Unit One: Constitutional Underpinnings

1. Unit One: Constitutional Underpinnings Mr. Barclay Alisal High School AP Government and Politics

2. Democracy Democracy is rule by the people

3. Democracy: Two Types A. Direct: rule by the people themselves. B. Indirect (representative): rule by elected representatives. C. Founders' distrust of direct democracy: 1. Impracticalities. 2. Fleeting passions of the people --->concern that they would be swayed by demagogues.

4. Republic. *Same as indirect democracy. *Solves problems of direct democracy. “Secures the advantages of direct democracy while curing its weaknesses.”

5. Democratic Theory A. Majoritarian politics view: leaders are heavily influenced by the will of the people. B. Elite politicsviews: minorities dominate policy making 1. Marxist: influence of economic elites. 2. C. Wright Mills: influence of power elite: corporate, military, political (Eisenhower’s “military industrial complex.”) 3. Max Weber: influence of bureaucracy.

6. Pluralistview: 1. Political resources are so scattered that no single elite has a monopoly on them. 2. There are so many institutions in which power is exercised that no single elite could possibly control all of them. 3. Pluralism therefore argues that many groups compete with each other for control over policy. Policy is therefore the outcome of political haggling, innumerable compromises, and ever-shifting alliances among groups.

7. D. Hyperpluralist View: 1. "Pluralism gone sour." 2. There are so many groups, and they are so strong, that government has become gridlocked and is unable to act.

8. IV. Fundamental Democratic Values A. Popular sovereignty. B. Respect for the individual. State serves individual, not vice versa. C. Liberty. D. Equality. Of opportunity more than result. Role of FDR’s 2nd Bill of Rights: economic security.

9. V. Fundamental Democratic Processes A. Free and fair elections, with competing political parties. B. Majority rule w/minority rights. Fear of “tyranny of the majority” led to protection of property rights. C. Freedom of expression. D. Right to assemble and protest.

10. VI. Fundamental Democratic Structures (briefly -- covered in more detail later) A. Federalism. B. Separation of powers. C. Checks and balances. D. Constitutionalism.

11. ORIGINS OF THE AMERICAN REPUBLIC I. Sources of the Constitution A. British Customs and Traditions, e.g., Magna Carta and English Bill of Rights. B. European Philosophers, e.g., Locke, Hobbes, Montesquieu, Rousseau C. Colonial experiences, e.g., power of elected assembly. D. State constitutions written after the Declaration of Independence, e.g., Preamble closely resembles the introduction to the Mass. Constitution.

12. II. Constitutional Convention, 1787 A. Background. Decl. of Indep. ---> Rev. War ---> Articles of Confed. and its weak central govt.: No power to tax. No chief executive. No national judiciary. No power to regulate interstate or foreign commerce. No national currency. 2. Annapolis Convention, 1786: called to improve Articles. 3. Shays' Rebellion, 1786 ---> necessity of a stronger national government.

13. B. Delegates 1. Characteristics: "well-read, well-bred, well-fed, and well-wed." 2. Participants: a. Madison: "Father of Const." because of leadership and detailed notes of proceedings. b. Washington: presiding officer c. Franklin: "elder statesman." d. Morris: largely responsible for final wording of Const. e. Hamilton: most forceful advocate for strong central government. 3. Charles Beard's EconomicInterpretationoftheUnitedStates (1913). a. Constitution was written by propertied class ---> naturally reflected those interests (although no conspiracy per se). b. Rebuttals: 1) Most people owned property. 2) Even the poor, in hopes of someday owning property, wanted to protect property. Establishing a democratic government involved risks and dangers --> need to build in safeguards and protections.

14. C. Areas of agreement: 1.Scrap the Articles of Confederation. 2.Establish a republican govt. 3.Establish a constitutional govt. 4.Established a balanced govt. where no single interest dominated. 5.Suffrage for property owners only. 6.Stronger central govt. than under the Articles. 7.Protection of property rights: the main purpose of govt. 8.Keep the proceedings secret.

15. D. Areas of disagreement ---> compromises: 1. Representation among the states. a. Large states favored the Virginia Plan: based upon population. b. Small states favored the New Jersey Plan: equal representation. c. Connecticut (Great) Compromise: a bicameral legislature with a popularly- elected House (based upon population) and a Senate (equal rep.) elected by state legislatures.

16. D. Areas of disagreement ---> compromises: 2. Representation and taxation of slaves. a. Northern states wanted slaves to count for taxation, but not representation. b. Southern states wanted the opposite. c. 3/5 Compromise: 3/5 of the slaves would count for both purposes (3/5 was the ratio that would yield equal representation among northern and southern states).

17. D. Areas of Disagreement ---> Compromises: Election of the President. a. Life term v. 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 election. 4) Compromise: Electoral College system.

18. E. Ratification Politics 1. Federalists: a. Supporters: property owners, creditors, merchants. b. Views 1) Elites most fit to govern. 2) Feared "excesses" of democracy. 3) Favored strong central government. c. Leaders: Hamilton, Madison, Washington, Jay.

19. 2. Antifederalists: a. Supporters: small farmers, frontiersmen, debtors, shopkeepers. b. Views. 1) Feared concentration of power in hands of elites. 2)Believed that govt. should be closer to the people. 3)Feared strong central government. Favored stronger state govts. 4) Feared the lack of Bill of Rights -- their strongest argument. c. Leaders: Henry, Mason, Gerry.

20. 3. Federalist Advantages: a. Were better represented in state legislatures. b. Controlled the press. c. Began ratification procedures quickly before Antifederalists could get organized. d. Agreed to a Bill of Rights after ratification of the Const. 4. The Federalist Papers: Madison, Hamilton, and Jay. To rally support for ratification of the Constitution. 5. Ratification, 1788: by state ratifying conventions of popularly-elected delegates.

21. I. Separation of Powers I. Separation of powers. A. To Madison, tyranny was govt. that controlled all 3 branches of govt. ---> Division of power among the legislative, executive, and judicial branches. B. This system diffuses power instead of concentrating power. C. Influence of Montesquieu. D. Colonial experiences, e.g., excessive power in st. legislatures  need for strong exec. E. Danger of one branch combining forces with another branch ---> checks and balances.

22. II. Checks and Balances A. Background. 1. 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. B. System of restraints in which each branch can check the other two. Reflects fear of tyranny. C. Examples: veto, veto override, appointment and confirmation, treaty-making and ratification, defense funding and Commander-In-Chief. D. 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 ameliorate presidential influence). E. 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. F. Modifications of checks and balances: examine if the following strengthen or weaken checks and balances.

23. Checks and Balances

24. II. Checks and Balances 1. Political parties. a. In theory, should weaken checks and balances -- a way of bringing the branches of govt. together. Const. divides govt., but parties bring people in govt. together. b. In reality, however, parties are weak: Dominance of only 2 parties ---> each party has wide range of interests ---> much disagreement within each party itself ---> difficult to assert such strong control c. Prevalence of divided govt., i.e., a Pres. of one party and a Cong. of the other.

25. II. Checks and Balances 2. Changes in voting methods. a. Senators now chosen by people. b. Congressmen also chosen by people. c. Presidents chosen by electors who vote as the people have voted. -- Thus, members of two branches essentially chosen by same electorate ---> weakening of checks and balances in theory; however, split ticket voting has changed this.

26. II. Checks and Balances 3. Growth of federal bureaucracy. a. Development of numerous agencies w/legislative, executive, and judicial functions. b. Congress often grants broad authority to agencies and lets them carry out the general will of Congress, e.g., Congress established an IRS to collect taxes, and then granted the IRS authority to help write the tax code, enforce the tax code, and settle disputes over the tax code. -- Thus, growth of bureaucracy has caused a weakening of checks and balances.

27. II. Checks and Balances 4. Changes in technology, e.g., nukes, computers, fax machines, satellite communications: Two views: a. President, Congress, interest groups, media have all been able to take advantage of the new technologies ---> strengthening of checks and balances. b. President has been especially able to take advantage of these ("electronic throne"), e.g., “staged event” of Bush landing on an aircraft carrier ---> weakening of checks and balances.

28. II. Checks and Balances 5. Emergence of U.S. as world power after WWII. a. Areas of "national interest" extend around the world. -U.S. is leader of free world. -U.S. is only remaining superpower after Cold War b. With such heavy responsibilities, any crisis seems to involve U.S. somehow. ---> These responsibilities need to be dealt with in a strong and efficient manner --->power has concentrated in executive branch ("imperial presidency") ---> weakening of checks and balances.

29. III. Limited Government Limited government: dilemma of wanting a more effective government, but also a limited government that did not become tyrannical. A. Constitutional government: govt. has only those powers listed in Const. B. Bill of Rights as a safeguard against possible tyranny from a new, strong, distant government. Little fear of state govts, but great fear of national govt. Amendment 10 reflects view that states would have substantial powers: central govt. could exercise only those powers delegated to it by the Const. States would have all else. Free elections, but potential of majority faction ---> Madison's "auxiliary precautions."

30. IV. Judicial review. A. Power of courts to strike down laws or governmental actions. B Not explicitly provided for in Const., but Const. written in broad terms ---> need for interpretation ---> this most logically falls to the courts. C. Established by Marbury v. Madison, 1803: 1. Facts of case: the end of Federalist control of govt. and appointment of the "midnight judges," including Marbury ---> Jefferson ordered Madison to not deliver commissions to these judges --->Marbury's request for a writ of mandamus (under Sect. 13 of Jud. Act. of 1789) from the Supreme Court to order the delivery of his commission. 2. Decision of Marshall and the Court: section 13 of Judiciary Act of 1789 enabling the Court to issue a writ of mandamus through original jurisdiction in this type of case was unconstitutional.

31. IV. Judicial Review 3. Analysis. a. Marshall ruled that the Court did not have the authority to issue the writ, but he paradoxically increased its power by establishing judicial review when the Court struck down section 13. b. Jefferson couldn't complain because the midnight judges didn't receive their appointments, but he fumed because his enemy, Federalist John Marshall, increased the power of the Court. Effects of judicial review: citizens can challenge constitutionality of laws in court by initiating lawsuits (example: Gideon v. Wainright, 1963)  litigation has become an important way of making public policy. Chief Justice John Marshall

32. V. Changing the Constitution informally A. Const. a framework ---> details to be filled in later. B. Due to difficulties of formally changing Const., informal ways developed: 1. Acts of Congress (e.g., Judiciary Act of 1789). 2. Judicial rulings (e.g., Plessy v. Ferguson, Brown v. Board, Texas v. Johnson, Lawrence v. Texas). 3. Presidential actions (e.g., police actions since WWII, executive privilege, impoundment). 4. Customs and traditions (e.g., Cabinet, parties, committee system in Cong., senatorial courtesy, legislative veto, presidential nominating conventions) “Constitution belongs to the living, not the dead” (Jefferson): Jefferson believed each generation might need new Const. This hasn’t occurred because of the informal changes that have allowed the Constitution to adapt to changing times.

33. VI. Changing the Constitution formally, i.e. adding Amendments. A. Legacy of Articles: Unanimous vote to amend ----> impractical ---> desire to make process easier, but not too easy. B. Reasons for recent popularity of proposing Amendments (e.g., balanced budget, D.C. statehood, ERA). 1. Dissatisfaction by interest groups with court decisions, e.g., flag burning decision 2. Gridlock in Congress.

34. VI. Changing the Constitution formally, i.e. adding Amendments. C. Process of amending reflects federal system. 1. Proposal. a. 2/3 vote from both houses of Congress (all done this way). No presidential veto possible. b. Const. convention called by Congress at request of 2/3 of states --->serious implications and fears of such a gathering: 1) Never used before. 2) Fear of "runaway" convention that might get out of hand and implement wholesale changes in the Const. 3) Disturbing questions: Will convention stick to only the matter at hand? Will it take on other issues? Who gets to be delegates? How are they selected? How is representation among the states to be determined?

35. VI. Changing the Constitution Formally, i.e. adding Amendments Ratification: 2 methods. Congress decides which shall be used. a. 3/4 of state legislatures. 1) All but one (21st) done this way. 2) Most state legislatures ratify w/simple majority, but some require a "supermajority." (e.g., 3/5, 2/3, 3/4) b. Ratifying conventions in 3/4 of states. c. Amendment 21 done this way. A more directly democratic way: people elect delegates who state their positions on the proposed amendment. Citizens are in essence casting their votes on the amendment by voting for the appropriate delegates. Time limits for ratification: generally 7 years (exception of ERA).

36. ORIGINS OF AMERICAN FEDERALISM Federalism: constitutional division of power between the national govt. and state govts. Both get their powers from a Constitution, not each other. II. Reasons for federal system in U.S. A. Unitary system (where a central government rather than a constitution delegates power) was undesirable -- too reminiscent of British rule. Fear of strong, distant govt. B. Confederate system undesirable -- too reminiscent of Articles. C. Allows unity, but not uniformity -- allows for differences among states. D. More suitable for geographically large nation -- allows for differences among states. E. More suitable for heterogeneous people -- allows for differences

37. Reasons for Federal System in U.S F. More likely to check tyranny: 1. If tyranny occurred in a few states, fed. govt. could prevent its spread to others. (e.g., Shays' Rebellion) 2. National govt. has only those powers granted to it -- all others belong to states through Amendment 10. -- Cost of checking tyranny is at times inefficiency, but Founders more interested in checking tyranny than in having a strong and effective govt. that could run roughshod over the people's liberties.

38. Reasons for federal system in U.S G. Frees national govt. to concentrate on truly national matters. H. Frees states from excessive intrusion on strictly state/local matters (but discuss problem of growth of federal mandates, and esp. unfunded mandates). I. Encourages experimentation-- states as "laboratories" (e.g. legalized gambling in Nevada has spread to other states, CA legalization of medical marijuana has been adopted by a few other states) J. Keeps govt. closer to people. Multiple points of access for citizens.

39. Dual Federalism 1. Prevalent through ~1937. 2. State governments and national government each remained supreme within their own spheres. 3. Powers and policy assignments of the layers of govt. were distinct, as in a layer cake. 4. Suggested that the powers of the national govt. should be interpreted narrowly.

40. Cooperative (“Marble Cake”) Federalism. 1. Prevalent since ~1937. 2. Mingling of responsibilities between the state and national govt. 3. Sharing of powers and policy assignments, as in a marble cake. 4. Suggests that powers of the national govt. should be interpreted broadly.

41. New Federalism 1. Shifting of some authority from national govt. back to the states. 2. Associated with Nixon, Reagan, and esp. associated with 104th and 105th Republican Congress: “Devolution Revolution” 3. Example: use of block grants in welfare reform bill of 1996.

42. STRUCTURE OF AMERICAN FEDERALISM • National powers. National govt. has 3 categories of powers that are delegated to it. Here are thecategories of the delegated powers: A. Expressed (enumerated): actually stated in the Const. B. Implied: not stated explicitly, but suggested implicitly. Importance of elastic clause. C. Inherent: not stated explicitly, but held by the national govt. by virtue of its being a national govt. Any govt. is entitled to certain foreign policy powers such as diplomatic recognition, acquiring territory, or defending itself.

43. STRUCTURE OF AMERICAN FEDERALISM II. State powers: reserved A. Amendment 10 states that any powers not granted to the national govt. are reserved for the states. B. Examples: establishing voting requirements, running elections, licensing professionals, protecting community health, establishing a vehicle code.

44. STRUCTURE OF AMERICAN FEDERALISM III. Concurrent powers. A. Granted to Congress, but not denied by Const. or courts to the states ---> held by both national and state govts. B. Examples: taxing, borrowing, establishing court system, establishing law enforcement agencies. C. Questions of fed./state authority are decided by courts.

45. STRUCTURE OF AMERICAN FEDERALISM IV. National supremacy (Article VI): national govt. supreme in case of conflict.

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

47. STRUCTURE OF AMERICAN FEDERALISM 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.

48. DECENTRALISM (STATES' RIGHTS) V. CENTRALISM (NATIONALIST) I. Decentralist (states' rights) approach. A. Const. a compact created by states ---> implies strong state authority. B. Const. carefully limits national authority to delegated powers. C. 10th Amendment gives broad powers to states. D. When in doubt as to which holds a power, matter should be resolved in favor of states. E. Implies strict constructionist approach to Constitution F. National govt. has gotten too big and impersonal. G. State govts. are closer to the people. H. Followers: Calhoun, Goldwater, Reagan, southern conservatives, western conservatives, Christian fundamentalists, Newt Gingrich, Bush 43

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

50. III. Triumph of nationalist approach: McCulloch v. Maryland, 1819 A. Maryland attempted to tax a branch of the Bank of the U.S.: 1. It argued that taxing was one of its reserved powers. 2. In addition, it argued that the Bank 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.