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Week 2 Lecture –The Constitution and Federalism
A. The Declaration of Independence. In 1776, the Declaration of Independence,
written by
Thomas Jefferson, was adopted by the Second Continental Congress. It asserted
that
“unalienable rights” – including life, liberty, and the pursuit of happiness
– could not be
denied by government. The Declaration attempted to identify and articulate
principles that
united the diverse interests of the colonials and that might form the basis
for national unity.
B. The Articles of Confederation. In 1777, having declared independence, the
Continental
Congress adopted the Articles of Confederation and Perpetual Union, the
United States’ first
written constitution, which was the basis for the U.S. national government
until 1789. The
governmental model was a confederation, a system in which the states retain
sovereign
authority except for the powers expressly delegated to the national
government. The
Articles vested the national government in a weak, unicameral Congress.
Execution of laws
was left to the individual states.
1. The Second Founding: From Compromise to Constitution. Congressional powers
under the
Articles of Confederation were insufficient to maintain the unity of the
nation.
A. International Standing and Balance of Power. Under the Articles of
Confederation,
Congress was unable to enforce treaties unless the states agreed to them.
This made the
national government illegitimate in the eyes of other nations and vulnerable
to threats from
them. Indeed, the states competed with one another from economic advantage,
giving
other nations leverage to take advantage of the states. Domestically, the
more radical
elements mobilized during the Revolutionary War remained mobilized and
obtained political
power, which left moneyed interests, worried about the security of their
property rights.
B. The Annapolis Convention. This constant international weakness and
domestic turmoil led
Americans to revise the confederated government. As a result, in the fall of
1786, the
Annapolis Convention brought together delegates from several states and
resolved that
commissioners would be sent to Philadelphia to devise a constitutional
revision that would
meet the needs of the union.
C. Shay’s Rebellion. Daniel Shays, a former army captain, led a farmers’
rebellion against the
state of Massachusetts to prevent foreclosure of their debt ridden land.
After a terrified
state government captured and pardoned the rebels, the affair ended
peacefully. However,
the national government’s inability to act decisively during the crisis lent
urgency to the call
for the Philadelphia constitutional convention.
D. The Constitutional Convention. The delegates convened to revise the
Articles of
Confederation in Philadelphia in May 1787. These delegates soon recognized
that the issues
they wanted to address were fundamental flaws of the Articles and abandoned
plans to
revise them, instead attempting to create a new, legitimate and effective
government. The
textbook refers to this decision as the start of “a second founding.”
E. A Marriage of Interest and Principle. The framers’ economic interests were
reinforced by
their philosophical and ethical principles. They sought to create a
government to promote
commerce to protect property. At the same time, they hoped to fashion a
government less
susceptible than existing state and national regimes to populist forces
hostile to the
interests of the commercial and propertied classes.
F. The Great Compromise. During the Constitutional Convention, a schism
between the large
and small states threatened to destroy the nation. Edmund Randolph of
Virginia introduced
the Virginia Plan – a framework for a constitution that called for the
representation in the
national legislature on the basis of each state’s population. Smaller states
vehemently
opposed that plan and introduced an alternative, the New Jersey Plan – a
framework for a
constitution that called for equal state representation in the national
legislature regardless
of the population. The debate between the two sides ended in the Connecticut
Compromise, also known as the Great Compromise. Under this compromise,
Congress
would comprise two houses organized as follow: one branch, the House of
Representatives,
would be apportioned according to the population of each state. In the other
branch, the
Senate, each state would have an equal vote regardless of size.
G. The Question of Slavery: The Three Fifths Compromise. Another
controversial issue at the
convention was slavery. This issue made clear that the division among states
was not only
about size but also geography. The conflict was between the North (nonslaveholding
states) and the South (slave holding states). While some representatives to
the convention
found slavery morally reprehensible, the real concern was whether slaves
would count as
part of the population for representation purposes (which would dramatically
inflate the
representation of the southern states). The two sides reached the Three
fifths Compromise,
by which seats in the House of Representatives would be apportioned according
to a
“population” in which every slave would be counted as three fifths of a
person. Through
this compromise, the issue of slavery as a political threat to the nation was
essentially
postponed.
2. The Constitution. The Great Compromise and the Three fifths Compromise
helped temporarily
settle the rivalry between North and South and secured national unity. Hence,
the farmers
could focus on a common constitutional framework consistent with common
economic and
political interests. Therefore, the new government would promote commerce,
protect
individual property, limit excessive democracy, promote widespread public
support of the
Constitution, and limit government power abuse. These common goals led to the
institution of
constitutional principles such as the following:
Bicameralism: the division of Congress into two houses, or chambers.
Checks and Balances: the mechanisms through which each branch of government
is able to
participate in and influence the activities of the other branches. Major
examples include the
presidential veto power over congressional legislation, the power of the
Senate to approve
presidential appointments, and judicial review of congressional enactments.
Electoral College: selection of the president by electors (rather than
directly by voters) from
each state who meet after the popular election to cast ballots for the
president and vice
president.
Bill of Rights: the first ten amendments to the U.S. Constitution, ratified
in 1791; they ensure
certain rights and liberties to the people.
Separation of Powers: the division of governmental power among several
institutions that must
cooperate in decision making.
Federalism: a governmental system in which power is divided by a constitution
between central
and regional governments.
A. The Legislative Branch. Article I provided for a Congress made of two
houses. The
House of Representatives would be directly elected by the people for two year
terms. The Senate would be appointed by the state legislatures (changed to
direct
voter election in 1913 by the 17th amendment) for six year terms – staggered
so that
only one third of the Senate changes in any given election. Express
congressional
powers include collecting taxes, borrowing money, regulating commerce,
declaring
war, and maintaining an army and navy. Article I also contains the “necessary
and
proper” clause, which acts as a vehicle to expand legislative power beyond
those
actions specifically mentioned in the text of the Constitution.
B. The Executive Branch. Article II of the Constitution established a
presidency. The
framers wanted an energetic executive who would be capable of timely action
to
deal with public problems. They also wanted a moderately independent
executive
who would be able to respond to crises and would be insulated from direct
voter
election (creating an indirect system of election through an electoral
college). The
presidency later would be limited to two four year terms by constitutional
amendment. The president was granted the power to recognize other countries,
negotiate treaties (although acceptance of treaties required a two thirds
vote of
approval by the Senate), grant reprieves and pardons, convene Congress in
special
sessions, and veto congressional enactments.
C. The Judicial Branch. Constitutional Article III creates the judicial
branch. According
to this Article, Supreme Court justices are appointed to lifetime terms by
the
president with the approval of the Senate. The Supreme Court’s powers include
resolving conflicts between federal and state laws, determining whether power
belongs to the national government or the states, and settling controversies
between citizens of different states. The Constitution makes no direct
mention of
one power eventually assume by the Supreme Court: judicial review, the power
of
the courts to declare actions of the legislative and executive branches
invalid or
unconstitutional.
D. National Unity and Power. Article IV establishes reciprocity among states.
Therefore, each state give “full faith and credit” to official acts of other
states and
guarantee the citizens of any state the “privileges and immunities” of every
other
sate. Article VI institutes national supremacy with the supremacy clause. The
clause states that laws passed by the national government and all treaties
are the
supreme law of the land and superior to all laws adopted by any state or any
subdivision.
E. Amending the Constitution. Although a total of twenty seven amendments
have
been passed, amending the Constitution is no easy task. Proposals must be put
forth by either two thirds of both chambers of Congress or a convention
called by
two thirds of the legislatures; amendments must then be ratified by either
the
legislatures or state conventions of three fourths of the states.
F. Ratifying the Constitution. Article VII set forth the ratification rules.
Nine of the
thirteen states would have to ratify the Constitution.
G. Constitutional Limits of National Government’s Power. The framers wanted
to
create a powerful national government with safeguards against misuse of
power.
To do so, the framers included three limitations in the Constitution:
separation of
powers, federalism, and the Bill of Rights.
1. The Separation of Powers. This principle indicates that power must be used
to
balance power. Under this principle, the entire structure of the national
government is built on three separate branches: the legislature, the
executive,
and the judiciary. Checks and balances were the method to maintain the
separation of the three branches. However, this method not only gave each
branch its own powers but also gave each branch some powers over the other
branches.
2. Federalism. The delegates devised a system of two sovereign powers – the
states and the nation – in the hope that this would limit the power of both.
3. The Bill of Rights. The first ten amendments to the Constitution were
adopted
shortly after the ratification of the Constitution to limit national power
and to
protect the citizens.
Point 4. Fight for Ratification. Ratification was the first hurdle that the
Constitution faced. The fight
involved two sides: Federalists and Antifederalists. The Federalists favored
a strong national
government and supported the proposed American Constitution at the 1787
Convention. The
Antifederalists favored strong state governments and a weak national
government. Also, they opposed
the proposed American Constitution at the 1787 Convention.
A. Federalists verses Antifederalists. During the ratification process,
thousands of essays,
speeches, pamphlets, and letters were presented in support of and in
opposition to the
Constitution. However, the best constitutional support pieces are known as
the Federalist
Papers. They are a series of essays written by James Madison, Alexander
Hamilton, and John Jay
supporting the ratification of the Constitution. The Antifederalists also
wrote their opposing
views, including the notable works of Robert Yates (writing as Brutus). These
works highlight
the major differences of opinion between the two sides.
1. Representation was one major controversy between the two sides. The
Antifederalists
asserted that representatives must be “a true picture of the people” and
favored more
direct democracy, which would not be possible to attain in such a large
nation. The
Federalists felt it was not necessary for representatives to be exactly like
those they
represented. They asserted that the advantage of a representative government
over a
direct democracy was the ability to choose representatives with superior
qualifications to
those possessed by the people. Though discussion terms have changed, the
representation
debate continues today.
2. Tyranny of the Majority. A second issue dividing the two sides was the
threat of tyranny
(oppressive rule and unjust government that employs cruel and unjust power
and
authority). From the Antifederalist point of view, this danger rested on the
ability of the few
to tyrannize the many. The Antifederalists feared the concentration of power
in the hands
of a small governing elite. The Federalists recognized the danger not in
aristocracy, but in
tyranny by the majority, the tendency of a majorities to trample on the
rights and interests
of other citizens.
3. Governmental Power. A third issue between the two sides was governmental
power.
Although both sides agreed on the principle of limited government (a
government whose
powers are defined and limited by a constitution), they differed on how to
place limits on
governmental action. The Antifederalists sought to enumerate the national
powers in
relation to the states and the people. They attacked the supremacy and
elastic clauses,
which they believed granted dangerous amounts of power to the national
government. The
Federalists favored a national government with broad powers capable of
protecting and
providing for the welfare of the people and the states. Although they were
aware of
possible power abuse by the government, they felt the Constitution had enough
internal
checks and balances to deter abuse. This led the Federalists to reject the
adoption of the
Bill of Rights, although they ultimately agreed to such a bill in order to
ensure ratification.
B. Reflections on the Founding. It was largely the Federalist point of view
that triumphed.
However, the Antifederalists’ criticisms forced the adoption of a Bill of
Rights to limit national
governmental power. This arrangement proved effective for over 200 years,
even as the
political principles enshrined in the Constitution have benefited groups and
interests unforeseen
by the framers.
Point 5. The Citizen’s Role and the Changing Constitution. The Constitution
has endured for over
two centuries, but not without change.
A. Amendments: Many Are Called, Few Are Chosen. Amendments are changes added
to a bill, law,
or a constitution. There are four ways to amend the Constitution. The two
most commonly
used have been as follows:
1. Passage in House and Senate, each by a two thirds vote, followed by
majority ratification by
three fourths of the states’ legislatures.
2. Passage in House and Senate, each by a two thirds vote, followed by
ratification by three
fourths of the states’ conventions (used only once – to repeal Prohibition).
Throughout history, the Constitution has proved to be extremely difficult to
amend. In fact,
between 1789 to the present, over 11,000 amendments were offered in Congress,
and of these
only twenty seven in all have been ratified by the states.
Week 3 Lecture, Part 2 – Federalism
The Constitution provides the United States with federalism, a system of
government in which power is
divided between a central government and regional governments. In the federal
system, the national
government shares power with lower levels of government, such as the states.
However, there are
other government types. For example, a unitary system is a centralized
government system in which
lower levels of government have little power independent of the national
government.
1. Federalism in the Constitution. The Constitution limited national
government by creating a
second layer of state government power. The Constitution and the Bill of
Rights recognized two
sovereign powers by granting a few expressed powers to the national
government and reserving
all others to the states.
A. The Powers of the National Government. The seventeen express powers of the
Congress
include the power to collect taxes, to coin money, to declare war, and to
regulate
commerce. The necessary and proper clause of Article I, Section 8, provides
an important
source for the national government: implied powers. This clause enables
Congress to “make
all laws which shall be necessary and proper” to carry out the express
powers. Also, Article
VI affirms national power in the supremacy clause, which made all national
laws and treaties
“the supreme law of the land.”
B. The Powers of the State Government. The Tenth Amendment to the
Constitution is also
called the reserved powers amendment. It states that the powers not delegated
to the
national government or prohibited to the states are “reserved to the states
respectively, or
to the people.” States retain the power of coercion, referred to as the
police power- the
state’s power to regulate the health, safety, and morals of its citizens –
through which states
develop and enforce criminal codes, administer health and safety rules,
regulate family
relationships, and define property. The states share some power with the
national
government. These concurrent powers possessed by both state and national
governments
include the power to levy and collect taxes.
C. State Obligations to Each Other. Obligations among states seek to promote
national unity.
Some are spelled out in Article IV, Section I, which includes the full faith
and credit clause. It
requires states to recognize and honor actions and public acts and decisions
taken in other
states as legal and proper. Article IV, Section 2, known as the “comity
clause,” includes the
privileges and immunities clause, which says a state cannot discriminate
against someone
from another state or give special privileges to its own residents. States’
relationships are
also governed by the interstate compact clause (Article I, Section 10). Which
says “No state
shall without the consent of Congress…enter into any agreement or compact
with another
state,” meaning that states may enter into mutual agreements, subject to
congressional
approval.
D. Local Government and the Constitution. Local government has no status in
the American
Constitution. The state governments and constitutions created local
governments and
granted them local power. Larger cities enjoy local power with home rule, a
power
delegated by the state to a local unit of government to manage its own
affairs.
2. The Changing Relationship between the Federal Government and the States.
A. Restraining National Power with Dual Federalism. The Constitution created
two layers of
government: national and state. These layers created a traditional system of
dual
federalism, the system of government that prevailed in the United States from
1789 to
1937, in which most fundamental powers were shared between the federal and
state
governments. During this period, the national government narrowly specialized
in the
functions it performed: assisting the states with commerce and economic
growth.
Meanwhile, the state were doing most of the governing by heavily regulating
private
property, overseeing practices such as medicine and law, and developing and
enforcing
family and criminal laws. Over history, the national government’s scope has
expanded to
local affairs. However, national power expansion has not altered the basic
American
framework because states have continued to be central to the federal system.
The federal
framework provided for national stability when local issues, such as slavery,
were most
divisive.
B. Federalism and the Slow Growth of the National Government’s Power. The
role of the
national government has slowly expanded over history. The Supreme Court laid
the
groundwork for national government expansion by broadly construing the powers
granted
by the necessary and proper clause and the commerce clause. While Congress
did not
immediately use the powers the Supreme Court offered, it did eventually use
its authority to
promote economic development. However, in the late 1800s, when Congress tried
to use
its powers to regulate the economy, the Supreme Court found that national
interference in
the work place was unconstitutional, for it violated individual states’
police powers. This
condition lasted from the Civil War all the way to the 1930s, giving the
American economy
freedom from governmental intervention and facilitating enterprise growth.
Changes came
about as result of the Great Depression in the 1903s. In 1937, the Supreme
Court issued a
series of decisions that laid the groundwork for a stronger federal
government with the
power to regulate commerce by limiting corporations’ power and to protect the
welfare of
the citizens. Those rulings spelled the end of dual federalism.
C. The Changing Roles of the States. The states and the Supreme Court used
the 10th
Amendment to protect states’ rights, defined as the principle that the states
should oppose
the increasing authority of the national government. These arguments became
less
effective in the 1930s, when the demand for national intervention in the
Great Depression
was high. Yet proponents of states’ power continued to exist, specifically
because certain
groups saw state authority as key to promulgation of their particular policy
interests. For
example, in the 1950s, the 10th Amendment was used to support racial
segregation. Also,
from the 1990s to the present day, conservatives have been united in an
effort to limit
excessive national power from restricting individual liberties.
3. Who Does What? Public Spending and the Federal Framework. The Constitution
does not
answer the question of how to divide responsibilities between the states and
national
government. Recently, Americans’ distrust in the national government has
supported giving
more responsibility to the states, but Americans still want the national
government to set
standards and ensure equality. The balance between these two positions has
shifted through
American history.
A. The New Deal. The New Deal of the 1930s led to a more active national
government. Local
and state governments proved unable to cope with Great Depression demands.
President
Hoover maintained that the jobless and their misery were the affair of the
states. When
Franklin Roosevelt was elected, he rapidly activated the federal government
to fight the
depression. He proposed a variety of relief measures financed by the national
government
by administered by the states. He also designed federal programs to ensure
economic
security for Americans.
B. Federal Grants. The Roosevelt administration did not directly take all
power away from the
states. Instead, many New Deal programs redirected the states with grant in
aid programs
through which Congress provides money to state and local governments on the
condition
that the funds are employed for federally predetermined purposes. The grant
in aid can be
traced back to the 19th century federal land grants made to the people of the
states to
improve agriculture. The New Deal expanded the grants in aid into social
programs to assist
the states’ poor children. At times, the federal government has required the
states to
match national contributions dollar for dollar. Other times, 90 percent of
the cost has been
assumed in federal categorical grants, congressional grants given to the
states on the
condition that expenditures are limited to the requirement specified by the
national
government. Initially, federal grants were in the form of formula grants, in
which a formula
is used to determine the amount of federal funds a state or local government
will receive.
Grants in aid grew rapidly in the 1960s; many of them were in the form of
project grants,
grant programs in which state and local governments submit proposals to
federal agencies
and for which funding is provided on a competitive basis, giving the national
government
substantial control over state and local government politics.
C. Cooperative Federalism. The New Deal moved America from dual federalism to
a system of
cooperative federalism, in which grants in aid have been used strategically
to encourage
states and local governments to pursue national goals. This movement is also
known as the
shift from layer cake federalism to marble cake federalism. In layer cake
federalism, the
responsibilities of the national government and state governments are clearly
separated. In
marble cake federalism, national policies, state policies, and local policies
overlap in many
areas. For a while, during the 1960s, many federal programs bypassed states
entirely
because of fear that discrimination and racism would affect implementation of
government
policies. Yet other new programs for the needy such as Medicaid relied on
state
implementation. This new role meant that states were an important part of the
federal
system.
D. Regulated Federalism and National Standards. Over time, the national
government sought
greater uniformity across the states by providing grants in aid and
regulation. A greater
national regulatory role led to a period of regulated federalism, a form of
federalism in
which Congress imposes legislation on states and localities, requiring them
to meet national
standards. Another tool to create national policy uniformity is preemption: a
principle that
allows the national government to override state or local actions in certain
policy areas.
While national policy uniformity may be desirable to some, others protest the
inability of
local communities to set their own standards. Moreover, the growth of
national standards
generated problems such as the increase of unfunded mandates, regulations for
receiving
grants that impose costs on state and local governments for which they are
not reimbursed
by the federal government.
E. New Federalism and State Control. How to get the best results for the
money spent is a
fundamental problem in American federalism. Critics of federal spending
programs
complain of a lack of coordination between national and state governments and
a
problematic one size fits all approach, which many governors charge fails to
account for
local needs and variations. Presidents Nixon and Reagan spearheaded efforts –
dubbed
New Federalism – to return power to the states through block grants (federal
grants in aid
that allow states considerable discretion in how the funds are spent),
general revenue
sharing (the federal government yielding a portion of its tax income to the
states according
to an established formula,) and devolution. Yet block grants and federal
spending cuts did
not solve federalism problems such as the accountability trade offs that came
with state
spending flexibility. Also, federal spending cuts led states to raise taxes
to make up for the
cuts.
F. Devolution: For Whose Benefit? The allocation of policy making between
state and federal
governments can dramatically affect who benefits from policies. For example,
redistributive
programs implemented by the national government are aimed at benefiting the
poor; when
these programs are devolved to the states, states have an incentive to keep
taxes and costs
low and thus these programs are often cut. Cost benefit analysis provides
ongoing fuel for
the debate over allocation of responsibility.
G. Federalism since 2000. During the Bush and Obama administrations, most
major policy
fights – including such hot button issues as the appropriate amount of public
social
spending, rights and benefits of immigrants, government policy on global
warming, and
regulation of business and moral behavior – have played out primarily at the
national level.
Although conservatives proclaim their preference for a small federal
government, during the
presidency of George W. Bush, those same conservatives found they needed a
strong
federal government to respond to public demands, react to national security
threats, and
advance conservative policy goals.
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