Opinion The battle for Minneapolis: Federal power in the US has only expanded since its founding

This episode should not be viewed merely as a political confrontation. It also highlights a constitutional inversion. The ability of the federal government to enforce its authority directly within States, without their consent and without reliance on state institutions, would have been viewed as constitutionally impermissible by the architects of the United States Constitution.

The Constitution did not emerge solely from a fear of British imperial domination — though that experience undoubtedly shaped revolutionary thought. It was equally the product of a negotiated political compromise among newly independent States that continued to regard themselves as sovereign political communities. Federalism was therefore not merely a theory of decentralisation; it was the condition on which union became possible. A strong and coercive centre capable of overriding state authority at will would almost certainly have failed to secure ratification.

This constitutional design was reflected in the text of the Constitution itself. Legislative powers were enumerated and limited; matters not expressly assigned to the federal government were reserved to the States; and residuary authority was understood to lie outside the federal sphere. Even where Congress was empowered to act, its authority was mediated through specific grants such as the Commerce Clause and the Necessary and Proper Clause, both of which were initially understood as limited facilitators of federal action rather than open-ended sources of power.

The limits of early federal power are best illustrated through the Whiskey Rebellion of 1791-94, which arose in response to a federal excise tax on distilled spirits, imposed to service Revolutionary War debt. Farmers in western Pennsylvania resisted the tax, viewing it as discriminatory and illegitimate. When violence escalated, President George Washington mobilised a force to restore order. However, the federal government lacked an independent enforcement machinery of its own and hence, Washington relied almost entirely on state militias supplied by neighbouring States. Hence, although federal authority prevailed, it did so through state cooperation rather than autonomous national power.

Similarly, judicial authority was equally contested. When the Supreme Court in Chisholm v. Georgia (1793) held that a State could be sued by a private citizen of another State, the reaction was swift and uncompromising. States viewed the decision as a direct assault on their sovereign status. The response was the Eleventh Amendment, which overturned the judgment and constitutionally barred such suits. Hence, judicial power, even when grounded in constitutional interpretation, proved politically reversible when it collided with state resistance.

However, slowly, this approach started giving way to a strong federal government, an early example of which was the decision to establish a National Bank. Alexander Hamilton defended it by reinterpreting the Necessary and Proper Clause. “Necessary,” he argued, could not mean indispensable; it must include measures that were useful or appropriate to executing enumerated powers. This supplied a constitutional vocabulary through which federal authority could expand without appearing to depart from textual limits.

This reasoning was constitutionalised in McCulloch v. Maryland (1819), where the Court rejected a narrow reading of necessity and insisted that the Constitution was designed to endure through changing circumstances. So long as Congress pursued a legitimate constitutional end, it was entitled to select appropriate means. Equally significant was the Court’s holding that States could not obstruct valid federal action.

Federal power expanded further during the Civil War where President Abraham Lincoln suspended the writ of habeas corpus without congressional authorisation. In Ex parte Merryman (1861), Chief Justice Taney held that the power to suspend the writ lay with Congress, not the President. Lincoln ignored the ruling, defending his actions as a necessity arising from rebellion. Congress later authorised much of what had been done.

The sequence is constitutionally revealing. Executive action preceded judicial settlement; legality followed necessity. The war entrenched national supremacy, foreclosed secession, and fundamentally altered the practical meaning of federalism. After the Civil War, the idea that States could unilaterally resist or nullify federal authority was no longer politically sustainable, even if resistance persisted in subtler forms.

The next major recalibration occurred during the New Deal. Faced with economic collapse, the federal government assumed responsibility for regulating labour, industry, and welfare — areas traditionally governed by States. The Supreme Court initially resisted, striking down key legislation as exceeding Congress’s commerce power. That resistance did not endure. Following sustained political pressure and overwhelming public support for federal intervention, the Court altered its interpretive approach further widening federal authority.

This pattern repeated itself in the post-9/11 era. Congress enacted sweeping legislation conferring broad powers on the executive in the name of national security. Courts intervened cautiously by adopting an approach of judicial accommodation: some constraint, but no fundamental resistance to expanded federal power in conditions of perceived emergency.

Taken together, these episodes reveal a consistent constitutional trajectory. Federal authority in the United States has expanded most decisively during crises – economic, military, or security-related – through a combination of executive initiative, judicial interpretation, and public acquiescence.

The writer leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy. Views are personal