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Dual federalism is a political arrangement in which power is divided between national and state governments in clearly defined terms, with state governments exercising those powers accorded to them without interference from the national government. Dual federalism is defined in contrast to cooperative federalism, in which national and state governments collaborate on policy. Dual and cooperative federalism are also known as 'layer-cake' and 'marble cake' federalism, respectively, due to the distinct layers of layer cake and the more muddled appearance of marble cake.


The concept of dual federalism was first nominally implemented with the Articles of Confederation and Perpetual Union, adopted in 1777 and ratified by all states by March 1, 1781.[1][2] In practice, however, the document instituted a weak central government composed only of Congress which, despite being able to sign treaties, declare war, and print money, was provided no enforcement mechanism. Congress did not have the power of taxation and could not regulate interstate commerce, and its power to appoint military officers was rendered moot by the fact that the army was comprised of state-organized militias.[2] Lowi et al. describes the balance of power under the Articles of Confederation as “much like the contemporary relationship between the United Nations and its member states.”[2] Individual states retained virtually all governmental power. In 1787, recognizing the disorder caused by such independent states, state delegates decided to create a fundamentally more robust national government. [3][4]

Constitution and Bill of Rights[edit]

The Constitution – the successor to the Articles of Confederation – granted the national government significantly more power than its predecessor. Among other powers, the national legislature could now tax citizens and maintain a standing military, and had exclusive power over regulating interstate commerce and printing currency.[5][6] In addition, while Article Six of the Constitution stipulated that national law overrode any contradictory state law, the power of the national government was held in check by the Bill of Rights – particularly the Tenth Amendment, which limited national governmental powers to only those specified in the Constitution.[7] However, concerns about this new division of power persisted. Some individuals and states, including North Carolina and Rhode Island, expressed concern that the Constitution’s creation of a national executive branch, national taxation powers, and the formation of a national army created a significant risk of tyranny when compared to the effective sovereignty granted to states under the Articles of Confederation. However, after much debate, all states had ratified the Constitution by the summer of 1790.[8]

Notable 19th-Century Supreme Court cases concerning dual federalism[edit]

Since the initial division of state and national powers – collectively, the system of dual federalism – put forth by the Constitution, several seminal court cases have helped further clarify the purview of the national government. One such case, McCulloch v Maryland, concerned the constitutionality of a nationally chartered bank, which bankers and many legislators in Maryland opposed.[9] Although the ability to charter a bank had not been explicitly granted to the national government in the Constitution, such an action could reasonably be regarded as a means for the Federal government to exercise its constitutional right to “tax, borrow, and regulate interstate commerce.”[9] Thus, the banks legitimacy was ensured by the Necessary and Proper Clause.[9]

A second major case regarding the respective rights of the state and national government was Gibbons v Ogden (1824). In 1808, the Fulton-Livingston Company had been granted exclusive steamboat rights by the New York legislature, who in turn had leased ferry rights within a portion of New York to Aaron Ogden. Ogden, citing the monopoly granted to him by the Fulton-Livingstone Company, had successfully prevented Thomas Gibbons from operating a ferry service between Manhattan and New Jersey.[10] Chief Justice Marshall’s majority opinion sided with Gibbons, stating that Ogden's monopoly of the ferry service overstepped states’ ability to regulate trade. While the constitutionality of some aspects implied by the case remained vague, the decision once more reaffirmed the supremacy of federal law and diminished the power of state-sanctioned protectionism.[10]

Challenges to federal supremacy by both Northern and Southern states[edit]

In the decades before the Civil War, both Northern and Southern states clashed with the national government over perceived overreaches in its power. These conflicts struck at the heart of dual federalism, and reflected a fundamental disagreement about the division of power between the national and state levels.[11] While these political battles were ostensibly solved either through legislative compromise or Supreme Court decisions, the underlying tensions and disagreements about states’ rights would later help set the stage for the Civil War.

a. South Carolina’s rationale for the Nullification Doctrine

In 1828, the so-called “Tariff of Abominations” passed the U.S. House. [12] It was meant as a protectionist measure to help the relatively industrialized New England states against international products, but this had grave implications for the largely agrarian South.[13] In protest and spearheaded by Vice President John Calhoun, South Carolina formulated a ‘Nullification Doctrine’, in effect claiming a state’s ability to ignore federal law, and rejected the tariff.[14] The situation became especially serious when President Jackson ordered federal troops into Charleston, though crisis was averted by the drafting of a new tariff which both sides agreed to.[13]

b. Prigg v Pennsylvania (1842), Nullification by Wisconsin, and Dred Scott v Sanford (1857)

While some Southern states resisted economic actions of the federal government, several Northern states balked at federal requirements regarding slavery. The case of Prigg v Pennsylvania concerned Edward Prigg, who had been found guilty of kidnapping a former slave residing in Pennsylvania, Margaret Morgan, and her children and bringing them to her former owner in Maryland. Prigg was charged according to Pennsylvania law, which considered such an action a felony, while Prigg argued that he had been duly appointed for the task and was within the bounds of the federal Fugitive Slave Act.[15] The Supreme Court agreed, striking a blow for abolitionist states and heightening tensions between slaveholding and non-slaveholding states.[16] A similar situation arose when, in 1854, the state Supreme Court in Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional.[17] The U.S. Supreme Court overturned the Wisconsin Supreme Court while the Wisconsin legislature, echoing the rhetoric of South Carolina during the 1828 crisis, nullified the U.S. Supreme Court’s decision.[3] Continuing the debate between the national government and free states, the case of Dred Scott v Sandford established that all Americans of African descent were not legally citizens, and therefore could not file suit. Thus Mr. Scott, a slave who had been brought to the free state of Illinois and who had pursued emancipation through the courts, remained a slave.[18] Though the decision was largely welcomed in the South, the decision outraged abolitionists and non-slaveholding states as another affront on states’ rights.[19]

Expansion of federal power during the Civil War[edit]

The Civil War brought to a head many of the fundamental disagreements concerning the extent of state and national powers which presidential candidates Lincoln and Douglas had debated between 1858 and 1860.[20] Douglas, an advocate of federal government limited by a strict interpretation of the Constitution, championed the vision of America as “the confederation of the sovereign states" [21]. Lincoln, meanwhile, envisioned a more active federal government and more integrated national community, with the purview of states limited to only "those things that pertain exclusively to themselves—that are local in their nature, that have no connection with the general government" [21]. Many of these questions would be resolved by actions taken by the North’s federal government during the course of the fighting during the years after the debates.[22] Actions taken by the North during the war, including the conscription of soldiers into a national army, as provided by the Enrollment Act of March 1863, and expanded federal control over banking with the 1863 National Banking Act, resulting in a much more robust national government in postbellum America.[22] There exists debate over whether this increase in federal power was achieved against states’ will or whether such expanded powers were granted by the states.[22]


  1. ^ Articles of Confederation : March 1, 1781. The Avalon Project.
  2. ^ a b c Lowi, et al. (2012) American Government: Power and Purpose -- Brief Twelfth Edition. W.W. Norton and Company p.26-27
  3. ^ a b Boyd, Eugene and Fauntroy, Michael K. (2000) American Federalism, 1776 to 2000: Significant Events. Congressional Research Service -- Government and Finance Dvision
  4. ^ Lowi, et al. (2012) American Government: Power and Purpose -- Brief Twelfth Edition. W.W. Norton and Company p.28
  5. ^ Lowi, et al. (2012) American Government: Power and Purpose -- Brief Twelfth Edition. W.W. Norton and Company p.26-27
  6. ^ Lowi, et al. (2012) American Government: Power and Purpose -- Brief Twelfth Edition. W.W. Norton and Company p.33
  7. ^ "The Bill of Rights: A Transcription"
  8. ^ Roots of the Republic: American Founding Documents Interpreted. (1990) Edited by Schechter, Stephen L. Madison House Publishers p. 383
  9. ^ a b c McBride, Alex "Landmark Cases: McCulloch v Maryland" PBS
  10. ^ a b Shallat, Todd "Water and Bureaucracy: Origins of the Federal Responsibility for Water Resources, 1787-1838" (1992). Natural Resources Journal. p. 14
  11. ^ "States' Rights: The Rallying Cry of Secession." (n.d.) Civil War Trust
  12. ^ South Carolina Ordinance of Nullification, November 24, 1832. The Avalon Project
  13. ^ a b Pierson, P. (2009, South carolina takes on the feds. America's Civil War, 22, 23-23. Retrieved from
  14. ^ "Historical Highlights: The Tariff of Abominations" U.S. House of Representatives
  15. ^ Prigg v. Pennsylvania - 41 U.S. 539 (1842) U.S. Supreme Court
  16. ^ "Majority Rules: Prigg v Pennsylvania" PBS
  17. ^ "Unconstitutionality of the Fugitive slave act" (1854) Supreme Court of the State of Wisconsin
  18. ^ The Dred Scott decision: opinion of Chief Justice Taney (1856) Supreme Court of the United States
  19. ^ People & Events: Dred Scott's fight for freedom. (n.d.) PBS
  20. ^ Johannsen, Robert W. "The Lincoln-Douglas Debates" (1991) The Reader's Companion to American History.
  21. ^ a b Les Benedict, Michael (1988) "Abraham Lincoln and Federalism" Journal of the Abraham Lincoln Association 10:1
  22. ^ a b c Shelden, R. A. (2009). Measures for a "speedy conclusion": A reexamination of conscription and civil war federalism. Civil War History, 55(4), 469-498,440. Retrieved from