Basic Concepts of Government

• Ordered Government—government is set up in a logical manner, offices are organized appropriately

• Ex: local government has certain officials like a prosecutor, sheriff, justice of the peace, assessor

• Limited Government—government is not all powerful; it can only have the powers granted to it by the people, and the people have certain rights which cannot be taken away (life, liberty, property)

• Representative Government—government should serve the will of the people

British Contributions to the American Legal/Judicial

System

• Magna Carta (King John, 1215) Trial by jury, no arbitrary taking of life, liberty,

or property• Petition of Right (1628, Charles I) Trial by jury, no martial law in peacetime, no

quartering of troops• English Bill of Rights (1688, deal cut w/William

and Mary): No Standing Army in peacetime, free Parliamentary elections, fair/speedy trial, no excessive bail/cruel punishment

Colonial Government

• Charter=written grant of authority from King• Royal Colonies-Direct Crown Control, 8 of

them, appointed governor and governor’s council, lower house of bicameral legislature elected by property owners

• Proprietary Colonies-MD,PA,DE Gov. appointed by proprietor, PA was unicameral

• Charter Colonies—self-governing, Crown approval not needed, could appeal to King (CT,RI)..some say that this style of government could have prevented Revolution.

Colonial Experience With Government

• Mayflower Compact (1620)—agreement to abide by majority rule

• Virginia House of Burgesses (1621)—first elected representative body in the colonies

• Fundamental Orders of Connecticut (1639)—first Constitution, limited government and was democratic

• Maryland Act of Toleration (1649)—colony of Maryland allowed any Christian to practice their religion

• Albany Plan of Union (1754)• Boycott of Stamp Act, Committees of Correspondence• First and Second Continental Congresses

The Coming of Independence

• Problem: Proximity of the Crown• Differences in view over representation

(direct vs. virtual representation)• Crown took little interest in Colonies until

1754. French and Indian War begins• George III ascends to the throne, 1760• Begins to deal with colonies—wants them

to pay for defense• Colonies begin to unify

Colonial Unity

• Pre-1754: New England Confederation, Penn plan

• Albany Plan of Union• Stamp Act Congress—organizes

successful boycott of • Boston Tea Party• After Coercive Acts, 1st Continental

Congress (1774)• WAR! Second Continental congress

assumes control (May 1775), passes D of I and Articles pf Confederation

Independence

• July 2, 1776: 2nd Continental Congress adopts Lee’s Resolution. Declares independence from Britain.

• July 4, 1776: Declaration of Independence is adopted, proclaiming the reasons why the Colonies broke from Britain

The Declaration of Independence

• Listed grievances and ascribed their causes to King George III, despite the fact that most of the laws in question were passed by Parliament

• Essentially a “lawyer’s brief” aimed at King (Should it have been aimed at Parliament?)

• Many of these ideas expressed by Jefferson dated back to the founding of the colonies and before.

• The American revolution sought liberty.• American revolution differed from later Russian

Revolution of 1917 and Chinese Revolution of 1949 in that the latter two chiefly sought equality.

• The French Revolution of 1793 sought “liberty, equality, and fraternity.”

The Colonial Mind

• Believed in a higher law embodying natural rights—life, liberty, property

• War was over ideology, not economics• The “real American Revolution” was the radical

change in belief about what made authority legitimate and liberties secure

• Government is legitimate if it has the consent of the governed, and political power must be exercised only when granted by a written Constitution

• Government must respect liberty• Legislative branch was superior to Executive

State Constitutions• Constitution: a nation’s basic law. Creates political

institutions, allocates power, and provides guarantees to citizens

• Pennsylvania: Radically democratic, annual elections, 4 yr term limits, no governor or President, only Executive Council. Also disenfranchised Quakers, ignored jury trial, persecuted conscientious objectors. Strong, but trampled rights.

• Massachusetts: Had to be Christian to serve, clear separation of powers, veto, life term for judges, voters had to own £1,000 property. Protected rights, but weak

• All state Constitutions were based on popular sovereignty, limited government, and had protections for civil rights and liberties (7 had Bills of Rights)

The Articles of Confederation—AKA Constitution #1

• Went into effect, 1781• Created “firm league of friendship” between

colonies• Colonies retained sovereignty and

independence• Each state: 1 vote in Congress (9/13 required

to pass legislation, 7/13 administrative Q’s)• Congress could make peace, ratify treaties• Army/Post Office Administration, could coin

money

Successes of the Articles of Confederation

• Grayson Land Ordinance of 1785• Northwest Ordinance of 1787.

Grayson Land Ordinance of 1785• By 1785, Congress needed to set up an orderly system for

settling the Northwest Territory.• The Land Ordinance of 1785 was passed to do this. The

ordinance called for the land to be surveyed and divided into townships by base line and range line. Each township would be 6 miles square. Each township would have 36 sections. A section was one square mile and contain 640 acres.

• Congress planned to sell sections to settlers for $640 each. • Also, one section in every township was to be set aside to

support public schools. This ordinance set aside what was known as Section Sixteen in every township in the new Western Territory for the maintenance of public schools.

• Public schools were organized to corral the best minds for public leadership.

Northwest Ordinance of 1787

• This ordinance set up a government (a governor, a secretary, and 3 judges) for the Northwest Territory and allowed the region to be divided into separate territories.

• Once a territory had a population of 60,000 free citizens, it could petition Congress to become a state. This Ordinance was important because it set up a way for new states to be admitted to the United States. Eventually, the Northwest territory was carved into five states: Ohio, Indiana, Illinois, Michigan, and Wisconsin.

• It made four crucial promises to prospective states.

• Each would enter the union "on an equal footing with the original states.“• Revenue generated from the sale of a portion of each township in the state

would go to fund public education---the first instance of federal aid for education in American history.

• Article the Third. Religion, Morality AND KNOWLEDGE BEING NECESSARY TO GOOD GOVERNMENT AND THE HAPPINESS OF MANKIND, Schools and the means of education shall forever be encouraged.

• “Neither slavery nor involuntary servitude" were to be allowed. • A good faith effort would be made to respect the Indians in the territory.

Problems with the Articles of Confederation

• No Coercive power over states or individuals; sovereignty located in states (states were independent)

• No monopoly over money, little $ coined• 9/13 states required to pass legislation• Delegates to Congress picked and paid by state

legislatures• Amendments required unanimity• No method for states to settle disputes (VA/PA “war,”

Vermont secession)• One vote for each state, regardless of size• Congress could not lay and collect taxes or duties, nor

draft soldiers (could only ask states)• Army small/dependent on state militias and state

funding• No authority to control interstate or foreign commerce• No Executive to enforce legislation• No Judiciary/nat’l court system

Shays’s Rebellion• Last straw for the Articles of Confederation.• State of Massachusetts institutes property/capitation

taxes to pay Revolutionary War debt.• Shays and some ex-Revolutionary War soldiers and

officers forcibly prevented the courts in Massachusetts from sitting—which would have meant they could have foreclosed on farms who owed money to creditors and tax collectors. But ALL segments of society were revolting.

• Governor Bowdoin of Massachusetts called on Congress for help—couldn’t raise money or manpower. Governor called militia—there was none!

• Private funds eventually paid for a volunteer army• Rebels ran away, but this was an impetus for a strong,

central government and improved attendance at Philadelphia convention

• John Hancock restored security with election, 1787• Jefferson comment about rebellion and his detachment

The Constitutional Convention

• 1786: Annapolis convention called to discuss problems of trade and navigation, calls for convention in 1787 “to propose amendments to the Articles.” 55 delegates assemble in Philadelphia; 2nd call for delegates

• Soon delegates realized new government was needed, with republican form, balanced government, and limits on government power.

• Bill of Rights? (some states had one)• 12 states send delegates—mostly select pol/economic

elites• Absent: Adams, Jefferson, Henry• Delegates do agree on causes of political conflict• Delegates did not want direct democracy, created a

republic• Aristotle: Government should cultivate virtue. Madison:

Cultivation of virtue requires a government too strong, too dangerous. Self-interest within limits.

Historic Compromises of 1787:

• Connecticut or “Great” Compromise

• Three-Fifths Compromise• Commerce and Slave Trade

Compromise

The Virginia Plan of Government

(Edmund Randolph et. al)

• Called for strong, national three-branch government• Bicameral Legislature: lower branch popularly

elected, upper branch selected by state legislatures• Both houses apportioned by population• Executive and judiciary—chosen from nat’l legislature• Nat’l legislature would be supreme• Council of Revision with veto power—legislature could

override

The New Jersey Plan of Government (Patterson et.

al.)

• Small states worried that VA plan would short-change them

• Proposed modifying the A of C.• Enhanced Nat’l Government

powers• Each state one vote

The Great Compromise/Connecticut Compromise

(Sherman & Johnson)

• Two-branch legislature:

• House of Representatives- 65 members, directly elected by people, apportioned by population

• Senate-two members per state, elected by state legislatures (until 1913)

• Voting eligibility left to states

Three-Fifths Compromise• Question: Now that you have

representation in the national legislature settled, how should slaves be counted?

• South: Count them all (would increase southern states’ representation)

• North: don’t count them at all (would hurt north by skewing distribution)

• Result: • Slaves counted as 3/5ths of a person

for representation AND taxation.

Commerce and Slave Trade Compromise

• Section 9 of Article I of the Constitution. Stipulated that Congress would not be able to prohibit the importation of slaves before 1808, although they may tax them.

• Helped to counter Southern fears that Congress' power to regulate commerce would be used to abolish slavery. This provision could not be changed by amendment.

• Fugitive slave clause• Delegates as a whole agreed with Roger

Sherman of Connecticut,who made the observation that it was better to let the Southern states import slaves than to part with those states.'"

Federal Constitution of 1787:

7 Articles• Legislative• Executive• Judicial• Relations Between States• Amendment• Supremacy Clause• Ratification

Arguments for RatificationDeveloped by Scholars

• Charles Beard (1913) asserted that some delegates urged ratification because it was financially beneficial. Not a solid theory. (used Census of 1790, flawed data, delegates voted with states, James Madison and James Wilson big advocates despite poverty)

• Roche argues that the process of drafting the document was essentially democratic

• Bryce: Federalism has more pros than cons• More likely to vote for ratification: merchants,

urban, owned western land, held IOUs, owned no slaves

• Less likely to vote for ratification: farmers, no IOUs, held slaves

The Federalist Papers Urge Ratification

• Written by Madison, Jay, Hamilton• Intended to get New York to ratify the

Constitution• 88 of them• Most influential: #10, #51, #78

Federalist #10: Madison• Factions (special interests) exist in all governments.

People are factious by nature. • The chief cause of factions is unequal distribution of

wealth/property. Smaller reasons: religion, leaders.• Factions must be controlled by a republican form of

government. 2 methods of control: Give everyone same ideas or remove liberty. Neither practical.

• Madison: Coalitions more moderate in large republics because there is a greater diversity of interests to be moderated

• Flew in the face of Montesquieu, who said liberty is only safe in small societiesGovernment should be somewhat distant, insulated from passions

• Separation of powers, supermajority requirements, and federalism control sectional tyranny (“if factious leaders kindle a flame…”)

• Irony: Madison’s view is anti-party, but paradoxically, the Constitution creates multiple access points, increasing the power of interest groups!

Federalist #51: Madison

• There is a need to partition powers between departments—executive, legislative, judicial. The combination of these three powers is the definition of tyranny.

• Separation of powers and checks and balances allow “ambition to counteract ambition.”

• Each branch will have its own motives, desire for power.• The three branches of the government must overlap in

their powers to preserve separation of powers• “If men were angels, no government would be

necessary”…but men are not. Government must control men, and then control itself

• Legislature is the branch to be feared most; not all branches have the same capacity for self-defense

• Remedy: Divide the legislature in two with different modes of election and powers

• Fortify the Executive with a veto—a qualified veto

Other Arguments for Ratification

• Constitution did include some guarantees:• NO Ex Post Facto Laws• NO Bill of Attainder• NO suspension of writ of habeas corpus• Privileges and Immunities clause• Most states have Bills of Rights• No religious test for office holding• Right to trial by jury in criminal cases• No state could pass a law impairing the obligations of

contracts• Intent of Constitution was to limit federal government

to specific powers

Anti-Federalist Arguments

• No Bill of Rights (Federalists countered by saying that listing rights was dangerous—and that several guarantees already existed—habeas corpus, trial by jury in criminal cases)

• Congress would tax heavily and usurp power from the states

• Liberty only safe in small republics • Courts would overrule state laws• President would head a large standing army

• Hmmm….all of these have come to pass• Constitution ratified in 1788 with promise to

add Bill of Rights

6 Basic Principles of the US Constitution

• Popular Sovereignty: people are ultimate source of authority

• Limited Government: government is not all powerful

• Separation of Powers: leg/exec/jud branches have different roles

• Checks and Balances: each branch has ways of controlling the others

• Judicial Review: the power to decide whether what government does is in accord with the Constitution

• Federalism: Division of power between central government and regional govt’s

The U.S. Constitution: Article I

• Requirements for Serving:

House of Representatives: 25 yrs, 7 yrs a citizen, must be from State elected

from, term: 2 yrs

Senate: 30 yrs, 9 yrs citizen, must be from state elected* from, term: 6 yrs

• Apportionment by census; 1929 Act= 435 Reps• Vacancies Filled by Governors• Each house chooses officers (speaker, pro tempore)

Article I cont’d• House of Representatives impeaches ;

Senate tries• Impeachment= formal charges• If President impeached, Chief Justice

presides; penalty for conviction limited to removal

• Vice-President presides over Senate• 2/3 vote can expel members of H or S• Neither house may unilaterally adjourn

More Article I• Members of House and Senate

privileged from arrest for misdemeanors when going to Congress

• Members may not be sued for anything they say on the floor

• No member of Congress may be a member of the Executive or Judicial Branches

Legislation• All bills for RAISING revenue must

originate in the House• All bills must be passed by both House

and Senate before proceeding to the President

• If bills are similar, conference committees deal with details and identical bills are resubmitted for a new vote

• Appropriations bills SPEND MONEY.

Once a bill does pass, President has 10 days to

• Veto bill, in which case it returns to Congress and can be overridden (2/3 vote)

Or

• Sign the bill…it becomes law

If President does nothing for 10 days

• If Congress is in session, bill becomes a law (done for personal reasons)

• If Congress goes out of session bill is killed and must be re-introduced. Known as a “Pocket Veto” (primary advantage is that it kills bill for good)

Article I: Powers of Congress

• Expressed: spelled out in the Constitution

• Implied: Reasonably extrapolated from the expressed powers

• Inherent: US has some powers because it is a sovereign government

• Reserved powers of the States are denied to Congress

• Concurrent powers (shared w/ states)

Expressed Powers (Article I, Section VIII)

• Lay and Collect Taxes, duties, and excises (must be uniform)

• Borrow Money• Regulate Commerce with foreign nations and

between states (Commerce Clause is Article I, Section 8, Clause 3). Very important today after court decisions evolved. In the beginning, there was a distinction between intrastate and interstate commerce (Gibbons v. Ogden, 1824 and U.S. v. EC Knight, 1895)

• Pass laws on naturalization and bankruptcy• Fix weights an measures, coin money• Punish Counterfeiters

More Expressed Powers• Establish Post Offices/Post rds.• Grant Copyrights and Patents• Establish all inferior courts• Punish piracy and enforce international law• Declare War; maintain Army/Navy/Armed

Forces• Call militia to suppress insurrection*• Legislate over DC; admit new states and

regulate territories• “Necessary and Proper” Clause 18

Powers Denied to Congress

• Commerce and Slave Trade Compromise limited regulation of slave trade

• Suspending habeas corpus—a legal term that literally means “to have the body”…must charge you with a crime or release you

• Bills of Attainder—law declaring you guilty without a trial

• Ex Post Facto criminal laws—Can’t arrest someone for violating a law if they did the crime when it was legal

• Capitation/direct tax• Taxing EXPORTS• Law must be passed to draw $$ from Treasury• No titles of nobility

Restrictions on State Power

• Can’t make treaties/alliances• Can’t coin money• Restrictions shared by nat’l gov’t:

bills of attainder, ex post facto laws

• Can’t levy taxes on imports or exports

Article II: The Executive• 4-yr term for Prez/Veep• Must be native born citizen• Must be 35• Must have lived in the US for 14 years• Compensation: now $400,000• Electoral College elects• Must take an oath to defend

Constitution

The Electoral College• Each state has a # of electors

determined by the Census• Michigan=18 in 2000; 17 in 2004• DC=3 electors (23rd Amendment)• 48 states winner-take all• 2 (ME and NE) divide electoral

votes by district and at-large• 270/538 needed to win

Problems with the Electoral College

• Some states much more important than others (Forget about visiting the Dakotas if you are a candidate!) Also a benefit though—candidates need not go nuts trying for every vote everywhere

• Popular vote winner doesn’t always win Elec. College

• Electors may legally disregard pop vote in 30 states

The President’s Duties• Commander-in-Chief• Make Treaties• Nominate ambassadors, ministers,

Cabinet, SC Justices• Fill all vacancies w/ temporary

appointments• State of the Union*• Call special session of Congress

Article III: Judicial Branch

• Supreme Court and inferior courts created by Congress; life terms (in good behavior)

• Federal Court jurisdiction includes federal law, treaties, Constitution

• Appointed by the President with “Advice and consent” of the Senate

• Supremes have original jurisdiction in cases involving ambassadors, states as parties, and in all other cases, appellate jurisdiction

Article III: Definition of Treason

• Only crime defined in Constitution: Levying war against the US or giving enemies “Aid and comfort.”

• Founding fathers wanted to prevent flippant use of treason to silence the loyal opposition

• Requires an OVERT act, 2 witnesses

Article IV: Relations Among States

• Each state gives others full faith and credit to public acts, records, and civil judicial proceedings—recent controversy regarding gay marriages

• Citizens of other states enjoy same privileges and immunities (passing through another state)

• Extradition is mandatory; upon request of governor fugitives must be brought back to the state making the request

Article IV Continued…..• Congress may admit new states, but a

state can only be split up with its consent

• Congress may govern territories before they become states

• Congress will guarantee each state a Republican form of government and protect them against invasion or domestic insurrection

Article V:Provisions for Amendment

• 4 formal ways of Amending the Constitution: Congress decides

• Congress may propose an amendment or must convene a nat’l convention when 2/3 of states submit request, either state legislatures or state conventions ratify with a 3/4 vote….sometimes time-limited

• Only prohibited amendment: cannot deprive states of representation in Senate

Sources of Informal Amendment (NOT in Constitution)

• Basic Legislation: War Powers Act, Line-Item Veto Act of 1996, Judiciary Act of 1789, Executive departments

• Executive Action—Persian Gulf War, Executive Agreement (President’s role changed by atomic weaponry)

• Supreme Court Decisions—Marbury v. Madison and Judicial Review

• Political Party Action—Conventions, primaries, etc.

• Custom—no third term tradition, Cabinet

Article VI: Debts/Supremacy Clause

• Debts under the revolution reaffirmed (Beard thesis)

• Constitution is supreme law of the land, followed by federal laws/treaties, state laws, and finally local law

• Executive and Legislative officers must take oath of office

Article VII: Ratification• 9/13 states required for ratification• Ratification was done by state

conventions, not legislatures, and was technically illegal

• Bill of Rights promised and delivered in 1791

1st Amendment Guarantees

• Freedom of Religion—Establishment clause and Free Exercise Clause (Constitution says NOTHING about a separation of church and state, and the Ordinance of 1785 even sanctions religion!!)

• Freedom of Assembly• Freedom of the Press• Right to Petition (for redress of grievances)• Freedom of Speech (core political speech,

and only from criminal prosecution)

2nd Amendment• “A well regulated militia being

necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”

• What is the militia?• Only amendment not nationalized under

14th Amendment• States, Feds, and locals may restrict the

right to possess certain firearms (fully automatic, lapsed assault weapons ban)

3rd Amendment• Grows out of English Bill of Rights,

1688• Soldiers may not be quartered in

private homes except in wartime

4th Amendment• Search warrants can only be issued with

“probable cause” that a crime has been or will be committed

• No general search warrants may be issued• Closest thing to “privacy” in the Constitution• Probable cause required to get a warrant to

search• Exclusionary rule of Supreme Court declares

any such evidence inadmissible in court

5th Amendment

• Criminal proceedings: must be indicted by grand jury or prosecutor presentment in federal court

• Double Jeopardy: cannot be tried twice for the same crime

• Due Process: prohibits arbitrary actions of federal government (both substantive and procedural, and states via 14th)

• Eminent Domain—must surrender property to government for public use (although you will be compensated)

• Self-incrimination not required

6th Amendment: Criminal Proceedings

• Right to be informed of charges• Impartial Jury Trial• Speedy Trial• Public Trial in same venue as crime• Right to confront witnesses• Right to have a witness or compulse

witnesses• Right to have an attorney

7th Amendment• Jury Trial shall be a right in civil

cases, unless both sides relinquish the right and decide on a bench trial

8th Amendment• Government cannot require

excessive bail• Government cannot impose “cruel

or unusual punishment”• (Death penalty not

unconstitutional because it would be proportional to crime)

9th Amendment• The fact that the Constitution

enumerates certain rights does not mean you only have those rights

• Unenumerated rights may include: right to privacy, abortion, “the right to be left alone”

10th Amendment• Powers not given to the federal

government AND not specifically denied to the states, belong to the states, or to the people.

• Favored by Republicans

END OF BILL OF RIGHTS

11th Amendment (1795)• You cannot sue a state without its

consent in Federal court • This ban applies to foreign nationals

and citizens of another state• Grows out of Chisholm v. Georgia,

1794

• EX: State of Michigan can be sued for potholes ONLY if it lets itself be sued

12th Amendment (1804)• President and VP cannot be from the

same state• Prez/VP will be on the same “ticket”• If no majority, House chooses

President and Senate chooses VP• No person ineligible to serve as

President may serve as Vice-President

13th Amendment (1865)• Banned Slavery, except as

punishment for crime.• Congress may enforce this by

appropriate legislation

14th Amendment (1868)• All people born in US are citizens of both

the US and their state— by jus soli / jus sanguinis• No state may make any laws that abridge the privileges and immunities of

citizens of the US• Nationalizes the Bill of Rights• Equal Protection Clause**• Procedural and Substantive Due Process• Confederacy debt and officers

15th Amendment (1870)• The right to vote (the franchise)

cannot be denied on the basis of race to any male age 21 and over

16th Amendment (1913)• Congress may levy an income tax• Progressive reforms encouraged

passage of this amendment• Income tax had been tried by

statutory law, but was declared unconstitutional.

17th Amendment (1913)• Repealed Article I, Section 3

Clauses 1-2• Senators now elected by the

people, not state legislatures• In most cases, governors can fill

vacancies with temporary appointments

18th Amendment (1919)• Prohibition of Alcoholic Beverages• Congress mandated ratification by

state legislatures• Volstead Act later enforced this

amendment

19th Amendment (1920)• No person can be denied the right

to vote based on sex

• Does NOT mean all women have the right to vote (18-21 yr old women and felons can’t vote)

20th Amendment (1933)• Known as “lame duck amendment”• Changed Presidential Inauguration

from March 4 to January 20• Affected 2000 Election re-count

21st Amendment (1933)• Repealed 18th Amendment• Each state may still ban alcohol;

possession of alcohol in such areas becomes a federal offense (no states currently ban statewide)

• Congress submitted this amendment to state conventions to get a more accurate opinion of the people

• Most states: “intoxicating liquor” is .5% or greater

22nd Amendment (1951)• No person may be elected

President more than twice• If you take over as President for

more than 2 yrs, you can only be elected once more (10 year max)

• Didn’t apply to Truman if he had chosen to run for a third term

23rd Amendment (1961)• District of Columbia entitled to

three electoral votes in Presidential elections

• Did NOT provide voting representation in Congress

24th Amendment (1964)• Banned Poll Tax in FEDERAL

elections• Southern states had used poll tax

to discourage blacks from voting.

25th Amendment (1967)• Presidential Succession and Disability• President may nominate a new Vice-

President if there is a vacancy with the advice and consent of both houses of Congress

• If President disability, VP can take over….Prez can be forced out if disability is determined by Congress

26th Amendment (1971)• Gave all eighteen year old citizens

the right to vote• Grew out of Vietnam War:

Kids could be sent off to die but couldn’t vote

27th Amendment (1992)• Congressional pay increases cannot

begin until there has been an intervening election of the House of Representatives

• Proposed along with Bill of Rights• Took 202 years to ratify; no time limit• Michigan was 38th state to ratify• Printed in Federal Register by archivist

—Congress immediately recognized

These weren’t so lucky..• Equal Rights Amendment Proposed in every Congress since 1923,

passed 1972 but failed in 1982 four votes short; tried to give women equal rights on paper; has had consequences in states that adopted ERA : gay marriage, abortion funding.

• School Prayer Amendments• Flag-Burning Amendment• Balanced Budget Amendment• Electoral College reform

Federalism• Federalism: a political system that is

marked by a geographic distribution of power between the central government and local (territorial, regional, provincial, state, or municipal) units of government, that can make final decisions with respect to at least some governmental activities and whose existence is specifically protected.

Federalism• Somewhat delineated in Constitution• Tenth Amendment gives undelegated powers to

states• Elastic Clause (Article I, Section 8, Clause 18).

What are “necessary and proper” uses of power?• Morton Grodzins argues that federalism was

originally supposed to look like a layer cake, but now looks like a “marble cake”

• Strict constructionists/ Decentralists (Jefferson, Reagan, Scalia, Bush 43)

Vs.• Loose or liberal constructionists/Centralists

(Hamilton, Marshall, today’s Democrats)

Marbury v. Madison (1803)• Congress passes Judiciary Act of 1789 to

“flesh out” Constitution• Section 13: Gave SC original jurisdiction in

certain cases• William Marbury was appointed a Justice of

the Peace for DC in the “final hours” of the Adams Presidency…commission not delivered, and Jefferson took over and new Secretary of State Madison ignored the commission

Marbury cont’d…• Marbury sued for his commission that

the Secretary of State didn’t deliver*• SC granted a writ of certiorari• But Marshall has a problem—if he

orders commission delivered, he will be ignored/impeached….if he does not, power of the Court will be weakened

• *reason for recusal??

More Marbury…

• 3 questions of the case:• Does Marbury have a right to his commission? YES.• Do the laws of this country afford him a remedy?

Yes.• Can this Court issue the writ of mandamus? NO…

because Section 13, Judiciary Act of 1789 provided the Supreme Court with original jurisdiction in cases in a fashion contrary to the Constitution

• So Marshall makes Jefferson happy, Marbury can’t yell at him too loudly, and the Court gets the power of judicial review

McCulloch v. Maryland (1819)

• National Bank of the United states created 1794…debate between Hamilton and Jefferson

• Maryland decides to place a tax on notes at the Baltimore branch of BUS

• McCulloch, bank cashier, refuses to pay tax

McCulloch….• United States takes MD to court• Supreme Court grants certiorari (“cert”)• Marshall: Supremacy clause makes

federal law supreme• “Power to tax” means the “power to

destroy,” so MD’s taxation of the bank is unconstitutional…states cannot impede Congress

• Preemption is now the rule—federal law overrules state/local law

Nation’s Obligation to the States

• Guarantee a Republican form of government (Dorr’s Rebellion in RI, Luther v. Borden, political Q of “Republican”

• Protect against invasion/domestic violence

• Respect territorial integrity—no new states carved out of a state without that state’s permission, no states combined without permission

Admitting New States

• State petitions Congress• Congress grants permission to frame a

Constitution (enabling act)• Voters must approve• Submitted to Congress• Act of Admission must be passed and signed

by President• Congress may set conditions for prospective

state admission (ex: outlaw polygamy)• Coyle v. Smith and Oklahoma• Arizona gets around the system, 1912

Helping States

• Federal Agency Aid--FBI aid, other agency aid, FEMA, Census Bureau

• Federal government also distributes money to the states in 3 forms of Categorical Grants. This is frequently referred to as cooperative federalism.

Types of Categorical Grants• Grants-in-Aid: grants of federal money to cities and states

(land-grant colleges too)….• EX: highway or airport building, Medicaid• Usually requires matching funds. State and local officials

frequently complain that grants are too restrictive and unresponsive to local needs. Allows Congress to become enmeshed in local concerns.

• Block grants—fewer strings• Promoted by Reagan and state governors, hated by city

mayors because state decides how much they get• EX: TANF

• Revenue Sharing—no strings, money can be spent any ay you wish, done away with in 1986. R/S was liked by Conservatives.

• Why would REAGAN dump revenue sharing?• No constituency• Massive federal budget deficits• Tax cut packages of 1981 and 1986

Nullification Debate• Starts with Kentucky and Virginia resolutions of

1798 (laws passed to silence newspaper editors; James Madison and Thomas Jefferson respond, suggesting that states could nullify federal law if it violated the Constitution)

• 1832-33: John Calhoun, SC: Opposed the 1828 “Tariff of Abominations”. SC threatened to secede, but Congress reached a compromise to lower the tariff by half over 20 years.

• Northern CW victory determined that union cannot be dissolved, and that States cannot declare federal acts to be unconstitutional—only courts can

Stages of Federalism

• Dual Federalism Part I: 1789-1861• Civil War Interlude• Dual Federalism Part II 1877-1937• Cooperative Federalism• Some books use terms such as

“competitive federalism”• “New Federalism” 1969 under Nixon

Dual Federalism• Def’n: National government is supreme in

its sphere, states are supreme in theirs• Debate about “Commerce”• Gibbons case, 1824• Lawyers engage in interstate commerce,

but baseball leagues are exempt!• Current court interpretation very cluttered• Dual Federalism is now basically dead• “Devolution Revolution” may kill any

further chance of dual federalism re-emerging

After Dual Federalism…

• Cooperative Federalism 1901-1960 (includes New Deal Federalism)

• New Deal Federalism 1933-1941• World War II Interlude 1941-1945• Creative Federalism under LBJ 1963-

1969• New Federalism or “Creative

Federalism” 1969-present• Competitive Federalism

Mandates

• Def’n: Mandates tell state governments what they must do, period. In the past, mandates had to be observed even if the state in question did not receive federal aid….examples include:

Americans with Disabilities Act, 1990Clean Air ActIDEA for Special EducationMotor-Voter Act

• In 1995, Congress passed legislation that forces mandates to be tied to federal funding and to be checked with the CBO for cost. (Unfunded Mandates Reform Act)

Recent Federalism Cases

• U.S. v. Lopez (1995)• U.S. v. Morrison (violence against

women)• Printz v. United States (background

checks)• Alden v. Maine (1999)• Gonzales v. Raich (2005)

United States v. Lopez (1995)

• Congress in 1990 made it a federal offense for any individual to possess a firearm in a school zone

• Student brought a .38 to school, was arrested, convicted, appealed to District Court and Court of Appeals, law was found unconstitutional.

• Prosecution appealed to U.S. Supreme Court• Congress’s authority: guns are commerce• Supreme Court disagrees; gun-free school

zones are up to the individual states

Printz v. United States (1997)• Brady Handgun Violence Prevention Act provisions require

the Attorney General to establish a national system for instantly checking prospective handgun purchasers' backgrounds, and commanded the "chief law enforcement officer" (CLEO) of each local jurisdiction to conduct such checks on an interim basis

• The act permitted gun dealers to sell firearms to buyers who already possessed a state handgun permit or who lived in states with existing instant background checks.

• Where neither of these were possible the Act REQUIRED certain actions by the local chief law enforcement officer to receive firearm purchase forms from gun dealers and make a reasonable effort within 5 business days to verify that the purchaser was legally able to make the purchase…

• CLEOs for counties in MT & AZ filed separate actions challenging constitutionality. Printz’s case consolidated both.

• Key Q: May Congress require state officers to administer federal programs?

• SC: Law Unconstitutional--the Federal Government may not compel the States to administer a federal regulatory program

U.S. v. Morrison (2000)• In October 1994, Christy Brzonkala, a student at Virginia

Polytechnic University went to a party. She met two students, Antonio Morrison and James Crawford. Brzonkala alleged that the two students raped her in a dormitory room. University suspended Morrison, but not Crawford.

• Unsatisfied with the decision by the university, Bronzkala sought a remedy under section 13981 of Violence Against Women Act of 1994 (VAWA). The specific section of the Act allows for victims of "crimes of violence motivated by gender" to sue for compensatory and punitive damages in federal court for violations of their civil rights.The United States stepped in to defend the VAWA as a valid exercise of congressional power. District Court dismissed case.

• Key Q: Is section 13981 of the VAWA is a valid exercise of Congress' power under (1) the Commerce Clause, or (2) the Enforcement Clause of section 5 of the Fourteenth Amendment.

• Gender-based crimes of violence are NOT economic activity that Congress can regulate

Alden v. Maine (1999)• A group of probation officers sued their employer, the

State of Maine, in 1992 alleging that the state had violated the overtime provisions of the 1938 Fair Labor Standards Act.

• Federal courts tossed suit—so they sued in state court• Key Question: May Congress use its powers under Article I

of the Constitution to abrogate a state's sovereign immunity from private suits in its own courts?

• Congress may not use its Article I powers to abrogate the states' sovereign immunity.

• Both the terms and history of the eleventh amendment suggest that states are immune from suits in their own courts.

• More generally, the original understanding of the Constitution's structure and the terms of the tenth amendment confirm that states retained much of their sovereignty despite their agreeing that the national government would be supreme when exercising its enumerated powers

Gonzales v. Raich (2005)

• Californai voters passed Proposition 215 in 1996, legalizing medical marijuana

• Federal DEA and county sheriff’s deputies raided Diane Monson’s growing operation

• Angel Raich was a customer; joined Monson in suit• Raich: Violation of 9th and 10th Amendments, Commerce

Clause and the Due Process Clauses• Enforcement of the Controlled Substances Act violated

right to medical treatment• SC: Rejected Raich argument, 6-3• Federal government MAY prohibit marijuana as a

controlled substance

Federalism: Pros and ConsPros

• Mobilizes political action• Interest groups cannot

easily take over the government

• Diversity of policies among states encourages creative experimentation, and if experimentation fails, only 1 state is screwed up (public education a good example)

• Uniform laws don’t make sense in different parts of the country (gun control, speed limits)

• Keeps gov’t close to people

Cons• Confusion of political

activity for citizens (where do you take concerns?)

• Small, motivated interest groups can thwart the will of the majority (southern Democrats and Civil Rights)

• Diverse policies create inequality (welfare benefits)

• Diverse policies create confusion, are unfair

Ch. 2 Learning Objectives

After reading and reviewing the material in this chapter the student should be able to do each of the following:

• 1. Explain the notion of “higher law” by which the colonists felt they were entitled to certain “natural rights.” List these rights.

• 2. Compare the basis on which the colonists felt a government could be legitimate.

• 3. List and discuss the shortcomings of government under the Articles of Confederation.

• 4. Compare and contrast the Virginia and New Jersey plans, and show how they led to the “Great Compromise.”

• 5. Explain why separation of powers and federalism became key parts of the Constitution.

• 6. Explain why a bill of rights was not initially included in the Constitution and why it was added.

• 7. List and explain the two major types of constitutional reform advocated today, along with specific reform measures.

Ch. 3 Learning Objectives• After reading and reviewing the material in this chapter, the student should

be able to do each of the following:• 1. Explain the difference between federal and centralized systems of

government, and give examples of each.• 2. Show how competing political interests at the Constitutional

Convention led to the adoption of a federal system that was not clearly defined.

• 3. Outline the ways in which national and state powers have been interpreted by the courts.

• 4. State the reasons why federal grants-in-aid to the states have been politically popular, and cite what have proven to be their pitfalls. Distinguish between categorical grants and block grants.

• 5. Distinguish between mandates and conditions of aid with respect to federal grant programs to states and localities. Discuss whether or to what extent federal grants to the states have created uniform national policies comparable to those of centralized governments.

• 6. Evaluate the effect of devolution on relationships between the national and state governments. Assess its implications for citizens as taxpayers and as clients of government programs.