Unit 1: Constitutional Underpinnings and Federalism
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Transcript of Unit 1: Constitutional Underpinnings and Federalism
Unit 1: Constitutional Underpinnings and Federalism
Chapters 1-3 Unit Outline & Timeline
Constitutional Underpinnings of United States Government (5-15%) A.
Considerations that influenced the formulation and adoption of the
Constitution B. Separation of powers C. Federalism D. Theories of
democratic government GA Standards SSCG1 The student will
demonstrate knowledge of the political philosophies that shaped the
development of United States constitutional government. SSCG2 The
student will analyze the natural rights philosophy and the nature
of government expressed in the Declaration of Independence. SSCG3
The student will demonstrate knowledge of the United States
Constitution. SSCG4 The student will demonstrate knowledge of the
organization and powers of the national government. SSCG5 The
student will demonstrate knowledge of the federal system of
government described in the United States Constitution. SSCG19 The
student will compare and contrast governments that are unitary,
conferral, and federal governments; unitary, oligarchic and
democratic governments; and presidential and parliamentary
governments. https://www.youtube.com/watch?v=AnHW_t8Qwwc The
Political Landscape Chapter 1 Intro activity: Two choices
What is democracy? How can you do this? Create a visual, regular
size piece of paper. Write a short poem: a couple haikus or in the
format of rose are red OR row row row your boat. Other ideas? Let
me know. Due Tomorrow!!! What are the top 5 purposes of govt? Basic
Functions of Government
*Government + Politics = Public Policy* Government: institutions of
decision-makers with power to enforce rules & create public
policy for society Govt powers: Legislative: Executive: Judicial:
U.S. Institutions Congress What is govt? President &
Bureaucracy Federal Courts Basic Functions of Government
According to the Preamble: Establish justice Ensure domestic
tranquility Provide for the common defense Promote the general
welfare Secure the blessings of liberty Share the class responses
Need for Government & Power
Purpose of govts rules = to enforce order and stability Citizens
obey govt b/c it has authority to make & enforce law Authority:
ultimate right to enforce compliance with decisions US: govt has
authority b/c we choose our lawmakers Also follow laws b/c they
have legitimacy And so deserve compliance b/c laws made through
accepted political process WHY DO WE NEED A GOVT? Remember govt is
institutions, or permanent structures, of decision makers who
possess the ability to enforce rules that impose order and
stability on a society A family can serve as an example of an
informal use of power. The more complex a society is, the more it
will find a need for some government structure What is Politics?
Politics: A process that regulates how conflict is resolved within
a society Three major conflicts Ppl differ over their beliefs
[religious/personal] Ppl differ over goals of society Ppl differ
over how govt spends its limited resources H. Lasswell Who gets
what, when and how What is politics? Types of Government Unitary
Confederate Federal Totalitarian Oligarchy
Monarchy Anarchy Democracy Presidential vs. Parliamentary Types of
Govt sources of power Totalitarian regimes: form of govt that
controls all aspects of political & social life of a nation
govt is all powerful. Oligarchy:rule by a few members of the elite
generally make decisions to benefit their own group.
Aristocracy:rule by the best suited, through virtue, talent, or
education; later usage rule by the upper class. Anarchy:no govt
& no laws Structures of Government: Rulers
Oligarchy- rule by a few Democracy- rule by all Direct- everyone
votes on everything Representative- Choose people to speak on our
behalf Autocracy- rule by one Dictatorship- rule through fear or
force Monarchy- power is inherited Absolute monarch- King or Queen
Constitutional Monarch/Parliamentary Govt - has a King or Queen but
the Parliament runs the government. Structures of Government
Power choices: Governing systems: Anarchy- No government, chaos
Totalitarianism- Government controls everything total control
Limited Government - Government allows individual freedom/choice
Unitary- national government rules Confederation- State government
rules Federal State- State and national governments share power
Review for yesterday Take any of the content learned yesterday and
create a new stanza to one of the following songs/poems: Mary Had a
Little Lamb The Itsy Bitsy Spider Row, row, row your boat Roses are
red You have 5 minutes before we share. US Government The United
States is a Democratic Republic (practicing representative/indirect
democracy) with a limited Federal System. I love those words
Democracy Democracy = govt by the people ppl have the ultimate
political authority Roots: Ancient Greece, Montesquieu, Locke
Separated into two types: Direct democracy: ppl eligible to
participate vote directly on laws, selection of officials, govt
decisions Indirect/Representative democracy: eligible ppl elect
officials to make decisions for them govern, passing laws [aka a
REPUBLIC] OUR kind of govt democratic republic/ representative
democracy Democracy **Democracy assumes (1)the electorate iscapable
of making rational decisions &(2)willing to invest time to make
decisions Founders somewhat skeptical U.S. uses a republic: makes
limits on thosewho govern, allow the ppl to speak thrufree &
frequent elections What about you? Theories of American
Democracy
Pluralism: numerous groups [factions] compete for control of policy
agenda > no group dominates, so results in compromise on policy
& group alliances ambition counteracts ambition; centrist
positions prevail Elite/Class Theory: society is divided by class
&ruled by small, upper-class group Hyperpluralism: too many
powerful groups compete for control, govt is unable to act No one
will agree/compromise = confusing, contradictory policy or gridlock
(no policy) Does not consider general public interest Do we have a
real democracy? Or even an effective republic? Some theories about
whether our experiment w this governmental structure is a
successful case study or if it as transformed* into something
beyond the original intentions Hyperpluralism is "pluralism gone
sour." Hyperpluralists contend that the existence of too many
influential groups actually makes it impossible for government to
act. When politicians try to placate every group, the result is
confusing, contradictory, and muddled policy (or no policy at all).
Both hyperpluralist theory and elite and class theory suggest that
the public interest is rarely translated into public policy.
Challenges of Democracy
Increased complexity ofissues > harder for citizensto make
decisions Limited participation in govt > esp. voting Escalating
campaign costs >preventing qualified ppl fromrunning for office?
Diverse political interests >gridlock? Dont forget
Capitalism
Activity: Democracy Critical Thinking Where did all these govt
ideas come from? Theories of Government
Divine right- power to rule comes from God and can not be taken
away Enlightenment Challenged traditional views between people and
their govt Reason Natural laws Social Contract- People give power
to one leader in exchange for protection- you give up some rights.
Quote Minus One Fill in the blanks:
Humans are driven by a perpetual and ___________desire for
___________ that ceases only in death. Thomas Hobbes The natural
liberty of man is to be free from any ___________ power on earth,
and not to be under the will or legislative authority of man, but
only have the law of _________ for his rule. John Locke Quote Minus
One Fill in the blanks:
Humans are driven by a perpetual and restless desire for power that
ceases only in death. Thomas Hobbes The natural liberty of man is
to be free from any superior power on earth, and not to be under
the will or legislative authority of man, but only have the law of
nature for his rule. John Locke Quote Minus One Fill in the
blanks:
When the law-making and law enforcing powers are ___________ in the
same person...there can be no _____________. Baron de Montesquieu
Man was born ______________, and everywhere he is in
______________. Jean-Jacques Rousseau Quote Minus One Fill in the
blanks:
When the law-making and law enforcing powers are united in the same
person...there can be no liberty. Baron de Montesquieu Man was born
free, and everywhere he is in chains. Jean-Jacques Rousseau
Enlightened Thinkers Rousseau Locke Hobbes Montesquieu
Social contract: Sovereign power resides with the community, not a
ruler; yea direct democ! Rulers are servants of the community, if
they are bad, remove them. Hobbes Without govt life would be nasty,
brutish, short. Govt is needed to protect people. But absolute
monarchy is best Locke People have natural rights: life, liberty,
property Government is a contract to protect these rights. IF the
govt brakes the contract get rid of it! Montesquieu Govt needs a
separation of powers (branches) to avoid green & corruption.
All these enlightened thinkers influenced the Declaration of
Independence and the Constitution.To be discussed soon. Videos on
Locke and Hobbes
https://www.youtube.com/watch?v=X-buzVjYQvY 3 Minute Philosophy:
John Locke (has bad word)
https://www.youtube.com/watch?v=9oC8tiZ1Shg Venn diagram b/t Locke
& Hobbes https://www.youtube.com/watch?v=azw7W3Sf-g0 Judge
Judy: Locke v. Jefferson
https://www.youtube.com/watch?v=eejsB6PbaAk What does Hobbes say?
American Political Culture & Democracy
Personal liberty: the U.S.A. has gone fromfreedom FROM to freedom
TO. Egalitarianism equality of opportunity Individualism Religious
faith Popular consent/majority rule Popular sovereignty Civil
society Political and economic equality equal chance to pursue
interests, have life you want, participate in government NOT of
condition Liberty: Liberty is one of Jeffersons inalienable rights
and a cornerstone of the Bill of Rights. Egalitarianism: Equality
of opportunity, especially social equality, has promoted increasing
political equality. Individualism: American individualism developed
in part from the western frontier and the immigrants flight from
government oppression. Laissez-faire economics: The American
government taxes and regulates less than most countries at its
equivalent level of development. Populism: The common, ordinary
citizens are idealized in American politics, and both liberals and
conservatives claim to be their protectors. Changing
Characteristics of the American People
From 4 million at the time of the Constitution, to 320 today. More
ethnically diverse (largest categories) White 66%, Hispanic 15%,
Black 12%, Asian 4% Life expectancy was 35 (Constitution Era) now
is between Smaller families, more divorce, more blended families
What all this change means
90% of Americans believe illegal immigration is a big issue (not a
new thing). Affirmative Action plans are needed and then come under
attack. More Social Security and Medicare needed, but less money
coming in. Political Ideology: Its role in the world and in
American politics Ideology A comprehensive set of beliefs about the
nature of people, institutions and the role of govt Overall,
American ideology tends to be moderate Conservatives: Economics:
advocate limited govt involvement; up to individual to decide to
redistribute wealth Social issues: want govt involvement to
preserve traditional values & lifestyles Freedom vs. Order:
govts primary role is to preserve order Though overall moderate
seeing increasing polarization between two major sects of political
affiliation Ideology Liberals: Libertarians (small % of
Americans)
Economics: favor govt regulation of economy to promote minimum
standard of living for ppl living in U.S. Social issues: limited
govt role social freedom seen as necessity for good of society
Freedom vs. Order: Dont want to give up freedoms to preserve order
Libertarians (small % of Americans) One who favors a free market
economy and no governmental interference in personal liberties.
Current Attitudes Toward American Govt
American public has high/unrealistic expectations. Expectations not
met? Lack of apathy and cynicism low voter turnout. Distrust makes
people blame govt for their woes personal and societal. Fail to
credit the govt for what they do well. 2005 poll 23% Americans
TRUST politicians. Voter apathy. The Constitution Chapter 2 Crash
Course: https://www. youtube
Assign the Constitution Study Guide now its a bear Road to
Revolution Why did colonists settle America?
Jamestown (VA): representative assembly Plymouth (MA): Mayflower
Compact Social Contract; consent of governed Taxation w/o
representation 1st and 2nd Continental Congresses The King and
Parliament originally left almost everything except foreign policy
and trade to the discretion of individual colonial governments.
Britain obtained a vast expanse of new territory in North America
after the French and Indian War ended in 1763. The British
Parliament passed a series of taxes to pay for the cost of
defending the territory, and also began to tighten enforcement of
its trade regulations. Americans resented the taxes, especially
since they had no direct representation in Parliament. The
colonists responded by forming the First Continental Congress
(September, 1774) and sent delegates from each colony to
Philadelphia to discuss the future of relations with Britain. 1st
CC: passed resolution of grievances sent to King G expressing
problems with policies he and parliament placing on colonies --also
decided to boycott trade w England 2nd CC: all colonies there, and
already had been battling with GB operating during Rev War --Raised
colonial army Washington commander -- open trade w all other
countries except GB Declaration of Independence
Lists philosophy, grievances, & right to revolution Remember
the Enlightenment?? NATURAL RIGHTS: unalienable rights based on
ones humanity; natural law superior to man-made laws Locke: life,
liberty, & property Jefferson: Life, Liberty, & happiness
SOCIAL CONTRACT Rousseau consent of governed: limited govt,
equality DoI Jefferson, drafted, lists grievances w george,
describes the things coloniests believe make govt legit Natural
Rights the idea that individuals hold certain rights b/c they are
human Govts cant take away these inalienable (cant be transferred)
rights Locke second treatise on govt Jefferson describes these as
life, liberty, & pursuit of happiness Locke = purpose of govt
is to protect these rights Govt est thru social contract agreement
btwn people and the govt where ppl agree to give up some of their
liberties, so that the remainder are protected Consent gives govt
its legitimacy Different theories politically about WHY ppl would
leave a state of nature of no laws no govt to est a govt both
Hobbes and Locke agree that its done for protection Lecture Outline
The English Heritage: The Power of Ideas John Lockes writings,
especially The Second Treatise of Civil Government, profoundly
influenced American political leaders. Lockes philosophy was based
on a belief in natural rights, the belief that people exist in a
state of nature before governments arise, where they are governed
only by the laws of nature. Natural law brings natural rights,
which include life, liberty, and property. Because natural law is
superior to human law, natural law can justify even a challenge to
the rule of a tyrannical king. Locke argued that government must be
built on the consent of the governedthe people must agree on who
their rulers will be. Government should also be a limited
government, with clear restrictions on what rulers can do.
According to Locke, the sole purpose of government was to protect
natural rights. In an extreme case, people have a right to revolt
against a government that no longer has their consent, but Locke
stressed that people should not revolt until injustices become
deeply felt. The Declaration of Independence
We hold these truths to be self-evident that all men are created
equal They are endowed by their Creator with certain UNALIENABLE
rights Among those rights are Life, liberty and the pursuit of
happiness To secure those rights, governments are INSTITUTED among
menderiving their powers from the consent of the governed The Four
Stanzas of the Declaration of Independence
Part One:The Preamble, an explanation of purpose. Part Two:An
explanation of the political ideas upon which the document was
based.Emphasized Natural Rights, such as life, liberty and the
pursuit of happiness. Part Three:A list of grievances against King
George III (examples on following slide). Part Four:A resolution
that these United Colonies areand of right ought to be Free and
Independent States. LOCKE IN SECOND TREATISE OF CIVIL
GOVERNMENT
JEFFERSON IN THE DECLARATION OFINDEPENDENCE "When any one, or more,
shall take upon them to make lawswhom the people have not appointed
so to do, they make lawswithout authority, which the people are not
therefore bound toobey; by which means they come again to be out
ofsubjection, and may constitute to themselves a newlegislature."
"When in the course of human events, it becomes necessaryfor one
people to dissolve the political bands that haveconnected them with
another, and to assume, among thepowers of the earth, the separate
and equal station to whichthe laws of nature and of nature's God
entitle them..." "Whosoever uses force without right...puts himself
into a stateof war with those against whom he so uses it, and in
that stateall former ties are canceled, all other rights cease,
andeveryone has a right to defend himself, and to resist
theaggressor..." "But when a long train of abuses and usurpations,
pursuinginvariably the same object, evinces a design to reduce
themunder absolute despotism, it is their right, it is their duty,
tothrow off such government..." "A state also of equality, wherein
all the power andjurisdiction is reciprocal, no one having more
than another..." "We hold these truths to be self-evident: That all
men arecreated equal;" "[men] have a mind to unite for the mutual
preservation oftheir lives, liberties, and....property." " that
they are endowed by their Creator with certainunalienable rights,
that among these are life, liberty, and thepursuit of happiness." "
To great and chief end, therefore, of men uniting
intocommonwealths, and putting themselves under government, isthe
preservation of their property...." " that to secure these rights,
governments are institutedamong men, deriving their justpowers from
the consent ofthe governed." Crash Course: The Articles, The
Constitution and Federalism
https://www.youtube.com/watch?v=bO7FQsCcbD8 Crash Course: The
Articles, The Constitution and Federalism The first attempt at
creating a govt: Articles of Confederation, 1777-1789
First written plan of government for newly independent states
States have most power One vote per state; unicameral congress Did
not provide for powers needed in central govt (i.e. tax) Under the
Articles, Congress could
Borrow or request money from the states Declare war Maintain an
army and navy Make treaties and alliances Weaknesses of the
Articles
Congress could not collect taxes from the states Congress could not
control the currency in the states Congress could not regulate
trade/commerce 9 states were needed to make decisions ALL 13 states
had to agree to amendments to the Articles there was no executive
(president) or judicial (court) power Each state got 1 vote no
matter how big or small Members of Congress only served 1 year
terms Congress couldnt pay the army Congress couldnt enforce its
laws Question: Why did so many Americans tolerate the weak
government established by the Articles of Confederation? Economic
Turmoil Shays Rebellion
Mass farmers losing farm b/c couldnt pay taxes in specie. They
revolted. : series of armedattacks on courthouses to prevent
foreclosures People realized the AOC were too weak and couldnt
protect citizens. New govt needed! Lecture Outline Economic Turmoil
A postwar depression had left many small farmers unable to pay
their debts; many were threatened with mortgage foreclosures. State
legislatures were now under the control of people more sympathetic
to debtors. A few states (notably Rhode Island) adopted policies to
help debtors, favoring them over creditorssome printed paper money
and passed force acts, requiring creditors to accept the almost
worthless money. In 1786, a small group of farmers in western
Massachusetts led by Captain Daniel Shays rebelled at losing their
land to creditors. Shays Rebellion was a series of armed attacks on
courthouses to prevent judges from foreclosing on farms. Shays
Rebellion spurred the birth of the Constitution. Differing Views of
Shays Rebellion
Thomas Jefferson: "A little rebellion now and then is a good thing.
It is a medicine necessary for the sound health of government. God
forbid that we should ever be twenty years without such a
rebellion. Translation: The rebellion was NO BIG DEAL. James
Madison: Liberty may be endangered by the abuses of liberty as well
as by the abuses of power. Translation: Our government is TOO WEAK;
we must DO SOMETHING. Nevertheless.something needed to be done! The
Annapolis Convention
Held in 1786 to discuss economic problems that the Articles could
not solve. Twelve delegates from five states were present. They
only came to one agreementTo meet in Philadelphia the following
year. The Miracle at Philadelphia: Writing a Constitution Drafting
the Constitution
Philadelphia Convention, May 1787; Purpose: to revise AoC
Delegates: 55 men from 12 states (?),mostly middle/upper class,
educated,lawyers, landowners Maintained total secrecy why? James
Madison (Father of Const.) kept a diary Factions developed among
delegates oversize & strength of central govt WHY
constitution??? Resolve issues w AoC -give some taxing power for
govt to gain money COERCIVE FORCE NEEDED Had asked states for
$,didnt get Late delegates, late start; Delegates = biz, large
planters, governors A select group of economic and political
notables. Men of wealth; many were college graduates. Most were
coastal residents; a significant number were urbanites. Secrecy
maintain ability of delegates to discuss things openly, change
minds if persuaded, didnt want public debates on issues might keep
delegates from being able to compromise Doors shut, windows shut,
candles, clothes heavy, record temps, NO DEODORANT OR RUNNING WATER
Nationalists were in majority wanted central with real power to
actually enforce Among nationalists, some monarchists Hamilton very
pro-British, thought GB govt best and would replicate here More
democratic nationalists Madison, James Wilsonof VA Some only
wanting to settle western land issues Some who didnt want stronger
central govt at all NY delegation, exclusive of Ham Plans for
Government Virginia Plan New Jersey Plan Focus on the people
Leg: bicameral, can override state laws, popular representation
Exec: elected by Congress, no set size Judiciary: life tenure, can
veto state legis. Ratified by citizens New Jersey Plan Focus on
states Leg: unicameral, equal vote for each state Exec: plural,
removable by state majority vote No power over states Supremacy of
natl laws Ratified by states Drafted by Madison, presented at
beginning of convention Madison had spent months researching
history of democracies, republics, Athenian, roman history, history
of GB, came up with list of reasons why past confederacies,
including AoC hadnt worked what weaknesses were Pretty much set up
the negative for what constitution would be the positive solution
to all problems Small states not having it, came to a stalemated
position over representation Virginia Plan Set convention agenda;
strong central govt Bicameral legislature representation based on
population or wealth of state Exec chosen by Leg, judiciary
appointed by Leg Convention Compromises: #1 The Great Compromise
(aka CT Comp
Convention Compromises: #1 The Great Compromise (aka CT Comp.)
Equality & Representation of States Bicameral Leg: upper house
= equal repres.; lower house = repres. based on population Equality
and Representation of the States The New Jersey Plan, proposed by
William Paterson of New Jersey, called for each state to be equally
represented in the new Congress. The Virginia Plan, suggested by
Edmund Randolph of Virginia, called for representation in Congress
based on the states share of the American population. The
Connecticut Compromise, devised by Roger Sherman and William
Johnson of Connecticut, was the solution adopted by the delegates
that created a bicameral legislature in which the Senate would have
two members from each state and the House of Representatives would
have representation based on population. (cont.) Slavery The
delegates agreed that Congress could limit future importing of
slaves (they prohibited it after 1808), but they did not forbid
slavery itself. The Constitution stated that persons legally held
to service or labour who escaped to free states had to be returned
to their owners. Under the famous three-fifths compromise, both
representation and taxation were to be based upon the number of
free persons plus three-fifths of the number of all other persons.
Convention Compromises: #2 3/5 Compromise
3/5 Compromise: slaves counted as 3/5 of a person for determining
population in HoR (agreed Congress cant regulate slave import til
1808) Compromise #3 Trade Equality in Voting
Some delegates favored suffrage for all free, adult males; some
wanted to put property qualifications on the right to vote.
Ultimately, they decided to leave the issue to the states. ---
Table 2.2 How the Constitution Resolved Three Issues of Equality
Convention Compromise #4 Executive Compromise The Constitution
clearly spelled out the economic powers of Congress.
Congress was to be the chief economic policymaker. Congress was
granted power to tax and borrow, and to appropriate funds. Congress
was also granted powers to protect property rightspowers to punish
counterfeiters and pirates, ensure patents and copyrights, to
legislate rules for bankruptcy, and to regulate interstate and
foreign commerce. The framers also prohibited practices in the
states that they viewed as inhibiting economic development. State
monetary systems. Placing duties on imports from other states.
Interfering with lawfully contracted debts. States were required to
respect civil judgments and contracts made in other states, and to
return runaway slaves to their owners (overturned by the Thirteenth
Amendment). The national government guaranteed the states a
republican form of government to prevent a recurrence of Shays
Rebellion, and the new government was obligated to repay all the
public debts incurred under the Continental Congress and the
Articles of Confederation ($54 million). Critical Issues @
Convention
Individual Rights Issues Delegates felt Consts limited govt,
bydesign, couldnt threaten personal freedoms Const says little, but
does include: Cant suspend writ of habeas corpus No bills of
attainder, no ex post facto laws No religious qualifications for
office Lecture Outline The Individual Rights Issues The delegates
felt that preserving individual rights would be relatively easy.
They were constructing a limited government that, by design, could
not threaten personal freedoms. Powers were dispersed so that each
branch or level of government could restrain the others. Most
delegates believed that the various states were already protecting
individual rights. Although the Constitution says little about
personal freedoms, it does include the following: The writ of
habeas corpus may not be suspended except during invasion or
rebellion. Congress and the states are prohibited from passing
bills of attainder (which punish people without a judicial trial)
and ex post facto laws (which punish people or increase the
penalties for acts that were not illegal or were not as severely
punished when the act was committed). Religious qualifications may
not be imposed for holding office in the national government.
Treason is narrowly defined, and strict rules of evidence for
conviction of treason are specified. The right to trial by jury in
criminal cases is guaranteed. Madisonian System of Voting
Preventing Majority Tyranny Limiting Majority Control: keep most
ofgovt beyond control of masses Separation of Powers: division of
powersbtwn 3 branches > independent branchesthat must cooperate
to govern James Madison and his colleagues feared both majority and
minority factions. Limiting Majority Control To prevent tyranny by
the majority, Madison believed that it was essential to keep most
of the government beyond the control of the masses. Under Madisons
plan that was incorporated in the Constitution, voters electoral
influence was limited and mostly indirect. Only the House of
Representatives was directly elected; senators and presidents were
indirectly elected, and judges were nominated by the president
(modified by the Seventeenth Amendment, which provides for direct
popular election of senators). Separating Powers The Madisonian
scheme provided for a system of separation of powers in which each
of the three branches of government would be relatively independent
of the others so that no single branch could control the others.
Power was not separated absolutely, but was shared among the three
institutions. Montesquieu, Spirit of the Laws: three sorts of
powers all govts exercise No one branch dominates another Fed 47
(Madison) d Madisonian System Preventing Majority Tyranny
Checks & Balances: each branch can checkactions of other two
Ex: Congress makes law, but Prez can veto Critics: too many
loopholes in system Federalism: est federal system of govt pwr
divided btwn natl govt & states Constitutional Republic was
created! Confrontation of powers independent branches who must
cooperate to govern Each govt branch can check the other two Fed 51
Ex: Congress makes law, but Prez can veto Branches politically
independent from each other Critics: system ineffective there are
ways to get around checks on pwr Recess appointments by Prez Regina
Swopes: for each check one branch has on other, that branch has
found a way around it Creating Checks and Balances Since power was
not completely separate, each branch required the consent of the
others for many of its actionsthereby creating a system of checks
and balances that reflected Madisons goal of setting power against
power to constrain government actions. The president checks
Congress by holding the veto power. Congress holds the purse
strings of government, and the Senate has the power to approve
presidential appointments. Judicial review (the power of courts to
hold executive and congressional policies unconstitutional) was not
explicit in the Constitution, but was asserted by the Supreme Court
under John Marshall in Marbury v. Madison (1803). Establishing a
Federal System Since the framers thought much government activity
would take place in the states, federalism was considered an
additional check on the power of the national government. The
Constitutional Republic The framers of the Constitution established
a republic (a system based on the consent of the governed in which
power is exercised by representatives of the public). This
deliberative democracy established an elaborate decision-making
process. The system of checks and balances and separation of powers
has a conservative bias because it favors the status quo; that is,
people desiring change must usually have a sizable majority rather
than a simple majority. The Madisonian system encourages moderation
and compromise, and retards change. The End of the Beginning On the
109th day of the meetings, the final version of the Constitution
was read aloud. Ten states voted yes, and none voted no, but South
Carolinas delegates were divided. After signing the document, the
members adjourned to a tavern. The experience of the last few
hours, when conflict intermingled with consensus, reminded them
that implementing this new document would be no small feat.
Ratifying the Constitution
Nine of the thirteen states needed to ratify (approve) the
Constitution. Conventions were set up in each state, bypassing the
state legislature. This process was, technically, treason. Opposing
Views: Federalists Anti-Federalists
Argued individual rights and states rights werent protected Led by
Patrick Henry and Thomas Jefferson. Feared the President would
become King. Thought the government would come under control of one
particular group (a faction). Wanted a strong national government.
Led by George Washington, James Madison and Alexander Hamilton.
Produced The Federalist Papers, which explained how the government
would work. War of Words Federalists Anti-Federalists
The Federalist: 85 essays by Publius (Hamilton, Madison, Jay)
Defense of Constitution, explaining structure and philosophy why it
was best available structure Anti-Federalists R.H. Lee, G. Mason,
J. Hancock, P. Henry https://www.youtube.com/watch?v=0iHwndOn-4A
Give me liberty Argue Const. is elitist, would lead to aristocratic
tyranny Unhappy about loss of state power LACK OF BoR! Fed 10:;
mischief of faction part of human nature; large republic can
control factions Fed 51: federal form of govt best; Const. can
protect from tyranny of majority Federalists James Madison,
Alexander Hamilton, and John Jaywriting under the name Publiuswrote
a series of 85 articles (known as the Federalist Papers) in defense
of the Constitution. The Federalist Papers defended the
Constitution detail by detail, but also represented an important
statement of political philosophy. Anti-Federalists The
Anti-Federalists questioned the motives of the writers of the
Constitution; they believed that the new government was an enemy of
freedom. Anti-Federalists believed that the new Constitution was a
class-based document, intended to ensure that a particular economic
elite controlled the public policies of the national government.
They feared that the new government would erode fundamental
liberties and would weaken the power of the states. Read the
passage and answer the questions.
Federalist #10 activity Read the passage and answer the questions.
Primary Documents: The Federalist
Work with your group members to answer the questions that accompany
the Reading Set. After completing those questions, come up with a
group summary of the documents main message IN ONE SENTENCE! When
youre done with that Reading Set, alert me & Ill give you the
next step! Fed #9 (A): Fed #10 (A): Fed #10 (B): Fed #51 (C):
Federalist Activity Fin. Final Push for Ratification
1788: 9th state ratifies, but not enough to put into effect need NY
& VA Madison promises to intro a bill of 1st Congress VA &
NY ratify summer 1788 Const. in action Waiting on VA and NY big,
lots of $, impt geographically In a compromise to assure
ratification, the Federalists promised to add amendments to the
document specifically protecting individual liberties. James
Madison introduced 12 constitutional amendments during the First
Congress in 1789. Ten of the amendmentsknown as the Bill of
Rightswere ratified by the states and took effect in 1791. State
and national governments, each with their own powers
Compromise: 2. Federalism 1. Bill of Rights State and national
governments, each with their own powers National government Supreme
Federalists promise to add protections for individuals by amendment
Ratification Compromise Ratification New York chosen as first
capital Needed 9 of 13 states
George Washington chosen as first president Needed 9 of 13 states
Delaware Connecticut New Jersey Georgia Pennsylvania Massachusetts
Maryland South Carolina New Hampshire was the ninth and final
needed vote Rhode Island became the last. Make a short and sweet
informational pamphlet on the Bill of Rights.
BOR Pamphlet Activity Make a short and sweet informational pamphlet
on the Bill of Rights. Instructions: Should be front and back of
one page. Include graphics and a short summary for every amendment.
Include a short historical introduction to the BOR. 4-5 sentences.
Amendment Review for Quiz
https://www.youtube.com/watch?v=o9GsIfs69UY No Bull Review Mr.
Klaff The U.S. Constitution Founding Fathers
Fraternityhttps://www.youtube.com/watch?v=k8iR8zC7pWE Complete
Constitution worksheet at home Constitution Trivia For 146 years it
was never seen in public
In 1894 it was placed b/t two pieces of glass in the State Dept.
basement In 1921 it was moved to the Library of Congress (not
displayed until 1924) 19 days after the attack on Pearl Harbor it
went to Fort Knox until Oct. 1, 1944 Moved to National Archives in
1952 Kept in bombproof, shockproof, fireproof vault with steel and
reinforced concrete; kept on spring system to raise and lower each
day Published by Dunlap and Claypool (1320 copies for $420) Only
500 final copies made, only about 6 left in existence The Many
Principles of the Constitution
Popular Sovereignty- Government gets its power from the consent of
the people. Limited Government- the government only has the power
that the people give it and is bound by the powers given to them in
the Constitution. Separation of Powers- the national government is
divided into three branches so that no branch has more power than
it should. Checks and Balances- each branch is given powers over
the other branches to balance the power. Judicial Review- the
Supreme Court has the power to determine if a law is
unconstitutional.
National Supremacy- if a state and federal law contradict, then the
federal law wins. Federalism- governmental power is divided between
national and state powers. U.S. Constitution Final Product!
Basic Principles Popular Sovereignty Limited Govt Republican Govt
Separation of Powers Checks & BalancesFederalism Set up for
longevity Const. an outline, not a blueprint Specific & vague
at same time Article I = Legislative Branch [Congress] Article II =
Executive Branch [Prez+Bureauc] Article III = Judicial Branch
[Courts] 1-control by ppl 2- choose reps to make legal decisions 3-
contrasted to monarchial govt that had broad authoirty, no real
checks on power 4- states scared of too much central govt
(monarchy, unitary system) wanted some rights retained Est a
federal system ruling powers divided between central govt (natl)
and several regional govts (states) U.S. Constitution: Expressly
written powers of govt Supremacy of natl laws Natl govt given power
to regulate commerce between states Pres is Chief Exec, commander
of armed forces Supremacy of national laws, constitution override
conflicting state laws STATES control intrastate commerce, reserved
powers Founders created a new kind of govt Additional Checks on
Govt Power
Development of political parties effects of divided govt Expansion
of electorate participants &methods Expansion of federal
bureaucracy Technological advances Growth of Presidential power
international issues Time to make amends. FORMAL AMENDMENT
PROCESS
STEP 1: _______________ STEP 2: _______________ Proposed by:
_____________ ______________________________________________
Ratified by: ______________
______________________________________________ OR OR Proposed by:
_____________ ______________________________________________
Ratified by: ______________
______________________________________________ Lecture Outline The
Formal Amending Process Formal amendments change the written
language of the Constitution. There are two stages to the amendment
process (proposal and ratification), each with two alternative
routes. All of the amendments to the Constitution have been
proposed by Congress (no constitutional convention has been
convened since the original Constitutional Convention); all except
one of the successful amendments have been ratified by the state
legislatures. Effects of Formal Amendment Formal amendments have
made the Constitution more egalitarian and democratic. The emphasis
on economic issues in the original document is now balanced by
amendments that stress equality and increase the ability of a
popular majority to affect government. The most important effect
has been to expand liberty and equality in America. Some amendments
have been proposed but not ratified and the best known of these in
recent years is the Equal Rights Amendment. Formal Amendment
Process
Amendment process quite difficult Competing interests;
supermajorities needed Framers didnt want amendments to be easy
prevent majority tyranny passing amendments to violate rights of
minority Congress can specify reasonable time limit for
ratification Usually 7 yrs; exception = 27th amendment No natl
convention ever held to propose amendment some uneasy w idea
Congress has considered 11,000+ amendments Changing the
Constitution
Changed 27 times by the rules Step 1:Proposal 2/3 of Congress 2/3
of Constitutional Convention Step 2:Ratification 3/4 of state
legislatures 3/4 of state conventions How Formal Amending Power has
been Used
BoR = 1st 10 amendments, adopted in 1791 Limit pwr of NATL govt
relating to rights & liberties of individuals **Bill of Rights
did not limit state power! Other amendments classified in 5 ways:
Increase/decrease pwr of Natl Govt Limit state government power
Expand the electorate Taking away/adding to power of voter to elect
Make structural changes Madison & Feds didnt think US Const
needed BoR federal govt already limited, and if power isnt given
cant be used Anti use this as strong argument ppl worried about BoR
BoR arent news English BoR, states had em Mad fine, if there has to
be a BoR, then IM going to draft them States sent him HUGE list of
rights ideas more than 200 he submitted 17 to Congress, they
tightened it to 12 Congress removed one guaranteeing equal
protection under laws Constitution Quiz coming soon
Amendments #1-27 Constitution Quiz coming soon Informal Changes:
The Constitutions Evolution
Congressional Elaboration Laws define or refine words of Const.
Necessary & Proper Clause [elastic clause] Commerce Clause Use
of impeachment Congress changes the constitution through passing
laws that refine or define words of Constitution Ex: establishing
lower court system; Congress added to Const. by how it uses its
power to regulate foreign and interstate commerce Used powers to
define what qualifies Informal Changes: The Constitutions
Evolution
II. Presidential Actions Expanding Pres war-making powers Executive
orders; executive privilege; impoundment Use of executive
agreements Pacts w/ foreign head of state legally binding, bypass
Senate The way the President has used his powers to act
independently of Congress has changed Constitution Ex: expanding
Press war-making powers Ex: Executive agreements pacts w foreign
leaders w/o advice & consent of Senate Have same force as
treaty, but less work (not involving Senate) Pres is Comm in Chief
of armed forces, BUT Congress declares war only 5 declared wars in
US history, but LOTS of undeclared, military involvement 1812,
Mex-Am War, Spanish-Am War, WWI, WWII ---VIETNAM, KOREA, GULF, etc
all undelcared!! James Madison reported that in the Federal
Convention of 1787, the phrase "make war" was changed to "declare
war" in order to leave to the Executive the power to repel sudden
attacks but not to commence war without the explicit approval of
Congress.[2] Debate continues as to the legal extent of the
President's authority in this regard. Informal Changes: The
Constitutions Evolution
III. Judicial Review Not in the Constitution! Est. in Marbury v.
Madison, 1803: First time SCOTUS ruled a Congressional law
unconstitutional Lasting effects: courts are official interpreters
of law; litigation is additional method of affecting policy Allows
SCOTUS to adapt Constitution to modern situations Is the
Constitution living? Fed 78: need JR to guarantee that validity of
laws isnt affected by sways in opinion Const = Supreme Court; gave
Congress pwr to create lower courts Life tenure Judicial review:
power of Courts to declare acts of govt unconstitutional Marbury v.
Madison, 1803 = SCOTUS ruled an act of Congress unconstitutional,
thereby unenforcable Both original & appellate jurisdiction
Informal Changes: The Constitutions Evolution
IV. Changing political practice Political Parties not mentioned in
Const., but have changed political process Ex: nomination of Prez
candidates; organization & running of Congress Use of electoral
college now more a rubber stamp than deciding factor Technology
mass media, internet, electronic communications, nuclear weapons
Increasing demands on policymakers The Constitution has also been
greatly changed by technology. The mass media plays a role
unimaginable in the eighteenth century. The bureaucracy has grown
in importance with the advent of technological developments such as
computers. Electronic communications and the development of atomic
weapons have enhanced the presidents role as commander in chief.
Increasing Demands on Policymakers The power of the presidency has
grown as a result of increased demands for new policies. The United
States growth to the status of a superpower in international
affairs has located additional power in the hands of the chief
executive. National security concerns tend to result in more power
to the president, although Congress tends to reassert itself
eventually. Increased demands of domestic policy have placed the
president in a more prominent role in preparing the federal budget
and proposing a legislative program. Constitutional Convention
Activity:What changes should be made to it today? FEDERALISM
Chapter 3 Text Book Worksheet Chapter 3 Confederation: strong state
govts, weak central govt.
Like??? Unitary: all power in central govt. Unitary: local govts
only have powers given to them by central govt what central gives,
it can also take away --decision of central agency is boss all
lower govt decisions can be overruled w/o issue Ex: France, China;
govts w/in U.S. states Unitary governments Organizing a nation so
all power resides in the central government. Most governments in
the world today have unitary governments, in which all power
resides in the central government. Confederation A nation in which
the national government is weaker than the states In a
confederation, the national government is weak and most or all of
the power is in the hands of its components. Confederation:
independent states create central govt by compact central govt only
has powers given to it by states Ex: U.S. under AoC, European Union
power of individuals very limited, few actual confederations exist
b/c difficult to maintain when having sovereign independent states
who work together essentially for their convenience -only powers
expressly given to individual are confederations Divided by
Constitution
Federal: distribution ofpower btwn central govtand sub-divisional
govts(states) Divided by Constitution Each level of govt has itsown
sphere of influence Each level derives itsauthority from Const.
Federalism: constitution distribution of power btwn central govt
(natl) & sub-divisional govts (states) **constitution divides
powers btwn natl & states Each level of govt has own sphere of
influence get pwrs from Constitution exercise direct authority over
individuals Federal power is divided between central government and
states; each has their own sphere of influence DUAL system local
govts w/in states are not a 3rd level there are ONLY TWO Unlike
unitary, no sphere gets its powers from the other one both derive
authority from Const. Federalism is a way of organizing a nation so
that two or more levels of government have formal authority over
the same area and people. Only 11 (out of approximately 190 nations
of the world) have federal systems. The workings of the American
system are sometimes called intergovernmental relations, which
refers to interactions among national, state, and local
governments. Constitutional Structure of Federalism
Derived from supremacy clause & 10thamendment supremacy clause:
Const., federallaws, & treaties are superior toconflicting
state & local laws Natl laws preempt the field 10th: states
have independent pwrs oftheir own The Division of Power The writers
of the Constitution carefully defined the powers of state and
national governments [see Table 3.2]. Although favoring a stronger
national government, states were retained as vital components of
government. The supremacy clause deals with the question of which
government should prevail in disputes between the states and the
national government; Article VI states that three items are the
supreme law of the land: The Constitution Laws of the national
government (when consistent with the Constitution) Treaties (which
can only be made by the national government) Govt officials swear
an oath to whom? NATL GOVT not to their state, when you become a
citizen you swear to US CONST not state const Take precedence over
the state and local govts NATL GOVT CAN DO ANYTHING NOT IN DIRECT
CONFLICT W CONSTITUTION Questions remain concerning the boundaries
of the national governments powers. The national government can
only operate within its appropriate sphere and cannot usurp the
states powers. The Tenth Amendment states that powers not delegated
to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the
people. There have been variations in the Courts interpretation of
the Tenth Amendment. Constitutional Structure of Federalism
Framework of govt powers: Natl govt has only delegated pwrs(those
given to it) All other pwrs are reserved to stategovts Some pwrs
are denied to only statesOR natl govt, or denied to both Book says
1-pwrs of natl; 2-pwrs of states; 3-pwrs prohibited but Im more
specific Powers of National Govt
Enumerated powers Implied powers Necessary & proper clause
(elastic) Inherent powers ex: foreign affairs U.S. v Curtiss-Wright
Export Corp(1936): foreign affairs are natl govtsjob primarily
Presidents domain Powers of Natl Govt Delegated powers: pwrs given
explicitly to natl govt (aka enumerated or express powers) Implied
powers: not listed, but inferred from express powers Necessary
& proper clause (Article I, Sect 8): allows Congress to make
law about anything it needs to carry out other powers Inherent pwr
of foreign affairs Natural of a govt to want to perpetuate its own
existence, and so would do what is necessary in relation to other
nations to continue existing defend itself, negotiate with other
nations, acquire new territory, etc Together, create a flexible
system of govt that allows central authority to expand its power
when necessary Presidents powers dont depend on congressional
delegation of those pwrs INHERENT POWERS The most common inherent
powers are emergency powers, exercised only in times of great need.
Some emergency powers are limited in scope. The president can
declare a place devastated by a storm a federal disaster area,
making it eligible for federal aid. Other emergency powers are much
vaster in scope. During the Civil War, for example, President
Abraham Lincoln spent money without congressional approval, and he
also suspended a number of civil liberties, including the writ of
habeas corpus Executive Orders Another type of inherent power is
the executive order, which is a rule or regulation issued by the
president that has the force of law. The president can issue
executive orders for three reasons: To enforce statutes To enforce
the Constitution or treaties To establish or modify how executive
agencies operate All executive orders must be published in the
Federal Register, the daily publication of federal rules and
regulations. Executive Privilege Executive privilege is the right
of officials of the executive branch to refuse to disclose some
information to other branches of government or to the public. It
includes refusing to appear before congressional committees.
Executive privilege is an inherent power that is not clearly
defined, and the courts have had to set limitations on the use of
the privilege. In 1974, for example, the Supreme Court ruled that
executive privilege could not be invoked to prevent evidence from
being used in criminal proceedings against the president. . Powers
of the States Concurrent Powers
Reserved powers in 10th amendment States have police power over
laws regulating behavior of citizens w/in states Concurrent Powers
Powers shared jointly by both state & natl govts ex: both govts
can tax, but not each another States can generally tax same items
Crimes marriage law, contracts, education, traffic law, land use
etc WHY natl govt must use strings to get states to legislate
drinking age state power in 21st amendment States can generally tax
same items (income, gas) as natl govt, but cant unduly burden
commerce among states, interfere w natl govt, or violate U.S.
treaty Who decides? Congress w/ final review of SCOTUS STATES W NO
INCOME TAX: AK, FL, NV, SD, TX, WA, WY (7) NH and TN tax only
dividend stocks and interest income Some will have corporate income
taxes instead like FL Reserved powers of States
Enumerated powers of National Govt Concurrent Powers Reserved
powers of States Regulate trade & interstate commerce Foreign
relations Declare war Coin $$ Est natl courts Create post offices
Est local govts Conduct elections Police citizens Oversee primary
& elementary ed. Take land for public use Impose taxes &
collect fees Borrow $$ Est. courts Enact & enforce laws Protect
civil rights Protect health & welfare FEDERAL DIVISON OF POWER
NATL Tax imports; Raise & maintain armed forces; Naturalization
law INHERENT Conduct foreign relations STATE= Regulate trade &
biz w/in state Pass licensing requirements Regulate alcoholic
beverages Constitutional Structure of Federalism
Expansion of central govt rests on 4constitutional pillars: Implied
powers Civil War Struggle for Racial Equality McCulloch v. Maryland
(1819) States cant tax agency of natl govt ***Established implied
powers using N&P clause AND reinforced supremacy clause
National supremacy = federal govt prevails Establishing National
Supremacy Four key events have largely settled the issue of how
national and state powers are related: the McCulloch v. Maryland
case, the Supreme Courts interpretation of the Commerce Clause, the
Civil War, and the civil rights movement. McCulloch v. Maryland
(1819) - the case that first brought the issue of state versus
national power before the Supreme Court. In this case, the Supreme
Court ruled that national policies take precedence over state
policies: Chief Justice John Marshall wrote that the government of
the United States, though limited in its power, is supreme within
its sphere of action. The Court also ruled that the Constitution
gives Congress certain implied powers (based on the provision
granting Congress the power to make all laws necessary and proper
for carrying into execution the foregoing powers) that go beyond
the enumerated powers that are specifically listed in Article I,
Section 8. Commerce Clause Expansion of Central Govt Power
Constitutional Structure of Federalism
Expansion of central govt rests on 4constitutional pillars:
Interpretation of implied powers: SCOTUSbroadened use of elastic
clause inMcCulloch v. Maryland (1819) States cant tax agency of
natl govt ***Established implied powers using N&Pclause AND
reinforced supremacy clause Hundreds of policies justified this way
McCulloch v. Maryland (1819) States cant tax agency of natl govt
***Established implied powers using N&P clause AND reinforced
supremacy clause National supremacy = federal govt prevails
Establishing National Supremacy Four key events have largely
settled the issue of how national and state powers are related: the
McCulloch v. Maryland case, the Supreme Courts interpretation of
the Commerce Clause, the Civil War, and the civil rights movement.
McCulloch v. Maryland (1819) - the case that first brought the
issue of state versus national power before the Supreme Court. In
this case, the Supreme Court ruled that national policies take
precedence over state policies: Chief Justice John Marshall wrote
that the government of the United States, though limited in its
power, is supreme within its sphere of action. The Court also ruled
that the Constitution gives Congress certain implied powers (based
on the provision granting Congress the power to make all laws
necessary and proper for carrying into execution the foregoing
powers) that go beyond the enumerated powers that are specifically
listed in Article I, Section 8. McCulloch v. Maryland
https://www.youtube.com/watch?v=XvF-GAdGtKA Constitutional
Structure of Federalism
Commerce clause: power to regulate interstate & foreign
commerce ***Gibbons v. Ogden (1824): natl interests prevail over
state interests; defined interstate commerce Heart of Atlanta Motel
Inc. v U.S.(1964): Congress didnt overextend by using commerce
clause to fight discrimination U.S. v Lopez (1995): limited
Congress power; law must materially relate to commerce feAll
business activities that cross state lines or affect more than one
state or other nations Q for SCOTUS what is commerce?; when is it
intrastate or interstate?; is commerce a shared pwr? ATL: direct
challenge to Civil Rights Act of 64 saying separate was not equal
ATL Lopez first commerce limit since New Deal era when SCOTUS
overturned some of FDRs programs as unconstitutional Lopez carrying
.38 in SanAn, TX to school Charged w vilation of federal Gun-Free
School Zones Act 1990 Lopez = law violated federalism, outside of
scope of Congress to regulate schools 5-4 decision (cons 5) said
conviction vacated possession of handguns didnt affect economy on a
massive (natl) scale to allow congress to regulate Gibbons v. Ogden
https://www.youtube.com/watch?v=T637rKSgbUo Constitutional
Structure of Federalism
Civil War: decided struggle about whether natl govt or states were
ultimately sovereign Struggle for racial equality: conflict btwn
states & natl govt over equality issues ultimately decided in
favor of natl govt Civil rights movement, Brown v. Board of
Education Establishing National Supremacy The Civil War (186165) -
settled militarily the issue that McCulloch had enunciated
constitutionally. The civil rights movement - a century after the
Civil War, the policy issue was equality. In 1954, the Supreme
Court held that school segregation was unconstitutional (Brown v.
Board of Education). The conflict between states and the national
government over equality issues was decided in favor of the
national government: throughout the 1960s, the federal government
enacted laws and policies to end segregation in schools, housing,
public accommodations, voting, and jobs. Vertical Federalism
Federalism = system of vertical checks &balances, relationships
btwn federal andstate govts Examples: Amendment process Natl govts
programs managed by states Natl govt uses $ to influence state
policythrough grants (using pwr to tax & spend) Power to Tax
& Spend: Congress can raise taxes & spend $$ to influence
state legislation about promoting general welfare Fed govt gives
grants of $$ to state with strings attached Gives Congress the
ability to influence legislation about things which it has no
constitutional provision to do itself at federal level Congress
sometimes requires states to do certain things federal mandates
(some dont come come w/ $) Interstate Relations Horizontal
federalism: dealings thatrequire states to interact w/ one another
Clauses relating to Horizontal federalism Interstate compacts: w/
consent ofCongress Full faith & credit clause Minor compacts
that dont increase the powre of the states relative to other states
not in compact, or the natl govt All 50 states a part of 2
Compacts: for Supervision of Parolees & Probationers on
Juveniles Both allow for states to share law-enforcement data Full
Faith and Credit Article IV, Section I of Constitution requires
each state to recognize the public acts, records, and judicial
proceedings of all other states. Essential to functioning of
society & economy without, ppl could avoid obligations of one
state by crossing into another Enforce business/personal contracts,
marriages, divorces, etc Extra credit opportunity!!!!
For 3 points on a test, make a time line of Gay Marriage involving
the Federal and State Govts. Federalism & Current Issues
SAME SEX MARRIAGE 1996: Defense Of Marriage Act passed no state is
required to legally recognize same-sex marriage from another state
Violation of Full Faith & Credit clause? Violation of
Federalism/states reserved pwrs? Violation of equal protection in
5th? July 2010: overturned in federal court Feb 2011: Obama wont
defend in court March: Boehner BLAG/HoR will defend in select cases
JUNE 2013: SCOTUS OVERTURNED 5-4:EP 96 Hawaii legalizies same sex
marriages, pressure on other states to then be required to
recognize such marriages under the Full Faith and Credit Clause of
the United States Constitution. Section 3 of the lawthe part that
defines marriage for federal purposes as the union of a man and a
womanwas ruled unconstitutional by a federal district court judge
in July 2010 On July 8, 2010, Judge Tauro issued his rulings in
both Gill and Massachusetts, granting summary judgment for the
plaintiffs in both cases. He found in Gill that Section 3 of the
Defense of Marriage Act violates the equal protection of the laws
guaranteed by the Due Process Clause of the Fifth Amendment to the
U.S. Constitution. In Massachusetts he held that the same section
of DOMA violates the Tenth Amendment and falls outside Congress'
authority under the Spending Clause of the Constitution.[3][4]
Those decisions are automatically stayed for two weeks by federal
court rules and are likely to be stayed further if the Department
of Justice appeals, as it is expected to do Tauro entered his final
judgmenta document developed in consultation with the parties to
the caseon August 18 and granted a stay for the duration of the
appeals process.[9] The Department of Justice has 60 days to decide
whether to appeal. Plaintiffs did not oppose the stay.[9] GLAD
believes an appeal provides "the chance to argue in front of a
higher court with a broader reach...[and] an opportunity to address
the harms DOMA Section 3 causes to already married couples across
the country."[10] An attorney for the plaintiffs has estimated that
arguments on appeal will take place approximately a year after the
expected appeal is filed.[11 Interstate Relations Extradition
Interstate privileges & immunities: states must extend same
privileges & protections to non-residents Goal: to prevent
states from discriminating against non-residents Some exceptions to
equal treatment Most criminal laws are state law Extradition: legal
process where fugitive from one state must be returned Governor of
State requests Usually routine sometimes contested when issues of
strong racial/political implication, or in case of parental
kidnapping/custody problems no state should become a safe haven for
fugitive of sister States justice system Interstate privileges
& immunities (Article IV, Section 2): states must extend same
privileges & protections to non-residents Ex: access to courts;
unreasonable residency requirements no state can discriminate
unreasonably against a resident from another state States must:
traveling to/becoming resident of another state; using states
courts; buying/renting/selling property States cannot: giving
hiring preferences to residents; lowering welfare benefits for
nonresidents; higher fees for nonresidents using property Some
distinctions btwn residents & non residents acceptable Ex:
residency requirement for public office; college tuition
differences, in-state licenses to hunt or practice law
Interpretations of Federalism
Dual federalism: distinct separation btwn roles of natl & state
govts = layer cake Const. gives limited pwrs to natl govt, all
others left to states Cooperative federalism: natl & state
levels share policy responsibilities & cooperate to solve
problems = marble cake Dual federalism: Constitution gives limited
list of pwrs to natl govt (foreign policy, natl defense) All other
pwrs left to sovereign states Each level of govt dominant w.in its
sphere State & natl govts separate entities w. clearly defined
powers layer cake Dual Federalism the national and state
governments as equal sovereign powers First 100 yrs, favored
interpretation of SCOTUS SCOTUS is umpire btwn natl govt &
states In 1930s, this idea of distinct separation faded b/c of
Great Depression and activism of natl govt in solving the crisis
Cooperative federalism: natl & state levels of govt should
cooperate to solve problems, provide goods & services to ppl
Post-Depression, New Deal w/ FDR mixed set of responsibilities in
which all levels of govt are engaged in a variety of issues Term
coined by M. Grodzins Diff from dual federalism (layer cake) Dual
Federalism A system of government in which both the states and the
national government remain supreme within their own spheres, each
responsible for some policies. **Perspective on nature of
federalism is influenced by political point of view**
Interpretations of Federalism
Through early history, govt leaned toward dual federalism Since New
Deal era, have seen a shift toward cooperative federalism Ex:
education, infrastructure Standard operating procedures of
cooperative federalism Shared costs federal guidelines shared
administration Standard operating procedures of cooperative
federalism - Shared costs, federal guidelines, and shared
administration. Devolution Revolution?
Through most of 20th century, natl govtgrew in size and power, esp.
when comparedto the states In 80s, GOP pressured to reduce size
&scope of natl programs and shiftresponsibility for policy
& programs back tothe states (devolution) Recently, a return to
using federal govt toachieve policy objectives Growth of natl
economy, national communications networks, multinational
corporations and worldwide business Great depression stimulated
natl govt acivity; WWII federal regulation Devolution? Devolution
Transferring responsibility for policies from the federal
government to state and local governments. State and local
governments are mostly responsible for handling crime, welfare, and
education. Fiscal Federalism ** Major instruments of federal aid
andinfluence in state programs are grants-in-aid Types of Federal
Grants Categorical grants: subject to specific federal conditions
for use Types: project grants, formula grants Block grants: less
strings attached to $;states have more discretion in spending
Revenue = income for govt from taxes, etc Congress authorizes
programs, establishes general rules abt program operations, &
decides if states or local govt get to run part/all of program **
Major instruments of federal intervention in state programs has
been various financial grants-in-aid Congress appropriates (sets
aside) $$ for programs (ex: federal grants) constitutional basis in
taxing/spending powers Categorical grants: $ appropriated for
specific purposes; amount done by formula Subject to detailed
federal conditions about how to use $; often require matching funds
Categorical grants (project grants and formula grants)are main
source of federal aid; can be used for specific purposes and have
strings attached. State and local agencies can obtain categorical
grants only by applying for them and by meeting certain
qualifications. Categorical grants come with numerous strings
(rules and requirements) attached, such as nondiscrimination
provisions and punitive cross-over sanctions and cross-cutting
requirements that reduce or deny federal funds if certain local or
state laws are not passed or if federal guidelines are not met
There are two types of categorical grants. Project grants - the
most common type of categorical grant; awarded on the basis of
competitive applications (such as grants to university professors
from the National Science Foundation). Formula grants - distributed
according to a formula; states and local governments automatically
receive funds based on a formula developed from factors such as
population, per capita income, or percentage of rural population
(such as Medicare, Aid for Families with Dependent Children, and
public housing). Block grants - used to support broad programs in
areas like community development and social services. In response
to complaints about the cumbersome paperwork and restrictive
federal requirements attached to categorical grants, Congress
established block grants to support broad programs. States have
discretion in deciding how to spend the money. Ex: welfare, child
care, education, health service Mayors and governors prefer them
because they give the states more flexibility in how the money is
spent Fiscal Federalism Federal grants serve 4 purposes:
To supply state & local govts w/ neededrevenue for programs To
est. minimum natl standards To equalize resources among the states
To attack natl problems yet minimizegrowth of federal agencies
Fiscal Federalism Politics of Federal Grants
Republicans: favor less federalsupervision, delegation to state
& localgovts (block) Democrats: favor detailed, federally-
supervised spending (more categorical) Welfare block grants: give
states flexibility, but states cant give $ to those who dont work
w/in 2 years; cant receive support for more than 5 years To keep
states from racing to bottom so that they are least attractive for
poor to live in due to how they disburse welfare, require states to
spend 75% of amount they had been spending on welfare before reform
in 96 Fiscal Federalism Federal Mandates
Federally-imposed programs on state & local govts often
underfunded or unfunded Ex: NCLB 2002: huge burdens on schools,
very little increase in funding 2 reasons why states comply:
federal tax money given to states is under control of Congress to
apportion; Civil Rights legislation seen as untouchable = political
liability if not enforced Mandate Blues - Mandates direct state
governments to comply with federal rules under threat of penalties
or as a condition of receipt of a federal grant. There are some
occasions when states would prefer not to receive some federal
aidsuch as when Congress extends a program that is administered by
the states and only partly funded by the national governmentan
underfunded mandate. Unfunded meaning that natl govt is telling
states you have to do this or that but were not going to give you
the money to implement it its up to you This means that the states
have to budget more funds for the project in order to receive
federal grant money. Of even greater concern to states are unfunded
mandates. These require state and local governments to spend money
to comply with laws such as the Clean Air Act of 1970 and the
Americans with Disabilities Act of 1990 with no financial help from
the federal government that enacted the laws. In addition, federal
courts create unfunded mandates for states regarding school
desegregation, prison construction, and other policies. In 1995,
Congress passed a law that will make it more difficult for Congress
to impose new unfunded mandates. Why do states comply? Printz v.
U.S. (1997): Congress cant force states to administer a federal
regulatory program (used 10th amendment) If states dont voluntarily
enforce federal regulations, might hinder access to $$ from feds,
put in hot water politically EX: ADA, Advantages of
Federalism
Federalism was compromise btwn strongcentral govt & strong
state govts Also most practical choice Checks growth of tyranny:
diffusion ofpower keeps a single group from controllinggovt Unity
w/o uniformity: states differ in howissues are handled ADV:
protection from majority tyranny even if one party loses control of
congress, presidency, they still have reps in other areas of govt
SUPER IMPT keeping one party from dominating and possibly violating
rights of minority party/group Allows unity w/o uniformity: state
differences in how issues handled increasingly natl govt dealing in
local issues Ex: abortion, gun control, welfare financing Why Is
Federalism So Important? Decentralizes our politics More
opportunities for political participation. Decentralizes our
policies Federal and state governments handle different problems.
Advantages of Federalism
Encourages experimentation: states aslaboratories for democracy
[Brandeis] Experience in state govt provides trainingfor natl
officials Can lead to future opportunities Keeps govt closer to the
ppl: localdecisions local level ; moreopportunities for
participation Encourages experimentation: states as laboratories
for democracy [Brandeis] New programs tested out w/o natl effects
Lab of dem: start new program by choice if it works out, often
adopted by other states: GA first to let 18 y.o. vote; Wisc leader
in requiring welfare recip to work; MA to provide health
insureance; Cali first on Global Warming Training: Carter, Reagan,
Clinton, W were governors City council, school boards Disadvantages
of Federalism
Different quality/quantity of publicservices in states Local
interest can counteract & impedenational interests Hard to tell
which govt is doing what somany! Federalism and Democracy
Disadvantages for Democracy The quality of services like education
is heavily dependent on the state in which the service is provided;
states differ greatly in the resources they can devote to public
services. Diversity in policy can discourage states from providing
services that would otherwise be available because poor people may
be attracted from states with lower benefits. Federalism may have a
negative effect on democracy when local interests are able to
impede national majority support of certain policies. The vast
number of local governments makes it difficult for many Americans
to know which government is responsible for certain functions.
Federalism & Scope of Govt
Natl power has increased with industrialization, expansion of
rights, & social services Most issues, concerns, & problems
require resources afforded to the natl, not state, governments.
Federalism and the Scope of the National Government The national
government took a direct interest in economic affairs from the very
founding of the republic (see Chapter 2). As the United States
changed from an agricultural to an industrial nation, new problems
arose and with them new demands for governmental action. The United
States moved from a system of dual federalism to one of cooperative
federalism, in which the national and state governments share
responsibility for public policies (as seen above). The national
governments share of expenditures has grown rapidly since 1929;
today it spends about 25 percent of the GDP, while state and local
governments spend about 12 percent today. The growth of the
national government has not supplanted the states. Federalism at
its worst?
Hurricane Katrina levees-broke-a-requiem-in-four-acts/index.html *
Case Study: McCulloch v. Maryland
How has federal power expanded over state power in American
history? States vs. Federal Power
Mechanisms/Events that preserved state power Articles of
Confederation Guarantee of Republican Form of Govt 10th amendment
Full faith and credit clause of the Constitution Jim Crow Era Block
Grants Supreme Court Cases Barron v. Baltimore (1833) BOR doesnt
extend to states United States v. Lopez (1995) limiting Congress
power to regulate commerce Mechanisms/events that expanded FEDERAL
power
Supremacy clause of the Constitution Necessary and Proper Clause of
the Constitution Commerce Clause of the Constitution Heart of
Atlanta v. US The power of the Fed Govt to tax and spend 16th
amendment McCulloch v. Maryland (1819) Gibbons v. Ogden (1824)
Civil Rights Era 1950s building of a national highway (Categorical
grants) Federal deficit Federal Mandates (cross cutting
requirements, cross over sanctions) Activity:Politics of Federal
Grants Activity:Panel Discussions Federalism