Constitutional Underpinnings. Unit 1

Transcription

1 Constitutional Underpinnings Unit 1 1

2 The Constitution THE ENLIGHTENMENT - the time framers of the Constitution lived - challenged traditional views of the relationship between the people and their government. - enlightened ideas became the dominant philosophical and political views of the time. Leaders such as Benjamin Franklin, Thomas Jefferson, and James Madison used Enlightened ideas to justify their opposition to the British government.

3 The Constitution (cont) KEY ENLIGHTENED IDEAS 1. Reason - the absence of intolerance, bigotry, and superstition. - used to solve social problems and improve society. 2. Natural laws - regulate human society. - discovered by human reason. 3. Progress -Social progress is possible. -The discovery of laws of government would improve society and make progress inevitable.

4 Constitution(cont.) 4. Liberty Europeans lived in societies governed by absolute monarchs who restricted speech, religion, and trade. Enlightened writers wanted to remove these limitations on human liberty. Enlightened thinkers believed that intellectual freedom was a natural right. Progress required freedom of expression. 5. Toleration Enlightened thinkers opposed superstition, intolerance, and bigotry. They advocated full religious tolerance.

5 Constitution(cont.) C. KEY POLITICAL WRITERS 1. John Locke ( ) - people are born with "natural rights" that include "life, liberty, and property." - people form governments to preserve their natural rights. - government is therefore based on the consent of the governed. - Government is a contract in which rulers promise to protect the people's natural rights. - If rulers betray the social contract, the people have a right to replace them. 2. Charles de Montesquieu ( ) - In his Spirit of the Laws - the ideal government separated powers among legislative, executive, and judicial - divided authority would protect the rights of individuals by preventing one branch of government from gaining unrestricted control over the entire society.

6 Constitution(cont.) 3. Jean-Jacques Rousseau ( ) In his Social Contract, Rousseau argued that the sovereign power in a state does not lie in a ruler. It resides in the general will of the community as a whole. Rulers are the servants of the community. If they fail to carry out the people's will, they should be removed.

7 CONSTITUTIONAL DEMOCRACY 7

8 LESSON 1 Defining Democracy 8

9 WHY WAS DEMOCRACY SEEN AS A BAD THING TO THE FOUNDING FATHERS? Formerly a term of derision - Positive meaning only in last 100 years Distinguishing feature of democracy is that government derives authority from its citizens DIRECT DEMOCRACY Rule by the people and 1) individual participation on legislation or policy or 2) making decisions without delegating authority to elected representatives Only example in original Constitution is the election of House of Representatives Modern day examples: Election of United States Senators 17 th Amendment Direct primary - voters, rather than party leaders or other elected officials, select who may run for office Referendum - procedure for submitting to popular vote measures passed by the legislature or proposed amendment to a state constitution (can only be done at the state level) Initiative - procedure whereby a certain number of voters may, by petition, propose a law or constitutional amendment and have it submitted to the voters (can only be done at the state level) Recall - procedure for submitting to popular vote the removal of officials from office before the end of their term (can only be done at the state level) Founding Fathers feared direct democracy >> fear of MOB RULE or MOBOCRACY 9

10 HOW WAS A REPRESENTATIVE DEMOCRACY (REPUBLIC) BETTER? REPRESENTATIVE DEMOCRACY Authority is delegated to elected representatives to make decision on behalf of citizens People vote >> Representatives >> make law (public policy) This is today s meaning of democracy Representative democracy = republic Republic Same as indirect democracy Solves problems of direct democracy Secures the advantages of direct democracy while curing its weaknesses Constitutional democracy refers to a government that enforces limits on those who govern and allows people to be heard through free and fair elections Constitutionalism refers to how power is granted, dispersed, and limited 10

11 WHAT ARE THE CORE BELIEFS IN AMERICAN DEMOCRACY? 1. Individual liberty All individuals must have the opportunity to realize individual goals (Individualism) Every individual has rights; these rights are the source of all legitimate governmental authority and power (Limited Government) John Locke and the social contract theory Freedom of expression; Right to assemble and protest Opposite of statism (state supreme over individual) 2. Popular consent Governmental power from people A willingness to lose if majority removes support 3. Equality of opportunity Jefferson's Declaration of Independence statement ( All men are created equal ) What kind of equality? Equality of opportunity? Role of FDR s 2 nd Bill of Rights: economic security 11

12 WHAT ARE THE CORE BELIEFS IN AMERICAN DEMOCRACY? 4) Free and fair elections Held at frequent intervals; decided by majority rule All citizens should have equal voting power Existence of opposition political parties 5) Majority rule Those with the most votes assume power Majority still respects minority views Constitution reflects fear of tyranny by majority 6) Religious Faith & Freedom 12

13 WHAT ARE THE FOUR THEORIES OF HOW POWER IS DISTRIBUTED IN OUR DEMOCRATIC SYSTEM? Majoritarian (traditional) theory Leaders are heavily influenced by the will of the people Elite theory Society is divided along class lines and that an upper-class elite rules Wealth is seen as the basis of power Pluralist theory Many centers of influence compete for power and control over public policy, with no one group or set of groups dominating (Factions are good) Pluralists view bargaining and compromise as essential ingredients to democracy Hyperpluralism Pluralism gone sour There are so many groups, and they are so strong, that government has become gridlocked and is unable to act (Too many factions) ALL THEORETICAL NONE ARE CORRECT/INCORRECT 13

14 LESSON 2 The Roots of the American Constitution 14

15 WHY DID WE COME UP WITH THE ARTICLES OF CONFEDERATION (AND A CONFEDERATION)? LOOK AT THE NAME OF OUR COUNTRY Declaration of Independence >> Revolutionary War >> Articles of Confederation (1781) and its weak central government U.S. began as a confederation (a firm league of friendship ) Weak national government true power is in the hands of the state legislatures States retained sovereignty, freedom, and independence Unicameral Congress in which each state had one vote No executive branch or judicial branch 15

16 Flaws THE ARTICLES OF CONFEDERATION Congress lacked the power to levy taxes; had to ask the states for revenue Congress lacked the power to regulate or promote commerce among the states No chief executive and no national judiciary No national currency Laws required passage by 9 of the 13 states Amendments required unanimous consent of all 13 states Weak and inadequate central government STATES HAD MORE POWER THAN THE NATIONAL GOVERNMENT AND THAT WAS A PROBLEM! 16

17 SHAYS' REBELLION - losing their land because they could not pay debts in hard currency. - farmers demanded - end to foreclosures, - Tax relief - increased circulation of paper money. - forced several judges to close their courts. - convinced leaders that the Articles of Confederation were too weak and that the United States needed a stronger central government that could maintain order, protect property, and promote commerce.(rich people were worried about rebels taking their property)

18 Shared Ideas(Framers cont) Human nature - people were self-centered and selfish. - Franklin - "There are two passions which have a powerful influence on the affairs of men: the love of power and the love of money. Political conflict - unequal distribution of property is the primary source. It inevitably creates rival factions. - Society is divided into the propertyless majority and the wealthy few. Neither faction could be trusted so both had to be checked.

19 Shared Ideas(Framers cont) Purpose of government -Framers agreed with John Locke that "[t]he preservation of property is the end of government." - Both the rebellious farmers in Massachusetts and the radical debtors in Rhode Island alarmed the Framers. They feared the threat of "excessive democracy" posed by unruly state governments. Nature of government - The Framers agreed with Montesquieu that government should be limited and that power should be divided into separate legislative, executive, and judicial branches. - The Framers supported a limited government with specific powers and a carefully designed set of checks and balances.

20 THE CONSTITUTIONAL CONVENTION, 1787 Annapolis Convention in 1786 called for a convention to amend the Articles of Confederation Shays Rebellion acted as a catalyst to strengthen the Articles of Confederation THE DELEGATES Only 40 of 55 delegates actively participated Most influential men of nation - well-read, well-bred, well-fed, and wellwed Prime movers at the convention Alexander Hamilton, George Washington, and James Madison - Father of Constitution because of leadership and detailed notes of proceedings Secret proceedings to encourage intellectual flexibility and to weaken convention enemies Thomas Jefferson (who was an American minister to France) later called the delegates "an assembly of demi-gods." Success, however, was not inevitable. James Madison recognized that the delegates faced a daunting challenge. He later wrote that "[t]he necessity of gaining the concurrence of the convention in some system that will answer the purpose, the subsequent approbation of Congress, and the final sanction of the states presents a series of chances which would inspire despair in any 20 case where the alternative was less formidable."

21 CONSENSUS WHAT WERE THE THINGS THAT THEY AGREED UPON AT THE START? All delegates supported republican government; scrap Articles (after a week) Common philosophy was a general framework of government favoring the protection of property States would determine voting qualifications; suffrage for property owners only Provisions designed to increase the economic powers of the central government Agreed on national government consisting of a supreme legislative, executive, and judiciary branch Agreed on the need for a strong executive and an independent judiciary Stronger national government, but not tyrannical 21

22 CONFLICT AND COMPROMISE ON THE ISSUE OF REPRESENTATION The Virginia Plan (favored by more populous states) Representation in each house based on population and/or monetary contributions to the national government by the state Bicameral The New Jersey Plan (favored by small states) Representation in house would be equal among the states Unicameral The Connecticut Compromise - bicameral legislature. - House of Representatives - population (Virginia Plan) - Senate - two members from each state by the state (New Jersey Plan). 22

23 Consequences The Connecticut Compromise successfully resolved the dispute between the large and small states. - It continues to give less populous states a disproportionate influence in Congress. The 10 most populous states have a total of 20 Senators to represent 53 percent of the U.S. population. In contrast, the ten least populous states have 20 Senators to represent 3 percent of the U.S. population. 23

24 WAYS THE CONSTITUTION LIMITS MAJORITY RULE 1. An insulated Senate The Framers viewed the Senate as a bulwark against irresponsible majorities in the House of Representatives. State legislatures originally chose senators. (This practice was later changed when the Seventeenth Amendment established the direct election of senators by popular majorities.) The staggered term of service in the Senate made it more resistant to popular pressures. The Framers believed that the Senate would check popular passions expressed in the House Representatives. Washington later explained this function to Jefferson when he asked, "Why did you pour that coffee into your saucer?" "To cool it," Jefferson replied. "Even so," said Washington, "we pour legislation into the senatorial saucer to cool it." 24

25 LIMITATIONS ON MAJORITY RULE(cont) 2. An independent judiciary The judicial branch is insulated from popular control. Federal judges are appointed by the President and confirmed by the Senate. Federal judges serve until they resign, retire, or die in office. They can be removed from office only through the impeachment process. 3. An indirectly elected President The President is not directly elected by the popular vote. Instead, the Framers created an electoral collegecomprised of electors who would then choose a "distinguished character of continental reputation." (The electors are now "rubber stamps" who follow the popular majority in their states.)

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27 CONFLICT AND COMPROMISE ON THE ISSUE OF SLAVERY North-South Compromises Southern delegates insisted on a two-thirds majority in the Senate before presidents could ratify treaties Issue of representation in the House of Representatives was resolved by the Three-fifths Compromise counting of slaves (North happy South has to pay more taxes, South gets reps) (Slaves were 30% of population v. How can property vote?) 13 Amendment abolishes Slave Trade Compromise - forbidding Congress the power to tax the export of goods from any State, and, for 20 years, the power to act on the slave trade 27

28 CONFLICT AND COMPROMISE ON THE ISSUE OF THE PRESIDENT AND COURTS Election of the President Life term v. annual election >> compromise of a 4-year term Method of election: Some wanted election by Congress Some wanted election by state legislatures Some wanted direct election Compromise: Electoral College system Other issues Constitution establishes Supreme Court, but Congress may establish inferior courts CONSTITUTIONAL COMPROMISES (8:56) CC#5 28

29 TO ADOPT OR NOT TO ADOPT? FEDERALISTS VS. ANTIFEDERALISTS Main debate was primarily about the scope of power of the central government The Federalists wanted a stronger national government and weaker state governments (balanced relationship between federal and state governments) The Anti-federalists wanted a weaker national government and stronger state governments Federalists: Views Antifederalists: Views Elites most fit to govern Feared excesses of democracy Favored strong central government Feared concentration of power in hands of elites; Believed that government should be closer to the people Feared strong central government, favored stronger state governments Feared the lack of Bill of Rights (which would be added later to protect individual liberty) their strongest argument The Federalist essays (85 written by Alexander Hamilton, James Madison, and John Jay) helped the ratification process THE FOUNDING FATHERS UNITE (3:00) 29

30 WHY IS THERE A NEED FOR A GOVERNMENT? Natural law - law that defines right from wrong, which is higher than human law Federalist #10 FEDERALIST #10 VIDEO (7:28) FEDERALIST #10 (SELECTED READING, FLOW CHART, PPT) Source of contention property But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those that have it want to keep it (and get more) Those that don t have it, want it (and the Founding Fathers didn t want to lose their property) Factions are inevitable, but can be controlled with a large republic the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens. Federalist #51 FEDERALIST #51 VIDEO (6:11) FEDERALIST #51 (GRAPHIC) In framing a government which is to be administered by men over men the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. 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. 30

31 Test Question Federalist Papers influenced few of the New York delegates to ratify the Constitution. However, the Federalist Papers have had a significant influence on the AP U.S. Government and Politics Development Committee. Most exams include a multiple choice question devoted to Madison's contention that political factions are undesirable but inevitable. Reading Federalist No. 10 and No. 51 will help you prepare for free-response questions on the theoretical underpinnings of the Constitution.

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33 LESSON 3 The Constitution 33

34 HOW WOULD THIS NEW CONSTITUTION FIX THE OLD CONSTITUTION? Madison was concerned that government would be controlled by majority or minority factions >> factions best controlled by a large republic Minority can be suppressed by majority rule; Majority is more difficult to control Constitution is a supreme and binding law that both grants power to the government and limits the power of the government 34

35 MADISONIAN MODEL 35

36 WHAT WAS ONE OF MADISON'S THREE AUXILIARY PRECAUTIONS TO PREVENT TYRANNY? SEPARATION OF POWERS Allocation of constitutional authority to each of the three branches of the national government To Madison, tyranny was government that controlled all 3 branches of government >> division of power among the legislative, executive, and judicial branches Colonial experiences, e.g. excessive power in state legislatures >> need for strong executive Danger of one branch combining forces with another branch >> checks and balances 36

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38 WHAT WAS ONE OF MADISON'S THREE AUXILIARY PRECAUTIONS TO PREVENT TYRANNY? CHECKS AND BALANCES 1. Fear of tyranny among Founders >> distrust of government >> checks and balances as means of intentionally building inefficiency in order to prevent government abuse of power. 2. Each branch has a role in the actions of others (veto, veto override, appointment and confirmation, treaty making and ratification, defense funding and Commander-In-Chief) 3. Each branch is politically independent of the others 4. Power struggles among three branches (especially Congress and the president) 38

39 WHAT WAS ONE OF MADISON'S THREE AUXILIARY PRECAUTIONS TO PREVENT TYRANNY? CHECKS AND BALANCES 5. A majority of the voters can win control over only part of the government at one time. Staggering of terms within each branch >> a majority of voters can gain control over one part of government at one time, e.g. midterm congressional elections can serve as a check of the executive. 6. Independent national courts are provided 7. Political independence within each branch: no branch is dependent upon the other two for election (exception: judges are appointed by President) and continuance in office (life terms for judges ameliorate presidential influence) 39

40 CHECKS AND BALANCES(cont) EXAMPLES 1. Congress and the President Congress makes law - President vetos. Congress can override a presidential veto by a two-thirds vote in each house. The President negotiates treaties that must be ratified by the Senate. 2. Congress, the President, and the Supreme Court President nominates justices to the Supreme Court- Senate confirms The Supreme Court judicial review to declare laws and presidential acts unconstitutional. Congress can propose a constitutional amendment to reverse a Supreme Court ruling. The House of Representatives may, by majority vote, impeach Supreme Court justices and the President. The Senate may, by a two-thirds vote, convict and remove Supreme Court justices and the President.

41 CHECKS AND BALANCES(cont) CONSEQUENCES The system of checks and balances - slows change - encourages compromise. - means that the three branches are not completely independent Test writers often include a multiple-choice question asking students to identify an example of a constitutional check and balance.

42 MODIFICATIONS OF CHECKS AND BALANCES THE RISE OF NATIONAL POLITICAL PARTIES In theory, should weaken checks and balances a way of bringing the branches of government together. Constitution divides government, but parties bring people in government together. In reality, however, parties are weak: Dominance of only 2 parties >> each party has wide range of interests >> much disagreement within each party itself >> difficult to assert such strong control. Prevalence of divided government, e.g. a president of one party and a congress of the other. 42

43 MODIFICATIONS OF CHECKS AND BALANCES EXPANSION OF THE ELECTORATE AND THE MOVE TOWARD MORE DIRECT DEMOCRACY Direct Primaries used more often than the caucus system Changes in voting methods Senators now chosen by people House Reps also chosen by people Presidents chosen by electors who vote as the people have voted Thus, members of two branches essentially chosen by same electorate >> weakening of checks and balances in theory; however, split ticket voting has changed this. 43

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45 JUDICIAL REVIEW MARBURY V. MADISON (1803) Framers did not specifically provide for judicial review Court could not enforce an unconstitutional law (Section 13 of Judiciary Act) Chief Justice John Marshall reasoned that judges should interpret the Constitution, not the President or Congress Judicial review became established due to this case A single person may challenge an existing law through judicial hearings Effects Litigation sometimes trumps legislation as a way to make public policy D.C. v. Heller (2008) - protects an individual's right to possess a firearm for traditionally lawful purposes McDonald v. Chicago (2010) - Second Amendment applies to the individual states 45

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47 LESSON 4 Formal and Informal Amendments 47

48 WHAT ARE FORMAL AMENDMENTS? FORMAL AMENDMENTS Written changes that are added to the Constitution Constitution should not change as an expression of basic and timeless personal liberties, but should adapt to changing conditions (amendment process) Legacy of the Articles: Unanimous vote to amend >> impractical >> desire to make process easier, but not too easy (near impossible today why?) Process of amending reflects federal system First 10 = Bill of Rights >> some rights are fundamental and should not be subject to majoritarian control 48

49 PROPOSING AND RATIFYING FORMAL AMENDMENTS 1) Proposed by 2/3 vote of each house of Congress Ratified by 3/4 of the state legislatures used 26 times 2) Proposed by 2/3 vote of each house of Congress Ratified by special conventions in at least 3/4 of the states used once (21 st amendment) A more directly democratic way. People elect delegates who state their positions on the proposed amendment. Citizens are in essence casting their votes on the amendment by voting for the appropriate delegates. 49

50 PROPOSING AND RATIFYING FORMAL AMENDMENTS 3) Proposed by a national constitutional convention called by Congress at the request of 2/3 of the state legislatures Ratified by 3/4 of the state legislatures never used 4) Proposed by a national constitutional convention called by Congress at the request of 2/3 of the state legislatures Ratified by special conventions in at least 3/4 of the states never used Constitutional Convention method never used because fear of runaway convention that might get out of hand and implement wholesale changes in the Constitution. o Disturbing questions: Will convention stick to only the matter at hand? Will it take on other issues? Who gets to be delegates? How are they selected? How is representation among the states to be determined? Seven year period provided for ratification (generally); Congress has the power to decide on a time period 50

51 INFORMAL CHANGE: THE UNWRITTEN CONSTITUTION INFORMAL AMENDMENTS What? DEFINITION - Changes to the Constitution that do not involve actually changing the wording of the Constitution Alters the meaning of the words already in the Constitution 51

52 INFORMAL CHANGE: THE UNWRITTEN CONSTITUTION INFORMAL AMENDMENTS Why? Constitution belongs to the living, not the dead (Jefferson) >> gets new blood over time (laws, amendments) Jefferson believed each generation might need new Constitution This hasn t occurred because of the informal changes that have allowed the Constitution to adapt to changing times (especially with Congress use of implied powers) 52

53 INFORMAL AMENDMENTS 1. CONGRESSIONAL ACTIONS Congress has passed laws that reinterpret and expand Constitutional provisions e.g., Commerce Clause allows Congress to regulate and promote interstate and international commerce Over time, Congress has passed many laws that define the Commerce Clause, including regulations on forms of commerce that didn t exist in 1789, such as railroad lines, air routes, and internet traffic 53

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55 INFORMAL AMENDMENTS 2. PRESIDENTIAL ACTIONS Executive privilege/executive orders (latter has the force of law) Executive agreements with other countries Right to send armed forces into hostilities Right to propose legislation to Congress and work to secure its passage 55

56 3. JUDICIAL ACTIONS INFORMAL AMENDMENTS The judiciary has been the most influential in interpreting the Constitution Article III defines the power of the judiciary very broadly, but does not specifically mention judicial review Supreme Court has changed constitutional interpretations to reflect new social economic conditions (Brown v. Board, Texas v. Johnson) 56

57 INFORMAL AMENDMENTS 4. CUSTOM AND USAGE Has democratized our Constitution (presidential and vice presidential TV debates) Examples - Cabinet, parties, committee system in Congress, senatorial courtesy, legislative veto, presidential nominating conventions 57

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59 ECONOMIC POWERS 1. The Framers assigned a high priority to economic issues. They agreed on the need for a strong national government to promote economic growth and protect property. 2. The Framers adopted a number of provisions to increase the economic power of the central government. For example, Congress was given the power to: Tax Pay debts Coin money and regulate its value Regulate interstate and foreign commerce Establish uniform laws of bankruptcy Punish counterfeiting Establish post offices

60 INDIVIDUAL RIGHTS Delegates agreed on the importance of safeguarding individual rights. The Constitution includes the following protections of individual rights: It prohibits suspension of habeas corpus. A writ of habeas corpus is a court order requiring that an individual in custody be brought into court and shown the cause for detention. It prohibits Congress or the states from passing bills of attainder. A bill of attainder is a legislative act that inflicts punishment without a court trial. It prohibits Congress or the states from passing ex post facto laws. An ex post facto law punishes a person for acts that were not illegal when the act was committed. It upholds the right to trial by jury in criminal cases. It prohibits the imposition of religious qualifications for holding office.

61 AMERICAN FEDERALISM 61

62 LESSON 5 Dual and Cooperative Federalism 62

63 FEDERALISM DEFINITION - Constitutional division of powers between the national government and the states; both get their powers from Constitution, not each other Constitution (federally based) replaced Articles (confederation based) Federal system is NOT as efficient as a unitary system (which can be good) Federalism issues are at the top of the political agenda along with the issue of devolution Since the New Deal in the 1930s to today, there has been a shift of power from the states to the national government; since 1994 elections there has been an attempt to return power to the states Federalism debates depend upon issue at stake and rival philosophies of national action vs. decentralization 63

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65 DUAL ( LAYER CAKE ) FEDERALISM Prevalent through ~ 1937 State governments and national government each remained supreme within their own spheres. Proper relationship between government and the states, portraying the states as powerful components of the federal government -- nearly equal to the national government. Powers and policy assignments of the layers of government were distinct, as in a layer cake. Suggested that the powers of the national government should be interpreted narrowly (Constitution gives the federal government limited powers and the rest should be to the states). 65

66 DUAL ( LAYER CAKE ) FEDERALISM Dual federalism is composed of four essential parts: The national government rules by enumerated powers only. The national government may rule only by using powers specifically listed in the Constitution. The national government has a limited set of constitutional purposes. The national government has only limited purposes. Each government unit -- nation and state -- is sovereign within its sphere. The relationship between nation and states is best characterized by tension rather than cooperation. Of primary importance in dual federalism is states' rights, which reserve to the states all rights not specifically conferred on the national government by the Constitution. According to the theory of dual federalism, a rigid wall separates the nation and the states. 66

67 DUAL FEDERALISM 67

68 COOPERATIVE ( MARBLE CAKE ) FEDERALISM Prevalent since ~ 1937 Mingling of responsibilities between the state and national government. Sharing powers & policy assignments, like a marble cake. Acknowledges a need for cooperation between state and federal governments. Suggests that powers of the national government should be interpreted broadly. 68

69 COOPERATIVE ( MARBLE CAKE ) FEDERALISM Cooperative federalism rejects that state and national government must exist in separate spheres and is defined by three elements: National and state agencies typically undertake government functions jointly rather than exclusively. The nation and states routinely share power. Power is not concentrated at any government level or in any agency. The fragmentation of responsibilities gives people and groups access to many venues of influence. 69

70 COOPERATIVE FEDERALISM 70

71 DIFFERENCE BETWEEN DUAL AND COOPERATIVE A critical difference between dual and cooperative federalism is how they interpret the elastic clause and Tenth Amendment. These two sections of the Constitution define the relationship between state and national governments. Article 1, Section 8, lists the enumerated powers of Congress and ends with the elastic clause, which gives Congress the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" meaning the enumerated powers. The 10 th Amendment reserves for states or the people powers not assigned to the national government or denied to the states by the Constitution. Dual federalism insists that powers not assigned to the national government are only for states and the people, and claims that the elastic clause is inflexible. Cooperative federalism restricts the 10 th Amendment and suggests supplements to the elastic clause. 71

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73 ADVANTAGES OF FEDERALISM FEDERALISM CHECKS THE GROWTH OF TYRANNY Inhibits formation of a single-interest majority If tyranny occurred in a few states, federal government could prevent its spread to others (e.g. Shays Rebellion). National government has only those powers granted to it - all others belong to states through Amendment 10. FEDERALISM ALLOWS UNITY WITHOUT UNIFORMITY No need for consensus on every divisive issue More suitable for geographically large nation allows for differences among states More suitable for heterogeneous people allows for differences FEDERALISM ENCOURAGES EXPERIMENTATION States are "laboratories" for public policy experimentation (gambling in NV, med marijuana in CA) States have been in the forefront on health care, voting, air pollution control programs 73

74 ADVANTAGES OF FEDERALISM FEDERALISM PROVIDES TRAINING FOR FUTURE NATIONAL LEADERS Training ground for state and local politicians to gain experience 20 of nation s 44 presidents served as governor of a state = executive office experience FEDERALISM KEEPS GOVERNMENT CLOSER TO THE PEOPLE Provides numerous arenas for decision-making Local and state politics involve citizens in large numbers (most Americans had a stronger allegiance to their state and state government) Multiple points of access for citizens 74

75 DISADVANTAGES OF FEDERALISM Promotes inequality because of states differ in the resources they can devote to providing services. Enables local interests to delay or even thwart majority support for a policy. Creates confusion because the different levels of government make it difficult for citizens to know what different governments are doing. 75

76 ALTERNATIVES TO FEDERALISM UNITARY SYSTEM Places all governmental power in one, central, geographic area (Britain) More efficient than a federal system (which can be a bad thing) Why don t we use it? Not used because too reminiscent of British rule (strong, distant government that becomes tyrannical) CONFEDERATION Sovereign states create a central government but carefully limit its power and do not give it direct authority over individuals (Example: The UN) States are supreme over central government Why don t we use it? Not used because too reminiscent of Articles (tried and failed) 76

77 LESSON 6 Powers of the Government 77

78 POWERS OF THE NATIONAL GOVERNMENT Powers granted ONLY to the national government are known as exclusive powers (Not all national powers are exclusive - such as tax) 1. Expressed (enumerated, delegated) powers Actually stated in the Constitution Many are listed (enumerated) in Article 1, Section 8 2. Implied powers Not stated explicitly, but suggested implicitly Importance of necessary and proper clause (elastic clause) Allow the national government to extend its powers beyond those enumerated in the Constitution 3. Inherent powers Not stated explicitly, but held by the national government by virtue of its being a national government. Some of these powers come from the Preamble (certain foreign policy powers such as immigration, diplomatic recognition, or acquiring territory). 78

79 EXPANSION OF CENTRAL GOVERNMENT FUNCTIONS These constitutional powers expand the power of the federal government 1. The Supremacy Clause 2. The Power to Regulate Interstate and Foreign Commerce 3. The War Power 4. The Power to Tax and Spend 79

80 EXPANSION OF CENTRAL GOVERNMENT FUNCTIONS 1. The Supremacy Clause States may not override national policies; this restriction also applies to local units of government, since they are agents of the states (Constitution and national laws are the supreme laws) The supremacy clause in the Constitution states that federal law takes precedence over state law when the laws conflict 80

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82 EXPANSION OF CENTRAL GOVERNMENT FUNCTIONS 2. The Power to Regulate Interstate and Foreign Commerce Through the commerce clause, Congress can regulate many activities and sustain other legislation as well Gibbons v. Ogden (1824) Only National government (Congress) may regulate interstate commerce Power is not shared with the states The federal government s role has been greatly expanded through the interpretation of this clause Heart of Atlanta Motel v. U.S. (1964) - Congress has a right to regulate individual businesses in the interest of promoting interstate travel Civil Rights Act of 1964 applied to private businesses because customers come from out-of-state 82

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84 EXPANSION OF CENTRAL GOVERNMENT FUNCTIONS 3. The War Power The national government has the power to wage war The president can send troops because he is commander-in-chief of the military 4. The Power to Tax and Spend By attaching conditions to its grants of money, Congress may regulate what it cannot directly control by law Congress can t technically legislate everything, but it can spend on virtually anything. States don t have to accept federal money, but if they do, they must follow federal guidelines (e.g. federal highway funds can be denied if a state s alcohol purchasing age is less than 21, federal education funds can be denied if states do not comply with No Child Left Behind Act) Federal strings attached to funding are ways in which the federal government can get its way on things. Recent example: Obamacare Supreme Court ruled it was a tax and that the federal government could require people to have healthcare 84

85 POWERS OF THE STATES States have RESERVED POWERS: the Constitution reserves for the states all powers not granted to the national government, subject only to the limitations of the Constitution Amendment 10 states that any powers not granted to the national government are reserved for the states Examples: Establishing voting requirements Running elections Establishing education Licensing professionals Protecting community health Establishing a vehicle code and state police 85

86 CONCURRENT POWERS Each state has concurrent powers with the national government Granted to Congress, but not denied by Constitution or courts to the states >> held by both national and state governments Examples: Taxing Borrowing Establishing court system Establishing law enforcement agencies Questions of federal/state authority are decided by courts 86

87 CONSTITUTIONAL LIMITS AND OBLIGATIONS Congress prohibitions Writ of habeas corpus shall not be suspended "except when in cases of rebellion or invasion the public safety may require it" Prohibits bills of attainder Prohibits ex post facto laws States prohibitions Cannot make treaties with foreign nations Cannot authorize private parties to engage in piracy Cannot coin money States prohibitions without congressional consent Cannot tax imports, exports, or foreign ships Cannot keep troops or ships in peacetime (except the National Guard) Cannot enter into compacts with other states or foreign nations which infringe upon national supremacy Cannot engage in war, unless invaded or in imminent danger National government cannot use powers to interfere with state responsibilities National government must guarantee to each state a republican form of government National government must protect states against domestic insurrection Note unfunded mandates and states' sovereign immunity cases 87

88 INTERSTATE RELATIONS Full faith and credit Clause requires each state court to accept civil judgments and public records of other state courts (Article IV, Section 1) Massachusetts Supreme Court legalized gay marriage in If a gay couple is married in MA, this clause suggests that other states must recognize the marriage. However, in the 1990s, Congress passed the Defense of Marriage Act, which allowed each state to define marriage, and in effect not recognize gay marriage if the state defined marriage as a union between a man and a woman. Interstate privileges and immunities (Article IV, Section 2) States must extend to citizens of other states the privileges and immunities granted to their own citizens States may not impose unreasonable residency requirements Extradition (Article IV, Section 2) Fugitives must be returned by the governor to the state from which they fled (some exceptions) Interstate compacts Establishes interstate agencies to resolve interstate problems (must be approved by Congress) 88

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91 LESSON 7 Centralists vs Decentralists 91

92 McCULLOCH V. MARYLAND John Marshall established the doctrines of implied national power and national supremacy McCulloch v. Maryland was significant in providing support for nationalism Maryland attempted to tax a branch of the Bank of the U.S.: It argued that taxing was one of its reserved powers. In addition, it argued that the Bank was unconstitutional, anyway. The Court s decision (under Marshall): Need for more flexible interpretation of the Constitution so that it would endure >> Bank was necessary and proper >> establishment of implied powers. Power to tax involves power to destroy >> states clearly not free to destroy the national government >> establishment of national supremacy. 92

93 FEDERAL COURTS AND THE ROLE OF THE STATES Actions by state and local officials can be challenged before a federal judge Preemption - federal laws take precedence over state and local laws (civil rights, water quality) Supreme Court has generally favored powers of federal government over the states 93

94 DEBATE BETWEEN CENTRALISTS AND DECENTRALISTS THE CENTRALIST (NATIONALIST) POSITION The Constitution is a supreme law established by the people; it was intended that the central government's powers be liberally defined The national government is a government of all the people, and each state speaks for only some of the people Constitution created by people ( We the people... ) and not the states Elastic, commerce, and taxing/spending clauses give great power to national government Powers go to states only if they have been surrendered by national government When in doubt, matter should be resolved in favor of national government Implied loose interpretation of the Constitution While state govt s may be closer to people, some of those state governments have violated people s basic rights (e.g. South during first 70 years of 20 th century) national government has been key protector of rights 94

95 DEBATE BETWEEN CENTRALISTS AND DECENTRALISTS THE DECENTRALIST (STATES RIGHTS) POSITION The national government is nothing more than an agent of the states, and every one of its powers should be narrowly defined Constitution carefully limits national authority to delegated powers The 10 th Amendment prohibits the national government from using delegated powers to interfere with activities reserved for the states 10 th Amendment gives broad powers to states When in doubt as to which holds a power, matter should be resolved in favor of states Implies strict interpretation of the Constitution National government has gotten too big and impersonal State governments are closer to the people 95

96 DEVOLUTION REVOLUTION Shifting of some authority from national government back to the states Associated with Nixon, Reagan, and especially associated with 104 th ( ) and 105 th ( ) Republican Congress: Devolution Revolution 1980s (Reagan) started shifting the responsibilities and costs for many programs to state governments Example: Use of block grants in Welfare Reform Bill of 1996 (ended welfare as federal entitlement program and gave control to the States) Unfunded Mandates Reform Act of 1995 restricted future unfunded mandates Use of block grants to replace categorical grants 96

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98 DEVOLUTION REVOLUTION Supreme Court actions consistent with devolution: Struck down Gun Free School Zones Act in 1995 Congress overextended itself when it linked gun control laws to the interstate commerce clause of the Constitution. Struck down part of the Violence Against Women Act in 2000 Rape victims could not sue their attackers in federal court because it was up to the states not Congress to give such help to women victimized by violence. Again, the Court said that the Congress overextended itself with the use of the interstate commerce clause in passing the Act. Struck down Religious Freedom Restoration Act in 1993 This act had restricted the power of the states to regulate religion >> this ruling gave states greater authority to regulate religion. Struck down Brady Act in 1997 Law required local law enforcement agencies to do background checks on gun buyers. 98

99 LESSON 8 Fiscal and Regulatory Federalism 99

100 FISCAL AND REGULATORY FEDERALISM THE CARROT AND THE STICK To use a common metaphor, the national government uses the need for fiscal assistance as both a carrot and a stick. The CARROT is the federal dollars needed by the state, which come in the form of grants-in-aid. As citizens needs expand, the states look to the national government to assist in meeting the financial aspects of fulfilling those needs. FISCAL FEDERALISM = THE CARROT The STICK comes in the form of regulation and compliance with federal mandates to receive the money or to continue to obtain grants-in-aid. Regulations such as minimum wage, speed limits, and handicap accessibility are examples of sticks, or mandates, that states must comply with to receive the national funds. REGULATORY FEDERALISM = THE STICK 100

101 FISCAL FEDERALISM ( THE CARROT ) Fiscal federalism is the model of spending, taxing, and providing grants in the federal government system. The national government s primary means of influencing state governments is giving money to states in the form of grants-in-aid (or grants). Since World War II, states have come to rely heavily on federal money. Likewise, the national government has also relied on the states to administer some federal policies, a practice called fiscal federalism. The nation s leaders originally designed them to help fund agriculture, land grant colleges, and farm-related education. They grew to encompass many other types of funding such as public housing, urban development, and school lunch programs. 101

102 WHAT ARE FEDERAL GRANTS? Federal revenue given to state and local governments to establish minimum national standards in important areas (air quality, water quality) PURPOSE OF FEDERAL GRANTS To equalize resources among the states (both rich and poor) To attack national problems, yet minimize the growth of federal agencies (reduces growth of federal bureaucracy >> federal government simply provides money to states and has states run the programs - under federal guidelines, of course) 102

103 CATEGORICAL GRANTS TYPES OF FEDERAL GRANTS Congress appropriates funds for specific purposes (e.g. roads, airports, housing, bilingual education) States don t have to accept these, but if they do they must comply with federal standards >> weakens the power of state governors and legislators BLOCK GRANTS Granted to support a collection of general programs (e.g. transportation, urban development, education) >> more state leeway in spending of the money = few federal restrictions Associate these with 104 th and 105 th Republican Congress and devolution of power back to states PROJECT GRANTS Money states apply for by submitting specific project proposals FORMULA GRANTS Money given to states according to a mathematical formula 103

104 THE POLITICS OF FEDERAL GRANTS Arguments about what constitutes desirable public policy, where power should be located, and who will gain or lose by the various types of grants Iron triangles or issue networks: interest groups, congressional committees, and federal bureaucrats form forces and are effective in protecting programs The battle over the appropriate level of government to control the funds tends to be cyclical 104

105 THE POLITICS OF FEDERAL GRANTS DEMOCRATS have generally favored greater funding, but with more strings associated with categorical grants. REPUBLICANS have generally favored less funding, but with fewer strings associated with block grants. Welfare is an example of this. End of entitlement status of AFDC and federal guarantee of welfare checks with passage in 1996 of Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Reform Act of 1996). Welfare block grants therefore replaced the welfare categorical grants. Even as a block grant, the Welfare Reform Act involved federal strings. No federal funds go to recipients who have not worked within 2 years. No federal funds go to recipients who have received federal money >5 years. States must spend at least 75% of what they had previously spent on welfare this to avoid the race to the bottom. 105

106 THE POLITICS OF FEDERAL GRANTS An exception to the fewer strings approach by the Republican Party is its support of the No Child Left Behind Act of 2002: In order to receive federal funds for education, states must: Adopt subject matter standards. Test all students in grades 3-8 on those standards. Identify low-performing schools based upon that testing. Require low-performing schools to develop improvement plans. Allow parents of students in such schools that do not improve to transfer to other public schools. 106

107 REGULATORY FEDERALISM ( THE STICK ) One way for Congress to pass mandates is to impose regulations and standards on state and local governments. In the past, Congress has forced state governments to meet certain federal guidelines. This is known as regulatory federalism. 107

108 WHAT ARE FEDERAL MANDATES? Mandate: a federal order imposed upon states. The federal government, through laws and regulations, sometimes imposes requirements known as federal mandates on state, local, and tribal governments and entities in the private sector to achieve national goals. Examples: Americans with Disabilities Act (governors and mayors don t like because of costs to remodel) Various environmental acts (e.g. Clean Air Act, Clean Water Act). Individuals with Disabilities Education Act. Purposes: to meet a goal of the federal government. 108

109 WHY DON T STATES LIKE FEDERAL MANDATES? Impact upon the states: Financial burdens, especially with unfunded mandates (e.g. ADA has imposed large costs upon states as they make reasonable accommodations for the disabled). State complaints about federal heavy-handedness (e.g. if a state does not devise a plan and pay for the requirements of the Clean Air Act of 1990, the federal government will impose its own plan upon the state). State complaints about federal blackmail (e.g. if a state doesn t comply with the Clean Air Act standards, federal funds can be withheld in other programs). State complaints that federal government is altering the nature of federalism with its excessive power. Republican response to mandates: Unfunded Mandates Reform Act of 1995 (part of Contract with America) restricted future unfunded mandates. Required CBO to analyze impact of unfunded mandates on states. Requires separate congressional vote on bills that impose unfunded mandates. This is another example of the Devolution Revolution associated with the 104 th Congress. 109