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Cooperative federalism is an interpretation of the Constitution that favors national supremacy. Although the term cooperative federalism was coined in the twentieth century, its basic tenets can be used to describe earlier eras, such as the national supremacy associated with the Supreme Court in the early 1800s.¹⁸

Cooperative federalism views the Constitution as a contract among the people rather than a contract among the states. The dual federalists’ belief that the Constitution was a compact among the states allowed for the possibility that states could secede—leave the Union—as the Confederacy did during the Civil War. The cooperative federalist perspective rejects that possibility and puts ultimate authority with the people rather than with the states.

Rather than viewing the Constitution as a fixed document, cooperative federalists view the Constitution as an organic—“living”—document. They believe that the Constitution contains ambiguous language for a reason: to allow the document to adapt to changing times. Thus, rather than emphasizing the fixed nature of the express powers of the Constitution, as dual federalists do, cooperative federalists emphasize the ability to expand the power of the national government through a very broad interpretation of the necessary and proper clause. This broad interpretation allows Congress a wider range of implied powers than a dual federalist interpretation would allow: Congress can do anything that is useful or helpful to carry out its enumerated powers. There need only be, in other words, a very tangential link between the enumerated and implied powers.

In stark contrast with dual federalists, cooperative federalists minimize the significance of the Tenth Amendment. Rather than seeing it as a meaningful limit on the power of the national government, they dismiss the Tenth Amendment as a mere “truism.”¹⁹ In other words, the Tenth Amendment simply states the obvious: Powers that do not belong to the national government belong to the states or the people. Cooperative federalists do not believe that powers of the national government have to be expressly delegated but instead assert that they can include implied and even inherent power (in other words, powers that any sovereign government must hold, whether or not they are expressly enumerated or implied, such as defending its borders or acquiring new territory).

Quite simply, under a cooperative federalist view, the national government has whatever power it is able to derive—be it from narrowly defined enumerated powers or from broadly construed implied or inherent powers. Unlike the dual federalists, cooperative federalists do not believe the Tenth Amendment can be used to prevent these broad interpretations of implied and inherent powers. This interpretation is what reduces the Tenth Amendment to the truism that states simply have whatever power is left over.

When considering the relationship between the levels of government, cooperative federalists view the national government as supreme. They see the relationship as strictly hierarchical (as opposed to the system of dual sovereignty that dual federalists espouse).

Finally, rather than viewing the Supreme Court as an umpire between two dual sovereigns, cooperative federalists consider the Supreme Court to be a player on the national team. Thus, the Supreme Court should uphold broad interpretations of constitutional language (such as the commerce clause or the necessary and proper clause) that can be used to expand the power of the national government at the expense of the states.

cooperative federalism An interpretation of federalism that favors national supremacy and assumes that states will cooperate in the enforcement of federal regulations.