POLI 102: September 12, 2016

1. POLI 102: September 12, 2016 Lecture #2: Federalism

2. Common Sense “Society is produced by our wants, and government by our wickedness;” People are not angels, and that has to be taken into account when designing the government.

3. Compare Federalist #51 “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” -James Madison

4. Constitutions Constitutions are the product of real, fallible people in its construction, interpretation, and its enforcement. Not possible to be perfect Subject to the same social and political changes as other laws Part of the political process So, why have them if this is true? Perhaps, they still provide a guideline according to which laws and politicians can be judged. like the rules of a dance provide a common language for judging the ability or correctness of a dancer.

5. Where we are so far • Constitutional concerns prompt “mixed system” • Mix of elite and democratic control • Over time pressure has led to increased democratization • Compromise • “checks and balances” • Fear of factions • Federalism • Over time movement towards increased national control

6. Two trends • Increased democratization • Increased nationalization

7. Fear of Factions • What is a faction? "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community“ -James Madison in “Federalist 10”

8. Fear of Factions "the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society“ -James Madison in “Federalist 10” But remember John Locke and “Life, liberty, and property”

9. Fear of Factions • "... a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.“ -James Madison in “Federalist 10”

10. Fear of Factions • How to prevent factions? • Stifle liberty? • "liberty is to faction what air is to fire“ • Make everyone the same? • But property rights? "The latent causes of faction are thus sown in the nature of man" – “Federalist 10”

11. Fear of Factions • So….you can’t control the cause because you can’t control human nature. • Have to control the effects • How to do this??? • Federalism • Large and diverse republic makes less likely that majorities can agree • Also, harder to bribe that many people (literally) • “checks and balances”

12. “Checks and Balances” "Ambition must be made to counteract ambition” "double security arises to the rights of the people. The governments will control each other, at the same time that each will be controlled by itself" -James Madison in “Federalist 51” Makes it hard for any faction to become large enough to overthrow the others

13. “Checks and Balances” • Legislative Branch (makes the law) • That’s Congress • Executive Branch (enforces the law) • That’s the President • Judicial Branch (interprets the law) • That’s the Supreme Court • Division meant to serve as protection. • Legislative supremacy assumed • Congress divided against itself

14. Bill of Rights • First Ten Amendments lay out important limitations on the power of the Federal Gov’t • 10th amendment • “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” • But what exactly does this mean? • Needs interpretation

15. Federalism • Power-sharing between states and national government • “checks and balances” – more tension between elites and factions

16. Commercial Republic • In the beginning, Federal Government’s powers are still very limited • Set tariffs • Build roads, post offices, “internal improvements” • Issue patents, currency • Settling the “west” with land grants, sales • Mostly relegated to encouraging commerce in ways that states couldn’t

17. Strong States • American states had strong legal and constitutional powers to regulate commerce within states • Property rights • slavery • Regulations on banking, insurance • Marriage laws • Criminal laws

18. State’s Rights • Sounds good in theory, but has to be worked out in practice. • Supreme Court plays a role • Judicial review over what constitutions means • One important ruling: McCulloch v. Maryland (1818) • implications for Congressional power • Implications for national v. state power

19. McCulloch v. Maryland (1818) • Video: https://youtu.be/bgGS0mGqlaw • Question: “Could the state of Maryland tax a local branch of the national Bank?” • Two subsidiary questions: • Did the Federal Government have the power to charter a national bank? • Difference between enumerated powers and implied powers • Could the state of Maryland tax a national bank?

20. McCulloch v. Maryland (1818) • Did the Federal Government have the power to charter a national bank? YES • Article 1, Section 8: • “commerce clause”: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;” • “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” • The power to create a national bank is not explicitly mentioned in the constitution but it is “implied”.

21. McCulloch v. Maryland (1818) • Could the state of Maryland tax a national bank? NO • Chief Justice Marshall argued that the national law was supreme over state law (“the laws of the United States… ‘shall be the supreme law of the land.” • Article VI of the Constitution: supremacy clause • “the power to tax is the power to destroy” – Chief Justice John Marshall • If Maryland could tax the national bank it would deny the supremacy of national law.

22. Commerce Clause • Gibbons v. Ogden (1824): defined Congressional power over interstate commerce • But little power to regulate commerce at the source, for example factory conditions, fraud, child labor, impurities in foods – left to the states. • Ancillary question: why should the Congress handle matters between the states and not the states themselves? • Collective action problems • Coordination on costs and benefits • Private enterprises playing states off of one another • But there’s also beneficial federalism through competition • People can move to the state that suits them…

23. Commerce Clause • Changed in 1930s with changing court philosophy during New Deal era. • "Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” -NLRB v. Jones (1937) • Only reigned in much later during time of United States v. Lopez (1995)

24. “Full, faith, and credit” • Article IV, Section 1 calls for “Full Faith and Credit” among states, meaning states are normally expected to honor the “public acts, Records, and judicial Proceedings” that take place elsewhere. • Article IV, Section 2, “comity clause” – no special treatment or discrimination towards citizens based upon their state of residence.

25. Federalism • “Checks and Balances” within Legislative branch, between Federal branches, and between states and national government. • But interpretations of Constitutional meaning has given Congress increasing power. • Also, Civil Rights, where the individual has claims to limit the government, which we’ll get to…

26. Federalism in America • Dual federalism: traditional federal arrangement where state and national governments control different areas of policy. • Cooperative federalism: generally refers to supportive relations, sometimes partnerships, between national government and state and local governments. • Comes in the form of subsidies called “grants-in-aid”.

27. Grants-in-aid • Starts with “land-grants” during the 19th century given to states in support of farming and farm-related education. • Congress has purview over “interstate” commerce, how to help farmers? Through the states…. • Used during Great depression in the cities to help folks with housing and assist the unemployed. • Later urban development and school lunches.

28. Grants-in-aid • Cash grants grow tremendously, and often with conditions attached. • States must contribute some money, too. • They must agree to certain policies to get money. • “national” 55 mph speed limit used to be a condition to get money for interstate highways. • Drinking ages around the country • “Project” grants in addition to “formula” grants… • Submit proposals for money, Congress chooses which states get money based upon whether they approve of the project.

29. Grants-in-aid • From cooperative federalism to “regulated” federalism • National standards are set, states must agree to them or lose access to money. • Areas like civil rights, poverty programs, and environmental laws. • Represents a shift away from mere “economic” concerns towards “social regulation” on the part of Congress. • Asbestos Hazard Emergency Act • Americans with Disabilities Act • “unfunded mandates”: Regulations for receiving grants that impose costs that are not reimbursed.

30. “New Federalism” • Republicans vs. Democrats • Block grants as alternative • Welfare Reform in the 1990s under President Bill Clinton • Replaced “Aid to Families with Dependent Children” with “Temporary Assistance to Needy Families” • States gained a great degree of flexibility to choose how to distribute federal aid to the poor.

31. Federalism • State vs. national control • Who should decide? • “laboratories of democracy” • What to do when states “get-it-wrong”? • Perpetual tug-of-war