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The Concept of Dual Federalism Explained with Examples

The Concept of Dual Federalism Explained with Examples

Dual federalism refers to a structure where the federal and state governments, considered as equals, have independent and separate spheres of authority. The concept is explained using examples through this Buzzle article.
Rujuta Patil
Creative Federalism
During the administration of President Lyndon Johnson in the 1960s, the balance of power had shifted back to the national government through his Great Society program and expansion of the grant-in-aid system.
The Articles of Confederation written in 1776 had many drawbacks like, it did not have any provision for an executive to run the government, and the national government had no right to taxation or regulation of commerce. To correct such deficiencies, a new constitution was drafted in 1787. This paved the way for strengthening the national government. Article six of this new constitution assured supremacy of federal laws, along with the tenth amendment recognizing the power of the states. The tenth amendment also made it clear that all powers, not explicitly assigned to the federal government, were reserved for the states. Thus, came the concept of rights of the states, limitation of the national government's authority, and two separate spheres of independent but sovereign governments.
What is Dual Federalism?
It is a form of federalism where, both the national and state governments have their own spheres of authority. Each government is independent or sovereign in the sense that it is free from interference by the other.
The balance of power is such that both the national and state governments are considered equal, and have separate fields of authoritative power. This form of federalism is also called the "Layer cake" federalism, as there are distinct layers of both the governments. Each one is sovereign in its layer.
Division of power in dual federalism is based on the concept of non-interference of any one government into the area of the other government. It also implies limiting the powers of the federal government in one sense. There are clear differences in the powers and functions of the state and national governments. The period approximately between 1789 and 1901 is known to be the era of dual federalism.
Division of powers
The Constitution of the United States provides for three separate lists authorizing the national, state, and the local governments to function in the respective areas. Here is a list of some important powers assigned to the national and the state governments.
Federal Powers:
  1. Levying and collection of taxes and duties
  2. Printing money
  3. Making laws and establishing the court system
  4. Regulating interstate and international commerce
  5. Declaring a war
  6. Raising an army, maintaining the navy, and making rules regarding the military
  7. Establishing post offices
State Powers:
  1. Regulating intrastate commerce
  2. Conducting elections
  3. Establishing local governments
  4. Taking measures for public health and safety
  5. Licensing and exercising powers not delegated to the federal government nor prohibited the states from using (states' rights according to the tenth amendment).
Ideally dual federalism divided all administrative power between the two governments; however, what constituted a government's sphere of authority was debated upon several times. Unlike, in cooperative federalism, there is lack of cooperation between the two administrations in this duality, and thus there was tension over certain issues. This dilemma is reflected from the following court cases:
1. Nullification doctrine: This doctrine maintained that a state could suspend the implementation of any federal law within the state limits, on grounds of the law being unconstitutional.

● The state legislatures of Kentucky and Virginia had passed resolutions nullifying the Alien and Sedition Acts passed by Congress, under this doctrine.

● Later in 1832, the state of South Carolina had nullified the Federal Tariff Acts of 1828 by a nullification ordinance.

● The Fugitive Slave Act of 1850 (brought to preserve the Union) was declared to be unconstitutional by the Wisconsin Supreme Court. This nullification act of the Wisconsin court was overturned by the Supreme Court. However, the state legislature then declared the Supreme court's decision null and void. In 1857, the Supreme court declared Fugitive Slave Act to be constitutional in Scott vs. Sandford (famous decision given by Chief Justice Roger Taney).
2. McCulloch vs. Maryland: In 1819, the constitutionality of the Congress to establish a National Bank for the United States was upheld through this case. The Supreme Court had ruled in favor of this act pertaining to the "implied powers" and "necessary and proper clause" in Article 1 of the Constitution.
3. Gibbons vs. Ogden: The issue of interstate commerce was addressed through this case in 1824. It was a dispute between the New York state legislature (which had granted a company exclusive right to use the Hudson river) and the Congress (which had licensed a ship to use the river). The ruling favored the national government to regulate commercial undertakings, preventing the states from any activity on the rivers and harbors.
During the Civil war era, there were several debates and arguments over the role of the national government and the nature of the union. What emerged after the war, was more of a nation-centric idea of federation. There were many instances in the post civil war period, when the Supreme Court upheld the rights of the states too. After a long time span, the concept of dual federalism is believed to have ended around the 1930s, when economic changes and industrialization after the Great Depression tilted the balance of power more towards the federal government. The Interstate Commerce Act and the Sherman Anti-trust Act proved the Congress's authority in the regulation of commercial activities.