secession The act of withdrawing from membership in a federation.
The Civil War also expanded the role of the national government in other ways. For example, the cost of the war led to the first federal income tax. The war also led the federal government to become involved in a form of social welfare: creating and maintaining a vast pension system for war veterans and war widows. Nonetheless, the debate between dual federalists and cooperative federalists was far from over, and dual federalists soon began to win important victories from the Supreme Court.
As early as 1873, the Supreme Court began to limit the scope of the Fourteenth Amendment.32 Ten years later, the Court sharply limited the enabling clause power that Congress derived from the Fourteenth Amendment.33 But the biggest boost to states’ rights came in Plessy v. Ferguson (1896). By ruling that state-imposed “separate but equal” facilities (such as schools) for whites and blacks did not violate the equal protection clause of the Fourteenth Amendment, the Court gave great leeway to states to impose racial segregation.34 This laid the groundwork for a broad interpretation of states’ rights that allowed states to pass Jim Crow laws and impose barriers to prevent blacks from voting (see Chapter 5).
The Court’s narrow, dual federalist interpretation of the commerce clause from 1895 to 1937 also limited Congress’s ability to regulate the workplace through such things as child labor laws and minimum wage laws. Starting in 1895, the Court embraced the so-called direct–indirect test to delineate congressional power under the commerce clause.35 According to this test, Congress could only use its commerce clause power to regulate those things that had a direct effect on interstate commerce (such as the actual distribution of goods and commodities across state lines). It could not regulate those things that had only an indirect effect on interstate commerce (such as the production of items shipped in interstate commerce). Thus, Congress could not regulate manufacturing, mining, or agriculture, which the Court considered to be the province of states. Attempts by Congress to pass workplace regulations were mostly struck down by the Supreme Court as violations of the Tenth Amendment.36 So, too, were attempts by Congress to regulate the economy.
In the early twentieth century, child labor was commonplace in factories, mines, and mills like this one in Macon, Georgia. The dual federalist Supreme Court struck down attempts by Congress to regulate the practice. These cases were later overturned after the emergence of a cooperative federalist majority on the Court in 1937.
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The New Deal and the Rise of Cooperative Federalism
The stock market crash of 1929 and the ensuing Great Depression transformed politics in the United States. The Republican Party had dominated national politics since the Civil War, but the Depression led to a partisan realignment—a lasting shift in voters’ partisan identification. Republicans, who had controlled the White House and maintained solid control of both houses of Congress since 1921, lost control of all three branches of government in the 1932 elections when Franklin Delano Roosevelt (FDR) won the White House and fellow Democrats took control of the House and the Senate. In contrast, the Supreme Court—given the lifetime tenure of its members—remained unchanged, standing as a dual federalist obstacle to Roosevelt’s New Deal.
The Supreme Court Thwarts the New Deal
Roosevelt and his fellow New Deal Democrats greatly expanded the power of the national government. In stark contrast to the laissez-faire economic policies of their predecessors, which held that government should defer to the free market and intervene as little as possible in economic affairs, New Dealers believed government intervention in the economy was an essential step toward recovery.
A centerpiece of the New Deal was the National Industrial Recovery Act (1933), or NIRA, which authorized the federal government to regulate industry in order to spur recovery. The NIRA also established a national public works program to create jobs. In the process, the government created vast regulatory structures in the form of the National Recovery Administration and the Public Works Administration. Congress claimed that it had the authority to do this by embracing a broad cooperative federalist interpretation of its commerce clause powers. The Supreme Court, however, was still controlled by dual federalists, and it struck down the NIRA as unconstitutional in Schechter Poultry Corp. v. United States (1935).37
The Supreme Court struck down other major pieces of New Deal legislation, including legislation that gave the federal government the authority to regulate wages, working hours, and production standards in the coal industry. Continuing to embrace dual federalism, the Court again concluded that Congress did not have authority under the commerce clause to regulate production.38
President Roosevelt was furious about the string of defeats handed to him by the Supreme Court. After the Supreme Court invalidated the NIRA in Schechter, FDR held a press conference in which he criticized the decision by equating it with the Court’s infamous ruling in Dred Scott.39 The press dubbed the four members of the Court who most consistently voted against the New Deal the “Four Horsemen of the Apocalypse.”40 In the battle between the Four Horsemen and Roosevelt, the electorate seemed to come down squarely on the side of Roosevelt. While the Court continued to hand the New Deal more defeats, the president and his New Deal allies won landslide victories in the 1936 elections.
By 1936, the repudiation of the Republican Party was clear: Democrats won a 333–89 majority in the House and a 75–17 majority in the Senate, and FDR was reelected in a landslide (523 electoral votes to Republican Alf Landon’s 8).
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Emboldened, the newly reelected Roosevelt asked Congress to increase the size of the Supreme Court from nine to fifteen members. Several of the rulings against the New Deal had been by 5–4 or 6–3 votes, with dual federalists controlling the majority. Expanding the size of the Court would allow Roosevelt to appoint six new justices with a cooperative federalist perspective who would presumably uphold Congress’s power to enact New Deal legislation.
The Supreme Court Embraces Cooperative Federalism
In opposition to the dual federalist “Four Horsemen” of the Supreme Court were three cooperative federalist justices who usually voted to uphold New Deal legislation. The press dubbed them the “Three Musketeers.”41 In addition, there were two decisive “swing” justices on the nine-member Court.42 In 1937, these two centrist justices joined the Three Musketeers to form a new 5–4 cooperative federalist majority.
Even though the two centrist votes that prompted this shift to cooperative federalism took place before FDR announced his Supreme Court–packing plan, they have sometimes been called “the switch in time that saved nine” because the shift they precipitated undercut the justification for expanding the size of the Court. Cooperative federalists won another victory at the end of the 1937 Supreme Court term when one of the Four Horsemen retired and Roosevelt had the opportunity to replace him. The remaining Horsemen soon retired as well. By the time President Roosevelt died in office in 1945, he had appointed all nine justices on the Court—the result of natural attrition and a presidency unhindered by term limits.43
Between 1935 and 1943,