date: March 2, 2015)

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