Unit One: Constitutional Underpinnings Who Governs? To What Ends?

Unit One: Unit One: Constitutional Constitutional UnderpinningsUnderpinnings

Who Governs?Who Governs?

To What Ends?To What Ends?

What is Political Power?What is Political Power?

PowerPower: the ability of one person to : the ability of one person to get another person to do what you get another person to do what you want them to!want them to! Power is found in all relationships, Power is found in all relationships,

think about your parents, your think about your parents, your boyfriend/girlfriend, your teachersboyfriend/girlfriend, your teachers

We will discuss power as it is used to We will discuss power as it is used to affect who will hold government office affect who will hold government office and how government will behaveand how government will behave

Who exercises Power?Who exercises Power?

Those who exercise political power Those who exercise political power may or may not have the authority to may or may not have the authority to do sodo so AuthorityAuthority: the right to use power: the right to use power LegitimacyLegitimacy: Political authority : Political authority

conferred by law or by a state or conferred by law or by a state or national constitutionnational constitution

Who Exercises Power?Who Exercises Power? This was the struggle the Colonists had, did This was the struggle the Colonists had, did

England and King George III have authority England and King George III have authority and thus the power to rule?and thus the power to rule?

We will see this struggle in the next chapter We will see this struggle in the next chapter when we look at the idea of Federalismwhen we look at the idea of Federalism

We see this struggle in the Civil War, the New We see this struggle in the Civil War, the New Deal, a possible balanced budget amendmentDeal, a possible balanced budget amendment

We can agree: no exercise of political We can agree: no exercise of political power by government at any level is power by government at any level is legitimatelegitimate if it is not in some sense if it is not in some sense democratic!democratic!

DemocracyDemocracy

The rule of the many.The rule of the many.

Democracy: Two TypesDemocracy: Two Types

A. A. DirectDirect: : A government in A government in which all or most citizens which all or most citizens participate directly.participate directly.

B. B. Indirect Indirect (representative)(representative): : A A government in which leaders government in which leaders make decisions by winning a make decisions by winning a competitive struggle for the competitive struggle for the popular vote.popular vote.

Which one?

Direct DemocracyDirect Democracy

The Founders had a basic distrust of The Founders had a basic distrust of direct democracy (Ancient Greece and direct democracy (Ancient Greece and Rome)Rome) ImpracticalImpractical

(Gov should mediate, not mirror popular views)(Gov should mediate, not mirror popular views) Fleeting passions of the people (mob Fleeting passions of the people (mob

mentality)mentality) Fear of people being swayed by demagogues Fear of people being swayed by demagogues

(even highly educated people can be (even highly educated people can be manipulated by demagogic leaders who play on manipulated by demagogic leaders who play on fears and prejudices) ex. Hitlerfears and prejudices) ex. Hitler

Direct DemocracyDirect Democracy

Some people still argue for direct Some people still argue for direct democracydemocracy Neighborhoods and cities should govern Neighborhoods and cities should govern

themselvesthemselves In many states a measure of direct democracy In many states a measure of direct democracy

exists: voters can decide on referendum exists: voters can decide on referendum issues (policy choices that exist on ballots)issues (policy choices that exist on ballots)

Idaho: three referendum issues on the ballot Idaho: three referendum issues on the ballot regarding educationregarding education

This is the only way the “will of the people” This is the only way the “will of the people” can truly be ensuredcan truly be ensured

Representative Representative DemocracyDemocracy

The Framers of the Constitution The Framers of the Constitution decided on a “representative decided on a “representative democracy” democracy”

Way of minimizing the chances that Way of minimizing the chances that power would be abused by power would be abused by Tyrant!Tyrant! Tyrannical popular majorityTyrannical popular majority Self-serving officersSelf-serving officers

Democratic TheoryDemocratic Theory

A. A. Majoritarian politicsMajoritarian politics viewview: leaders are heavily : leaders are heavily influenced by the will of the influenced by the will of the people.people. B. B. Elite politicsElite politics viewsviews: : minorities dominate policy minorities dominate policy makingmaking

1. 1. Marxist viewMarxist view: : influence of economic elites. influence of economic elites.

2. 2. CC. . Wright MillsWright Mills: : influence of influence of power elitepower elite: : corporate, military, politicalcorporate, military, political

3. 3. Max WeberMax Weber: : influence of bureaucracy.influence of bureaucracy.

PluralistPluralist viewview::

1. Political resources are so scattered 1. Political resources are so scattered that no that no single elite has a monopoly on single elite has a monopoly on them.them.

2. There are so many institutions in 2. There are so many institutions in which power which power is exercised that no single is exercised that no single elite could possibly elite could possibly control all of them. control all of them.

3. Pluralism therefore argues that many 3. Pluralism therefore argues that many groups groups compete with each other for compete with each other for control over control over policy. Policy is policy. Policy is therefore the outcome of therefore the outcome of political political haggling, innumerable compromises, haggling, innumerable compromises, and ever-shifting alliances among groups.and ever-shifting alliances among groups.

Fundamental Democratic Fundamental Democratic ValuesValues

A.A. Popular Popular SovereigntySovereignty

B.B. Respect For the Respect For the Individual Individual State serves State serves individual, not vice individual, not vice versaversa

C.C. Liberty Liberty

D. Equality of Opportunity D. Equality of Opportunity

Fundamental Democratic Fundamental Democratic ProcessesProcesses

A.A. Free and Fair Elections with competing Free and Fair Elections with competing political partiespolitical parties

B.B. Majority Rule w/Minority Rights Majority Rule w/Minority Rights Fear of “tyranny of the majority” led to protection Fear of “tyranny of the majority” led to protection

of property rightsof property rightsC.C. Freedom of expression Freedom of expressionD. Right to assemble and protestD. Right to assemble and protest

Fundamental Democratic Fundamental Democratic Structures (briefly -- Structures (briefly --

covered in more detail covered in more detail later)later)

A. FederalismB. Separation of

powersC. Checks and

balancesD.

Constitutionalism

End of Chapter 1 Power End of Chapter 1 Power Point!Point!

ORIGINS OF THE ORIGINS OF THE AMERICAN REPUBLICAMERICAN REPUBLIC

I. Sources of the ConstitutionI. Sources of the Constitution

A. British Customs and A. British Customs and Traditions, e.g., Magna Traditions, e.g., Magna Carta and English Bill of Carta and English Bill of Rights.Rights.

B. European Philosophers, e.g., B. European Philosophers, e.g., Locke, Hobbes, Locke, Hobbes, Montesquieu, RousseauMontesquieu, Rousseau

C. Colonial experiences, e.g., C. Colonial experiences, e.g., power of elected assembly.power of elected assembly.

D. State constitutions written D. State constitutions written after the Declaration of after the Declaration of

Independence, e.g., Preamble Independence, e.g., Preamble closely resembles the closely resembles the

introduction to the Mass. introduction to the Mass. Constitution.Constitution.

Weaknesses of the Weaknesses of the Articles of ConfederationArticles of Confederation No power to taxNo power to tax No chief executiveNo chief executive No national judiciaryNo national judiciary No power to regulate interstate or No power to regulate interstate or

foreign commerceforeign commerce No national currencyNo national currency

The Constitutional The Constitutional ConventionConvention

Annapolis 1786Annapolis 1786 Advertised as a meeting to revise the Advertised as a meeting to revise the

ArticlesArticles Poorly attendedPoorly attended Another meeting in Philadelphia Another meeting in Philadelphia

called for in May 1787called for in May 1787

Shays’s RebellionShays’s Rebellion January 1787January 1787 Group of ex-Revolutionary War soldiersGroup of ex-Revolutionary War soldiers

Fed up with high taxes, high debts, fearful Fed up with high taxes, high debts, fearful of losing propertyof losing property

Forcibly prevented the courts in Forcibly prevented the courts in Massachusetts from sittingMassachusetts from sitting

Governor: asked Continental Congress Governor: asked Continental Congress to send troops (couldn’t raise $), he to send troops (couldn’t raise $), he didn’t have a state militia to send, had didn’t have a state militia to send, had to gather private funds to pay to gather private funds to pay individualsindividuals

Shays’s RebellionShays’s Rebellion

Results:Results: Delegates who may not have attended Delegates who may not have attended

the Philadelphia meeting (New the Philadelphia meeting (New England!) were afraid that state England!) were afraid that state governments were about to collapsegovernments were about to collapse

Constitutional Constitutional ConventionConvention

Philadelphia 1787Philadelphia 1787 55 delegates55 delegates Rhode Island refused to send anyoneRhode Island refused to send anyone

DelegatesDelegates1. Characteristics: "well-read, well-bred, well-fed, and well-1. Characteristics: "well-read, well-bred, well-fed, and well-

wed”wed”2. Participants: 2. Participants:

a. Madison: "Father of Const." because of leadership a. Madison: "Father of Const." because of leadership and detailed notes of proceedings and detailed notes of proceedings

b. Washington: presiding officerb. Washington: presiding officerc. Franklin: "elder statesman"c. Franklin: "elder statesman"d. Hamilton: most forceful advocate for strong d. Hamilton: most forceful advocate for strong

central govt.central govt.3. Charles Beard's 3. Charles Beard's EconomicEconomic InterpretationInterpretation ofof thethe UnitedUnited

StatesStates (1913) (1913)a. Constitution was written by propertied class ---> a. Constitution was written by propertied class --->

naturally reflected those interests (although no naturally reflected those interests (although no conspiracy)conspiracy)

b. Rebuttals: 1. Most people owned propertyb. Rebuttals: 1. Most people owned property 2. Even the poor, in hopes of someday 2. Even the poor, in hopes of someday

owning owning property, wanted to protect property, wanted to protect propertyproperty

Establishing a democratic government involved risks and Establishing a democratic government involved risks and dangers that required built in safeguards and protectionsdangers that required built in safeguards and protections

Areas of agreementAreas of agreement1. Scrap the 1. Scrap the Articles of ConfederationArticles of Confederation22. . Establish a republican govtEstablish a republican govt..3.Establish a constitutional govt.3.Establish a constitutional govt.4. Establish a balanced govt. where no single interest 4. Establish a balanced govt. where no single interest

dominateddominated5. Suffrage for property owners only (most people)5. Suffrage for property owners only (most people)6. Stronger central govt. than under the Articles6. Stronger central govt. than under the Articles77. . Protection of property rights the main purpose Protection of property rights the main purpose

of govtof govt..8. Keep the proceedings secret8. Keep the proceedings secret

Virginia PlanVirginia Plan Virginia plan became the Virginia plan became the

working plan for working plan for creating a creating a new new governmentgovernment

Called for a strong Called for a strong national governmentnational government LegislativeLegislative

Two houses (first elected by Two houses (first elected by people, second by people, second by legislators)legislators)

Both houses would be Both houses would be proportional representation proportional representation

ExecutiveExecutive Chosen by national Chosen by national

legislature – Parliamentary legislature – Parliamentary Form Form

JudicialJudicial

Key features:Key features: National legislature National legislature

would have supreme would have supreme powers on all matters on powers on all matters on which the separate which the separate states were not states were not competent to act, as well competent to act, as well as the power to veto any as the power to veto any and all state lawsand all state laws

At least one house of the At least one house of the legislature would be legislature would be elected directly by the elected directly by the peoplepeople

Both legislative houses Both legislative houses would have would have representation based on representation based on state populationstate population

New Jersey PlanNew Jersey Plan Small states worried about lack of representationSmall states worried about lack of representation Wanted to amend the Articles of ConfederationWanted to amend the Articles of Confederation Enhanced the power of the national government Enhanced the power of the national government

(not by much), but left States with one vote each(not by much), but left States with one vote each Offered after the Virginia planOffered after the Virginia plan

William Patterson

Areas of disagreement ---> Areas of disagreement ---> compromises:compromises:

1. Representation among the states1. Representation among the statesa. Large states favored the a. Large states favored the Virginia Virginia

PlanPlan based upon populationbased upon populationb. Small states favored the b. Small states favored the New Jersey New Jersey

PlanPlan equal representationequal representation

The Great (Connecticut) The Great (Connecticut) CompromiseCompromise

A House of Representatives consisting A House of Representatives consisting initially of sixty-five members initially of sixty-five members apportioned among the states roughly apportioned among the states roughly on the basis on the basis of population and elected of population and elected by the peopleby the people

A Senate consisting of A Senate consisting of two senators two senators from each statefrom each state to be to be chosen by the chosen by the state legislaturesstate legislatures

Areas of disagreement ---> Areas of disagreement ---> compromises:compromises:

2.2. Representation and taxation of slavesRepresentation and taxation of slavesa. Northern states wanted slaves to a. Northern states wanted slaves to

count count for taxation, but not for taxation, but not representationrepresentation

b. Southern states wanted the oppositeb. Southern states wanted the opposite

3/53/5thth Compromise Compromise Each state in the House was to have “three-Each state in the House was to have “three-

fifths of all other persons” to be added to fifths of all other persons” to be added to “the whole number of free persons”“the whole number of free persons” For both taxation and representation purposesFor both taxation and representation purposes

Convention agreed to not allow the Convention agreed to not allow the prohibition of the importation of slaves until prohibition of the importation of slaves until 1808, however, Congress was not required 1808, however, Congress was not required to end it at that time!to end it at that time!

Constitution guaranteed that if a slave were Constitution guaranteed that if a slave were to escape his or her master and flee to a to escape his or her master and flee to a non-slave state, the slave would be non-slave state, the slave would be returnedreturned

Areas of Disagreement Areas of Disagreement ---> Compromises:---> Compromises:

Election of the Presidenta. Life term vs. annual election --->

compromise of a 4-year term.b. Method of election:

1) Some wanted election by Congress

2) Some wanted election by state legislatures

3) Some wanted direct electionCompromise: Electoral College

System

Ratification of the Ratification of the Constitution: PoliticsConstitution: Politics

1.1.Federalists Federalists a. Supporters: property a. Supporters: property owners,owners, creditors, merchants creditors, merchants b. Viewsb. Views

1. Elites most fit to 1. Elites most fit to governgovern

2. Feared "excesses" 2. Feared "excesses" of of democracy democracy

3. Favored strong 3. Favored strong central central government governmentc. Leaders: Hamilton, c. Leaders: Hamilton, Madison, Washington and Madison, Washington and JayJay

Ratification PoliticsRatification Politics2. Antifederalists2. Antifederalists

a. Supporters: small farmers, a. Supporters: small farmers, frontiersmen, debtors and frontiersmen, debtors and

shopkeepersshopkeepersb. Viewsb. Views1. Feared concentration of 1. Feared concentration of power in hands of elitespower in hands of elites2. Believed that govt. should2. Believed that govt. should be closer to the peoplebe closer to the people3. Feared strong central govt.3. Feared strong central govt. Favored stronger state govt.Favored stronger state govt.

4. Feared the lack of a Bill of 4. Feared the lack of a Bill of Rights, their strongest Rights, their strongest argumentargumentc. Leaders: Henry, Mason, c. Leaders: Henry, Mason, GerryGerry

Ratification Politics Ratification Politics

3. Federalists Advantages3. Federalists Advantagesa. Were better represented in state leg.a. Were better represented in state leg.b. Controlled the pressb. Controlled the pressc. Began ratification procedures quickly c. Began ratification procedures quickly before Antifederalists could get before Antifederalists could get organizedorganizedd. Agreed to a Bill of Rights after d. Agreed to a Bill of Rights after ratificationratification of the Constitutionof the Constitution

44. . The Federalist Papers: Madison, The Federalist Papers: Madison, HamiltonHamiltonand Jay to rally support for ratification and Jay to rally support for ratification of of the Constitution.the Constitution.

5. Ratification, 1788 by state ratifying 5. Ratification, 1788 by state ratifying conventions of popularly-elected conventions of popularly-elected delegatesdelegates

Structure of the U.S. Structure of the U.S. ConstitutionConstitution

Preamble = purposes of governmentPreamble = purposes of government ArticlesArticles

SectionsSections Amendments = formal changes to the Amendments = formal changes to the

ConstitutionConstitution

27 total (127 total (1stst 10 = Bill of 10 = Bill of Rights)Rights)

PreamblePreamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

SCHOOL HOUSE ROCK

End of Chapter 2 and End of Chapter 2 and Unit 1Unit 1

Unit 2: U.S. Unit 2: U.S. ConstitutionConstitution

The principles and concepts The principles and concepts behind the documentbehind the document

Separation of PowersSeparation of Powers To Madison, tyranny was govt. that To Madison, tyranny was govt. that controlled all 3 branches of govt. ---> controlled all 3 branches of govt. ---> Division of power among the legislative, Division of power among the legislative, executive, and judicial branches executive, and judicial branches This system This system diffusesdiffuses power instead of power instead of cconcentratingoncentrating power powerInfluence of MontesquieuInfluence of MontesquieuColonial experiences, e.g., excessive power Colonial experiences, e.g., excessive power in state legislatures in state legislatures need for strong need for strong executiveexecutiveDanger of one branch combining forces Danger of one branch combining forces with another branch ---> checks and with another branch ---> checks and balancesbalances

Checks and BalancesChecks and BalancesBackground* 18th century view of govt. as something to be

restrained, and modern view of govt. as something to be used for the common good

* Fear of tyranny among Founders ---> distrust of govt. ---> checks and balances as means of intentionally building inefficiency in order to prevent govt. abuse of power

Checks and BalancesChecks and Balances System of restraints in which each branch

can check the other two. Reflects fear of tyranny

Examples: veto, veto override, appointment and confirmation, treaty-making and ratification, defense funding and Commander-In-Chief

See book page 29

Checks and BalancesChecks and Balances Political independence within each branch: no

branch is dependent upon the other two for election (exception: judges are appt'd by President) and continuance in office (life terms for judges increase presidential influence)

Staggering of terms within each branch -> a majority of voters can gain control over one part of govt. at one time, e.g., midterm cong. elections can serve as a check on the exec.

Checks and BalancesChecks and Balances Modifications of checks and balances: examine if

the following strengthen or weaken checks and balances

1. Political Parties2. Changes in Voting Methods3. Growth of Federal Bureaucracy4. Changes in Technology5. Emergence of U.S. as World Power after WWII

*Group Activity*Group Activity

1. Political Parties1. Political Partiesa.a. In theory, should weaken checks and balances In theory, should weaken checks and balances

– a way of bringing the branches of govt. – a way of bringing the branches of govt. together. together. Constitution divides govt., but Constitution divides govt., but parties bring people in govt. togetherparties bring people in govt. together

b.b. In reality, however, parties are weak: In reality, however, parties are weak: Dominance of only 2 parties ---> each party Dominance of only 2 parties ---> each party has wide range of interests ---> much has wide range of interests ---> much disagreement within each party itself ---> disagreement within each party itself ---> difficult to assert such strong controldifficult to assert such strong control

c.c. Prevalence of Prevalence of divided governmentdivided government, i.e., a , i.e., a President of one party and a Congress of the President of one party and a Congress of the otherother

2. Changes in Voting 2. Changes in Voting MethodsMethods

a. Senators now chosen by peoplea. Senators now chosen by peopleb. Congressmen also chosen by peopleb. Congressmen also chosen by peoplec. Presidents chosen by electors who c. Presidents chosen by electors who

vote as the people have votedvote as the people have voted-- Thus, members of two branches -- Thus, members of two branches

essentially chosen by same essentially chosen by same electorate weakening of checks electorate weakening of checks and balances and balances in theoryin theory; however, ; however, split ticket voting has changed thissplit ticket voting has changed this

3. Growth of Federal 3. Growth of Federal BureaucracyBureaucracy

a. Development of numerous agencies w/ a. Development of numerous agencies w/ legislative, executive, and judicial functionslegislative, executive, and judicial functions

b. Congress often grants broad authority to b. Congress often grants broad authority to agencies and lets them carry out the general agencies and lets them carry out the general will of Congress, e.g., Congress established will of Congress, e.g., Congress established an IRS to collect taxes, and then granted the an IRS to collect taxes, and then granted the IRS authority to help write the tax code, IRS authority to help write the tax code, enforce the tax code, and settle disputes over enforce the tax code, and settle disputes over the tax code.the tax code.

Thus, growth of bureaucracy has caused a Thus, growth of bureaucracy has caused a weakening of checks and balances.weakening of checks and balances.

4. Changes in 4. Changes in TechnologyTechnology

e.g., nukes, computers, fax machines, satellite e.g., nukes, computers, fax machines, satellite communications communications

Two views:Two views:a. President, Congress, interest groups, media have all a. President, Congress, interest groups, media have all

been able to take advantage of the new technologies been able to take advantage of the new technologies ---> strengthening of checks and balances---> strengthening of checks and balances

b. President has been especially able to take b. President has been especially able to take advantage of these ("electronic throne"), e.g., advantage of these ("electronic throne"), e.g., “staged event” of Bush landing on an aircraft carrier “staged event” of Bush landing on an aircraft carrier and Obama receiving donations of several million and Obama receiving donations of several million dollars in less than 12 hours through Facebook and dollars in less than 12 hours through Facebook and twitter ---> weakening of checks and balancestwitter ---> weakening of checks and balances

5. Emergence of U.S. as 5. Emergence of U.S. as World PowerWorld PowerPost WWIIPost WWII

a. Areas of "national interest" extend around the a. Areas of "national interest" extend around the worldworld

-U.S. is leader of free world -U.S. is leader of free world -U.S. is only remaining superpower after -U.S. is only remaining superpower after

Cold WarCold War

b. With such heavy responsibilities, any crisis b. With such heavy responsibilities, any crisis seems to seems to involve U.S. somehowinvolve U.S. somehow

These responsibilities need to be dealt with in a These responsibilities need to be dealt with in a strong strong and efficient manner -->power has and efficient manner -->power has concentrated in concentrated in executive branch ("imperial executive branch ("imperial presidency") presidency") weakening of checks and weakening of checks and balancesbalances

Judicial reviewJudicial review

Marbury v. MadisonMarbury v. Madison

Judicial ReviewJudicial ReviewEstablished by Established by Marbury v. Madison, 1803Marbury v. Madison, 18031. Facts of case: the end of Federalist control of 1. Facts of case: the end of Federalist control of

govt. and appointment of the "midnight govt. and appointment of the "midnight judges," including Marbury ---> Jefferson judges," including Marbury ---> Jefferson ordered Madison to not deliver commissions to ordered Madison to not deliver commissions to these judges --->Marbury's request for a writ of these judges --->Marbury's request for a writ of mandamus (under Sect. 13 of Jud. Act. of 1789) mandamus (under Sect. 13 of Jud. Act. of 1789) from the Supreme Court to order the delivery of from the Supreme Court to order the delivery of his commission.his commission.

2. Decision of Marshall and the Court: section 13 2. Decision of Marshall and the Court: section 13 of Judiciary Act of 1789 enabling the Court to of Judiciary Act of 1789 enabling the Court to issue a writ of mandamus through original issue a writ of mandamus through original jurisdiction in this type of case was jurisdiction in this type of case was unconstitutional.unconstitutional.

Judicial ReviewJudicial Review3. Analysis3. Analysisa. Marshall ruled that the Court did not a. Marshall ruled that the Court did not

have the authority to issue the writ, have the authority to issue the writ, but he paradoxically increased its but he paradoxically increased its power by establishing power by establishing judicial review judicial review when the Court struck down section when the Court struck down section 13.13.

b. Jefferson couldn't complain because b. Jefferson couldn't complain because the midnight judges didn't receive the midnight judges didn't receive their appointments, but he fumed their appointments, but he fumed because his enemy, Federalist John because his enemy, Federalist John Marshall, increased the power of the Marshall, increased the power of the Court.Court.

Effects of judicial review: citizens can Effects of judicial review: citizens can challenge constitutionality of laws in challenge constitutionality of laws in court by initiating lawsuits (example: court by initiating lawsuits (example: Gideon v. Wainright, 1963) Gideon v. Wainright, 1963) litigation has become an important litigation has become an important way of making public policy.way of making public policy.

Chief Justice John Marshall

Limited GovernmentLimited GovernmentLimited government: dilemma of Limited government: dilemma of

wanting a more effective government, wanting a more effective government, but also a limited government that but also a limited government that did not become tyrannical.did not become tyrannical.

A. Constitutional government: govt. has A. Constitutional government: govt. has only those powers listed in Const. only those powers listed in Const.

B. Bill of Rights as a safeguard against B. Bill of Rights as a safeguard against possible tyranny from a new, strong, possible tyranny from a new, strong, distant government. Little fear of distant government. Little fear of state govts, but great fear of national state govts, but great fear of national govt. govt. Amendment 10 Amendment 10 reflects view reflects view that states would have substantial that states would have substantial powerspowers: central govt. could exercise : central govt. could exercise only those powers delegated to it by only those powers delegated to it by the Const. States would have all else.the Const. States would have all else.

Changing the Constitution informallyChanging the Constitution informally A. Const. a framework ---> details to be filled in later.A. Const. a framework ---> details to be filled in later.B. Due to difficulties of formally changing Const., informal ways B. Due to difficulties of formally changing Const., informal ways

developed:developed:1. Acts of Congress (e.g., Judiciary Act of 1789)1. Acts of Congress (e.g., Judiciary Act of 1789)

2. Judicial rulings (e.g., 2. Judicial rulings (e.g., Plessy v. FergusonPlessy v. Ferguson, , Brown v. BoardBrown v. Board).).3. Presidential actions (e.g., police actions since WWII,).3. Presidential actions (e.g., police actions since WWII,).4. Customs and traditions (e.g., Cabinet, parties, committee 4. Customs and traditions (e.g., Cabinet, parties, committee

system in Cong., senatorial courtesy, system in Cong., senatorial courtesy, legislative vetolegislative veto, , presidential nominating conventions) presidential nominating conventions)

““Constitution belongs to the living, not the dead” (Jefferson): Constitution belongs to the living, not the dead” (Jefferson): Jefferson believed each generation might need new Const.Jefferson believed each generation might need new Const.

This hasn’t occurred because of the informal changes that have This hasn’t occurred because of the informal changes that have allowed the Constitution to adapt to changing times.allowed the Constitution to adapt to changing times.

To Propose an To Propose an Amendment FormallyAmendment Formally

1.1. 2/3 of both houses of Congress vote to 2/3 of both houses of Congress vote to propose an amendmentpropose an amendment

(all done this way) No presidential veto (all done this way) No presidential veto possiblepossible

Or….Or….

To Propose an Amendment To Propose an Amendment FormallyFormally

2. 2. 2/3 of the state legislatures ask Congress 2/3 of the state legislatures ask Congress to call a national convention to propose to call a national convention to propose amendmentsamendmentsstates -->serious implications and fears of states -->serious implications and fears of such a gathering:such a gathering:

1) Never used before1) Never used before2) Fear of "runaway" convention that 2) Fear of "runaway" convention that

might get out of hand and implement might get out of hand and implement wholesale changes in the Const.wholesale changes in the Const.

3) Disturbing questions: Will 3) Disturbing questions: Will convention stick to only the matter at hand? convention stick to only the matter at hand? Will it take on other issues? Who gets to be Will it take on other issues? Who gets to be delegates? How are they selected? How is delegates? How are they selected? How is representation among the states to be representation among the states to be determined?determined?

Ratify an Amendment Ratify an Amendment Ratification: 2 methods - Congress decides which Ratification: 2 methods - Congress decides which shall be usedshall be used

1.1. ¾ of the state legislatures approve it¾ of the state legislatures approve it All but one (21st) done this way (repealing All but one (21st) done this way (repealing

Prohibition) Why?Prohibition) Why?

2. 2. Ratifying conventions in 3/4 of states.Ratifying conventions in 3/4 of states. A more directly democratic way: people elect A more directly democratic way: people elect

delegates who state their positions on the delegates who state their positions on the proposed amendment. Citizens are in essence proposed amendment. Citizens are in essence casting their votes on the amendment by casting their votes on the amendment by voting for the appropriate delegates.voting for the appropriate delegates.

Time limits for ratification: generally 7 yearsTime limits for ratification: generally 7 years

Ratify an AmendmentRatify an Amendment Thousands of proposals have been made, Thousands of proposals have been made,

but only 33 have obtained the necessary but only 33 have obtained the necessary 2/3 vote in Congress2/3 vote in Congress

27 amendments have been ratified27 amendments have been ratified The first 10 are the Bill of RightsThe first 10 are the Bill of Rights

End of the ConstitutionEnd of the Constitution

FederalismFederalism

What is Federalism? What is Federalism? Political system in Political system in

which the national which the national government shares government shares power with local power with local governments governments

Problem: sharing Problem: sharing authority!authority!

Current examples…Current examples…

ORIGINS OF AMERICAN ORIGINS OF AMERICAN FEDERALISMFEDERALISM

FederalismFederalism: : constitutional division of constitutional division of power between the national govt. and power between the national govt. and state govts. Both get their powers state govts. Both get their powers from a Constitution, not each other.from a Constitution, not each other.

II.II.Reasons for federal system in U.S.Reasons for federal system in U.S. A. Unitary system (where a A. Unitary system (where a central central

governmentgovernment rather than a rather than a constitutionconstitution delegates power) was undesirable -- delegates power) was undesirable -- too reminiscent of British rule. Fear too reminiscent of British rule. Fear of strong, distant govt.of strong, distant govt.B. Confederate system undesirable -- B. Confederate system undesirable -- too reminiscent of Articles.too reminiscent of Articles.C. C. Allows unity, but not uniformity -- Allows unity, but not uniformity -- allows for differences among states.allows for differences among states.D. D. More suitable for geographically More suitable for geographically large nation -- allows for differences large nation -- allows for differences among states.among states.E. E. More suitable for heterogeneous More suitable for heterogeneous people -- allows for differencespeople -- allows for differences

Reasons for Federal System Reasons for Federal System in U.Sin U.S

F.F. More likely to check More likely to check tyranny:tyranny:

1. If tyranny occurred 1. If tyranny occurred in a few states, fed. govt. in a few states, fed. govt. could prevent its spread to could prevent its spread to others. (e.g., others. (e.g., Shays' Shays' RebellionRebellion))

2. National govt. has 2. National govt. has only those powers granted to only those powers granted to it -- all others belong to it -- all others belong to states through: states through:

Amendment 10Amendment 10..

-- Cost of checking tyranny is at -- Cost of checking tyranny is at times inefficiency, but times inefficiency, but Founders more interested in Founders more interested in checking tyranny than in checking tyranny than in having a strong and effective having a strong and effective govt. that could run govt. that could run roughshod over the people's roughshod over the people's liberties.liberties.

Reasons for federal Reasons for federal system in U.Ssystem in U.S

G.G. Frees national govt. to Frees national govt. to concentrate on truly national concentrate on truly national matters.matters.

H.H. Frees states from excessive Frees states from excessive intrusion on strictly state/local intrusion on strictly state/local matters (but discuss problem of matters (but discuss problem of growth of federal mandates, and growth of federal mandates, and esp. esp. unfunded mandatesunfunded mandates).).

I. I. Encourages experimentationEncourages experimentation -- -- states as "laboratories" (e.g. states as "laboratories" (e.g. legalized gambling in Nevada has legalized gambling in Nevada has spread to other states, CA spread to other states, CA legalization of medical marijuana legalization of medical marijuana has been adopted by a few other has been adopted by a few other states)states)

J.J. Keeps govt. closer to peopleKeeps govt. closer to people. . Multiple points of access for Multiple points of access for citizenscitizens..

Dual FederalismDual Federalism1. Prevalent 1. Prevalent

through ~1937.through ~1937.2. State 2. State

governments and governments and national government each national government each remained supreme within remained supreme within their their own spheres.own spheres.

3. Powers and 3. Powers and policy assignments of the policy assignments of the layers of layers of

govt. were distinct, as in a govt. were distinct, as in a layer cake. layer cake.

4. Suggested that 4. Suggested that the powers of the national the powers of the national govt. should be govt. should be interpreted narrowly.interpreted narrowly.

Cooperative (“Marble Cooperative (“Marble Cake”) FederalismCake”) Federalism..

1. Prevalent since 1. Prevalent since ~1937.~1937.

2. Mingling of 2. Mingling of responsibilities between responsibilities between the the

state and national state and national govt.govt.

3. Sharing of powers 3. Sharing of powers and policy assignments, as and policy assignments, as in a marble cake.in a marble cake.

4. Suggests that 4. Suggests that powers of the national powers of the national govt. govt.

should be interpreted should be interpreted broadly.broadly.

New FederalismNew Federalism1. Shifting of 1. Shifting of

some authority from some authority from national national

govt. back to the govt. back to the states.states.

2. Associated with 2. Associated with Nixon, Reagan, and esp. Nixon, Reagan, and esp. associated with 104th associated with 104th and 105th Republican and 105th Republican Congress: “Devolution Congress: “Devolution

Revolution”Revolution”3. Example: use 3. Example: use

of block grants in of block grants in welfare welfare

reform bill of 1996.reform bill of 1996.

Federalist # 51Federalist # 51

Federalism #2Federalism #2

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

I.I. National powers. National National powers. National govt. has 3 categories of govt. has 3 categories of powers that are delegated to powers that are delegated to it. Here are theit. Here are the categories of categories of the the delegated powersdelegated powers::

A. Expressed (enumerated): A. Expressed (enumerated): actually stated in the Const.actually stated in the Const.B. Implied: not stated B. Implied: not stated explicitly, but suggested explicitly, but suggested implicitly. implicitly.

Importance of elastic Importance of elastic clause.clause.C. Inherent: not stated C. Inherent: not stated explicitly, but held by the explicitly, but held by the national national

govt. by virtue of its being govt. by virtue of its being a national govt. Any govt. is a national govt. Any govt. is

entitled to certain foreign entitled to certain foreign policy powers such as policy powers such as diplomatic recognition, diplomatic recognition, acquiring territory, or acquiring territory, or defending defending

itself.itself.

STRUCTURE OF STRUCTURE OF AMERICAN FEDERALISMAMERICAN FEDERALISM

II.II. State powers: State powers: reservedreserved

A. A. Amendment 10 states Amendment 10 states that any powers not that any powers not granted to the national granted to the national govt. are reserved for the govt. are reserved for the statesstates..

B. Examples: B. Examples: establishing voting establishing voting requirements, running requirements, running elections, licensing elections, licensing professionals, protecting professionals, protecting community health, community health, establishing a vehicle establishing a vehicle code.code.


III.III. Concurrent Concurrent powers.powers.A.A. Granted to Granted to Congress, but not Congress, but not denied by Const. or denied by Const. or courts to the states ---> courts to the states ---> held by both national held by both national and state govts.and state govts.B.B. Examples: taxing, Examples: taxing, borrowing, establishing borrowing, establishing court court

system, establishing system, establishing law enforcement law enforcement agencies.agencies.C.C. Questions of Questions of fed./state authority are fed./state authority are decided by courts.decided by courts.


IV. National supremacy (Article IV. National supremacy (Article VI): VI):

national govt. supreme in case national govt. supreme in case of of

conflict.conflict.


V. Obligations of V. Obligations of national govt. to the national govt. to the statesstatesA. Guarantee each A. Guarantee each state a republican state a republican form of govt.form of govt.B.B. Protect each Protect each state against invasion state against invasion or domestic or domestic violence.violence.C.C. Grant new states Grant new states the same rights as the same rights as other states.other states.

STRUCTURE OF AMERICAN STRUCTURE OF AMERICAN FEDERALISMFEDERALISM

VI. Obligations of state govts.

A. Full faith and credit clause: each state must honor the public acts, records and legal proceedings of other states, e.g., birth certificates, marriages, debts.

1. Four states (MA, VT, IA, CT) have legalized same-sex marriages.2. However, in the 1990s Congress passed the Defense of Marriage Act,

which allowed each state to define marriage, and in effect not recognize gay marriage if the state defined marriage as the union

of a man and a woman.B. Privileges and immunities clause: each state must grant to citizens of

other states the same rights and privileges that they grant to their own citizens, i.e., states cannot unreasonably discriminate against citizens of other states.

C. Extradition: Governors must return suspects to the states in which they allegedly committed their crimes.

D. Interstate compacts require consent of Congress.


DECENTRALISM (STATES' RIGHTS) V. DECENTRALISM (STATES' RIGHTS) V.

CENTRALISM (NATIONALIST)CENTRALISM (NATIONALIST) I. Decentralist (states' rights) approach.I. Decentralist (states' rights) approach.

A. Const. a compact created by states ---A. Const. a compact created by states ---> implies strong state authority.> implies strong state authority.B. Const. carefully limits national B. Const. carefully limits national authority to delegated powers.authority to delegated powers.C. C. 10th Amendment gives broad powers 10th Amendment gives broad powers to statesto states..D. When in doubt as to which holds a D. When in doubt as to which holds a power, matter should be resolved in power, matter should be resolved in favor of states.favor of states.E. Implies strict constructionist E. Implies strict constructionist approach to Constitutionapproach to ConstitutionF. National govt. has gotten too big and F. National govt. has gotten too big and impersonal.impersonal.G. State govts. are closer to the people.G. State govts. are closer to the people.H. Followers: Calhoun, Goldwater, H. Followers: Calhoun, Goldwater, Reagan, southern conservatives, western Reagan, southern conservatives, western conservatives, Christian conservatives, Christian

fundamentalists, Newt Gingrich, Bush fundamentalists, Newt Gingrich, Bush 4343

DECENTRALISM (STATES' RIGHTS) V. DECENTRALISM (STATES' RIGHTS) V. CENTRALISM (NATIONALIST)CENTRALISM (NATIONALIST)

II.II.Centralist (nationalist) approach.Centralist (nationalist) approach.A.A. Const. created by Const. created by peoplepeople ("We the people ..."), and not ("We the people ..."), and not the the states.states.B.B. Elastic, commerce, and taxing/spending clauses give Elastic, commerce, and taxing/spending clauses give great great power to national govt.power to national govt.C.C. Powers go to states only if they have been Powers go to states only if they have been surrendered by surrendered by national govt.national govt.D.D. When in doubt, matter should be resolved in favor of When in doubt, matter should be resolved in favor of national national govt.govt.E.E. Implies loose constructionist approach to Implies loose constructionist approach to Constitution.Constitution.F.F. Size of federal bureaucracy has remained relatively Size of federal bureaucracy has remained relatively constant for constant for last 40 years.last 40 years.G.G. While state govts. may be closer to people, some of While state govts. may be closer to people, some of those state those state govts. have violated people's basic rights (e.g., govts. have violated people's basic rights (e.g., South during first 70 years of 20th South during first 70 years of 20th century) -- national century) -- national govt. has been key protector of rights.govt. has been key protector of rights.H.H. Followers: Hamilton, Marshall, Webster, TR, FDR, Followers: Hamilton, Marshall, Webster, TR, FDR, JFK, LBJ, JFK, LBJ, Clinton, ObamaClinton, Obama

III.III. Triumph of nationalist Triumph of nationalist approach: McCulloch v. approach: McCulloch v.

Maryland, 1819Maryland, 1819A.A. Maryland attempted to tax a branch Maryland attempted to tax a branch of the Bank of the U.S.:of the Bank of the U.S.:

1. It argued that taxing was one of its 1. It argued that taxing was one of its

reserved powers.reserved powers.2. In addition, it argued that the 2. In addition, it argued that the

Bank Bank was unconstitutional, anyway.was unconstitutional, anyway.

B. The Court's decision (under Marshall):

1. Need for a more flexible interpretation of the Const. so that it would endure -> Bank was "necessary and proper" ---> establishment of implied powers.

2. "Power to tax involves power to destroy" ---> states clearly not free to destroy the national govt. ---> establishment of national supremacy.

IV.IV.Sources of National Sources of National Strength.Strength.

A. Elastic clause: Congress can pass laws “necessary and proper” to carry out expressed powers.

B.War powers.C. Commerce clause: virtually anything is interstate or foreign commerce

Congress can regulate virtually anything.D.Power to tax and spend for the “common defense and the general

welfare.” 1. While Congress cannot technically legislate on everything, it can

spend funds on virtually everything.2. States don't have to accept federal money, but if they do, they must

follow federal guidelines (e.g., fed. highway funds can be denied if a

state’s alcohol purchasing age is less than 21, fed. education funds

can be denied if states do not comply w/No Child Left Behind Act)

-- Federal "strings" attached to funding are ways in which the federal govt. can get its way on things.E. Preemption of state laws by fed. courts if laws in conflict w/Const. or

fed. laws.F. Imposition of federal mandates (some unfunded) on states

V.V. Recent Developments.Recent Developments.A. Evolution towards greater federal control throughout most of 20th

century.

B. Nixon's "New Federalism:" returning some power back to states.

Also favored by Reagan, both Bushes, and Republican Party in general

C. Republican victory in cong. elections of 1994 ---> Contract with America and devolution of power back to states:

1. Unfunded Mandates Reform Act of 1995 restricted future unfunded mandates.

2. Use of block grants to replace categorical grants.

1996 welfare reform bill that ended welfare as fed. entitlement. (Save details of this bill for tomorrow) Repeal of 55 m.p.h. speed limit.

V.V. Recent DevelopmentsRecent DevelopmentsE. Supreme Court actions consistent with devolution:

1.1. Struck down Gun Free School Zones Act in 1995 in US v. Struck down Gun Free School Zones Act in 1995 in US v. Lopez: Congress overextended itself when it linked gun Lopez: Congress overextended itself when it linked gun control laws to the interstate control laws to the interstate commerce clausecommerce clause of the of the Constitution. Constitution.

2.2. Struck down part of the Violence Against Women Act in US v. Struck down part of the Violence Against Women Act in US v. Morrison (2000), saying that rape victims could not sue their Morrison (2000), saying that rape victims could not sue their attackers in federal court because it was up to the states – not attackers in federal court because it was up to the states – not Congress – to give such help to women victimized by violence. Congress – to give such help to women victimized by violence. Again, the Court said that the Congress overextended itself Again, the Court said that the Congress overextended itself with the use of the with the use of the interstate commerce clauseinterstate commerce clause in passing the in passing the Act.Act.

3.3. Struck down Religious Freedom Restoration Act in 1993: This Struck down Religious Freedom Restoration Act in 1993: This act had restricted the power of the states to regulate religion -act had restricted the power of the states to regulate religion -> this ruling gave states greater authority to regulate religion. > this ruling gave states greater authority to regulate religion.

4.4. Struck down Brady Act in 1997 that required local law Struck down Brady Act in 1997 that required local law enforcement agencies to do background checks on gun buyers.enforcement agencies to do background checks on gun buyers.

5.5. Upheld an Indiana law that required photo ID for voting Upheld an Indiana law that required photo ID for voting (Crawford v. Marion County Election Board and Indiana (Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, 2008)Democratic Party v. Rokita, 2008)


FEDERALISM AND FEDERALISM AND FEDERAL GRANTSFEDERAL GRANTS

As national govt. has As national govt. has grown more powerful, grown more powerful, it has used state and it has used state and local govts. to local govts. to administer programs administer programs that are federally that are federally funded ---> funded ---> development of federal development of federal grants to state and grants to state and local govts.local govts. Dollar Dollar amounts of these have amounts of these have consistently risen in consistently risen in last several decades, last several decades, though there has been though there has been variation in grants as a variation in grants as a percentage of federal percentage of federal expenditures.expenditures.

Purposes of Fed. GrantsPurposes of Fed. GrantsA.A. Reduces growth of fed. Reduces growth of fed.

bureaucracy -- fed. govt. bureaucracy -- fed. govt. simply provides money to simply provides money to

states and has states run states and has states run the the

programs (under fed. programs (under fed. guidelines, of course).guidelines, of course).

B.B. Supplies state and local Supplies state and local govts. w/needed revenue.govts. w/needed revenue.

C.C. Establishes minimum Establishes minimum fed. standards in fed. standards in important areas (air important areas (air quality, water quality)quality, water quality)

D. Equalizes resources D. Equalizes resources among rich and poor among rich and poor states.states.

Types of Fed. GrantsTypes of Fed. GrantsA.A. CategoricalCategorical..

1. 1. For specific For specific programsprograms (e.g., roads, (e.g., roads, airports, housing, bilingual airports, housing, bilingual education).education).

2. National govt. 2. National govt. agrees to pay a portion of agrees to pay a portion of the costs for these, and the costs for these, and states pick up the balance states pick up the balance --- ---

> these sometimes > these sometimes called "formula grants" called "formula grants" because grants are offered because grants are offered under a payment under a payment

formula (e.g., 80%-20%).formula (e.g., 80%-20%).3. States don't have 3. States don't have

to accept these, but if they to accept these, but if they do they must comply do they must comply w/fed. standards.w/fed. standards.

Types of fed. grants.Types of fed. grants.

B.B. Project.Project.

1.1. States apply for grants for States apply for grants for specific projects.specific projects.

2.2. "Grantsmanship:" state "Grantsmanship:" state competition for grants has led to competition for grants has led to development of the fine art of development of the fine art of “grant writing”“grant writing”

Types of fed. grants.Types of fed. grants.C.C. Block.Block.

1.Granted to 1.Granted to support a collection of support a collection of general programs (e.g., general programs (e.g., urban development, urban development, transportation) ---> transportation) ---> more state leeway in more state leeway in spending of the money.spending of the money.

2. Associate these 2. Associate these w/104th and 105w/104th and 105thth Republican Congress Republican Congress and devolution of power and devolution of power back to states.back to states.

D.D. Analyze these Analyze these types of grants from types of grants from centralist and centralist and decentralist positions.decentralist positions.

The Politics of Federal The Politics of Federal GrantsGrants

Democrats have generally favored greater funding, but with Democrats have generally favored greater funding, but with more “strings” associated with more “strings” associated with categoricalcategorical grants. grants.

Republicans have generally favored less funding, but with Republicans have generally favored less funding, but with fewer “strings” associated with fewer “strings” associated with blockblock grantsgrants. Welfare is an . Welfare is an example of this:example of this:

End to entitlement status of AFDC and federal guarantee of End to entitlement status of AFDC and federal guarantee of welfare checks with passage in 1996 of Personal welfare checks with passage in 1996 of Personal Responsibility and Work Opportunity Reconciliation Act Responsibility and Work Opportunity Reconciliation Act (Welfare Reform Act of 1996)(Welfare Reform Act of 1996)

Welfare Welfare blockblock grants therefore replaced the welfare grants therefore replaced the welfare categoricalcategorical grants.grants.

Even as a block grant, the Welfare Reform act involved Even as a block grant, the Welfare Reform act involved federal “strings:”federal “strings:”

No fed. funds go to recipients who have not worked within 2 No fed. funds go to recipients who have not worked within 2 yrs.yrs.

No fed. funds go to recipients who have received fed. money No fed. funds go to recipients who have received fed. money > 5 yrs.> 5 yrs.

States must spend at least 75% of what they had previously States must spend at least 75% of what they had previously spent on welfare – this to avoid the “race to the bottom.”spent on welfare – this to avoid the “race to the bottom.”

The Politics of Federal The Politics of Federal GrantsGrants

An exception to the “fewer An exception to the “fewer strings” approach by the strings” approach by the Republican Party is its support Republican Party is its support of the No Child Left Behind Act of the No Child Left Behind Act of 2002: In order to receive of 2002: In order to receive federal funds for education, federal funds for education, states must:states must:

1. Adopt subject matter 1. Adopt subject matter standardsstandards

2. Test all students in grades 3-2. Test all students in grades 3-8 on those standards8 on those standards

3. Identify low-performing 3. Identify low-performing schools based upon that testingschools based upon that testing

4. Require low-performing 4. Require low-performing schools to develop improvement schools to develop improvement plansplans

5. Allow parents of students in 5. Allow parents of students in such schools that do not such schools that do not improve to transfer to other improve to transfer to other public schoolspublic schools


FEDERAL MANDATESFEDERAL MANDATES • Mandate: a federal Mandate: a federal

order imposed upon order imposed upon states. Examples: states. Examples: Americans with Americans with Disabilities Act.Disabilities Act.

• Various Various environmental acts, environmental acts, e.g., Clean Air Act, e.g., Clean Air Act, Clean Water ActClean Water Act

• Individuals with Individuals with Disabilities Disabilities Education ActEducation Act

FEDERAL MANDATESFEDERAL MANDATES

PurposesPurposes:: to meet a goal to meet a goal of the federal of the federal governmentgovernment

Mandates and Their Impact Mandates and Their Impact upon the states:upon the states:

• Financial burdens, esp. with Financial burdens, esp. with unfunded mandatesunfunded mandates, e.g., ADA , e.g., ADA has imposed large costs upon has imposed large costs upon states as they make states as they make “reasonable accommodations” “reasonable accommodations” for the disabled.for the disabled.

• State complaints about federal State complaints about federal heavy-handedness, e.g., if a heavy-handedness, e.g., if a state does not devise a plan state does not devise a plan and pay for the requirements and pay for the requirements of the Clean Air Act of 1990, of the Clean Air Act of 1990, the federal government will the federal government will impose its own plan upon the impose its own plan upon the state.state.

• State complaints about federal State complaints about federal blackmail, e.g., if a state blackmail, e.g., if a state doesn’t comply with the Clean doesn’t comply with the Clean Air Act standards, federal Air Act standards, federal funds can be withheld in funds can be withheld in other other programs.programs.

Republican Response to Republican Response to Mandates:Mandates:

*Unfunded Mandates Reform *Unfunded Mandates Reform Act of 1995 (part of Act of 1995 (part of Contract w/America) Contract w/America) restricted future restricted future unfunded mandatesunfunded mandates

*Required CBO to analyze *Required CBO to analyze impact of impact of unfunded unfunded mandatesmandates on states. on states.

*Requires separate *Requires separate congressional vote on congressional vote on bills that impose bills that impose unfunded mandatesunfunded mandates..

B. This is another B. This is another example of the example of the Devolution Revolution Devolution Revolution associated with the associated with the 104th Congress.104th Congress.

List of unfunded List of unfunded mandatesmandates

ArticlesArticles

Federalist #6Federalist #6

POLITICS OF AMERICAN POLITICS OF AMERICAN

FEDERALISMFEDERALISM I.I. Nonconstitutional reasons for triumph of Nonconstitutional reasons for triumph of

nationalist approach.nationalist approach.

A.A. Growth of U.S. in size and population ---> Growth of U.S. in size and population ---> large problems only national govt. could handle.large problems only national govt. could handle.

B.B. Problems tend to be more national (and Problems tend to be more national (and even international) in scope, e.g., pollution, even international) in scope, e.g., pollution, crime, global economy.crime, global economy.

C.C. Improved communication and Improved communication and transportation -- Washington D.C. not so far transportation -- Washington D.C. not so far away.away.

D.D. Historical developments (New Deal, WWII, Historical developments (New Deal, WWII, Great Society) created huge bureaucracies and Great Society) created huge bureaucracies and constituencies to support a strong fed. govt. constituencies to support a strong fed. govt. Once federal programs are started, they are Once federal programs are started, they are difficult to end because of the political support difficult to end because of the political support that has that has

developed for them.developed for them.

Backlash Against Big Backlash Against Big GovernmentGovernment

A.A. General consensus General consensus in late-70s that power of in late-70s that power of govt. had gone too far.govt. had gone too far.B.B. 4 of last 5 4 of last 5 Presidents have been Presidents have been "outsiders" (Carter, "outsiders" (Carter, Reagan, Clinton, Bush 43).Reagan, Clinton, Bush 43).C.C. Questionable Questionable effectiveness of some fed. effectiveness of some fed. programs, e.g., Great programs, e.g., Great Society programsSociety programs

D.D. Tax revolt (Prop 13, Tax revolt (Prop 13, Mondale's "pledge" to Mondale's "pledge" to raise taxes, Reagan tax raise taxes, Reagan tax cuts, Bush 41’s "read my cuts, Bush 41’s "read my lips," tax cuts even under lips," tax cuts even under Clinton, Bush 43 tax cuts).Clinton, Bush 43 tax cuts).

Backlash against big Backlash against big governmentgovernmentE.E.Reduction of Great Society-style Reduction of Great Society-style

fed. aid to cities, and restoration fed. aid to cities, and restoration of principle that states should take of principle that states should take on more responsibilities:on more responsibilities:

1. Reduction of 1. Reduction of categorical categorical grantsgrants..

2. Increased use of 2. Increased use of block block grantsgrants..

3. Reduction of fed. 3. Reduction of fed. regulations, e.g. granting of regulations, e.g. granting of waivers to states that want to waivers to states that want to experiment with welfare reform.experiment with welfare reform.

4. 1996 welfare reform bill 4. 1996 welfare reform bill that ended welfare as federal that ended welfare as federal entitlement.entitlement.

5. Restrictions on future 5. Restrictions on future unfunded mandatesunfunded mandates as part of as part of Contract with America.Contract with America.

Effects of New Federalism Effects of New Federalism and Devolution Revolution: and Devolution Revolution:

a mixed bag.a mixed bag.Clinton declared in 1996 that Clinton declared in 1996 that

“The era of big government “The era of big government is over.” Supporting is over.” Supporting evidence of this:evidence of this:

-Welfare reform bill,-Welfare reform bill,-Repeal of 55 m.p.h. -Repeal of 55 m.p.h.

limitlimit-Restrictions on -Restrictions on

future future unfunded unfunded mandatesmandates

-More -More block block grants/lessgrants/less categorical categorical grantsgrants..

Tax cuts under both Clinton Tax cuts under both Clinton and Bush 43and Bush 43

Effects of New Federalism Effects of New Federalism and Devolution Revolutionand Devolution Revolution

However, even Republican Congresses increased However, even Republican Congresses increased national power:national power:

1.1. 9-11 and an increase in big government to deal 9-11 and an increase in big government to deal with terrorism.with terrorism.

2.2. Wars in Afghanistan and Iraq led to huge military Wars in Afghanistan and Iraq led to huge military spending increases. Massive budget deficits spending increases. Massive budget deficits (>$500 billion) under Bush 43(>$500 billion) under Bush 43

USA Patriot Act of 2002 gave strong powers to USA Patriot Act of 2002 gave strong powers to national government to deal w/terrorismnational government to deal w/terrorism

NCLB Act imposed significant burdens upon NCLB Act imposed significant burdens upon states.states.

Addition of prescription drug benefit for Addition of prescription drug benefit for Medicare, a program that was/is already under Medicare, a program that was/is already under tremendous financial pressure.tremendous financial pressure.

Huge growth in congressional “earmarks:” pet Huge growth in congressional “earmarks:” pet projects that members of Congress set aside for projects that members of Congress set aside for their districts/states.their districts/states.

EffectsEffects

Economic crisis of 2008-2009 led to Economic crisis of 2008-2009 led to massive federal spending bills to massive federal spending bills to stimulate the economy and bail out failing stimulate the economy and bail out failing corporations. The 2009 deficit alone was corporations. The 2009 deficit alone was ~ $1 trillion, which was what the entire ~ $1 trillion, which was what the entire national debt was in 1980. Given this national debt was in 1980. Given this kind of spending, and given the renewed kind of spending, and given the renewed regulatory role of the federal government regulatory role of the federal government in the economy, it is difficult to say that in the economy, it is difficult to say that “the era of big government is over.”“the era of big government is over.”

Documents

Unit One: Constitutional Underpinnings Who Governs? To What Ends?