Full transcript
1:44Hello everyone, today's topic is American Federalism, a system that, as you've read
1:49in chapter 3, divides power between national and state governments. In theory, this division can
1:56be clearly depicted in a color-coded diagram, like the one that appears on page 69 in Chapter
2:033 of our text. But in practice determining whether or not a particular issue should be
2:09addressed at the state or federal level often proves contentious. In part, that's because the
2:17relationship between the national government and the states is by no means a static one. Rather,
2:23this relationship is caught up in a dynamic historical process, which we will now examine
2:29by focusing on certain powers that have been reserved for and denied to the states. Among
2:37the reserved powers are those that may be used to promote the public's health, safety, welfare,
2:42and morals. Such an imposing, broadly defined form of authority is referred to as the police powers
2:50of the states, a form of power that has to do with much more than what is typically associated with
2:57police work. Now, within the context of American politics, you will find no explicit mention of the
3:03police powers anywhere in the US Constitution. To locate their origins, we must turn instead
3:09to a series of US Supreme Court rulings that were handed down throughout the 19th century, starting
3:15with the 1824 case of Gibbons versus Ogden, referred to on page 76 in Chapter 3 of our text
3:22and in more detail on pages 90 to 91 of the law review article shown here, which is included among
3:30this week's additional readings. Quiz question number one: where are the origins of the police
3:38powers to be found? Those 19th-century Supreme Court rulings I just mentioned authorized states
3:45to use their police powers to provide for their residents' public welfare by regulating any number
3:52of social and economic activities. Typical in this regard was the 1887 case of Mugler versus Kansas,
4:00in which the Court upheld an 1880 Amendment to the Kansas state constitution that prohibited the
4:06manufacturer and sale of alcohol. That Amendment, we should note, was approved by the state's male
4:13residents by a margin of 52% to 48%. And I say, male residents, because women at that time were
4:22not eligible to vote in Kansas, or in any other state in the country. So, as a result of the
4:29passage of that Amendment, Kansas became a "dry state" 39 years before the short-lived national
4:36prohibition era began with the ratification of the 18th Amendment to the US Constitution.
4:43What's more, Kansas did not end its statewide prohibition until 1948, which was 15 years after
4:51the 21st Amendment to the US Constitution repealed the 18th. This meant that between 1933 and 1948,
5:00the state of Kansas continued to ban alcohol in accordance with its use of the police
5:06powers. Kansas was able to do so when it came to regulating alcohol because the 21st Amendment to
5:13the US Constitution left that power in the hands of the states. That is, the 21st amendment not
5:20only brought an end to nationwide prohibition; it also allowed a state government to continue
5:26statewide prohibition, if that state thought doing so was a reasonable way to promote the
5:33welfare of its residents. In short, in 1933 the question of whether or not to maintain prohibition
5:42became a matter for the states to decide. For the history of Prohibition in the US brings to the
5:48fore a central aspect of American Federalism: that is, federalism creates protracted conflicts that
5:55take place on what Bruce Miroff of Suny Albany describes as a Double Battleground. By Double
6:02Battleground, Miroff means that, as is the case in all countries, different political interests
6:08in the US fight over whether the government should act to address this or that social issue,
6:14like abortion, gun safety, or immigration. But in American politics, there's also a second battle
6:22that is waged over which level of government should have the power to act: the federal
6:27government or the states. Quiz Question number two: to what does the Double Battleground refer?
6:36Now, early 19- century Supreme Court cases like Brown v. Maryland determined that the
6:41states may be prevented from using their police powers in ways that interfere with the federal
6:46government's ability to exercise its enumerated powers, like regulating interstate commerce. But
6:53when it comes to wielding those police powers, states are also constrained in another respect,
6:59as is explained by Justice John Marshall Harlan in Mugler versus Kansas, the Landmark 1887 case
7:06mentioned earlier to which we now return. Writing for the majority, Justice Harlan first asks "by
7:13whom or by what authority is it to be determined whether the manufacturer of particular articles
7:19of drink would injuriously affect the public? Under our system," he then answers. "that power is
7:26lodged with the legislative branch of governments. It belongs to that department to exert what are
7:34known as the police powers of the states and to determine primarily what measures are appropriate
7:39or needful for the protection of public morals, the public health, or the public safety." However,
7:46in that same ruling, Harlan crucially adds that "there are limits beyond which such legislation
7:52cannot rightly go, since not every statute enacted ostensibly for the promotion of the
7:59public interest is to be accepted as a legitimate exertion of the police powers of the states." Fair
8:08enough. But how do the courts then go about determining what such essential limits to the
8:15police powers are? Well, at the turn of the 20th century, the state's use of the police powers was
8:22primarily limited by the 14th Amendment to the US Constitution, the first section of which, as
8:28presented on pages 106 to 108 of chapter 4, reads in part as follows: "no State shall deprive any
8:37person of life, liberty, or property without due process of law; nor deny to any person within its
8:43jurisdiction the equal protection of the laws." When introducing the 14th Amendment to the senate
8:50in 1866, Senator Jacob Howard of Michigan clearly stated what it was meant to do. That is, Howard
8:58declared that the amendment now gave to residents of the states the personal rights that had been
9:04guaranteed to US citizens by the first eight amendments of the US Constitution. For example,
9:11whereas the First Amendment declared Congress shall make no law respecting an establishment of
9:17religion, the ratification of the 14th amendment was meant to ensure that state governments
9:24couldn't make such a law either. We see then that in the immediate aftermath of the Civil War,
9:30the Bill of Rights should have protected citizens from governmental abuses of power, whether they
9:36were committed by the US Congress or by one of the states. But as our text explains in great detail
9:43in section two of chapter 5, southern states, with the backing and acquiescence of the Supreme Court,
9:50circumvented the 14th amendment in this regard for a century. How so? By crafting so-called Jim Crow
9:59laws that under the specious doctrine of separate but equal brought about precisely what the 14th
10:05amendment was supposed to prohibit: namely the denial of equal protection. However, when it came
10:14to court rulings having to do with economic regulations enacted within any given state,
10:20the 14th Amendment figured quite prominently, especially towards the end of the 19th century
10:26and during the first three decades of the 20th, a period often described in US history at the
10:32Lochner Era, named after the 1908 US Supreme Court case of Lochner versus New York. As discussed in
10:41our text on page 78 of chapter 4, the Lochner ruling came in response to a law passed by the
10:47state government of New York, which invoked its police powers in order to enact the Bake Shop Act
10:53of 1895. The lead provision of that state law stipulated that no Bakery could hire someone
11:01to work for longer than 10 hours a day or 60 hours per week. Quiz question number three:
11:09what was the lead provision of the Bake Shop Act of 1895? Now, a bakery may not be the first
11:16thing that comes to mind when you think of a labor struggle, especially if, like me, you once worked
11:24behind the counter of one. While doing that some years ago, I was never as happy as this woman,
11:29and I'd say neither were any of my co-workers. But the actual work we performed, though certainly
11:36low-paying, was hardly grueling or hazardous. However, the situation was far different in
11:43the late 19th century, when bakeries in New York were usually located in the damp cellars
11:49of dilapidated, extremely unsanitary tenement housing units. There many workers both slept
11:57and on average put in over 100 hours per week. But thanks in no small part to the exposes published
12:06by photojournalists like Jacob Riis, tenement housing committees were then formed, and state
12:12legislators began to discuss reforms, which also targeted the baking industry. As a result, newly
12:20appointed state health Inspectors visited bakeries and tenement housing cellars where, to quote a
12:26University of Maryland archivist, the inspectors discovered "wastewater flowing into bread making
12:32tubs, rotting sludge covering bakery floors, and rats so ubiquitous they paid little notice of the
12:41bakers or anyone else's presence." I mention these horrors to give you some indication as to what led
12:48to the passage of the Bake Shop Act. But, as may be inferred by examining newspaper headlines that
12:54were published during that time, like the one you see here from September of 1894, it was not so
13:00much how those conditions affected the workers that inspired the state legislature to use its
13:07police powers. What impelled elective officials to act was the public's perception that the food they
13:14regularly bought had been contaminated. However, it can prove very difficult to separate the health
13:21of the worker from the health of the consumer. For example, the health of, say, nurses or truck
13:29drivers is indissociably bound up with the health and safety of their patients or fellow motorists.
13:36Quiz Question number four: would you say that your most recent job provides us with an example
13:42of how the health of a worker is directly bound up with the health and safety of the larger public?
13:49Briefly discuss why or why not. We can doubtless agree that the health of an airline pilot and
13:56the safety of their passengers are conjoined. But what about those professions in which such a link
14:02is not so obviously apparent? May the health of those workers still come under the protection of a
14:10state's police powers? If not, what could possibly stand in the way of states that want to provide
14:17such protection? Well, in the early 20th century, it was the Supreme Court's interpretation of the
14:2314th amendment that often limited the ability of states to use their police powers to regulate
14:29working conditions. That is, the fact that states were prohibited from depriving any person of life,
14:36liberty, or property was taken to refer above all to the deprivation of economic liberty and,
14:43more specifically, to the liberty or freedom to enter into a labor contract. That's why
14:50according to the lawyers for Joseph Lochner, the owner of a small bakery in Utica, New York,
14:55the central provision of the Bake Shop Act that set a limit to how how many hours his employees
15:00could work was not a legitimate exercise of the police powers of the state. Rather, such
15:08a law constituted an unreasonable, unnecessary, and arbitrary interference with the right of
15:14an individual to enter into a labor contract in which there was no cap on working hours. We will
15:21examine the Lochner ruling and its relation to our present in parts two and three of this lecture.