“The powers delegated. . .to the federal government are few and defined. .
. .The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people and the internal order, improvement, and prosperity of the State.”
—James Madison, The Federalist Papers #45
Since the establishment of judicial review in Marbury vs. Madison , the Supreme Court has been charged with the role of mediator. The Court arbitrates disputes between the individual and government, between the constitution and statuary law, and, within a constitutional framework, determines the allocation of power between states and the national government.
The issue of federalism has occupied the Court’s docket since its inception and continues to do so today. The Court’s reaction to it has greatly altered over time as both the composition of the Court and the political mind-set of the country have shifted.
The tenth amendment of the U.S. constitution reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This amendment is the looking glass through which the issue of federalism is most often viewed.
In the early decisions of the Court, with the notable exception of Marbury vs. Madison , the Marshall Court ruled heavily in favor of an expansive view of the tenth amendment and granted the states as much latitude as possible within the framework of the new constitution. Many of the Marshall Court’s decisions were regarded with contempt since they ran contrary to the Hamiltonian flow of public opinion.
Like a child beginning kindergarten, the government was just starting out, just beginning to explore new areas. The states were accustomed to their independence and their individual constitutions. The imposition of a federal government, although not entirely unwelcome, was at best uncomfortable.
The Marshall Court was forced to reconcile the desire for state autonomy with the need for federal government. Marshall himself demonstrated the embodiment of this conflict as he was required to balance his personal Hamiltonian belief in a strong national government with the degree of federalism he thought the states could abide.
The Courts of the 19th century took a decidedly pro-active role when it came to securing the states’ tenth amendment rights. In an 1824 opinion, Justice Johnson voiced the court’s position when he characterized federalism as being “. . .
destructive to the harmony of states.” Throughout the 19th century and into the beginning of the 20th century, the Court would maintain this “new” anti-federalist position, the development of which is commonly associated with the eruption of industry, the 1887 passage of the Interstate Commerce Clause, and the 1890 Sherman Anti-trust Act.
The court spent the late half of the 19th century and the early half of the 20th delineating clear limits to congressional power as it concerned the Interstate Commerce Clause. The court ruled that the Congress could regulate use of interstate channels, regulate and protect interstate commerce, and regulate the activities that substantially effect interstate commerce. This ruling, however, was extremely vague and thus highly case specific. The Court felt that it needed to provide some limitation upon the vast powers the law would grant congress by reserving specific privileges for the states.
It is possible to track this conservative trend through an examination of the Court’s decisions beginning with an 1868 decision in which the Court found that the Commerce Clause did not cover the regulation of insurance companies. The Court’s second ruling on the Clause can be considered a landmark case for the limitation it put upon the federal government. In the United States Vs. E.C. Knight Co.
, the Supreme Court found that the federal government could not use the commerce clause to regulate “production”, “mining” or “manufacturing” because all of these existed prior to the actual existence of commerce. This was a tremendous loss of revenue to the federal government, as the taxation of such items was no longer permitted. This is not to say, however, that the Supreme Court’s restriction of federalism was detrimental to business. In fact, as can be seen by the decision .