Constitutional UnderpinningsUnit 1

AP US Government & Politics

Word Association

• Define government.

• What ideas come to mind?

• Define politics.

• What ideas come to mind?

• Do these words have a more positive or negative connotation in your view?

Can we be hopeful about politics?

A neutral view of politics

Harold D. Lasswell

• Who gets what, when, and how. (and where)

• All of us are political, we’re just not used to calling it that. You don’t have to take a class to get politics. Aristotle was correct when he wrote, “Man is by nature a political animal.”

Political Power

• Power – ability of one person to cause another person to obey them

• Authority – the legal (constitutional in our case) right to use power

• Legitimacy – what makes the law or leader worthy of being obeyed – (was the election fair? Is the leader abusing your rights?)

Learning Target 1A

• Describe the role that Greek, Roman and Enlightenment philosophy played in the development American political thought and the creation of our founding documents

Ancient Greece

• First civilization to break away from totalitarian rule and embrace democracy.

• “Demos” means people and “kratos” means rule or authority.

• Athenian men voted in the Assembly; they used the secret ballot, served on committees and juries, and performed military service.

• This form of “direct democracy” has never been practiced to such a full extent since.

Roman Empire

• Stretching from England to the Persian Gulf at its peak, Rome evolved from a monarchy to a limited representative democracy, to totalitarian state.

• Patricians (“fathers”) controlled the Roman Senate and the lower classes had their own less powerful representatives.

• The Romans contributed two major achievements to the story of democracy: a system of Codified Laws and a focus on Citizenship.

Roman Code of Laws

• The Laws of the Twelve Tables governed the Roman Empire.

• It was broken down into two parts: Public Law and Private Law.

• Public Law focused on the Roman state.

• Private Law focused on the behavior of the individual.

• The test of any law was “what a person of common sense and good faith would know to be right.”

Feudalism• After the collapse of the Roman Empire around 450 A.D., a

period of chaos reigned only to be soothed by the rise of the Catholic church in Europe.

• Feudalism emerged out of this, as well as the Crusades, in which Christians fought to gain back the Holy Land in the Middle East.

• The Lord of the Manor would rule over the lives of the serfs, who worked to make each manor as self-sufficient as possible.

• Knights served the Lord and fought to maintain prestige and to protect the manor and the castle.

• Serfs were bound to the soil and unable to gain any higher social standing. They were not educated and religious life was on the manor was controlled by the priest.

Renaissance

• Development of intellect and curiosity through artistic and scientific achievement.

• The printing press and use of the vernacular (native language instead of Latin) - more people to want to learn to read in their native language.

• Sea exploration to Asia and America - exposure of new ideas and cultures, as well as financial benefit (ownership of colonies and Mercantilist Theory).

• Curiosity beget more curiosity and people begin to question authority, especially that of the Pope, hence the Protestant Reformation.

• “Divine Right of Kings” was questioned by Enlightenment thinkers such as Locke, Montesquieu, and Voltaire.

Monty Python & the Holy Grail

• Dennis the Filth Peasant Meets King Arthur – hilarity ensues!

• https://m.youtube.com/watch?v=6ntPUq8K4wk

Machiavelli

• Machiavelli’s name is synonymous with tough and dirty politics (“machiavellian”)

• Author of The Prince. One of history’s first political scientists.

Machiavelli Quotes

• “The ends justify the means.”

• “It is better to be feared than loved.”

• “By no means can a prudent ruler keep his word. Because all men are bad and do not keep promises to you, you likewise do not have to keep your promises to them.”

Thomas Hobbes – The Leviathan

• Imagined what a life without government would look like, he painted a bleak picture in which there would be

• no industry; no culture; no navigation, no imports; no building; no knowledge; no account of time; no arts; no letters; no society; and continual fear of danger and violent death

• “and the life of man (shall be) solitary, poor, nasty, brutish, and short.”

• aka “The Purge” (?)

• One absolute ruler would take care of all, and by agreeing to be governed, you agree to the rules made by the ruler - give up freedom for safety and protection

Social Contract Theory

• “The only valid government is one based on the consent of the governed.” – John Locke

• Rulers and citizens enter into an agreement, or a social contract which can changed or abolished if the ruler abuses the people

• Government by the people, masses• Enlightenment view of “natural law” which

gives one the right be free because we were created by God

• The ruler should protect God-given rights. But what if the social contract is broken? Must man obey the ruler?

Locke’s influence on the US

• “…Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”

• Thomas Jefferson, Declaration of Independence

• The King and Parliament “broke the social contract” so it made our revolution, in our view, morally and politically right.

Declaration of Independence

• https://www.youtube.com/watch?v=jYyttEu_NLU

• Morgan Freeman and other Hollywood folks read the Declaration in dramatic fashion!

Learning Target 1B

• 1B - Explain the following concepts and identify multiple examples of each concept throughout history – separation of powers– checks and balances– popular sovereignty– limited government – federalism– judicial review

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Madisonian Principles of Gov’t in the Constitution

• Checks and Balances – a system where branches have some authority over others as a way to avoid one branch from becoming to tyrannical

• Federalism – division of power between central (national) government and individual states

• Judicial Review – The Supreme Court’s power to declare actions by the legislative or executive branch, or an individual state, unconstitutional

Madisonian Principles of Gov’t in the Constitution

• Popular Sovereignty – power to govern belongs to the people, gov’t based on the consent of governed

• Limited Government – gov’t is not all-powerful, and it does only what citizens allow

• Separation of Powers – division of gov’t between branches: executive, legislative and judicial

Can the masses govern effectively?

• Direct Democracy – citizens create/vote on laws• Problems

1. Impractical for reasons of time, expertise• How do you get 300 million people to vote multiple times per

day on issues they no nothing about?

2. Masses of people make unwise decisions based on emotions (remember…the Nazis and Hitler were elected fair and square!!)

• “The masses are turbulent and changing and seldom judge or determine right.” -Alexander Hamilton

Representative Democracy (Republic)

• Citizens elect representatives to governmental positions• Gov’t is the MEDIATOR between multiple viewpoints

– “Will of the people” (WotP) ≠ “Common interest” (CI)– EX. (WotP) Congress shouldn’t spend so much money –

our debt is too high already!! – vs. (CI) BUT…the Brent Spence Bridge on I-75 needs to

be rebuilt because it is a main artery of US commerce.• Reps are educated on issues by other Reps., staffers,

lobbyists and constituents.• Good News/Bad News - Prevents fast, sweeping changes• More Good News/Bad News - Minority rights more likely to

be protected

What makes a Democracy?

Urofsky’s “Root Principles of Democracy”

– argues that there are 11 principles and 3 overarching themes that

contributed to the evolution of American democracy

Learning Target 1C

• 1C - Differentiate among the following theories of governance and debate their merits and shortcomings– Pluralist– Elite– Hyperpluralist– Marxist– Bureaucratic– Majoritarian– Trustee vs. Representative model– “Politico” (not the website)

Pluralism

1. Modern society consists of many groups (ex. Economic, religious, cultural, ethnic.) that compete with each other to achieve goals

2. Groups that influence gov’t, work hard, and have largest membership get what they want

3. Even if the average citizen does not keep up with politics, their interests will be protected by their group. (EX. The NRA protects all gun owners not just their members – many folks are “free riders”.)

4. Groups must COMPROMISE to achieve goals

Pluralism

More on the Pluralist view

• Relatively low numbers of people join interest groups.

• Poor citizens have less opportunity to join interest groups or contribute to them.

• One can’t assume that group decisions are always in the best interest of the nation.

• There is no unified majority in the US that always acts together.

• Gov’t leaders must please groups to gain votes and money to be reelected.

• Groups must compete for gov’t services and favorable laws.

But on the other hand…We are pluralist because…

Elite Theory• Those who control the economic system control the political

system and the citizenry. • Politicians require massive funding to win elections, and rely on

corporations to supply them. Lawmaking is influenced by cash as well.

Elitism in Politics…

• Free speech is a First Amendment right – giving your hard earned money to a candidate or company is a form of free speech – your money does the talking.

• Corporations have the same free speech rights as individuals (Citizens United v. FEC 2010).

• Whether you buy a Big Mac or an iMac, you are implying you support the company and their business practices with your purchase. Your money does your talking.

• In a capitalistic free market society, government should not interfere with the marketplace.

But then again….• Inequalities in wealth do not give

everyone a fair chance to compete in the “marketplace of ideas”.

• Only those with the most money can have their ideas heard and good ideas are often silenced as a result.

• Limiting the influence of corporate money in the political process protects the rights of the minority, in this case, those without large sums of cash to donate.

• CENTRAL QUESTION:

• Is the Supreme Court right to interpret use of money as a form of free speech?

Elitism is constitutional…

Hyperpluralism

• “Pluralism on steroids”

• Too many competing voices total results in gridlock of government

• Society lacks the cohesion necessary to force compromise

• Impossible to agreupon what is in the common interest so consequently, very little gets done

Marxism

Friedrich Engels (l) and Karl Marx (r)

The League of Distinguished Bearded Gentlemen

Marxist Theory

• More of an economic and sociological theory, it argues that government operates to benefit the business owner (bourgeoisie) at the expense of the worker (proletariat)

• Sees class struggle as history's driving force – the haves vs. have-nots

• Sees capitalism-based elitism as antithetical to true democracy

• Think of the “Occupy Wall Street” movement

Bureaucracy

• Large, complex organization of appointed, not elected, officials.

• “bureau” – French for small desks, referring to the king’s traveling business men who set up small desks in town squares

• Bureaucracy = “government of small desks”

Max Weber

• Famous early 20th century economist, German

• Bureaucracy – well organized, complex machine that is a “rational” way for society to organize its business

Weber – Bureaucratic Theory

Characteristics • Hierarchical authority structure – chain of command• Task specialization – individuals have unique jobs,

division of labor• Extensive rules – clear policies for the organization to

follow• Clear goals – clearly defined mission• Merit principle – hiring and promotion based on

qualities, no jobs for favors• Impersonality – performance judged on productivity

Majoritarian Theory

• Argues that leaders are forced to follow the wishes of the people because majority rules

• There are more of “us” (the voters) than of “them” (the politicians)

• The classical theory of democracy in which government by the people is interpreted as government by the majority of the people

Edmund Burke

• an Irish political philosopher, writer, parliamentarian and intellectual

• changed his views often throughout his life – from anarchism to traditionalist conservatism.

• he is claimed by people on both the left- and right-wings as one of their own

• Trustee/Delegate model

Delegate/Trustee/Politico

• Delegate Model - Legislators should adhere to the will of their constituents, even if they disagree with them

• Trustee Model - Legislators should consider the will of the people but act in ways that they believe are best for the long-term interest of the nation

• Politico Model - Legislators should follow their own judgment (that is, act like a trustee) until the public becomes vocal about a particular matter, at which point they should follow the dictates of constituents

A Reminder…

• These are only theories. They are people’s perception of our democracy and the way it functions.

• Which theory is correct???– Pluralist – most popular today– Majoritarian – popular pre-1950’s– Elite – increasing (especially after the Citizens United

case)– Bureaucratic – gov’t spending more $ than ever before just

to run itself – not going away any time soon ex. - Department of Homeland Security was developed after

9/11. ex. - When “Obamacare” comes to full fruition, bureaucracy

will get even bigger and more specializedALL ARE CORRECT OR INCORRECT DURING

DIFFERENT HISTORICAL ERAS.

Learning Target 1E

• 1E – Outline the arguments for independence as presented in the Declaration of Independence (and the film 1776)

British Colonial Rule

Powerful British Government

Political Subunits (Colonies)

Unitary System – all power flows from one central government

Declaration Outline

• Introduction - “When in the course of human events…”

• Preamble – “We hold these truths…” – Social Contract theory & natural rights/law

• Indictment (accusations) – “He has…”

• Denunication - “Nor have we been wanting…” – criticism of lack of British support to peacefully negotiate

• Conclusion – “We, therefore…” include s the Virginia Resolution on Independence (shown in film)

Learning Target 1F

• 1F - Delineate the strengths and weaknesses of the Articles of Confederation and why, to a large degree, it was abandoned

Articles of Confederation

1781 – 1789 – RIP

Confederate System – power concentrated in political subunits (states) with a weak central government (typically unite for a common goal)

Articles of Confederation

• 1781-1789

• Original American gov’t system

• Weak central gov’t

• Individual and state liberties not threatened

• No executive (they hated kings)

• Confederacies are usually unstable

A of C – Weaknesses

• Article II – “Each state retains its sovereignty, freedom, and independence.” Gov’t has no control

• Unicameral Congress (one house) with one vote per state– Supermajority (9 of 13) to pass a law– Supermajority (13 of 13) to amend

• No Executive (No President), no central authority• No Federal Judiciary (No Supreme Court), no

central law• No control of taxation, commerce between states or

with foreign nations, money system

Shays’ Rebellion

• Colonies were in debt after the war, central gov’t tried to raise taxes

• Farmers in western Massachusetts rebelled against tax they could not afford

• Rebelled against foreclosures, forced judges out of court, freed debtors from jail

• Showed that national gov’t was weak, needed to seek a stronger national gov’t

Learning Target 1G

• 1G - Describe the major revisions that were made, and the compromises that were struck, at the Constitutional Convention. What were “the great silences” – what was left out? Why?

The Constitutional Convention

• 1787• Revising the A of C• Demographics of Delegates

-55 delegates (none from RI)-33 Lawyers-half were college graduates-7 former governors-7 plantation owners-8 business leaders-age 26-81 (avg. age 42)-all male, all white

Two “Revision” Plans

• Virginia Plan– Favored large states– Strong central government– Bicameral (two house) legislature – larger

house elected by the people (House of Representatives, and a smaller house that was selected by larger house (Senate)

• (This would change in the 17th Amendment)

Two “Revision” Plans

• New Jersey Plan– Agreed with strong central government…BUT– Congress would be unicameral (one house)

with states having equal votes– Did not want large population states to

dominate the legislature

Great Compromise

• A bicameral legislature in which the House of Representatives membership apportioned according to the state populations, plus 3/5 the slave population

• An upper house, the Senate, which would have two members from each state, elected by the state legislature (popularly elected today)

Three-fifths Compromise

• Agree to allow the South to count 3/5 of the slave population in each state to balance the power of North and South

Constitution

Central US government

State governments

Federal System – powers are divided and/or shared between state and central governments (Current gov’t designed by framers)

Or the Venn Diagram

WDCFrankfortKY

Both

Amending the Constitution

• Meant to be difficult

• Require action from national and state gov

• Amendment proposed by 2/3 vote in each house of Congress and ratified (accepted) in at least ¾ of state legislatures

Fed vs. Anti-Fed

• Ratification – formal approval

• Federalist – in favor of adoption of US Constitution creating a federal union and strong central government

• Anti-Federalist – opposed to ratification in 1787, opposed to strong central government

Federalist Papers

• Annoyingly hard to read

• Best political theory ever written in US

• Written by Alexander Hamilton, James Madison, and John Jay

• Publius

• Convince public for ratification

Federalist #10“FACTION”

• Madison addresses biggest fear of gov’t

• Faction – a group in a legislature or political party acting together in pursuit of some special interest (think fraction – ½, 1/3, etc)

• Founding fathers were concerned that our government would be ripped apart

• Madison defends our national Constitution

Federalist #10 – “FACTIONS”

• Separation of Powers check the growth of tyranny

• Each branch of government keeps the other two from gaining too much power

• A republic guards against irresponsible direct democracy or “common passions”

• Factions will always exist, but must be managed to not destroy the system.

Federalist #51

• Madison said factions will always be present and that the only way to counteract the effects of factions is to have numerous factions.

• Even if individuals mingle with other members of the same social groups, ideals, and goals, no faction can become large enough to overthrow all other factions in a well-run democracy.

• “If men were angels, no government would be necessary.”

• “Ambition must be made to counteract ambition.”

Federalist #78

• Hamilton says that the Judiciary branch of the proposed government would be the weakest of the three

• It had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment."

• Federal judiciary has the power to determine whether statutes are constitutional, and to find them invalid if in conflict with the Constitution.

• This principle of judicial review was affirmed by the Supreme Court in the case of Marbury v. Madison (1803).

Anti-Fed Response

• Central gov’t would threaten liberty

• Aristocratic tyranny could happen

• States power was too limited (as compared to A of C )

• Demanded a guarantee of individual rights and liberty

Bill of Rights

• 10 amendments to the Constitution (originally 12 - 2 of them didn’t get ratified)

• guaranteed individual freedoms and rights

• limited power of national government, guaranteed rights to states

• Ratified in 1789, Bill of Rights added 1791

Learning Target 1H

• 1H - Differentiate between the “Necessary and Proper” Clause and the “Reserved Powers” Clause (and the other names they go by) of the U.S. Constitution and explain the fundamental contradiction between these two concepts as debated by Alexander Hamilton and Thomas Jefferson.

• SOCRATIC SEMINAR DISCUSSION IN CLASS

Learning Target 1I

• 1I - Explain the conceptual differences of the following terms related to Federalism and how we see these play out in today’s political climate

• Dual Federalism• Cooperative Federalism• Devolution• Grants-in-aid (Block and Categorical)• Mandates (especially unfunded mandates)• Revenue sharing

Disaster Relief

• Who’s job was it to clean up New Orleans and the rest of the coast after Katrina?

No Child Left Behind

• Should the national gov’t step in to regulate school performance?

What is Federalism?

• Federalism – Two or more governments exercise power and authority over the same people in the same territory

• OR… the relationship between the federal government (circle) and the state governments (squares)

Constitution

Central US government

State governments

Federal System – powers are divided and/or shared between state and central governments (Current gov’t designed by framers)

Or the Venn Diagram

WDCFrankfortKY

Both

Federalist #51

• Defends the Constitution

• Explains why a strong gov’t is necessary– “If men were angels, no government would be

necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

• Defends separation of powers between state and national gov’t

Powers

- Delegated Powers (enumerated powers) – powers specifically given to Fed gov’t by Constitution (Article I Section 8)

- Reserved Powers – powers reserved, or set aside, to the states (10th Amendment)

- Concurrent Powers – shared (middle of the Venn)

- Prohibited Powers – denied from both (Article I Sections 9 &10)

Elastic Clause

• Aka – “Necessary and Proper Clause” or “Implied Powers Clause”

• Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

• Impossible to predict all powers Congress will need to function, sometimes we might have to allow Congress extra powers to fulfill their delegated powers

McCulloch v. Maryland (1819)

Background

• Bank of the US operated in Maryland

• Maryland did not want BoUS to operate in state, competition unwanted, unfair

• Maryland taxed the bank to put it out of business

• McCulloch, BoUS employee, refused to pay the state tax

McCulloch v. Maryland (1819)

• Is a Bank of the US Constitutional?

• Remember, this is the same bank Hamilton lobbied for!

YES. The national gov’t has certain implied powers that go beyond delegated powers. US needs a national bank (implied power) for borrowing, lending, holding minted money, etc. (delegated powers)

McCulloch v. Maryland (1819)

Can a state tax the federal gov’t?

-NO. The federal gov’t is supreme. Since the BoUS is constitutional, only the feds may tax it.

-John Marshall reaffirmed both the Supremacy Clause and Elastic Clause

-National (Federal) Gov gets STRONGER

Commerce clause

• Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power - To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

• Congress has used the elastic clause to stretch this power

• What is commerce? “Buying and selling of goods and services.”

• Congress given the power to regulate commerce between foreign countries and US as well as state to state… they control business law.

Gibbons v. Ogden (1824)

• 1824 – aka “The Steamboat Case”

• Ogden received a NY state licensed monopoly to run a ferry across the Hudson River

• Gibbons also saw the potential of the traffic between NJ and NY and obtained a federal license.

• Ogden sued saying he had the valid NY state license, even though Gibbons had US license

Gibbons v. Ogden (1824)

Result – Gibbons wins

• Expanded national power in all areas of commerce law because the federal government overruled the state in interstate trade issues

• Again, the Fed Gov’t gets STRONGER

• All trade today is primarily controlled by national law

Commerce Clause

• Who cares? Why is it important?

• Gibbons v. Ogden ruling makes a loop hole giving Congress power to take control over any issue involving the movement of people, or things

• Health care? Controlled substances? Pollution? Education? What else?

• Fed gov’t power increased GREATLY

• But Congress has overreached at times…

United States v. Lopez (1995)

• 1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school - 12 year old Lopez carried a gun on to the property

• Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce”

• LIMITED National government power – Congress couldn’t use the commerce clause as a way to restrict guns

Gonzalez v. Raich (2005)

• Controlled Substance Act (1970) – US gov regulates the manufacture, importation, possession, and distribution of certain drugs

• Medicinal marijuana was legalized in California, but illegal to US government. Raich argued commerce clause should not take effect because 1) there were no business transactions and 2) there were no state border issues.

• Supreme Court ruled 6-3 against Raich saying that the federal government could trump state laws that permitted medicinal marijuana

• Will the Feds go after Colorado & Washington?

2 Federalisms?

• OLD SCHOOL – Dual Federalism – prior to 1932– Federal and state governments remain dominant

in their separate spheres of influence – boundaries of power respected (mostly)

– Gibbons v. Ogden proved life is not that simple

• NEW SCHOOL – Cooperative Federalism – after 1932 & the New Deal– State and Federal governments work together to

solve complex problems; after the New Deal

2 Federalisms

TWO METAPHORS…

• Dual Federalism – Layer Cake

• Cooperative Federalism – Marble Cake

Federal

State

Federalism “Cake Boss”

• Dual – Separate & Distinct Marble – Variegated & Integrated

Fiscal Federalism

• Fiscal means $

• Q – How do you get the states to do things they normally wouldn’t do?

• A – Money

• Q – What is the answer to any question ever asked?

• A – Money

Grants-in-Aid

• Money paid from one level of government to another to be spent for a specific purpose

• Categorical Grants - target specific purposes and “strings attached.” (States receive highway funds if state raised age to 21 and lowered BAC to .08)

• Block Grants – given for broad, general purposes and allow more flexibility and discretion on how the money is spent (ex. welfare reform, education, law enforcement)

Mandates

• A federal requirement that a state undertake a specific activity or provide a service

• Most mandates apply to Civil Rights and the Environment

• Often times the states or local gov’ts have to pay the bill of the mandate set by Congress – “unfunded mandates”

Devolution

• Devolution is the return of power to the state governments

• Idea is fueled by distrust of the federal government and the desire to save money by reducing the size of the “bloated federal government”

• Governors and Mayors really like this – gives more local control

Devolution Example

• Personal Responsibility and Work Opportunity Reconciliation Act of 1996

• Eliminated welfare and transferred the money to states as block grants

• States received wide latitude on how to administer “workfare” but with the knowledge that Congress was counting on anti-poverty spending

• Strings attached: head of family must work or lose benefit; lifetime benefits limited to 5 years; unmarried mother < 18 only receive $ if stay in school and live with adult; immigrants ineligible for 5 years

Federalism is good

Living under 2 governments is great…

• Built on compromise, promotes unity

• Gov’t duties can be split up

• Brings gov’t closer to people

• Allows for state gov’t to address issues in unique regions of the country

• Allows states to experiment with policy before enacting it at the federal level – Ex. Vermont’s free health care for children or Masschusetts health care (which is what Obamacare is based upon)

Federalism is bad

Living under 2 governments is bad…

• States can impede progress of Nation

• States are unequal

• States have different policies

• Easier for states to be dominated by interest groups than a whole nation