Unit One: Unit One: Constitutional Constitutional UnderpinningsUnderpinnings

AP Government and AP Government and PoliticsPolitics

DemocracyDemocracy

Democracy is rule by the Democracy is rule by the peoplepeople

Democracy: Two TypesDemocracy: Two Types

A. Direct: rule by the people A. Direct: rule by the people themselvesthemselves..

B. Indirect (representative): rule B. Indirect (representative): rule

by elected representatives.by elected representatives.

C. Founders' distrust of direct C. Founders' distrust of direct

democracy:democracy:

1. Impracticalities.1. Impracticalities.

2. Fleeting passions of the 2. Fleeting passions of the

people --->concern that they people --->concern that they

would be swayed by would be swayed by

demagogues.demagogues.

Republic.Republic.

*Same as indirect democracy.*Same as indirect democracy.

*Solves problems of direct democracy.*Solves problems of direct democracy.

““Secures the advantages of direct Secures the advantages of direct democracy while curing its democracy while curing its weaknesses.”weaknesses.”

Democratic TheoryDemocratic Theory

A. A. Majoritarian politicsMajoritarian politics view: view: leaders are heavily influenced by leaders are heavily influenced by the will of the people.the will of the people. B. B. Elite politicsElite politics views: views: minorities dominate policy minorities dominate policy

makingmaking1. 1. MarxistMarxist: influence of : influence of

economic elites. economic elites. 2. 2. CC. . Wright MillsWright Mills: influence : influence

of power elite: corporate, military, of power elite: corporate, military, political (Eisenhower’s “military political (Eisenhower’s “military industrial complex.”)industrial complex.”)

3. 3. Max WeberMax Weber: influence of : influence of bureaucracy.bureaucracy.

PluralistPluralist view: view: 1. Political resources are so scattered that no 1. Political resources are so scattered that no

single single elite has a monopoly on them.elite has a monopoly on them.

2. There are so many institutions in which 2. There are so many institutions in which power is power is

exercised that no single eliteexercised that no single elite could possibly control all of them.could possibly control all of them.

3. Pluralism therefore argues that many 3. Pluralism therefore argues that many groups groups

compete with each other for control over compete with each other for control over policy. policy. Policy is therefore the outcome of political Policy is therefore the outcome of political

haggling, innumerable compromises, and ever- haggling, innumerable compromises, and ever- shifting alliances among groups.shifting alliances among groups.

D.D. Hyperpluralist Hyperpluralist View:View:

1. "Pluralism 1. "Pluralism gone sour." gone sour."

2. There are 2. There are so many groups, so many groups, and they are so and they are so strong, that strong, that government has government has becomebecome

gridlocked and is gridlocked and is unable to act.unable to act.

IV.IV. Fundamental Fundamental Democratic ValuesDemocratic Values

A.A. Popular Popular sovereignty.sovereignty.

B.B. Respect for the Respect for the individual. State serves individual. State serves

individual, not vice individual, not vice versa.versa.

C.C. Liberty.Liberty.

D.D. Equality. Of Equality. Of opportunity more than opportunity more than result. Role of FDR’s result. Role of FDR’s 2nd Bill of Rights: 2nd Bill of Rights: economic economic

security.security.

V.V. Fundamental Fundamental Democratic ProcessesDemocratic Processes

A.A. Free and fair Free and fair elections, elections,

with competing political with competing political parties.parties.

B.B. Majority rule Majority rule w/minority rights. w/minority rights.

Fear of “tyranny of the Fear of “tyranny of the majority” led to majority” led to protection protection

of property rights.of property rights.

C.C. Freedom of Freedom of expression.expression.

D.D. Right to assemble Right to assemble and protest.and protest.

VI.VI. Fundamental Democratic Fundamental Democratic Structures (briefly -- covered Structures (briefly -- covered

in more detail later)in more detail later)

A. Federalism.

B. Separation of powers.

C. Checks and balances.

D.Constitutionalism.

ORIGINS OF THE AMERICAN ORIGINS OF THE AMERICAN REPUBLICREPUBLIC

I. Sources of the I. Sources of the ConstitutionConstitution

A. British Customs and A. British Customs and Traditions, e.g., Magna Traditions, e.g., Magna Carta and English Bill of Carta and English Bill of Rights.Rights.

B. European Philosophers, B. European Philosophers, e.g., Locke, Hobbes, e.g., Locke, Hobbes, Montesquieu, RousseauMontesquieu, Rousseau

C. Colonial experiences, e.g., C. Colonial experiences, e.g., power of elected power of elected assembly.assembly.

D. State constitutions written D. State constitutions written after the Declaration of after the Declaration of

Independence, e.g., Independence, e.g., Preamble closely Preamble closely resembles the resembles the

introduction to the Mass. introduction to the Mass. Constitution.Constitution.

II.II. Constitutional Constitutional Convention, 1787Convention, 1787

A.A. Background.Background.Decl. of Indep. ---> Rev. War ---> Decl. of Indep. ---> Rev. War --->

Articles of Confed. and its Articles of Confed. and its weak central govtweak central govt.:.:

No power to tax.No power to tax.No chief executive.No chief executive.No national judiciary.No national judiciary.No power to regulate interstate or No power to regulate interstate or

foreign commerce.foreign commerce.No national currency.No national currency.

2. Annapolis Convention, 2. Annapolis Convention, 1786: called to improve Articles.1786: called to improve Articles.

3. 3. Shays' Rebellion, Shays' Rebellion, 1786 ---> necessity of a 1786 ---> necessity of a stronger national government.stronger national government.

B.B. DelegatesDelegates 1. Characteristics: "well-read, well-bred, well-fed, and well-wed."1. Characteristics: "well-read, well-bred, well-fed, and well-wed."

2.2. Participants: Participants: a. Madison: "Father of Const." because of leadership and a. Madison: "Father of Const." because of leadership and

detailed notes of proceedings.detailed notes of proceedings.b. Washington: presiding officerb. Washington: presiding officerc. Franklin: "elder statesman."c. Franklin: "elder statesman."d. Morris: largely responsible for final wording of Const.d. Morris: largely responsible for final wording of Const.e. Hamilton: most forceful advocate for strong central e. Hamilton: most forceful advocate for strong central

government.government.3. Charles Beard's 3. Charles Beard's EconomicEconomic InterpretationInterpretation ofof thethe UnitedUnited StatesStates (1913).(1913).

a. Constitution was written by propertied class ---> a. Constitution was written by propertied class ---> naturally reflected those interests (although no naturally reflected those interests (although no conspiracy per se).conspiracy per se).

b. Rebuttals:b. Rebuttals: 1) Most people owned property.1) Most people owned property.

2) Even the poor, in hopes of someday owning 2) Even the poor, in hopes of someday owning property, wanted to protect property.property, wanted to protect property. Establishing a democratic government involved risks and dangers Establishing a democratic government involved risks and dangers --> need to build in safeguards and protections.--> need to build in safeguards and protections.

C.C. Areas of Areas of agreement:agreement:

1.Scrap the 1.Scrap the Articles of ConfederationArticles of Confederation..2.2.Establish a republican governmentEstablish a republican government..3.Establish a constitutional government.3.Establish a constitutional government.4.Established a balanced govt. where no single interest 4.Established a balanced govt. where no single interest

dominated.dominated.5.Suffrage for property owners only.5.Suffrage for property owners only.6.Stronger central govt. than under the Articles.6.Stronger central govt. than under the Articles.7.7.Protection of property rights: the main purpose of Protection of property rights: the main purpose of

govtgovt..8.Keep the proceedings secret.8.Keep the proceedings secret.

D.D. Areas of disagreement Areas of disagreement ---> compromises:---> compromises:

1. Representation among the 1. Representation among the states.states.

a. a. Large states favored the Virginia a. a. Large states favored the Virginia Plan: based upon population.Plan: based upon population.

b. Small states favored the New Jersey b. Small states favored the New Jersey Plan: equal representation.Plan: equal representation.

c. c. Connecticut (Great) Compromise: Connecticut (Great) Compromise: a bicameral legislature with a a bicameral legislature with a popularly-popularly-

elected House (based upon elected House (based upon

population) and a Senate (equal population) and a Senate (equal rep.) elected by state rep.) elected by state legislatures.legislatures.

D.D. Areas of disagreement Areas of disagreement ---> compromises:---> compromises:

2.2. Representation and taxation of Representation and taxation of slaves.slaves.

a. Northern states wanted slaves to a. Northern states wanted slaves to count for taxation, but not count for taxation, but not representation.representation.

b. Southern states wantedb. Southern states wanted the the opposite.opposite.

c. 3/5 Compromise: 3/5 of the c. 3/5 Compromise: 3/5 of the slaves would count for both slaves would count for both purposes (3/5 was the ratio that purposes (3/5 was the ratio that would yield equal representation would yield equal representation among northern and southern among northern and southern states).states).

D.D. Areas of Areas of Disagreement ---> Disagreement --->

Compromises:Compromises:Election of the President.

a. Life term v. annual election ---> compromise of a 4-year term.

b. Method of election:

1) Some wanted election by Congress.

2) Some wanted election by state legislatures.

3) Some wanted direct election.

4) Compromise: Electoral College system.

E.E. Ratification PoliticsRatification Politics

1.1.Federalists: Federalists:

a. Supporters: a. Supporters:

property owners, creditors, merchants. property owners, creditors, merchants.

b. Viewsb. Views

1) Elites most fit to govern.1) Elites most fit to govern.

2) Feared "excesses" of democracy.2) Feared "excesses" of democracy.

3) Favored strong central government.3) Favored strong central government.

c. Leaders: Hamilton, Madison, c. Leaders: Hamilton, Madison, Washington, Jay.Washington, Jay.

2.2. Antifederalists:Antifederalists:a.a. Supporters: small farmers, frontiersmen, debtors, Supporters: small farmers, frontiersmen, debtors,

shopkeepers.shopkeepers.b.b. Views.Views.

1) Feared concentration of power in hands of 1) Feared concentration of power in hands of elites.elites.

2)Believed that govt. should be closer to the 2)Believed that govt. should be closer to the people.people.

3)Feared strong central government. Favored 3)Feared strong central government. Favored stronger state govts. stronger state govts.

4) Feared the lack of Bill of Rights -- their 4) Feared the lack of Bill of Rights -- their strongest argument.strongest argument.

c. Leaders: Henry, Mason, Gerry.c. Leaders: Henry, Mason, Gerry.

3.3. Federalist Federalist Advantages:Advantages:

a. Were better represented in state a. Were better represented in state legislatures.legislatures.

b. Controlled the press.b. Controlled the press. c. Began ratification procedures quickly c. Began ratification procedures quickly

before before Antifederalists could get organized.Antifederalists could get organized.

d. Agreed to a Bill of Rights after d. Agreed to a Bill of Rights after ratification of the Constitution.ratification of the Constitution.

4. 4. The Federalist Papers: Madison, The Federalist Papers: Madison, Hamilton, and Jay. To rally support for Hamilton, and Jay. To rally support for ratification of the ratification of the

Constitution.Constitution.5. Ratification, 1788: by state ratifying 5. Ratification, 1788: by state ratifying

conventions of conventions of popularly-elected delegates.popularly-elected delegates.

I. Separation of PowersI. Separation of Powers

I.I. Separation of powers.Separation of powers.A.A. To Madison, tyranny To Madison, tyranny was govt. that controlled all was govt. that controlled all 3 branches of govt. ---> 3 branches of govt. ---> Division of power among the Division of power among the legislative, executive, and legislative, executive, and judicial branches. judicial branches. B.B. This system This system diffusesdiffuses power instead of power instead of concentratingconcentrating power. power.C.C. Influence of Influence of Montesquieu.Montesquieu.D.D. Colonial experiences, Colonial experiences, e.g., excessive power in st. e.g., excessive power in st. legislatures legislatures need for need for strong exec.strong exec.E.E. Danger of one branch Danger of one branch combining forces with combining forces with another branch ---> checks another branch ---> checks and balances.and balances.

II. Checks and BalancesII. Checks and BalancesA. Background.1. 18th century view of govt. as something to be restrained, and

modern view of govt. as something to be used for the common good.

2. Fear of tyranny among Founders ---> distrust of govt. Fear of tyranny among Founders ---> distrust of govt. ---> checks and balances as means of intentionally ---> checks and balances as means of intentionally building inefficiency in order to prevent govt. abuse of building inefficiency in order to prevent govt. abuse of power.power.

B. System of restraints in which each branch can check the other two. Reflects fear of tyranny.1. Examples: veto, veto override, appointment and confirmation, treaty-making and ratification, defense funding and Commander-In-Chief.2. Political independence within each branch: no branch is dependent upon the other two for election (exception: judges are appt'd by President) and continuance in office (life terms for judges ameliorate presidential influence).3. Staggering of terms within each branch -> a majority of voters can gain control over one part of govt. at one time, e.g., midterm cong. elections can serve as a check on the exec.4. Modifications of checks and balances: examine if the following strengthen or weaken checks and balances.

Checks and BalancesChecks and Balances

II. Checks and BalancesII. Checks and Balances1.1. Political parties.Political parties.a.a. In theory, should weaken In theory, should weaken

checks and balances -- a way of checks and balances -- a way of bringing the branches of govt. bringing the branches of govt. together. together. Const. divides Const. divides govt., but parties bring govt., but parties bring people in govt. together.people in govt. together.

b.b. In reality, however, parties are In reality, however, parties are weak:weak:

Dominance of only 2 parties ---Dominance of only 2 parties ---> each party has wide range of > each party has wide range of interests ---> much interests ---> much disagreement within each party disagreement within each party itself ---> difficult to assert such itself ---> difficult to assert such strong controlstrong control

c.c. Prevalence of Prevalence of divided govtdivided govt., ., i.e., a Pres. of one party and a i.e., a Pres. of one party and a Cong. of the other.Cong. of the other.

II. Checks and BalancesII. Checks and Balances

2.2.Changes in voting Changes in voting methods.methods.

a.a.Senators now chosen by Senators now chosen by people.people.

b.b.Congressmen also chosen Congressmen also chosen by people.by people.

c.c. Presidents chosen by Presidents chosen by electors who vote as the electors who vote as the people have voted.people have voted.

-- Thus, members of two -- Thus, members of two branches essentially branches essentially chosen by same chosen by same electorate ---> weakening electorate ---> weakening of checks and balances of checks and balances in in theorytheory; however, split ; however, split ticket voting has changed ticket voting has changed this.this.

II. Checks and BalancesII. Checks and Balances

3.3. Growth of federal bureaucracy.Growth of federal bureaucracy.a.a. Development of numerous Development of numerous

agencies w/legislative, agencies w/legislative, executive, and judicial executive, and judicial functions.functions.

b.b. Congress often grants broad Congress often grants broad authority to agencies and lets authority to agencies and lets them carry out the general will them carry out the general will of Congress, e.g., Congress of Congress, e.g., Congress established an IRS to collect established an IRS to collect taxes, and then granted the taxes, and then granted the IRS authority to help write the IRS authority to help write the tax code, enforce the tax code, tax code, enforce the tax code, and settle disputes over the and settle disputes over the tax code.tax code.-- Thus, growth of bureaucracy -- Thus, growth of bureaucracy has caused a weakening of has caused a weakening of checks and balances.checks and balances.

II. Checks and BalancesII. Checks and Balances4.4.Changes in technology, e.g., Changes in technology, e.g.,

nukes, computers, fax nukes, computers, fax machines, satellite machines, satellite communications: Two views:communications: Two views:

a.a.President, Congress, interest President, Congress, interest groups, media have all been groups, media have all been able to take advantage of able to take advantage of the new technologies ---> the new technologies ---> strengthening of checks and strengthening of checks and balances.balances.

b.b.President has been President has been especially able to take especially able to take advantage of these advantage of these ("electronic throne"), e.g., ("electronic throne"), e.g., “staged event” of Bush “staged event” of Bush landing on an aircraft carrier landing on an aircraft carrier ---> weakening of checks ---> weakening of checks and balances.and balances.

II. Checks and BalancesII. Checks and Balances5.5. Emergence of U.S. as world Emergence of U.S. as world

power after WWII.power after WWII.a. Areas of "national interest" a. Areas of "national interest" extend around the world.extend around the world.

-U.S. is leader of free -U.S. is leader of free world. world.

-U.S. is only remaining -U.S. is only remaining superpower after Cold Warsuperpower after Cold War

b. With such heavy b. With such heavy responsibilities, any crisis seems responsibilities, any crisis seems to involve U.S. somehow.to involve U.S. somehow. ---> These responsibilities ---> These responsibilities need to be dealt with in a strong need to be dealt with in a strong and efficient manner --->power and efficient manner --->power has concentrated in executive has concentrated in executive branch ("imperial presidency") branch ("imperial presidency") ---> weakening of checks and ---> weakening of checks and balances.balances.

III. Limited GovernmentIII. Limited GovernmentLimited government: dilemma of Limited government: dilemma of

wanting a more effective wanting a more effective government, but also a limited government, but also a limited government that did not become government that did not become tyrannical.tyrannical.A.A. Constitutional government: Constitutional government: govt. has only those powers govt. has only those powers listed in Const. listed in Const.

B.B. Bill of Rights as a Bill of Rights as a safeguard against possible safeguard against possible tyranny from a new, strong, tyranny from a new, strong, distant government. Little fear of distant government. Little fear of state govts, but great fear of state govts, but great fear of national govt. Amendment 10 national govt. Amendment 10 reflects view that states would reflects view that states would have substantial powers: central have substantial powers: central govt. could exercise only those govt. could exercise only those powers delegated to it by the powers delegated to it by the Const. States would have all else.Const. States would have all else.

Free elections, but potential of Free elections, but potential of majority faction ---> Madison's majority faction ---> Madison's "auxiliary precautions.""auxiliary precautions."

IV.IV. Judicial review.Judicial review.A. Power of courts to strike down A. Power of courts to strike down

laws or governmental actions.laws or governmental actions.B Not explicitly provided for in B Not explicitly provided for in

Const., but Const. written in broad Const., but Const. written in broad terms ---> need for interpretation ---terms ---> need for interpretation ---> this most logically falls to the > this most logically falls to the courts.courts.

C.C. Established by Established by Marbury v. Madison, Marbury v. Madison, 18031803::1. Facts of case: the end of 1. Facts of case: the end of Federalist control of govt. and Federalist control of govt. and appointment of the "midnight appointment of the "midnight judges," including Marbury ---> judges," including Marbury ---> Jefferson ordered Madison to not Jefferson ordered Madison to not deliver commissions to these judges deliver commissions to these judges --->Marbury's request for a writ of --->Marbury's request for a writ of mandamus (under Sect. 13 of Jud. mandamus (under Sect. 13 of Jud. Act. of 1789) from the Supreme Act. of 1789) from the Supreme Court to order the delivery of his Court to order the delivery of his commission.commission.2. Decision of Marshall and the 2. Decision of Marshall and the Court: section 13 of Judiciary Act of Court: section 13 of Judiciary Act of 1789 enabling the Court to issue a 1789 enabling the Court to issue a writ of mandamus through original writ of mandamus through original jurisdiction in this type of case was jurisdiction in this type of case was unconstitutional.unconstitutional.

IV.IV. Judicial ReviewJudicial Review3.3. Analysis.Analysis.a.a. Marshall ruled that the Court Marshall ruled that the Court

did not have the authority to did not have the authority to issue the writ, but he issue the writ, but he paradoxically increased its paradoxically increased its power by establishing power by establishing judicial judicial reviewreview when the Court struck when the Court struck down section 13.down section 13.

b.b. Jefferson couldn't complain Jefferson couldn't complain because the midnight judges because the midnight judges didn't receive their didn't receive their appointments, but he fumed appointments, but he fumed because his enemy, Federalist because his enemy, Federalist John Marshall, increased the John Marshall, increased the power of the Court.power of the Court.

Effects of judicial review: Effects of judicial review: citizens can challenge citizens can challenge constitutionality of laws in constitutionality of laws in court by initiating lawsuits court by initiating lawsuits (example: Gideon v. (example: Gideon v. Wainright, 1963) Wainright, 1963) litigation litigation has become an important way has become an important way of making public policy.of making public policy.

Chief Justice John Marshall

V.V. Changing the Constitution Changing the Constitution informallyinformally

A. Const. a framework ---> details to be filled in later.A. Const. a framework ---> details to be filled in later.B. Due to difficulties of formally changing Const., informal ways B. Due to difficulties of formally changing Const., informal ways developed:developed:

1. Acts of Congress (e.g., Judiciary Act of 1. Acts of Congress (e.g., Judiciary Act of 1789).1789). 2. Judicial rulings (e.g., Plessy v. Ferguson, 2. Judicial rulings (e.g., Plessy v. Ferguson, Brown v. BoardBrown v. Board, Texas v. Johnson, , Texas v. Johnson, Lawrence v. Texas).Lawrence v. Texas).

3. Presidential actions (e.g., police actions since WWII, 3. Presidential actions (e.g., police actions since WWII, executive privilege, impoundment).executive privilege, impoundment).

4. Customs and traditions (e.g., Cabinet, parties, committee 4. Customs and traditions (e.g., Cabinet, parties, committee system in Cong., senatorial courtesy, system in Cong., senatorial courtesy, legislative vetolegislative veto, presidential , presidential nominating conventions) nominating conventions)

“ “Constitution belongs to the living, not the dead” (Jefferson):Constitution belongs to the living, not the dead” (Jefferson): Jefferson believed each generation might need new Const.Jefferson believed each generation might need new Const. This hasn’t occurred because of the informal changes that have This hasn’t occurred because of the informal changes that have

allowed the Constitution to adapt to changing times.allowed the Constitution to adapt to changing times.

VI.VI. Changing the Changing the Constitution formally, i.e. Constitution formally, i.e.

adding Amendments.adding Amendments.A.A. Legacy of Articles: Legacy of Articles: Unanimous vote to amend ----Unanimous vote to amend ----> impractical ---> desire to > impractical ---> desire to make process easier, but not make process easier, but not too easy.too easy.

B.B. Reasons for recent Reasons for recent popularity of proposing popularity of proposing Amendments (e.g., balanced Amendments (e.g., balanced budget, D.C.budget, D.C.

statehood, ERA).statehood, ERA).

1. Dissatisfaction by 1. Dissatisfaction by interest groups with court interest groups with court decisions, e.g., flag burning decisions, e.g., flag burning decisiondecision

2. Gridlock in Congress.2. Gridlock in Congress.

ORIGINS OF AMERICAN ORIGINS OF AMERICAN FEDERALISMFEDERALISM

FederalismFederalism: constitutional division of power between the : constitutional division of power between the national govt. and state govts. Both get their powers from national govt. and state govts. Both get their powers from a Constitution, not each other.a Constitution, not each other.Reasons for federal system in U.S.Reasons for federal system in U.S.

A. Unitary system (where a A. Unitary system (where a central governmentcentral government rather rather than a than a constitutionconstitution delegates power) was undesirable -- too delegates power) was undesirable -- too reminiscent of British rule. Fear of strong, distant govt.reminiscent of British rule. Fear of strong, distant govt.B. Confederate system undesirable -- too reminiscent of B. Confederate system undesirable -- too reminiscent of Articles.Articles.C. C. Allows unity, but not uniformity -- allows for differences Allows unity, but not uniformity -- allows for differences among states.among states.D. D. More suitable for geographically large nation -- allows More suitable for geographically large nation -- allows for differences among states.for differences among states.E. E. More suitable for heterogeneous people -- allows for More suitable for heterogeneous people -- allows for differencesdifferences

Reasons for Federal System Reasons for Federal System in U.Sin U.S

F.F. More likely to check More likely to check tyranny:tyranny:

1. If tyranny 1. If tyranny occurred in a few states, occurred in a few states, fed. govt. could prevent its fed. govt. could prevent its spread to others. (e.g., spread to others. (e.g., Shays' RebellionShays' Rebellion))

2. National govt. 2. National govt. has only those powers has only those powers granted to it -- all others granted to it -- all others belong to states through belong to states through

Amendment 10Amendment 10..-- Cost of checking tyranny -- Cost of checking tyranny is at times inefficiency, but is at times inefficiency, but Founders more interested Founders more interested in checking tyranny than in checking tyranny than in having a strong and in having a strong and effective govt. that could effective govt. that could run roughshod over the run roughshod over the people's liberties.people's liberties.

Reasons for federal Reasons for federal system in U.Ssystem in U.S

G.G. Frees national govt. to Frees national govt. to concentrate on truly national concentrate on truly national matters.matters.

H.H. Frees states from Frees states from excessive intrusion on strictly excessive intrusion on strictly state/local matters (but state/local matters (but discuss problem of growth of discuss problem of growth of federal mandates, and esp. federal mandates, and esp. unfunded mandatesunfunded mandates).).

I. I. Encourages Encourages experimentationexperimentation -- states as -- states as "laboratories" (e.g. legalized "laboratories" (e.g. legalized gambling in Nevada has gambling in Nevada has spread to other states, CA spread to other states, CA legalization of medical legalization of medical marijuana has been adopted marijuana has been adopted by a few other states)by a few other states)

J.J. Keeps govt. closer to Keeps govt. closer to peoplepeople. Multiple points of . Multiple points of access for citizens.access for citizens.

Dual FederalismDual Federalism

1. Prevalent through 1. Prevalent through ~1937.~1937.

2. State governments 2. State governments and national government and national government each remained supreme each remained supreme within their within their

own spheres.own spheres.

3. Powers and policy 3. Powers and policy assignments of the layers of assignments of the layers of

govt. were distinct, as in a govt. were distinct, as in a layer cake. layer cake.

4. Suggested that the 4. Suggested that the powers of the national govt. powers of the national govt. should be interpreted should be interpreted narrowly.narrowly.

Cooperative (“Marble Cooperative (“Marble Cake”) FederalismCake”) Federalism..

1. Prevalent since 1. Prevalent since ~1937.~1937.

2. Mingling of 2. Mingling of responsibilities responsibilities between the state and between the state and national govt.national govt.

3. Sharing of 3. Sharing of powers and policy powers and policy assignments, as in a assignments, as in a marble cake.marble cake.

4. Suggests that 4. Suggests that powers of the national powers of the national govt. govt.

should be interpreted should be interpreted broadly. broadly.

New FederalismNew Federalism

1. Shifting of some 1. Shifting of some authority from national authority from national

govt. back to the states.govt. back to the states.

2. Associated with Nixon, 2. Associated with Nixon, Reagan, and esp. associated Reagan, and esp. associated with 104th and 105th with 104th and 105th Republican Congress: Republican Congress: “Devolution “Devolution

Revolution”Revolution”

3. Example: use of 3. Example: use of block grants in welfare block grants in welfare

reform bill of 1996.reform bill of 1996.

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

I.I. National powers. National govt. has 3 categories of powers that National powers. National govt. has 3 categories of powers that are delegated to it. Here are theare delegated to it. Here are the categories of the categories of the delegated delegated powerspowers::

A. Expressed (enumerated): actually stated in the Const.A. Expressed (enumerated): actually stated in the Const.B. Implied: not stated explicitly, but suggested implicitly. B. Implied: not stated explicitly, but suggested implicitly.

Importance of elastic clause.Importance of elastic clause.C. Inherent: not stated explicitly, but held by the national C. Inherent: not stated explicitly, but held by the national

govt. by virtue of its being a national govt. Any govt. is govt. by virtue of its being a national govt. Any govt. is entitled to certain foreign policy powers such as diplomatic, entitled to certain foreign policy powers such as diplomatic,

acquiring territory, or defending itself.acquiring territory, or defending itself.

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

II.II. State powers: State powers: reservedreserved

A. A. Amendment 10 states Amendment 10 states that any powers not that any powers not granted to the national granted to the national govt. are reserved for govt. are reserved for the statesthe states..

B. Examples: B. Examples: establishing voting establishing voting requirements, running requirements, running elections, licensing elections, licensing professionals, professionals, protecting community protecting community health, establishing a health, establishing a vehicle code.vehicle code.

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

III.III. Concurrent Concurrent powers.powers.A.A. Granted to Granted to Congress, but not Congress, but not denied by Const. or denied by Const. or courts to the states ---> courts to the states ---> held by both national held by both national and state govts.and state govts.B.B. Examples: Examples: taxing, borrowing, taxing, borrowing, establishing court establishing court

system, establishing system, establishing law enforcement law enforcement agencies.agencies.C.C. Questions of Questions of fed./state authority are fed./state authority are decided by courts.decided by courts.

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

IV. National supremacy (Article VI): IV. National supremacy (Article VI):

national govt. supreme in case of national govt. supreme in case of

conflict.conflict.

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

V. Obligations of national V. Obligations of national govt. to the statesgovt. to the states

A. Guarantee each A. Guarantee each state a republican state a republican form of govt.form of govt.

B.B. Protect each Protect each state against invasion state against invasion or domestic or domestic violence.violence.

C.C. Grant new Grant new states the same rights states the same rights as other states.as other states.

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

VI. Obligations of state govts.

A. Full faith and credit clause: each state must honor the public acts, records and legal proceedings of other states, e.g., birth certificates, marriages, debts.1.Four states (MA, VT, IA, CT) have legalized same-sex marriages.2.However, in the 1990s Congress passed the Defense of Marriage Act, which allowed each state to define which allowed each state to define marriage, and in effect not recognize gay marriage if the marriage, and in effect not recognize gay marriage if the state defined marriage as the union of a man and a state defined marriage as the union of a man and a woman.woman.

B. Privileges and immunities clause: each state must grant to citizens of other states the same rights and privileges that they grant to their own citizens, i.e., states cannot unreasonably discriminate against citizens of other states.

C. Extradition: Governors must return suspects to the states in which they allegedly committed their crimes.

D. Interstate compacts require consent of Congress.

DECENTRALISM (STATES' RIGHTS) V. DECENTRALISM (STATES' RIGHTS) V.

CENTRALISM (NATIONALIST)CENTRALISM (NATIONALIST) I. Decentralist (states' rights) I. Decentralist (states' rights)

approach.approach.A. Const. a compact created by A. Const. a compact created by states ---> implies strong state states ---> implies strong state authority.authority.B. Const. carefully limits national B. Const. carefully limits national authority to delegated powers.authority to delegated powers.C. C. 10th Amendment gives broad 10th Amendment gives broad powers to statespowers to states..D. When in doubt as to which D. When in doubt as to which holds a power, matter should be holds a power, matter should be resolved in favor of states.resolved in favor of states.E. Implies strict constructionist E. Implies strict constructionist approach to Constitutionapproach to ConstitutionF. National govt. has gotten too F. National govt. has gotten too big and impersonal.big and impersonal.G. State govts. are closer to the G. State govts. are closer to the people.people.H. Followers: Calhoun, Goldwater, H. Followers: Calhoun, Goldwater, Reagan, southern conservatives, Reagan, southern conservatives, western conservatives, Christian western conservatives, Christian fundamentalists, Newt Gingrich, fundamentalists, Newt Gingrich, Bush 43Bush 43

DECENTRALISM (STATES' RIGHTS) V. DECENTRALISM (STATES' RIGHTS) V. CENTRALISM (NATIONALIST)CENTRALISM (NATIONALIST)

II.II. Centralist (nationalist) approach.Centralist (nationalist) approach.A.A. Const. created by Const. created by peoplepeople ("We the ("We the people ..."), and not the states.people ..."), and not the states.B.B. Elastic, commerce, and taxing/spending Elastic, commerce, and taxing/spending clauses give great power to national govt.clauses give great power to national govt.C.C. Powers go to states only if they have been Powers go to states only if they have been surrendered by surrendered by national govt.national govt.D.D. When in doubt, matter should be resolved in When in doubt, matter should be resolved in favor of national govt.favor of national govt.E.E. Implies loose constructionist approach to Implies loose constructionist approach to Constitution.Constitution.F.F. Size of federal bureaucracy has remained Size of federal bureaucracy has remained relatively constant for last 40 years.relatively constant for last 40 years.G.G. While state govts. may be closer to people, While state govts. may be closer to people, some of those state some of those state govts. have violated govts. have violated people's basic rights (e.g., South during first 70 people's basic rights (e.g., South during first 70 years of 20th years of 20th century) -- national govt. has century) -- national govt. has been key protector of rights.been key protector of rights.H.H. Followers: Hamilton, Marshall, Webster, TR, Followers: Hamilton, Marshall, Webster, TR, FDR, JFK, LBJ, FDR, JFK, LBJ, Clinton, ObamaClinton, Obama

III.III. Triumph of nationalist Triumph of nationalist approach: McCulloch v. approach: McCulloch v.

Maryland, 1819Maryland, 1819A.A. Maryland attempted to tax a Maryland attempted to tax a branch of the Bank of the U.S.:branch of the Bank of the U.S.:

1. It argued that taxing was one of its 1. It argued that taxing was one of its reserved powers.reserved powers.

2. In addition, it argued that the 2. In addition, it argued that the Bank was unconstitutional, anyway.Bank was unconstitutional, anyway.

B. The Court's decision (under Marshall):

1. Need for a more flexible interpretation of the Const. so that it would endure -> Bank was "necessary and proper" ---> establishment of implied powers.

2. "Power to tax involves power to destroy" ---> states clearly not free to destroy the national govt. ---> establishment of national supremacy.

IV.IV. Sources of National Sources of National Strength.Strength.

A. Elastic clause: Congress can pass laws “necessary and proper” to carry out expressed powers.

B. War powers.C. Commerce clause: virtually anything is interstate or foreign

commerce Congress can regulate virtually anything.D. Power to tax and spend for the “common defense and the general

welfare.” 1. While Congress cannot technically legislate on

everything, it can spend funds on virtually everything.spend funds on virtually everything.2. States don't have to accept federal money, but if they

do, they must follow federal guidelines (e.g., fed. highway funds follow federal guidelines (e.g., fed. highway funds can be denied if a state’s alcohol purchasing age is less than 21, can be denied if a state’s alcohol purchasing age is less than 21, fed. education funds can be denied if states do not comply w/No fed. education funds can be denied if states do not comply w/No Child Left Behind Act) Child Left Behind Act)

-- Federal "strings" attached to funding are ways in which the federal govt. can get its way on things.E. Preemption of state laws by fed. courts if laws in conflict w/Const.

or fed. laws.F. Imposition of federal mandates (some unfunded) on states

V.V. Recent Developments.Recent Developments.A. Evolution towards greater federal control throughout most of 20th

century.B. Nixon's "New Federalism:" returning some power back to states.

Also favored by Reagan, both Bushes, and Republican Party in general

C. Republican victory in cong. elections of 1994 ---> Contract with America and devolution of power back to states:

1. Unfunded Mandates Reform Act of 1995 restricted future unfunded mandates.

2. Use of block grants to replace categorical grants.

1996 welfare reform bill that ended welfare as fed. entitlement. (Save details of this bill for tomorrow) Repeal of 55 m.p.h. speed limit.

V.V. Recent DevelopmentsRecent DevelopmentsE. Supreme Court actions consistent with devolution:

1.1. Struck down Gun Free School Zones Act in 1995 in US v. Struck down Gun Free School Zones Act in 1995 in US v. Lopez: Congress overextended itself when it linked gun Lopez: Congress overextended itself when it linked gun control laws to the interstate control laws to the interstate commerce clausecommerce clause of the of the Constitution. Constitution.

2.2. Struck down part of the Violence Against Women Act in US v. Struck down part of the Violence Against Women Act in US v. Morrison (2000), saying that rape victims could not sue their Morrison (2000), saying that rape victims could not sue their attackers in federal court because it was up to the states – attackers in federal court because it was up to the states – not Congress – to give such help to women victimized by not Congress – to give such help to women victimized by violence. Again, the Court said that the Congress violence. Again, the Court said that the Congress overextended itself with the use of the overextended itself with the use of the interstate commerce interstate commerce clauseclause in passing the Act. in passing the Act.

3.3. Struck down Religious Freedom Restoration Act in 1993: Struck down Religious Freedom Restoration Act in 1993: This act had restricted the power of the states to regulate This act had restricted the power of the states to regulate religion -> this ruling gave states greater authority to religion -> this ruling gave states greater authority to regulate religion. regulate religion.

4.4. Struck down Brady Act in 1997 that required local law Struck down Brady Act in 1997 that required local law enforcement agencies to do background checks on gun enforcement agencies to do background checks on gun buyers.buyers.

5.5. Upheld an Indiana law that required photo ID for voting Upheld an Indiana law that required photo ID for voting (Crawford v. Marion County Election Board and Indiana (Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, 2008)Democratic Party v. Rokita, 2008)

FEDERALISM AND FEDERAL FEDERALISM AND FEDERAL GRANTSGRANTS

As national govt. has As national govt. has grown more powerful, it grown more powerful, it has used state and local has used state and local govts. to administer govts. to administer programs that are programs that are federally funded ---> federally funded ---> development of federal development of federal grants to state and local grants to state and local govts. Dollar amounts of govts. Dollar amounts of these have consistently these have consistently risen in last several risen in last several decades, though there decades, though there has been variation in has been variation in grants as a percentage of grants as a percentage of federal expenditures.federal expenditures.

Purposes of Fed. GrantsPurposes of Fed. GrantsA.A. Reduces growth of fed. Reduces growth of fed.

bureaucracy -- fed. govt. bureaucracy -- fed. govt.

simply provides money simply provides money to states and has states to states and has states run the run the

programs (under fed. programs (under fed. guidelines, of course).guidelines, of course).

B.B. Supplies state and local Supplies state and local govts. w/needed govts. w/needed revenue.revenue.

C.C. Establishes minimum Establishes minimum fed. standards in fed. standards in important areas (air important areas (air quality, water quality)quality, water quality)

D. Equalizes resources D. Equalizes resources among rich and poor among rich and poor states.states.

Types of Fed. GrantsTypes of Fed. GrantsA.A. Categorical.Categorical.

1. 1. For specific For specific programsprograms (e.g., roads, (e.g., roads, airports, housing, airports, housing, bilingual education).bilingual education).

2. National govt. 2. National govt. agrees to pay a portion agrees to pay a portion of the costs for these, of the costs for these, and states pick up the and states pick up the balance --- balance ---

> these sometimes > these sometimes called "formula grants" called "formula grants" because grants are because grants are offered under a payment offered under a payment

formula (e.g., 80%-formula (e.g., 80%-20%).20%).

3. States don't 3. States don't have to accept these, but have to accept these, but if they do they must if they do they must comply w/fed. standards.comply w/fed. standards.

Types of fed. grants.Types of fed. grants.

B.B. Project.Project.

1.1. States apply for States apply for grants for specific grants for specific projects.projects.

2.2. "Grantsmanship:" "Grantsmanship:" state competition for state competition for grants has led to grants has led to development of the fine development of the fine art of “grant writing”art of “grant writing”

Types of fed. grants.Types of fed. grants.C.C. Block.Block.

1.Granted to 1.Granted to support a collection of support a collection of general programs (e.g., general programs (e.g., urban development, urban development, transportation) ---> transportation) ---> more state leeway in more state leeway in spending of the money.spending of the money.

2. Associate 2. Associate these w/104th and 105these w/104th and 105thth Republican Congress Republican Congress and devolution of power and devolution of power back to states.back to states.

D.D. Analyze these Analyze these types of grants from types of grants from centralist and centralist and decentralist positions.decentralist positions.

The Politics of Federal GrantsThe Politics of Federal Grants

Democrats have generally favored greater funding, but Democrats have generally favored greater funding, but with more “strings” associated with with more “strings” associated with categoricalcategorical grants. grants.

Republicans have generally favored less funding, but with Republicans have generally favored less funding, but with fewer “strings” associated with fewer “strings” associated with blockblock grantsgrants. Welfare is . Welfare is an example of this:an example of this:

End to entitlement status of AFDC and federal guarantee End to entitlement status of AFDC and federal guarantee of welfare checks with passage in 1996 of Personal of welfare checks with passage in 1996 of Personal Responsibility and Work Opportunity Reconciliation Act Responsibility and Work Opportunity Reconciliation Act (Welfare Reform Act of 1996)(Welfare Reform Act of 1996)

Welfare Welfare blockblock grants therefore replaced the welfare grants therefore replaced the welfare categoricalcategorical grants.grants.

Even as a block grant, the Welfare Reform act involved Even as a block grant, the Welfare Reform act involved federal “strings:”federal “strings:”

No fed. funds go to recipients who have not worked within No fed. funds go to recipients who have not worked within 2 yrs.2 yrs.

No fed. funds go to recipients who have received fed. No fed. funds go to recipients who have received fed. money > 5 yrs.money > 5 yrs.

States must spend at least 75% of what they had States must spend at least 75% of what they had previously spent on welfare – this to avoid the “race to the previously spent on welfare – this to avoid the “race to the bottom.”bottom.”

The Politics of Federal The Politics of Federal GrantsGrants

An exception to the “fewer An exception to the “fewer strings” approach by the strings” approach by the Republican Party is its support Republican Party is its support of the No Child Left Behind Act of the No Child Left Behind Act of 2002: In order to receive of 2002: In order to receive federal funds for education, federal funds for education, states must:states must:

1. Adopt subject matter 1. Adopt subject matter standardsstandards

2. Test all students in grades 3-2. Test all students in grades 3-8 on those standards8 on those standards

3. Identify low-performing 3. Identify low-performing schools based upon that testingschools based upon that testing

4. Require low-performing 4. Require low-performing schools to develop improvement schools to develop improvement plansplans

5. Allow parents of students in 5. Allow parents of students in such schools that do not such schools that do not improve to transfer to other improve to transfer to other public schoolspublic schools

FEDERAL MANDATESFEDERAL MANDATES

• Mandate: a federal Mandate: a federal order imposed upon order imposed upon states. Examples: states. Examples: Americans with Americans with Disabilities Act.Disabilities Act.

• Various environmental Various environmental acts, e.g., Clean Air acts, e.g., Clean Air Act, Clean Water ActAct, Clean Water Act

• Individuals with Individuals with Disabilities Education Disabilities Education ActAct

FEDERAL MANDATESFEDERAL MANDATES

PurposesPurposes: : to meet a goal of the to meet a goal of the

federal governmentfederal government

Mandates and Their Impact Mandates and Their Impact upon the states:upon the states:

• Financial burdens, esp. with Financial burdens, esp. with unfunded mandatesunfunded mandates, e.g., ADA , e.g., ADA has imposed large costs upon has imposed large costs upon states as they make states as they make “reasonable “reasonable accommodations” for the accommodations” for the disabled.disabled.

• State complaints about State complaints about federal heavy-handedness, federal heavy-handedness, e.g., if a state does not devise e.g., if a state does not devise a plan and pay for the a plan and pay for the requirements of the Clean Air requirements of the Clean Air Act of 1990, the federal Act of 1990, the federal government will impose its government will impose its own plan upon the state.own plan upon the state.

• State complaints about State complaints about federal blackmail, e.g., if a federal blackmail, e.g., if a state doesn’t comply with the state doesn’t comply with the Clean Air Act standards, Clean Air Act standards, federal funds can be withheld federal funds can be withheld in in other programs.other programs.

Republican Response to Republican Response to Mandates:Mandates:

*Unfunded Mandates Reform *Unfunded Mandates Reform Act of 1995 (part of Act of 1995 (part of Contract w/America) Contract w/America) restricted future restricted future unfunded mandatesunfunded mandates

*Required CBO to analyze *Required CBO to analyze impact of impact of unfunded unfunded mandatesmandates on states. on states.

*Requires separate *Requires separate congressional vote on congressional vote on bills that impose bills that impose unfunded mandatesunfunded mandates..

B. This is another B. This is another example of the example of the Devolution Revolution Devolution Revolution associated with the associated with the 104th Congress.104th Congress.

POLITICS OF AMERICAN POLITICS OF AMERICAN

FEDERALISMFEDERALISM I.I. Nonconstitutional reasons for triumph of Nonconstitutional reasons for triumph of

nationalist approach.nationalist approach.

A. Growth of U.S. in size and population A. Growth of U.S. in size and population ---> large problems only national govt. ---> large problems only national govt. could handle.could handle.

B. Problems tend to be more national B. Problems tend to be more national (and even international) in scope, e.g., (and even international) in scope, e.g., pollution, crime, global economy.pollution, crime, global economy.

C. Improved communication and C. Improved communication and transportation -- Washington D.C. not so transportation -- Washington D.C. not so far away.far away.

D. Historical developments (New Deal, D. Historical developments (New Deal, WWII, Great Society) created huge WWII, Great Society) created huge bureaucracies and constituencies to bureaucracies and constituencies to support a strong fed. govt. Once federal support a strong fed. govt. Once federal programs are started, they are difficult to programs are started, they are difficult to end because of the political support that end because of the political support that has developed for them.has developed for them.

Backlash Against Big Backlash Against Big GovernmentGovernment

A.A. General consensus in General consensus in late-70s that power of govt. late-70s that power of govt. had gone too far.had gone too far.

B.B. 4 of last 5 Presidents 4 of last 5 Presidents have been "outsiders" have been "outsiders" (Carter, Reagan, Clinton, (Carter, Reagan, Clinton, Bush 43).Bush 43).

C.C. Questionable Questionable effectiveness of some fed. effectiveness of some fed. programs, e.g., Great programs, e.g., Great Society programsSociety programs

D.D. Tax revolt (Prop 13, Tax revolt (Prop 13, Mondale's "pledge" to raise Mondale's "pledge" to raise taxes, Reagan tax cuts, Bush taxes, Reagan tax cuts, Bush 41’s "read my lips," tax cuts 41’s "read my lips," tax cuts even under Clinton, Bush 43 even under Clinton, Bush 43 tax cuts).tax cuts).

Backlash against big Backlash against big governmentgovernment

E.E. Reduction of Great Society-Reduction of Great Society-style fed. aid to cities, and style fed. aid to cities, and restoration of principle that restoration of principle that states should take on more states should take on more responsibilities:responsibilities:

1. Reduction of 1. Reduction of categorical grantscategorical grants..

2. Increased use of 2. Increased use of block grantsblock grants..

3. Reduction of fed. 3. Reduction of fed. regulations, e.g. granting of regulations, e.g. granting of waivers to states that want to waivers to states that want to experiment with welfare experiment with welfare reform.reform.

4. 1996 welfare reform 4. 1996 welfare reform bill that ended welfare as bill that ended welfare as federal entitlement.federal entitlement.

5. Restrictions on 5. Restrictions on future future unfunded mandatesunfunded mandates as as part of Contract with America.part of Contract with America.

Effects of New Federalism and Effects of New Federalism and Devolution Revolution: a mixed Devolution Revolution: a mixed

bag.bag.Clinton declared in 1996 that “The era of big Clinton declared in 1996 that “The era of big government is over.” Supporting evidence of government is over.” Supporting evidence of this:this:

-Welfare reform bill,-Welfare reform bill,

-Repeal of 55 m.p.h. limit-Repeal of 55 m.p.h. limit

-Restrictions on future -Restrictions on future unfunded unfunded mandatesmandates

-More -More block grants/lessblock grants/less categorical grantscategorical grants..

Tax cuts under both Clinton and Bush 43Tax cuts under both Clinton and Bush 43

Effects of New Federalism Effects of New Federalism and Devolution Revolutionand Devolution Revolution

However, even Republican Congresses increased However, even Republican Congresses increased national power:national power:

1.1. 9-11 and an increase in big government to deal 9-11 and an increase in big government to deal with terrorism.with terrorism.

2.2. Wars in Afghanistan and Iraq led to huge military Wars in Afghanistan and Iraq led to huge military spending increases. Massive budget deficits spending increases. Massive budget deficits (>$500 billion) under Bush 43(>$500 billion) under Bush 43

USA Patriot Act of 2002 gave strong powers to USA Patriot Act of 2002 gave strong powers to national government to deal w/terrorismnational government to deal w/terrorism

NCLB Act imposed significant burdens upon NCLB Act imposed significant burdens upon states.states.

Addition of prescription drug benefit for Addition of prescription drug benefit for Medicare, a program that was/is already under Medicare, a program that was/is already under tremendous financial pressure.tremendous financial pressure.

Huge growth in congressional “earmarks:” pet Huge growth in congressional “earmarks:” pet projects that members of Congress set aside for projects that members of Congress set aside for their districts/states.their districts/states.

EffectsEffects Economic crisis of 2008-2009 led to Economic crisis of 2008-2009 led to

massive federal spending bills to massive federal spending bills to stimulate the economy and bail out stimulate the economy and bail out failing corporations. The 2009 deficit failing corporations. The 2009 deficit alone was ~ $1 trillion, which was alone was ~ $1 trillion, which was what the entire national debt was in what the entire national debt was in 1980. Given this kind of spending, 1980. Given this kind of spending, and given the renewed regulatory and given the renewed regulatory role of the federal government in the role of the federal government in the economy, it is difficult to say that economy, it is difficult to say that “the era of big government is over.”“the era of big government is over.”