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I. Federalism*

Published online by Cambridge University Press:  01 August 2014

David Fellman
David Fellman*
Affiliation:
University of Wisconsin
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Extract

The net result of ten years of extraordinary activity is that the Supreme Court has gone a long way toward squaring the legal concept of American federalism with the intent—and, it is tempting to add, the plain language—of the Constitution. The most important thing that has happened is that the Court has snuffed out the heresy of “dual federalism.” This subtle weapon of laissez-faire economics was utilized at a fairly early date, notably in the two child labor cases, to strike down federal reform legislation, but it achieved great weight, which comes with reiteration in important cases, during 1935 and 1936, when the Court was grimly determined to save the country from the horrors of the New Deal. Briefly, the doctrine holds that the mere existence of states constitutes an independent limitation on the exercise of national powers. Thus, Justice Day asserted in the first child labor case: “The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.” This theory is inconsistent with the principle of federal supremacy, a principle which the present Court has restored to its proper place in American constitutional law. But, in sustaining a sweeping exercise of national power, the Court has by no means been unmindful of the proper status of the states in the Union. Furthermore, it is a mistake to assume that every growth of national power is at the expense of state power. While it is true that we have more government at the federal level today than ever before, we also have much more state government. A fuller exploitation by Congress of the powers committed to it by the Constitution has been matched by a fuller exploitation of the authority reserved to the states. The laments of losing litigants should not be taken as a correct assessment of the present position of the American states.

Type
Ten Years of the Supreme Court: 1937–1947
Information
American Political Science Review , Volume 41 , Issue 6 , December 1947 , pp. 1142 - 1160
Copyright
Copyright © American Political Science Association 1947

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Footnotes

*

A symposium arranged and edited by Robert E. Cushman, Cornell University. The complete symposium embraces six articles, but considerations of space require that only three be presented in the present issue. The remaining three—by Professors Robert J. Harris, Robert E. Cushman, and C. Herman Pritchett—will appear in February.

References

1 Hammer v. Dagenhart, 247 U. S. 251 (1918); Bailey v. Drexel Furniture Co., 259 U. S. 20 (1922); Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935); Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935); United States v. Butler, 297 U. S. 1 (1936); Carter v. Carter Coal Co., 298 U. S. 238 (1936); Ashton v. Cameron County Water Improvement District, 298 U. S. 513 (1936). See Corwin, E. S., The Twilight of the Supreme Court (1934)Google Scholar, Chap. 1, and The Commerce Power versus State Rights (1936), Chap. 5.

2 Hammer v. Dagenhart, 247 U. S. at 274. Another good example of this sort of thinking is found in Justice Roberts' opinion in United States v. Butler, where he said (297 U. S. at 68) that the Court is not required to ascertain the scope of the power delegated to Congress to spend money to provide for “the general welfare of the United States,” because, “wholly apart from that question,” the Agricultural Adjustment Act “invades the reserved rights of the states.” The phrase, “wholly apart from that question,” begs the real question at issue.

3 Chase v. Bowles, 327 U. S. 92 (1946). OPA regulations were also held applicable to sales by counties. Hulbert v. Twin Falls County, 327 U. S. 103 (1946). Justice Douglas, dissenting alone, expressed concern over “substantial intrusions on the sovereignty of the States.” Justice Douglas seems to have emerged as the outstanding defender of the concept of “state sovereignty” in the present Court.

4 United States v. Carmack, 67 S. Ct. 252 (1946.)

5 Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 534 (1941).

6 Testa v. Katt, 67 S. Ct. 810 (1947).

7 Bowles v. Willingham, 321 U. S. 503 (1943). In conformity with Sec. 265 of the Judicial Code, and its policy of avoiding needless friction between state and federal courts, it is improper for a federal court to enjoin proceedings in a state court merely because the claim had previously been litigated in a federal court. Toucey v. New York Life Ins. Co., 314 U. S. 118 (1941), overruling as “a sporadic, ill-considered decision,” Supreme Tribe of Ben Hur v. Cauble, 255 U. S. 356 (1921). On this point, see also Beal v. Missouri Pacific R. Corp., 312 U. S. 45 (1941); Watson v. Buck, 313 U. S. 387 (1941).

8 67 S. Ct. 544 (1947).

9 United States v. San Francisco, 310 U. S. 16 (1940).

10 United States v. Belmont, 301 U. S. 324 (1937). To the same effect is United States v. Pink, 315 U. S. 203 (1942).

11 Hines v. Davidowitz, 312 U. S. 52 (1941).

12 United States v. California, 67 S. Ct. 1658 (1947).

13 Railway Mail Assoc. v. Corsi, 326 U. S. 88 (1945).

14 James Stewart & Co. v. Sadrakula, 309 U. S. 94 (1940).

15 Penn Dairies, Inc. v. Milk Control Comm. of Penna., 318 U. S. 261, 271 (1943).

16 Pacific Coast Dairy v. Department of Agriculture, 318 U. S. 285 (1943). Nor may a state require licenses from liquor dealers in a national park which has been ceded by the state to the federal government. Collins v. Yosemite Park and Curry Co., 304 U. S. 518 (1938).

17 Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945). Four justices dissented, arguing that as to the Clayton Act the federal government is parens patriae, not the states. See also Georgia v. Evans, 316 U. S. 159 (1942), holding that a state may sue for triple damages under the Sherman Act.

18 Great Northern Life Ins. Co. v. Read, 322 U. S. 47 (1944). Three judges dissented, taking the view that the majority opinion “derives from an excessive regard for formalism,” and departs from the whole modern trend in favor of suability.

19 Kennecott Copper Corp. v. State Tax Comm. of Utah, 327 U. S. 573 (1946).

20 Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945). This tenderness for the states is in contrast with the present Court's more general tendency of looking with disfavor upon claims to immunity from suit, even on the part of federal agencies. See Keifer & Keifer v. RFC, 306 U. S. 381 (1939); Federal Housing Administration v. Burr, 309 U. S. 242 (1940). This is also reflected in the Federal Tort Claims Act, Title IV of the Legislative Reorganization Act of 1946. See “Government Tort Liability,” Law and Contemporary Problems, Vol. 9, pp. 179–370 (1942)Google Scholar. Where the United States itself has consented to be sued, however, the terms of this consent are interpreted strictly in favor of the United States. United States v. Sherwood, 312 U. S. 584 (1941).

21 Fay v. New York, 67 S. Ct. 1613, 1631 (1947).

22 Twining v. New Jersey, 211 U. S. 78 (1908).

23 Adamson v. California, 67 S. Ct. 1672 (1947).

24 See Madden v. Kentucky, 309 U. S. 83 (1940), overruling Colgate v. Harvey, 296 U. S. 404 (1935); Hague v. C.I.O., 307 U. S. 496 (1939); Snowden v. Hughes, 321 U. S. 1 (1944); Screws v. United States, 325 U. S. 91 (1945); Breedlove v. Suttles, 302 U. S. 277 (1937); Edwards v. California, 314 U. S. 160 (1941); United States v. Classic, 313 U. S. 299 (1941). See Konvitz, M. R., The Constitution and Civil Rights (1947), Chap. 3CrossRefGoogle Scholar.

25 Paiko v. Connecticut, 302 U. S. 319, 325 (1937). Compare Louisiana ex rel. Willie Francis v. Resweber, 67 S. Ct. 374 (1947), with Chambers v. Florida, 309 U. S. 227 (1940), and Johnson v. Zerbst, 304 U. S. 458 (1938), with Betts v. Brady, 316 U. S. 455 (1942), and Foster v. Illinois, 67 S. Ct. 1716 (1947).

26 Thus is it not improper, in a federal trial for using the mails to defraud, to admit testimony previously given by the defendant in supplementary proceedings in a state court under a statute granting immunity. Feldman v. United States, 322 U. S. 487 (1944). This is an interesting variation on the rule of Ponzi v. Fessenden, 258 U. S. 254 (1922), that federal incarceration is no bar to trial in a state court, and the rule of United States v. Murdock, 284 U. S. 141 (1931), which holds that one may not decline to testify in federal court on the ground that it may incriminate him under state law.

27 Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334 (1937). This case carried forward the doctrine of Whitfield v. Ohio, 297 U. S. 431 (1936). See Kallenbach, J. E., Federal Coöperation with the States under the Commerce Clause (1942)Google Scholar.

28 United States v. Bekins, 304 U. S. 27 (1938). The Court previously invalidated the 1934 version of the same statute in Ashton v. Cameron County Water Improvement Dist., 298 U. S. 513 (1936). Since the two statutes were practically identical, a curious feature of the Bekins case was that instead of overruling the earlier decision, the Court made a feeble effort at distinguishing them. A year ago, however, Justice Rutledge remarked, in Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 433, note 42 (1946), that the Ashton case “may be said in effect to have been overruled” by the Bekins case.

29 Steward Machine Co. v. Davis, 301 U. S. 548 (1937).

30 Jackson, Robert H., The Struggle for Judicial Supremacy (1941), p. 272 Google Scholar.

31 304 U. S. 64.

32 16 Pet. 1 (1842).

33 “The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Act of September 24, 1789, c. 20, §34, 1 Stat. 92., now §721 of the Revised Statutes.

34 The consequences following from the fact that a party could shop around for a rule of law were dramatically illustrated in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 (1928). Justice Holmes wrote a vigorous dissenting opinion, in which he maintained that parties are not entitled to any independent judgment on matters of general law because there is no such “transcendental body of law outside of any particular State.” Another noteworthy dissenting view was expressed by Justice Field in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 390 (1893).

35 Ruhlin v. New York Life Ins. Co., 304 U. S. 202 (1938).

36 Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 (1941); Huddleston v. Dwyer, 322 U. S. 232 (1944). See also Wichita Royalty Co. v. City National Bank, 306 U. S. 103 (1939); Moore v. Illinois Central R. Co., 312 U. S. 630 (1941).

37 Vandenbark v. Owens-Illinois Glass Co., 311 U. S. at 543.

38 Fidelity Union Trust Co. v. Field, 311 U. S. 169 (1940). Here the Court held that the rulings of the New Jersey Court of Chancery must be followed, even though they are reviewable by the Court of Errors and Appeals. To the same effect are: Six Companies of California v. Joint Highway District, 311 U. S. 180 (1940); West v. American Telephone & Telegraph Co., 311 U. S. 223 (1940); Stoner v. N. Y. Life Ins. Co., 311 U. S. 464 (1940).

39 Meredith v. Winter Haven, 320 U. S. 228 (1943). But in the absence of any relevant decision by the state courts, the Supreme Court will leave undisturbed an interpretation of purely local law by inferior federal courts. MacGregor v. State Mutual Life Assurance Co., 315 U. S. 280 (1942).

40 Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173, 176 (1942). An interesting application of this rule will be found in United States v. Standard Oil Co. of Calif., 67 S. Ct. 1604 (1947). See Note, “Exceptions to Erie v. Tompkins: The Survival of Federal Common Law,” Harvard Law Review, Vol. 59, p. 966 (July, 1946)CrossRefGoogle Scholar.

41 See Holtzoff, Alexander, “The Federal Rules of Civil Procedure and Erie Railroad Co. v. Tompkins,” Journal of the American Judicature Society, Vol. 24, p. 57 (Aug, 1940)Google Scholar.

42 Clark, Charles E., “The Tompkins Case and the Federal Rules,” Journal of the American Judicature Society, Vol. 24, pp. 158, 159 (Feb, 1941)Google Scholar.

48 Cities Service Oil Co. v. Dunlap, 308 U. S. 208 (1939); Palmer v. Hoffman, 318 U. S. 109 (1943).

44 Griffin v. McCoach, 313 U. S. 498 (1941); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487 (1941). The law of the forum must control.

45 Guaranty Trust Co. v. York, 326 U. S. 99 (1945), as to equity cases; the rule is an old one for cases at law.

46 Angel v. Bullington, 67 S. Ct. 657 (1947). Three justices thought that this was a matter of procedure.

47 Sibbach v. Wilson & Co., 312 U. S. 1 (1941). Four justices dissented, apparently taking the view that not all of the new rules of procedure were procedural.

48 Angel v. Bullington, 67 S. Ct. at 662.

49 In 1814, Justice Bushrod Washington, sitting at circuit, used such strong words as “injustice,” “absurdity,” and “monstrous” to describe this anomaly. Golden v. Prince, 3 Wash. C. C. 313, 10 Fed. Cas. 542.

50 Warren, Charles, “New Light on the History of the Federal Judiciary Act of 1789,” Harvard Law Review, Vol. 37, p. 49 (1923)CrossRefGoogle Scholar. Justice Brandeis attached a great deal of importance to this research. Warren discovered that Ellsworth's original draft of the Rules of Decision Act referred to both “the statute law” of the states and “their unwritten or common law,” and that later on the whole statement was shortened by substituting for these two phrases the word “laws.”

51 Clark, Charles E., “State Law in the Federal Courts; The Brooding Omnipresence of Erie v. Tompkins,” Yale Law Journal, Vol. 55, pp. 267, 269 (Feb, 1946)CrossRefGoogle Scholar.

52 New York v. United States, 326 U. S. 572 (1846).

53 For an application of the well-established statutory rule that national banks are subject to non-discriminatory local taxation, see Tradesmens National Bank v. Oklahoma Tax Comm., 309 U. S. 560 (1940). A recent example is the Public Salary Tax Act of 1939 (53 Stat. 574), which permits the non-discriminatory taxation of the salary of any federal officer or employee by the states. See also Public Law 279, 80th Cong., 1st Sess., c. 389, §§104-7.

54 Graves v. New York ex rel. O'Keefe, 306 U. S. 466, 477 (1939).

55 For examples, see Pittman v. HOLC, 308 U. S. 21 (1939); Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95 (1941); RFC v. Beaver County, 328 U. S. 204 (1946).

56 Graves v. New York ex rel. O'Keefe, 306 U. S. at 480.

57 Dobbins v. Commissioner, 16 Pet. 435; New York ex rel. Rogers v. Graves, 299 U. S. 401.

58 Graves v. New York ex rel. O'Keefe, supra, note 54. To the same effect is State Tax Comm. v. Van Cott, 306 U. S. 511 (1939). Of course, with the enactment of the Public Salary Tax Act of 1939, this issue has been put to rest, so far as any problem of judicial construction is concerned.

59 The principal case was Gillespie v. Oklahoma, 257 U. S. 501 (1922). The immunity was progressively whittled down through the discovery of exceptions and distinctions. For example, a tax on the lessee's buildings and machinery was sustained in Taber v. Indian Territory Illuminating Oil Co., 300 U. S. 1 (1937).

60 Helvering v. Mountain Producers Corp., 303 U. S. 376.

61 James v. Dravo Contracting Co., 302 U. S. 134 (1937); Silas Mason Co. v. Tax Comm., 302 U. S. 186 (1937); Atkinson v. State Tax Comm., 303 U. S. 20 (1938).

62 Buckstaff Bath House Co. v. McKinley, 308 U. S. 358 (1939).

63 Alabama v. King & Boozer, 314 U. S. 1 (1941). The same rule was announced as to state use taxes in Curry v. United States, 314 U. S. 14 (1941). These cases overruled Panhandle Oil Co. v. Mississippi, 277 U. S. 218 (1928), and Graves v. Texas Co., 298 U. S. 393 (1936). In Wilson v. Cook, 327 U. S. 474 (1946), the Court held that a state could constitutionally collect a severance tax on timber cut on a United States forest reserve under contract with the federal government.

64 Smith v. Davis, 323 U. S. 111 (1944). “The assets of an independent contractor that are derived from the profits of a government contract stand in no preferred constitutional position so far as taxation is concerned. They, too, must bear their fair share of the tax burden.”

65 Mayo v. United States, 319 U. S. 441 (1943).

66 Standard Oil Co. of Calif, v. Johnson, 316 U. S. 481, 485 (1942).

67 United States v. County of Allegheny, 322 U. S. 174 (1944).

68 S. R. A. v. Minnesota, 327 U. S. 558 (1946). A state may not tax lands acquired by the United States for a housing project. Cleveland v. United States, 323 U. S. 329 (1945). Nor may it enforce a tax lien on land as long as the United States holds the title. United States v. Alabama, 313 U. S. 274 (1941).

69 McCulloch v. Maryland, 4 Wheat. 316 (1819).

70 11 Wall. 113 (1870). Here Justice Bradley wrote a dissenting opinion the argument of which has never been improved upon.

71 Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429,158 U. S. C01 (1895).

72 Burnet v. Coronado Oil & Gas Co., 285 U. S. 393 (1932).

73 199 U. S. 437 (1905).

74 Brush v. Commissioner, 300 U. S. 352 (1937).

75 Allen v. Regents, 304 U. S. 439 (1938).

76 326 U. S. 572.

77 Apart from the lack of any intelligible criterion, the distinction between “governmental” and “proprietary” functions is wholly illogical. How can a government ever act non-governmentally? But the problem goes beyond mere logic, for it is dangerous to make the concession that a state in some capacity may divest itself of the qualities which make it a state, and, in the language of the cases, become a “mere trader.” If a state may shed its juristic quality, and become a private enterpriser, then it is free to act as one. The danger is not purely theoretical; see for example, Heim v. McCall, 239 U. S. 175 (1915).

78 On this point, see Maxwell, James A., The Fiscal Impact of Federalism in the United States (1946)CrossRefGoogle Scholar, Chap. 16, and compare with Federal, State, and Local Government Fiscal Relations, 78th Cong., 1st Sess., Sen. Doc. 69, especially Chap. 4.

79 Since the term “sovereignty” is one of the fuzziest in the whole vocabulary of public law, judges should, if they insist upon using it, define what they mean by it. Does Justice Douglas have in mind John Austin's conception of “sovereignty” or Harold Laski's, Daniel Webster's, or John C. Calhoun's? The statement, at this late date, that “the Constitution is a compact between sovereigns” seems to be a rather inaccurate and even irreverent gloss on a great deal of American history. The fact is that the scope of the doctrine of “state sovereignty,” whatever that may mean, ends where valid federal power begins, if the Supremacy Clause has any meaning at all. Every power of the national government is necessarily an invasion of some right or power which the once-sovereign states had before the adoption of the Constitution. Is it not rather late in the day to say that a federal statute, coming within the range of delegated power, becomes invalid because it invades a “sovereignty” the invasion of which was essential if there was to be a national government in the first place?

80 The leading case on this point is Metcalf & Eddy v. Mitchell, 269 U. S. 514 (1926).

81 Heivering v. Therrell, 303 U. S. 218 (1938).

82 Helvering v. Mountain Producers Corp., 303 U. S. 376 (1938).

83 304 U. S. 405 (1938). Two judges took no part in the disposition of this case, one wrote a separate concurring opinion, and two dissented.

84 Graves v. New York ex rel. O'Keefe, 306 U. S. 466 (1939). Justice Stone, who wrote the opinion in this ease, took the lead in molding the law of intergovernmental tax immunities in its present form. See Konefsky, S. J., Chief Justice Stone and the Supreme Court (1945), Chap. 1Google Scholar.

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