FEDERALISM YOU RE NOT THE BOSS OF ME! (OH WAIT, YES YOU ARE.) THE CONSTITUTION AND FEDERALISM THE FRAMERS OF THE CONSTITUTION 55 delegates met in Philadelphia to revise (but later replace) the Articles of Confederation Known as the Framers - well-educated, politically savvy men of property Ex: George Washington, James Madison, Ben Franklin, Alexander Hamilton, Roger Sherman, etc. 1
PHILOSOPHIES OF THE FRAMERS factions- groups within govt that are in conflict with one another over policy (ex: political parties, interest groups) Framers saw factions in people with property vs. those without Rights, like property, must be protected and factions (minority or majority) kept from taking control PROBLEMS AT THE CONSTITUTIONAL CONVENTION 1.) State Equality: How would the states be represented in the new govt? New Jersey Plan - unicameral legislature (one house) with equal representation (each state has same # of representatives) OR Virginia Plan - bicameral legislature (two houses) with representation based on state population (bigger state pop. = more representatives) HOW WOULD THE STATES BE REPRESENTED IN THE NEW GOVT? SOLUTION: The Connecticut Compromise Bicameral legislature Senate with equal representation (each state gets two senators) House of Representatives based on state pop. (more pop = more reps) 2
SLAVERY AND WHO VOTES 2.) Population Equality: How do we deal with slavery? SOLUTION: 3/5 Compromise -3 out of 5 slaves would count toward state representation 3.) Voter Equality: Who gets to vote? SOLUTION: Let the states decide voting qualifications. 4. HOW DO WE STABILIZE THE AMERICAN ECONOMY AND KEEP THE STATES IN LINE? SOLUTION: Give Congress the power to: -tax, spend, borrow, and coin money -regulate interstate and international commerce (trade) -build roads and post offices Also prohibit the states from: -making their own money -taxing imports from other states PROTECTING INDIVIDUAL RIGHTS 5.) Individual Rights: How do we protect them? (pre-bill of Rights) SOLUTION: -writ of habeas corpus - you must be told why you re being arrested (proof shown) -no bills of attainder (law punishes without trial) -no ex post facto laws (punishment for past actions at the time it was legal) -criminal cases have trials by jury 3
THE MADISONIAN SYSTEM James J-Mads Madison--> Father of the Constitution Thought govt was in danger of tyranny by factions, especially the majority Question: How do we keep the majority from controlling everything? HOW DO WE KEEP THE MAJORITY FROM CONTROLLING EVERYTHING? ANSWER: Limit power of the majority whenever possible. -establish a republic - form of govt where people rule through elected representatives, not directly (aka indirect democracy) LIMITING GOVT UNDER MADISON S SYSTEM Separation of Powers - each branch of govt (legislative, executive, judicial) is mostly independent so one branch cannot control the rest (but still share powers) Checks and Balances - system where the branches must approve the actions of the others to balance power and keep all branches equal 4
RATIFICATION The Constitution was signed on September 17, 1787 needed 9/13 states to ratify (approve) it before it could go into effect Madison, Hamilton, and Jay write The Federalist Papers to convince states like NY and VA to ratify THE DEBATE OVER RATIFICATION Team Federalist strong national govt (weak state govts) govt run by the landowners, educated, and experienced indirect elections of officials with longer terms Constitution adequately protected rights already Team Anti-Federalist strong state govts (weak national govt) govt run by the common people direct elections of officials with shorter terms wanted Bill of Rights to protect individual rights 5
OUTLINE OF THE CONSTITUTION constitution - the basic set of laws for a country; our instruction manual for govt and highest law of the land The U.S. Constitution has 7 articles (sections) ARTICLES Art. I - Legislative Branch Art. II - Executive Branch Art. III - Judicial Branch Art. IV - Concerning the States Art. V - Amending the Constitution Art. VI - Supremacy of the Constitution Art. VII - Ratification AMENDING THE CONSTITUTION The Constitution is a living document that can be changed over time as needed Has 27 amendments (changes to the original text) First 10 amendments = The Bill of Rights 6
HOW TO FORMALLY AMEND THE CONSTITUTION 4 methods: 1.) 2/3 each house of Congress proposes it, 3/4 state legislatures (38 states) ratify (26x) 2.) 2/3 each house of Congress proposes, 3/4 state conventions ratify (1x) 2.) 2/3 of national convention proposes, 3/4 state legislatures ratify (x) 4.) 2/3 national convention proposes, 3/4 state conventions ratify (x) INFORMALLY CHANGING THE CONSTITUTION Actions in govt can unofficially /informally change the Constitution (not its literal text) Changed through: - judicial interpretation (ex: court rulings) - political actions (ex: political parties shape and control election processes) - Increased expectations of policymakers (ex: expansion of president s powers in times of war) ORGANIZING GOV T federalism - the division of govt power between national and state govts Both levels of govt rule over the same population of people i.e. we live under TX state laws and national (federal) laws at the same time opposite of a unitary government - consolidation of power in one central govt confederation - govt with a weak central govt and strong sectional govts (ex: states) 7
SUPREMACY OF NATIONAL LAW supremacy clause - found in Article VI, states: Constitution is the highest law of the land no govt law/action (national or state) can overrule it state laws are subordinate to national laws POWERS OF THE FEDERAL GOVT enumerated powers - powers specifically addressed in the Constitution Ex: Art. I gives Congress the power to tax, spend, declare war, regulate trade, coin money, etc. POWERS OF THE FEDERAL GOVT implied powers - powers hinted at /implied by the Constitution (often up to interpretation) based on the elastic clause (aka the Necessary and Proper Clause) - Art. I Sec. 8 Cl. 18 Congress can make laws that are needed and appropriate for the country, even if they re not specifically mentioned in the Constitution (ex: banks, food inspection, etc.) 8
MCCULLOCH V. MARYLAND (1819) State of Maryland taxed its branch of the national bank, believing the Bank of the U.S. to be unconstitutional because it was not mentioned in the Constitution Importance of the Ruling: Enforced that states were subordinate to national law Enforced the implied powers of the national gov t to create a national bank COMMERCE CLAUSE Congress can regulate interstate and foreign commerce (trade) How does this apply to the states? Congress can regulate: -commerce on roads, waterways, and airways -instruments that carry out commerce (ex: vehicles, ships, etc.) -items that move across state lines (physically or electronically) -matters that have a close effect on commerce GIBBONS V. OGDEN (1824) Gibbons and Ogden had competing steamboats that ran from NY to NJ NY gave Ogden a monopoly on his business while he operated under a federal license and Gibbons challenged it Importance of Ruling: Gave a broad definition of commerce to include almost anything of a commercial nature Congress (and its laws) controls trade between the states, not the states themselves 9
POWERS OF STATE GOV TS reserved powers - powers not given to the national govt by the Constitution and not forbidden to the states are left over to the states (10th Amendment) Ex: national elections, speed limits, marriage laws, etc. are state powers Can be addressed by national gov t if people want it to influence the states RELATIONSHIPS BETWEEN THE STATES Full Faith and Credit Clause - states must recognize the decisions, records, and rulings of other states extradition - states must return fugitives to the state in which they committed their crime privileges and immunities - states can t discriminate against citizens of other states (with exceptions, like voting in state elections) LAYER CAKE FEDERALISM Dual federalism - the national and state govts each have their own responsibilities and are sovereign in their own areas (think layer cake ) Ex: states control national elections, education, build roads National govt coins money, declares war, runs post offices 10
MARBLE CAKE FEDERALISM Cooperative federalism - the national and state gov ts must share power and policy responsibilities (think marble cake ); they re partners in govt Ex: both national and state govts investigate crimes, are involved in healthcare, education*, maintaining highways*, etc. WHAT S THE EASIEST WAY TO CONTROL THE STATES? FISCAL FEDERALISM fiscal federalism - when the federal govt provides funding (called grants-in-aid) to the states to carry out govt activities (laws, mandates, programs, etc.) can be used to influence actions of the states (if states want the money, they have to follow the federal govt rules) strings attached! (ex: $ to build highways = states setting drinking age to 21) 11
2 TYPES OF GRANTS 1.) categorical grants -states can only use this funding for specific things as the federal govt directs project grants - given for specific purposes to the best chosen applicant (ex: research) formula grants - legislation decides how they are given, not applications (ex: welfare) 2) block grants - broader grants that states have more choice in deciding how they re spent in a certain area (ex: community development) MANDATES Orders by the federal government for the states to implement programs if the states hope to keep federal funding Sometimes Congress doesn t set aside money for a law and states have to pay for it Examples include: Prohibition Medicaid (low-income health care) The bigger these programs get, the more the states have to pay for them 12
DEVOLUTION devolution - the transfer of policy responsibilities from the national govt to the state govts Basically, making national govt smaller by giving states more responsibility in governing SOOOOOOOOOOOOOOOOOOO HOW IS LIVING AT YOUR HOUSE LIKE FEDERALISM? You own a within the house Who makes the "rules" for YOUR room? Whose decisions outweigh your decisions? Your parents don't usually let you go anywhere without asking you to do something first examples What are your chores?" Do you get paid? States are smaller units within the country "Laws" for the state are made by the state Federal laws is supreme to the state laws Allowances from federal government usually come with strings attached (if you want federal highway funding, you will raise the drinking age). Federal government mandates "programs" and then does not fund the program. 13
HOW IS LIVING AT YOUR HOUSE LIKE FEDERALISM? Both you and your parents have assigned responsibilities, what are your responsibilities around the house? (Parental expectations) How does your family "share" the work-load? Federal and State governments have separate responsibilities (Federal protects the country/economy, the states protect general welfare of the people within their state) A lot of programs are "shared" by both the federal and state. What do you and your parents argue about? Can you think of any time when you came up with a solution and the family implemented it? Both levels are constantly seeking to maintain "power" States try new programs, if they work at state level, they are brought up to the federal level. FEDERALISM System of government in which powers are divided and shared by a central government and its sub-divisional governments POWERS OF THE NATIONAL GOVERNMENT DELEGATED POWERS Enumerated or Expressed powers Art. I Sec. 8 Declare war Mint money Regulate trade between states Etc 14
POWERS OF THE NATIONAL GOVERNMENT Implied powers powers that are inferred Do you think the founders considered the Internet Drug trafficking Airlines Electricity etc??? necessary and proper clause (elastic clause) SUPREMACY CLAUSE Article VI National law is supreme to all other laws passed by states Ex. Migratory Bird Treaty Act 1918-prohibit killing of birds Missouri argued that they can regulate hunting - 10 th Amendment Federal law supreme POWERS OF THE STATES Reserved powers powers not granted to the national government are reserved for the states. Public health, safety and morals of their citizens Where do we find this power? 10 th Amendment 15
CONCURRENT POWERS Concurrent powers powers that are shared by both federal and state governments. Examples include: To tax To define laws To punish criminals Many others RELATIONS AMONG STATES Article IV of Constitution Full Faith and Credit Clause each state must give Full Faith and Credit to the public Acts, Records and Judicial Proceedings of every other State. Extradition Article VI Privileges and Immunities Art. I Sec. 10 Interstate Compacts Ex. Drivers License Compact to help nationwide recognition of licenses 16
FEDERALISM AND THE SCOPE OF GOVERNMENT-WHY HAS THE FEDERAL GOV. GROWN SO MUCH? As the U.S. has changed from agriculture to industry, new demands for government arose. The national government answered with a national banking system, subsidies for railroads, and airlines and a host of other policies created to expand the economy. The formation of large corporations led to abuses and many interests asked the national government to regulate and encourage open competition. Farmers also sought services such as price supports Unions sought better working conditions, better pay, and a wide range of social policy. FEDERALISM AND THE SCOPE OF GOVERNMENT- WHY HAS THE FEDERAL GOV. GROWN SO MUCH? As we urbanized, we ve had new problems in housing, education, transportation, and the environment. The states lack the resources and authority to deal with such enormous problems. How do you deal with pensions for people who move from state to state if the states were responsible for something like social security? We, the American public have demanded that the national government take up the issues of the country because we know that the federal government has the resources to do so. DEVELOPMENT OF FEDERALISM The Marshall Court McCulloch v. Maryland (1819) - necessary and proper clause; state power to tax federal govt. Gibbons v. Ogden (1824) commerce clause Dual Federalism: The Taney Court, Slavery and the Civil War Separate and equally powerful state and national govt. Federal govt should not exceed the enumerated powers Dred Scott v. Sanford (1857) Mo. Compromise unconst l; Congress lacks authority to ban slavery in territories Post Civil War federal power grew (ex., Civil War Amendments, Sherman Anti-Trust Act of 1890) but Court maintained belief in dual federalism (ex. Plessy v. Ferguson (1896)) Late 1800 s - Congress takes more power 16 th Amendment power to collect income tax 17 th Amend direct election of Senators 17
DEVELOPMENT OF FEDERALISM (CONT.) Cooperative Federalism CF the intertwined relationship among nat l, state and local govt The New Deal First, Court ruled many programs unconstitutional Then, Court packing plan Then, Court allowed programs NLRB v. Jones and Laughlin Steel Co. (1937) allowed collective bargaining Fair Labor Standards Act- minimum wage Grants to States Morrill Land Grant Act 1862 New Deal Categorical Grants Cong gives funds for specific purposes DEVELOPMENT OF FEDERALISM (CONT.) New Federalism (1980 2001) Returning power to the states Reagan Revolution (Repub.) Block grants few strings attached New Federalism (1980 2001) Devolution Revolution Clinton (Dem) Repub controlled Cong Contract with America-scale back federal govt DEVELOPMENT OF FEDERALISM (CONT.) New Federalism (1980 2001) (cont.) Devolution Revolution Clinton (Dem) Repub controlled Cong Contract with America-scale back federal govt Unfunded Mandates Reform Act 1995 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 State budget surpluses Bush Administration Sept 11 Department of Homeland Security No Child Left Behind Preemption Supremacy Clause Budget deficits 18
DEVELOPMENT OF FEDERALISM (CONT.) New Federalism (1980 2001) (cont.) The Supreme Court Returning power to states Abortion Webster v. Reproductive Health Services (1989) Planned Parenthood of Southeastern Penn v. Casey (1992) Commerce Clause US v. Lopez (1995) carrying guns near schools US v. Morrison (2000) Violence Against Women Act Sovereign Immunity 11 th Amendment Opposite decision - Family Medical Leave Act 19