Dual federalism, also known as layer-cake federalism or divided sovereignty, is a political arrangement in which power is divided between the federal and state governments in clearly defined terms, with state governments exercising those powers accorded to them without interference from the federal government. Dual federalism is defined in contrast to

cooperative federalism Cooperative federalism, also known as marble-cake federalism, is defined as a flexible relationship between the federal and state governments in which both work together on a variety of issues and programs. In the United States In the American ...

("marble-cake federalism"), in which federal and state governments collaborate on policy.

United States

Constitutional origin

The system of dual/joint federalism in the United States is a product of the backlash against the

Articles of Confederation The Articles of Confederation, officially the Articles of Confederation and Perpetual Union, was an agreement and early body of law in the Thirteen Colonies, which served as the nation's first Constitution, frame of government during the Ameri ...

, ratified in 1781, which established a very weak federal government with the powers to declare war, make treaties, and maintain an army.Lowi, et al. (2012) American Government: Power and Purpose -- Brief Twelfth Edition. W.W. Norton and Company p.26-27 Fueled by

Shays' Rebellion Shays's Rebellion was an armed uprising in Western Massachusetts and Worcester, Massachusetts, Worcester in response to a debt crisis among the citizenry and in opposition to the state government's increased efforts to collect taxes on both in ...

and an economy faltering under the inability of the federal government to pay the debt from the

American Revolution The American Revolution (1765–1783) was a colonial rebellion and war of independence in which the Thirteen Colonies broke from British America, British rule to form the United States of America. The revolution culminated in the American ...

, a group later known as the Federalists generated support for a strong central government and called for a Constitutional Convention in 1787 to reconsider the Articles. In 1787, the Convention almost immediately dropped its original purpose of editing the Articles and instead drafted a new

Constitution of the United States The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...

. Rejecting both confederal and unitary systems, they based the new American government on a new theory of federalism, a system of shared sovereignty that delegates some powers to the federal government and reserves other powers for the states. Among other powers, the federal

legislature A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial power ...

could now

tax A tax is a mandatory financial charge or levy imposed on an individual or legal entity by a governmental organization to support government spending and public expenditures collectively or to regulate and reduce negative externalities. Tax co ...

citizens and maintain a standing military, and had exclusive power over regulating

interstate commerce The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...

and coining currency. In addition, while Article Six of the Constitution stipulated that federal law in pursuit of constitutionally assigned ends 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 federal governmental powers to only those specified in the Constitution. Importantly, at the Convention, there was large debate over the structure of the

legislative branch A legislature (, ) is a deliberative assembly with the authority, legal authority to make laws for a Polity, political entity such as a Sovereign state, country, nation or city on behalf of the people therein. They are often contrasted with th ...

, eventually solved by the

Connecticut Compromise The Connecticut Compromise, also known as the Great Compromise of 1787 or Sherman Compromise, was an agreement reached during the Constitutional Convention of 1787 that in part defined the legislative structure and representation each state ...

. In the traditional understanding of the discussion, the larger states proposed the

Virginia Plan The Virginia Plan (also known as the Randolph Plan or the Large-State Plan) was a proposed plan of government for the United States presented at the Constitutional Convention (United States), Constitutional Convention of 1787. The plan called fo ...

, which allocated representation to each state proportional to its population. The smaller states, fearing a tyranny of the larger states, propose the New Jersey Plan, which gave each state equal representation in the legislative body. The states' motives for such a debate have been largely understood as a method for ensuring a strong voice in the federal government so as to maintain a desired degree of sovereignty. Further, political scientist Martin Diamond interprets the argument through a

Federalist The term ''federalist'' describes several political beliefs around the world. It may also refer to the concept of parties, whose members or supporters call themselves ''Federalists''. History Europe federation In Europe, proponents of deep ...

vs Anti-Federalist lens, discounting the question of state size. Specifically, he argues that the pure federalism of the New Jersey Plan and the pure nationalism of the Virginia Plan eventually came together to form the system of

bicameralism Bicameralism is a type of legislature that is divided into two separate Deliberative assembly, assemblies, chambers, or houses, known as a bicameral legislature. Bicameralism is distinguished from unicameralism, in which all members deliberate ...

that the framers settled on. However, his theory largely goes against the usual understanding, which some have argued is based on stronger historical evidence.

Powers

*Exclusive powers of United States Federal Government **Lay and collect taxes, duties, imposts and excises **To pay the debts **Provide for the common defense and general welfare of the United States **Borrow money **Regulate interstate and international commerce **Establish immigration and naturalization law **Regulate bankruptcies **To coin money **Establish weights and measures **Prosecute counterfeiting **Establish a post office and post roads **Regulate patents, copyrights, and trademarks **Establish inferior courts **Regulate cases in admiralty and offences against the laws of nations **Declare war **Grant letters of marque and reprisal **Regulate the capture of prisoners of war **Raise an army **Maintain a navy **Make rules regulating the military **Provide for calling forth, regulating, and disciplining the militia **Plenary authority over the capital district **Regulating the manner of establishing full faith and credit between states **Admittance of new states **Plenary authority over all territories *Exclusive powers of state and local governments **Regulation of intrastate commerce **Conduct elections **Ratification of amendments to the U.S. Constitution **To exercise powers neither delegated to the national government nor prohibited from the states by the Constitution as per Amendment X **Property laws **Inheritance laws ** Commercial laws **Banking laws **Corporate laws **Insurance **Family law **Morality law **Public health **Education **Land management **Criminal Law **Elections **Local government **Licensing **Create its own Constitution

19th-century Supreme Court cases

Since the initial division of state and federal powers – collectively, the system of dual federalism – put forth by the Constitution, several seminal court cases have helped further clarify the purview of the federal government. One such case, '' McCulloch v. Maryland'', concerned the constitutionality of a federally chartered bank, which bankers and many legislators in Maryland opposed. Although the ability to charter a bank had not been explicitly granted to the federal government in the Constitution, federalist proponents argued such action as necessary for the federal government to exercise its constitutional power to “tax, borrow, and regulate interstate commerce.” The Supreme Court, in essence, backed Alexander Hamilton's interpretation of the Constitution over Thomas Jefferson. Thus, the bank's legitimacy was ensured by the Necessary and Proper Clause.McBride, Alex "Landmark Cases: McCulloch v Maryland" PBS https://www.thirteen.org/wnet/supremecourt/antebellum/landmark_mcculloch.html A second major case regarding the respective rights of the state and federal 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 A monopoly (from Greek language, Greek and ) is a market in which one person or company is the only supplier of a particular good or service. A monopoly is characterized by a lack of economic Competition (economics), competition to produce ...

granted to him by the Fulton-Livingstone Company, had successfully prevented Thomas Gibbons from operating a ferry service between Manhattan and New Jersey. 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 Protectionism, sometimes referred to as trade protectionism, is the economic policy of restricting imports from other countries through methods such as tariffs on imported goods, import quotas, and a variety of other government regulations ...

State challenges to federal supremacy

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."States' Rights: The Rallying Cry of Secession." (n.d.) Civil War Trust http://www.civilwar.org/education/history/civil-war-overview/statesrights.html 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.

South Carolina's nullification doctrine

In 1828, the so-called " Tariff of Abominations" passed the U.S. House. 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. 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. The situation became especially serious when President Jackson ordered federal troops into Charleston, though crisis was averted by the drafting of a new tariff to which both sides agreed. The crisis illustrated an example of conflicting ideologies on state and federal power that was not resolved through the courts, but with discussion between elected officials.

''Prigg v. Pennsylvania''

While some Southern states resisted economic actions of the federal government, several Northern states balked at federal requirements regarding slavery. In 1842, 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 of 1793. The U.S. Supreme Court declared the Pennsylvania law unconstitutional, striking the abolitionist law and heightening tensions between slaveholding and non-slaveholding states.

Nullification by Wisconsin

A similar situation arose when, in 1854, the state Supreme Court of Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional. 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.

''Dred Scott v. Sandford'' (1857)

In 1857, continuing the debate between the national government and free states, the case of '' Dred Scott v. Sandford'' held 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 but later returned to slave-holding jurisdictions, and who had pursued emancipation through the federal courts, remained a slave. Though the decision was largely welcomed in the South, the decision outraged abolitionists and non-slaveholding states as another affront on

states' rights In United States, American politics of the United States, political discourse, states' rights are political powers held for the state governments of the United States, state governments rather than the federal government of the United States, ...

Federal power during the Civil War

The Civil War brought to a head many of the fundamental disagreements concerning the extent of state and federal powers which presidential candidates Lincoln and Douglas had debated between 1858 and 1860. 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". 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". 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. 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. 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. After the Civil War, the federal government began expanding its powers, primarily concerning itself with regulating commerce and civil rights, originally considered the domain of state governments.

Reconstruction

After the Civil War, Congress amended the Constitution to guarantee certain rights for citizens. This period brought about debate on whether the federal government could make these amendments, some arguing that this was an infringement on states' rights. However, during this time period the public began to believe that the federal government was responsible for defending civil liberties even though previously the idea was that a strong central government would be the biggest detriment to personal freedom. Regardless, the Supreme Court verified states' rights to require literacy tests in '' Williams v. Mississippi'', effectively allowing states to discriminate against black voters. In addition, the Court ruled in favor of states' rights to mandate racially segregated accommodations, so long as they were "separate but equal" in '' Plessy v. Ferguson''. Although law professor Eugene Gressman views these rulings as a "judicially directed perversion" of what the abolitionists meant to accomplish, within historical context the Supreme Court decisions seem more occupied with sustaining the system of dual federalism. In making these decisions, the Supreme Court aimed to keep in line with the idea of federalism as it then existed, balancing states' rights with the protection of civil liberties, rather than simply opposing the new amendments. For instance, in '' Strauder v. West Virginia'' the Court sided with those who wished to overturn the law that excluded black citizens from juries, which suggests that the Court was beginning to build a set of cases that enumerated rights based on the new amendments. However, in other aspects the Supreme Court reasserted states' rights in relation to the 14th Amendment in particular. In the

Slaughter-house cases The ''Slaughter-House Cases'', 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision which ruled that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects the legal rights t ...

and '' Bradwell v. Illinois'' the Court supported the view that the amendment regulated states rather than individuals practicing discrimination. Both of these cases allowed states to enforce laws that infringed on individual rights.

End of dual federalism

The general consensus among scholars is that dual federalism ended during

Franklin Roosevelt Franklin Delano Roosevelt (January 30, 1882April 12, 1945), also known as FDR, was the 32nd president of the United States, serving from 1933 until his death in 1945. He is the longest-serving U.S. president, and the only one to have served ...

's presidency in 1937 when the

New Deal The New Deal was a series of wide-reaching economic, social, and political reforms enacted by President Franklin D. Roosevelt in the United States between 1933 and 1938, in response to the Great Depression in the United States, Great Depressi ...

policies were decided constitutional by the Supreme Court. Industrialization, economic modernization, and conditions surrounding the

Great Depression The Great Depression was a severe global economic downturn from 1929 to 1939. The period was characterized by high rates of unemployment and poverty, drastic reductions in industrial production and international trade, and widespread bank and ...

elevated commerce to a more national level, so there was an overlap in the powers of the federal government and the states. The federal government, using the

Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...

, passed national policies to regulate the economy. The Interstate Commerce Act and Sherman Antitrust Act solidified Congress's authority to regulate commerce between states and expanded its role. This, in addition to the New Deal policies, led to the federal government and the states working together more, ending the era of dual federalism and moving America into

. However, political scientists have argued different theories concerning the end of dual federalism. As opposed to a clear transition from dual federalism to cooperative federalism, some political scientists say there was a much more complicated relationship between the states and the federal government. Rather than a competition for power, the powers of the state and federal government change according to national political movements and their agendas; a dynamic that existed both before and after the New Deal. Other political scientists see dual federalism ending much earlier than the New Deal; This would have been the beginning of cooperative federalism as the federal government identified a problem, set up the basic outline of the program to address the problem, and make money available to fund that program, and then turning over much of the responsibility for implementing and running the program to the states and localities. Daniel Elazar argues that there was substantial cooperation among the states and federal government beginning in the 19th century, leading up to the Civil War and several political scientists assert that starting from the 1870s and throughout the

Progressive Era The Progressive Era (1890s–1920s) was a period in the United States characterized by multiple social and political reform efforts. Reformers during this era, known as progressivism in the United States, Progressives, sought to address iss ...

, the federal government and states worked together to create national policies.

Outside the United States

The governments of

Argentina Argentina, officially the Argentine Republic, is a country in the southern half of South America. It covers an area of , making it the List of South American countries by area, second-largest country in South America after Brazil, the fourt ...

Austria Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...

Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...

Belgium Belgium, officially the Kingdom of Belgium, is a country in Northwestern Europe. Situated in a coastal lowland region known as the Low Countries, it is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeas ...

Bosnia and Herzegovina Bosnia and Herzegovina, sometimes known as Bosnia-Herzegovina and informally as Bosnia, is a country in Southeast Europe. Situated on the Balkans, Balkan Peninsula, it borders Serbia to the east, Montenegro to the southeast, and Croatia to th ...

Brazil Brazil, officially the Federative Republic of Brazil, is the largest country in South America. It is the world's List of countries and dependencies by area, fifth-largest country by area and the List of countries and dependencies by population ...

Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...

Comoros The Comoros, officially the Union of the Comoros, is an archipelagic country made up of three islands in Southeastern Africa, located at the northern end of the Mozambique Channel in the Indian Ocean. Its capital and largest city is Moroni, ...

Ethiopia Ethiopia, officially the Federal Democratic Republic of Ethiopia, is a landlocked country located in the Horn of Africa region of East Africa. It shares borders with Eritrea to the north, Djibouti to the northeast, Somalia to the east, Ken ...

Germany Germany, officially the Federal Republic of Germany, is a country in Central Europe. It lies between the Baltic Sea and the North Sea to the north and the Alps to the south. Its sixteen States of Germany, constituent states have a total popu ...

India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...

Malaysia Malaysia is a country in Southeast Asia. Featuring the Tanjung Piai, southernmost point of continental Eurasia, it is a federation, federal constitutional monarchy consisting of States and federal territories of Malaysia, 13 states and thre ...

Mexico Mexico, officially the United Mexican States, is a country in North America. It is the northernmost country in Latin America, and borders the United States to the north, and Guatemala and Belize to the southeast; while having maritime boundar ...

Micronesia Micronesia (, ) is a subregion of Oceania, consisting of approximately 2,000 small islands in the Northwestern Pacific Ocean. It has a close shared cultural history with three other island regions: Maritime Southeast Asia to the west, Poly ...

Nepal Nepal, officially the Federal Democratic Republic of Nepal, is a landlocked country in South Asia. It is mainly situated in the Himalayas, but also includes parts of the Indo-Gangetic Plain. It borders the Tibet Autonomous Region of China Ch ...

Nigeria Nigeria, officially the Federal Republic of Nigeria, is a country in West Africa. It is situated between the Sahel to the north and the Gulf of Guinea in the Atlantic Ocean to the south. It covers an area of . With Demographics of Nigeria, ...

Pakistan Pakistan, officially the Islamic Republic of Pakistan, is a country in South Asia. It is the List of countries and dependencies by population, fifth-most populous country, with a population of over 241.5 million, having the Islam by country# ...

Russia Russia, or the Russian Federation, is a country spanning Eastern Europe and North Asia. It is the list of countries and dependencies by area, largest country in the world, and extends across Time in Russia, eleven time zones, sharing Borders ...

Saint Kitts and Nevis Saint Kitts and Nevis, officially the Federation of Saint Christopher (St Kitts) and Nevis, is an island country consisting of the two islands of Saint Kitts and Nevis, both located in the West Indies, in the Leeward Islands chain of the Less ...

Spain Spain, or the Kingdom of Spain, is a country in Southern Europe, Southern and Western Europe with territories in North Africa. Featuring the Punta de Tarifa, southernmost point of continental Europe, it is the largest country in Southern Eur ...

Switzerland Switzerland, officially the Swiss Confederation, is a landlocked country located in west-central Europe. It is bordered by Italy to the south, France to the west, Germany to the north, and Austria and Liechtenstein to the east. Switzerland ...

United Arab Emirates The United Arab Emirates (UAE), or simply the Emirates, is a country in West Asia, in the Middle East, at the eastern end of the Arabian Peninsula. It is a Federal monarchy, federal elective monarchy made up of Emirates of the United Arab E ...

, and

Venezuela Venezuela, officially the Bolivarian Republic of Venezuela, is a country on the northern coast of South America, consisting of a continental landmass and many Federal Dependencies of Venezuela, islands and islets in the Caribbean Sea. It com ...

also operate through federalism.Kincaid, John (01/01/2005). ''Constitutional Origins, Structure, and Change in Federal Countries'' (0-7735-2849-0, 978-0-7735-2849-9), (p. ix). The federations of Australia, Canada, and Switzerland most closely resemble the model of American dual federalism in which fundamental governmental powers are divided between the federal and state governments, with the states exercising broad powers.Lowi, Theodore J., Benjamin Ginsberg, Kenneth A. Shepsle, and Ansolabehere. ''American Government: Power and Purpose''. New York: Norton, 2012. Print. While the American federalist system allocates both legislative and administrative powers to each division of government, European federations have historically allocated legislative powers to the federal government and left constituents to administer and implement these laws. Most western federalist systems in recent years have drifted away from autonomous levels of governments with strong state powers and moved toward more centralized federal governments, as seen in the American government's transition from dual to cooperative federalism. The Canadian and Australian federal systems closely resemble the American construct of dual federalism in that their legislative and executive powers are allocated in the same policy area to a single level of government.Canada. The Canadian Charter of Rights and Freedoms. Department of Canadian Heritage.Australia. Constitution of Australia. Parliament of Australia. In contrast, some federal structures, such as those of Germany, Austria, and Switzerland, consist of federal governments exercising broad legislative powers and constituent governments allocated the power to administer such legislation in a style similar to cooperative federalism.German Constitution. ICL - Germany Constitution. Austria. Constitution. ''The Constitution of the Federal State of Austria''. Wien: Printed by A.Raftl, 1935. Print.Switzerland. Federal Constitution of the Swiss Confederation. Constitutions with delegations of broad powers to the state level of government that resemble the

include the

Constitution of Australia The Constitution of Australia (also known as the Commonwealth Constitution) is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a Federation of Australia, ...

and the

Constitution of Canada The Constitution of Canada () is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents are an amalgamation of various ...

. The Australian Constitution was designed to enumerate a limited range of federal powers and leave the rest to the states. The Canadian Constitution, in contrast, assigned all residual powers to the federal government and enumerated a complete list of provincial powers. The Austrian Constitution, Constitution of Germany, and Swiss Constitution enumerate few policy fields exclusive to the states, but enumerate extensive concurrent powers. The federations operate chiefly through legislation produced by the federal government and left to the Länder or state governments to implement. Since 1991, Russia may also be considered a dual federation.

Origins of "layer cake" metaphor

In his second term, President

Dwight D. Eisenhower Dwight David "Ike" Eisenhower (born David Dwight Eisenhower; October 14, 1890 – March 28, 1969) was the 34th president of the United States, serving from 1953 to 1961. During World War II, he was Supreme Commander of the Allied Expeditionar ...

organized the Commission on National Goals to broadly outline national objectives. Included in their 1960 report ''Goals for Americans: The Report of the President's Commission on National Goals'' was "The Federal System", a report by political scientist Morton Grodzins. In this report, Grodzins first coined the terms "layer cake federalism" and "marble cake federalism." He used the metaphor of a layer cake to describe the system of dual federalism, the separated layers of the cake symbolizing how distinct spheres of power that the state and federal governments have not been inhabited. He contrasted this with marble cake, which he saw as descriptive of federalism's status in 1960, the swirling indistinct boundaries of the cake symbolizing the overlapping and concurrent duties of the state and federal governments.