The Constitutional System Madisonian Democracy, Separation of Powers, and Federalism Madisonian Democracy Self-interest is the basic problem Everyone is self-interested Self-interest leads to conflict Solution: Representation & Dispersed Power Many power points so all groups represented Shared powers ensures no tyranny Pluralism The individual s influence in society is negligible, so interest groups & parties act as intermediaries U.S. Population = 327 million A single person acting alone doesn t have much influence A group of people (organization, political party) can influence political outcomes Because politicians pay attention to groups See Water Stone, Republic at Risk and James Madison et al., The Federalist Papers See Robert Dahl, Who Governs? (1961); Preface to Democratic Theory (1956); Bruce Bimber, The Internet and Political Transformation: Populism, Community, and Accelerated Pluralism. Polity 31 (1998): 133-160. Pluralism Groups compete for members/supporters Cross-cutting cleavages/conflicting loyalties: What group should Alba join? UCSB Dream Scholars Campus Democrats Eta Kappa Nu Engineers without Borders Los Ingenieros Nueva Vida El Congreso Gauchos against Fracking UCSB Fencing Club CalPIRG Pluralism Different groups become active in different policy areas No majority - just larger or smaller factions Organization is the key to success 1
College students Fellowships and loans Dream Scholars Taxes on graduate fellowships Only small groups of people become active Most people watch from the sidelines Activists have influence The elderly Social Security Medicare Prescription medical benefits In 2012 & 16, How Many Activists? Work for a candidate 3% Joined a protest march (last 4 years) 3% Go to meetings, rallies, speeches 7% Contribute money 8% Separation of Powers = Shared Powers 3 Branches of government: - Legislative - Executive - Judicial Campaign button/sign/bumper sticker 12% Contact senator or representative 11% Sign internet petition (last 4 yrs) 24% Talk to anyone about voting for or against a candidate 50% 0% 10% 20% 30% % 50% 60% 2016 2012 Source: Data from the 2012 and 2016 American National Election Surveys (www.sda.berkeley.edu) List of Shared Powers List More of Shared Powers President can grant pardons, thus overruling the federal Courts in criminal matters Legislation passed by Congress can be vetoed by the President Legislation that is passed & signed can be overruled by the Courts President can negotiate treaties, but they must be approved by the Senate Congress has the sole power to declare war, but the President must carry it out as Commander-in-Chief Cabinet members & other top govt officials are nominated by the President & confirmed by the Senate President is commander-in-chief, but the Senate must approve all military promotions Federal judges are nominated by the President & confirmed by the Senate President may be impeached by the House & Tried by the Senate w/ the Chief Justice as the judge 2
Why Separated Powers? Framers feared Tyranny They feared concentrated power (a King) They feared Tyranny of the Majority They feared the Whims of the Majority Electorate & Term of Office Original version Office Term Elected by: House of Representatives 2 yrs The People President 4 yrs Electoral college Senate 6 yrs State legislatures Supreme Court Justices Life President & Senate See Alexander Hamilton, James Madison, and John Jay, Federalist Papers, no. 10, 47, 51; Robert Dahl, A Preface to Democratic Theory (1956), Pluralist Democracy in the United States (1967). President Obama Possible Tyrant? Obama faced a system that gives great power to those who wish to block action Our system is designed to produce Gridlock Six Presidential Candidates President Obama & the Dream Act Dream Act (Development, Relief, and Education for Alien Minors) Introduced by Dick Durbin and Orrin Hatch, 2001 Reintroduced every Congress since then Person must have proof that they entered United States before the age of 16, continuously lived in the U.S. for at least 5 years, graduated from a U.S. high school or obtained a GED, & passed criminal background check Public Opinion Favors Dream Act Agree Disagree Not sure 6% 30% 64% Bloomberg National Poll, June 15-18, 2012, www.pollingreport.com/immigration2.htm 0% 10% 20% 30% % 50% 60% 70% "President Obama announced that the U.S. would halt the deportation of some illegal immigrants if they came here before age 16, have been in the country for five years, have no criminal record, are in school or have a high school diploma or have been honorably discharged from the military. Do you agree or disagree with this new policy?" 3
Obama Campaign Promises v. Reality Obama promised immigration reform and a path to citizenship He had to accept compromises with Congress He lost Barriers to Legislation Attention Hearings Subcommittee majority (in the House) Full committee majority (House & Senate) Rules Committee (in the House) Getting to the Floor Speaker discretion (House) Hold or potential filibuster (Senate) Floor passage House-Senate agreement Presidential signature Supreme Court review See Congress lectures/slides for a complete explanation 10,000 bills submitted 350 laws passed Madisonian Democracy Federalism: States vs. the National Government Solution: Representation & Dispersed Power Many power points so all groups represented Shared powers ensures no tyranny Result: Slow moving government Difficult to change policy in controversial areas Majority support for policies does not guarantee success See Water Stone, Republic at Risk and James Madison et al., The Federalist Papers SB 1070: An Arizona law making it a crime for a non-citizen to be in Arizona without carrying the required documents, requiring state law enforcement officers to determine an individual's immigration status during a "lawful stop, detention or arrest. It was challenged by the U.S. Dept. of Justice. The U.S. Supreme Court decided the case. Arizona v. United States, 2012 Federalism: Arizona v. United States The Court struck down three of the four provisions of S.B. 1070: Requiring legal immigrants to carry registration documents at all times Allowing state police to arrest an individual for suspicion of being an undocumented immigrant Making it a crime for an undocumented immigrant to search for or hold a job The Court allowed Arizona police to investigate the immigration status of an individual stopped, detained, or arrested if there is reasonable suspicion that the individual is an undocumented noncitizen. Dual Federalism (Original system, 1800s) National gov t supreme in areas specified in the U.S. Constitution State gov ts supreme in all other areas National and State gov ts have little interaction 4
Fiscal Federalism The practice of having the National gov t pay for state and local government programs Began in the 1930s Another boost in 1960s and early 1970s Along with money came requirements about how to spend it In recent years, complaints about unfunded mandates Marblecake Federalism As Federal money flowed to states, the federal and state govts began to interact and to cooperate in addressing problems They lobbied each other They established programs that addressed identical problems Picket-fence Federalism (Another metaphor describing current politics) Federalism: A set of rules for political conflict Under whose rules should immigration policy be decided--state or National? Figure 15.1 Sheriff Joe Arpaio Maricopa County, Arizona Mitch McConnell & Barack Obama Constitution gives power to the National government in Federal v. State Disputes U.S. Constitution, Art. 6, sec. 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Congress is given a long list of explicit powers + inferred powers U.S. Constitution, Art. 1, sec 8: Congress shall have Power To provide for the common Defense and general Welfare of the United States;... To regulate Commerce with foreign Nations, and among the several States,... 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 5
The President is given explicit powers + Executive Power U.S. Constitution, Art. 2, sec 1: The Executive Power shall be vested in a President of the United States of America. The Supreme Court Arbitrates Disputes U.S. Constitution, Art. 3, sec 2: The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; to Controversies to which the United States shall be a Party States Rights = Vague Promises U.S. Constitution, Amendment 10: The powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people Other Rights Exist, Not Clear What They Are U.S. Constitution, Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. In Federal-State Disputes the two sides are rarely National & State Civil Liberties Examples: Conflict over immigration policy Disputes over Civil Rights Pro-Life vs. Pro-Choice Conflict over climate change policy Opposing factions seek the venue (Federal or State) that favors them in the dispute 6
Civil Liberties Two Principles of Democracy Liberties: Individual Freedoms guaranteed in the Bill of Rights Free Speech, Free Press Religion Right to assemble & petition government Freedom from unreasonable search & seizure Freedom of individuals from Gov t power Limits on government Majority Rule Minority Rights Civil Liberties Principle vs. Practice Civil Liberties Restrictions driven by Political views The words of the First Amendment were not consistent with the law through most of our history Communists Socialists Democrats Republicans Fascists KKK The inconsistency spurred people to action Student free speech protesters asked, If the Constitution says Congress shall make no law restricting speech, why can t I criticize the war? The greater the distance between groups: The less they like one another The more they want to restrict civil liberties See Herbert McClosky and Alida Brill, Dimensions of Tolerance; John Sullivan, et al., Political Tolerance and American Democracy. Willingness to Tolerate Free Speech in Different Cases, 1976-79 How the Public Would Protect Political Speech, 1976-79 Nazis using the town hall 18 Employees differing with the boss about politics 8 31 58 People who denounce the government using the town 23 Employees reporting misdeeds by the boss 8 29 61 hall For foreigners who criticize the U.S. government 41 Advocating interracial marriage or dating 13 24 61 Airing crackpot ideas 50 Disagreeing with the president or other officials 7 28 64 For all, no matter how intolertant they are of other's 58 Speaking in favor of any candidate for public office 7 22 70 opinions 0 10 20 30 50 60 70 80 0 10 20 30 50 60 70 percent All the time Sometimes Not protected at all 7
How the Public Would Protect Subversive Speech, 1976-79 56 Using obscene gestures in 26 public 17 70 "In order to curb terrorism in this country, do you think it will be necessary for the average person to give up some civil liberties, or not?" 63 Advocating Satanism or cults in public 21 26 55 60 Advocating homosexual behavior Burning the flag to protest government action 12 26 27 28 45 59 50 30 32 Speaking in favor of a Communist country 25 34 20 Speaking in favor of a rightwing dictatorship 23 36 10 5 0 10 20 30 50 60 70 percent All the time Sometimes Not protected at all 0 Yes No Don't know Newsweek Poll, Sept 20-21, 2001 "In order to reduce the threat of terrorism, would you be willing to let the federal gov't monitor the telephone calls and e-mail of ordinary Americans" "Giving the government new power to detain legal immigrants suspect of crimes indefinitely" 60 60 51 54 50 45 50 30 30 28 20 20 16 10 10 4 2 0 0 Willing Not willing Don't know Strongly favor Accept if necessary Think it goes too far Don't know CBS/NY Times Poll, Sept 20-23, 2001 Newsweek Poll, Sept 20-21, 2001 Public Opinion on Religious Freedom Civil Rights Pres. Johnson signs 1964 Civil Rights Act Source: Associated Press-NORC Center for Public Affairs Research, Americans Evaluate the Balance between Security and Civil Liberties. See more at: http://www.apnorc.org/projects/pages/html%20reports/americans-evaluate-the-balance-between-securityand-civil-liberties1222-4187.aspx#sthash.yi2vcbmh.dpuf. Survey conducted December 10-13, 2015. 1955 School Segregation Protest http://teachpol.tcnj.edu/amer_pol_hist/_browse_toleration.htm 8
Civil Rights Civil rights refers to the equality of all people, regardless of: Race, ethnicity, or national origin Religion Gender Age Disability Sexual orientation Disease (e.g., HIV/AIDS, cancer) Weight, etc. Civil Rights & the 14th Amendment All persons born or naturalized in the United States are citizens of the United States No state shall deny to any person within its jurisdiction the equal protection of the laws. The basic concept is political and legal equality Civil Rights does not require complete equality Discrimination on the basis of achievement & behavior is allowable Universities may reward academic merit Employers may hire the best qualified Laws may punish people who are felons Income taxes may discriminate on the basis of a person s income 9