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Crossing Thresholds: Federalism in the 1960s

Published online by Cambridge University Press:  14 October 2011

Martha Derthick
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Extract

Compounded as it is of contrasting forms, the purely national and the purely federal, federalism in the United States is inherently unstable. The division of power and prerogative between nation and states constantly changes, tending normally to become more national. Sometimes change occurs more swiftly and penetrates more deeply than others, and the 1960s were one of those times. One after another, constitutional thresholds were crossed. By the mid-1970s, American federalism had become something very different from what it had been fifteen years before. The place of place in the American polity had been sharply devalued. Autonomous individuals as political actors had gained at the expense of place-based communities. So had groups identified by such rival attributes as race or gender.

Type
Articles
Information
Journal of Policy History , Volume 8 , Special Issue 1: Integrating the Sixties: The Origins Structures, and Legitimacy of Public Policy in a Turbulent Decade , January 1996 , pp. 64 - 80
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 1996

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References

Notes

1. On the compound character of the American federal system, see any edition of The Federalist, No. 39. Cf. Diamond, Martin, “What the Framers Meant by Federalism,” in Goldwin, Robert A., ed., A Nation of States: Essays on the American Federal System (Chicago, 1963).Google Scholar

2. Hart, Henry M. Jr., “The Relations Between State and Federal Law,” in Macmahon, Arthur W., ed., Federalism Mature and Emergent (Garden City, N.Y., 1955), 194.Google Scholar

3. Ibid.

4. On the effects of grant-in-aid conditions in the public assistance program, see Derthick, Martha, The Influence of Federal Grants: Public Assistance in Massachusetts (Cambridge, Mass., 1970).CrossRefGoogle Scholar

5. 365 U.S. 167.

6. Bator, Paul M., “Some Thoughts on Applied Federalism,” Harvard journal of Law and Public Policy 6 (1982): 51–58Google Scholar; “Section 1983 and Federalism,” Harvard Law Review 90 (1977): 1133CrossRefGoogle Scholar; Low, Peter W. and Jeffries, John Calvin Jr., Civil Rights Actions: Section 1983 and Related Statutes (Westbury, N.Y., 1988), 16.Google Scholar

7. Bator, Paul M. et al. , Hart and Wechsler's The Federal Courts and the Federal System, 3d ed. (Westbury, N.Y., 1988), 1221–77Google Scholar, and Eisenberg, Theodore, Civil Rights Legislation: Cases and Materials, 2d ed. (Charlottesville, Va., 1987), 55–136.Google Scholar

8. The education examples are from Hudgins, H. C. Jr. and Vacca, Richard S., Law and Education: Contemporary Issues and Court Decisions (Charlottesville, Va., 1979).Google Scholar

9. Reynolds v. Sims, 377 U.S. 533 (1964).

10. My account of reapportionment is condensed from a secondary source, Baker, Gordon E., The Reapportionment Revolution: Representation, Political Power, and the Supreme Court (New York, 1966)Google Scholar. The Lucas case is at 377 U.S. 713; the quotation is at 736.

11. Bork, Robert H., The Tempting of America: The Political Seduction of the Law (New York, 1990), 85–86Google Scholar. Use of the guarantee clause, according to Bork, “would have resulted an order that a majority of the state's voters be permitted to reapportion their legislature, whether by referendum, convention, or some other mechanism.” The court need not have told a state's voters what system of representation they were required to “choose.”

12. Two leading sources are: Moynihan, Daniel P., Maximum Feasible Misunderstanding: Community Action in the War on Poverty (New York, 1969)Google Scholar, and Marris, Peter and Rein, Martin, Dilemmas of Social Reform: Poverty and Community Action in the United States (Chicago, 1973).Google Scholar

13. Orfield, Gary, The Reconstruction of Southern Education: The Schools and the 1964 Civil Rights Act (New York, 1969), 46Google Scholar. This is much the best source on the origins and impact of Title VI.

14. I have drawn on the entry “Vote, Right to,” by Themstrom, Abigail M. in Hall, Kermit L. and others, The Oxford Companion to the Supreme Court of the United States (New York, 1992), 899–902.Google Scholar

15. Grofman, Bernard and Davidson, Chandler, eds., Controversies in Minority Voting: The Voting Rights Act in Perspective (Washington, D.C., 1992), 53n, 86–87.Google Scholar

16. This summary is taken, sometimes near to verbatim, from Graham, Fred P., The Due Process Revolution: The Warren Court's Impact on Criminal Law (New York, 1970), chaps. 1 and 13.Google Scholar

17. On the rise and fall of national aid to the police, see Cronin, Thomas E., Cronin, Tania Z., and Milkakovich, Michael E., U.S. v. Crime in the Streets (Bloomington, 1981).Google Scholar

18. Melnick, R. Shep, Between the Lines: Interpreting Welfare Rights (Washington, D.C., 1994), 83–84.Google Scholar

19. Orfield, The Reconstruction of Southern Education, 358–60.

20. Mr. Justice Jackson: Four Lectures in His Honor by Charles S. Desmond, Paul A. Freund, Potter Stewart, and Lord Shawcross (New York, 1969), 60Google Scholar. Harlan introduced Stewart's lecture.

21. Cox, Archibald, The Role of the Supreme Court in American Government (New York, 1976), 77.Google Scholar

22. U.S. Advisory Commission on Intergovernmental Relations, Regulatory Federalism: Policy, Process, Impact, andReform (Washington, D.C., 1984), 1.Google Scholar

23. The term seems to have been given currency, if not actually introduced, by New York Mayor Koch's, Edward I. article, “The Mandate Millstone,” which appeared in The Public Interest (Fall 1980): 42–57.Google Scholar

24. 312 U.S. 100.

25. “The Passing of Dual Federalism,” in Mason, Alpheus T. and Garvey, Gerald, eds., American Constitutional History: Essays by Edward S. Corwin (New York, 1964), 145–64Google Scholar. The other postulates comprising dual federalism were: the national government is one of enumerated powers only; the purposes that it may constitutionally promote are few; and the relation of the two centers of power with each other is one of tension rather than collaboration. Corwin's article originally appeared in the Virginia Law Review 36 (February 1950).

26. On the relation between modernization and centralization, see Beer, Samuel H., “The Modernization of American Federalism,” Publius 3 (Fall 1973): 49–95.CrossRefGoogle Scholar