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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.

The Reconstruction Era
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 many began to believe that the federal government was the one to defend civil liberties, a departure from the idea 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 these rulings can be viewed 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 off 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 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 were argued infringed on individual rights.

The Commerce Clause
In the case of commerce, the federal government began to assert more power in regulating business. The Interstate Commerce Commission Act and Sherman Anti-Trust Act solidified Congress's authority to regulate commerce between states and expanded its role. However, Norman Williams argues that a closer look at these acts reveal that the federal and state governments shared jurisdiction rather than having different areas carved out as dual federalism would be described. States' rights were not disregarded though. In Hammer v. Dagenhart the Supreme Court complicated again the interpretation of the commerce clause by retracting the federal government's ability to enact child labor laws since they maintained that the products of this child labor could possibly never reach interstate commerce.