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The Constitution & Federalism

US Politics and Society

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The US Constitution Although the first attempt failed

(Articles of Confederation), the second represents one of the oldest continually functioning political systems in the world.

It has overseen the transformation of a territory, a people, an economic system, a social structure, an ethnic mixture & a geopolitical superpower

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Continuity and Change

~ 4300 words7 articles

•4 million people•13 states•Narrow settlement along Atlantic•Agricultural, rural

1789

~4300 words 7 articles

27 amendments

2003 •290 million people•50 states•From the Atlantic to the Pacific•Urban and industrialized•Nuclear power•Multicultural

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Four principles of the Constitution

1. republicanism: government through elected representatives

neither monarchy, aristocracy nor (for that matter) direct democracy

2. federalism: government by devolution to the constituent states

neither unitary government, nor confederation

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Four principles of the Constitution

3. separation of powers: division of powers among different branches of government, i.e. legislative, executive and judiciary

4. checks and balances: not only are powers separated, but they are also configured so as to give each branch certain powers of check and balance over the other two

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Checks and balances

•Make laws

•Veto legislation•Submit legislation•Executive orders

•Review legislative acts

•Confirm executive appts (Senate)•Override vetoes•Impeach president

•Enforce laws

•Review executive acts•Issue injunctions

•Impeach judges•Create/eliminate courts

•Grant pardons•Nominate judges •Interpret laws

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7 articles of the Constitution Article 1: Legislative branch

the longest because of the desire of the ‘Founding Fathers’ to enforce republicanism and have only elected representatives run government

details the ‘Great Compromise’, which established a bicameral legislature based on separate representation principles

lists election principles from House & Senate gives House the sole right to initiate bills

regarding revenue

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Powers of Congress to regulate customs, monetary and

commercial affairs ‘with foreign Nations, and among the several States, and with the Indian tribes’

to declare war and provide for national defense, including militia, navy

to establish a postal system & post roads

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The ‘Elastic’ Clause Article 1, Sec. 8, final ¶: [Congress shall

have power…] 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. ‘Implied powers’, ‘necessary and proper’ clause

Key provision, which has been the basis for the expansion of congressional powers since 1789

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Article 2: the Executive commander-in-chief can request the ‘Opinion, in writing, of the

principal officer in each of the executive Departments’

grants pardons sign treaties appoints judges, cabinet members,

ambassadors—all upon the ‘Advice and Consent’ of the Senate

gives Congress ‘Information of the State of the Union’

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Article 3: the Judiciary Creation of the Supreme Court and

other ‘inferior Courts as the Congress may from time to time ordain and establish.’

Automatic SC jurisdiction in cases involving states

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Article 4: the States Mutual recognition of state laws equal privileges and immunities to

all citizens extradition from state to state all states shall have republican

government states shall be protected from

invasion and offered assistance in times of domestic unrest

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Articles 5-7: Further provisions Article 5: Amendment Article 6: the Constitution shall be

‘the supreme Law of the Land; and the Judges [legislators and executives] in every State shall be bound thereby’ ‘no religious Test shall ever be required as a

Qualification to any Office or public Trust under the United States’

Article 7: Ratification, 9/13 states

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Amending the Constitution

Method of Proposal

Method of Ratification

By 2/3 vote in both houses of Congress (used 33 times)

By natl constitutional convention called by Congress at the request of 2/3 of the state legislatures (never used)

By legislatures in 3/4 of the states (used 26 times)

By conventions in 3/4 of the states (used only once, 21 amendment)

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Bill of Rights First 10 amendments Proposed as part of Virginia ratification

1. Freedom of religion, speech, press and assembly2. Right to bear arms3. Prohibition against quartering of troops in private homes4. Prohibition against unreasonable searches and seizures5. Rights for the accused: grand jury indictment, double

jeopardy, self-incrimination, due process6. Right to speedy and public trial7. Right to trial by jury in civil suits8. Prohibition against cruel and unusual punishment9. Rights not listed in the Constitution retained by the people10.The States or people reserve those powers not denied to

them by the Constit. or delegated to the national govt.

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Types of amendments

1. structural change in govt 12th: separate voting for president and vice-

president (1804) 17th: Direct election of US Senators (1913) 20th: Presidents limited to 2 terms (1951) 25th: Presidential & Vice-Presidential succession

(1967) 27th: Salaries of members of Congress (1992)

2. affecting public policy 18th: Prohibition (1919) 21st: Repeal of Prohibition (1933)

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Types of amendments

3. expanding rights 1-10: Bill of Rights (1791) 13th: Slavery banned (1865) 14th: Equal protection and due process (1868) 15th: Suffrage for black males (1870) 19th: Suffrage for women (1920) 23rd: Residents of District of Columbia given right to

vote in presidential elections (1961) 24th: Poll tax abolished (1964) 26th: Voting age lowered to 18 (1971)

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Types of amendments4. overruling Supreme Court decision

Individuals prohibited from suing a state without its permission (1798)

Congress given power to create personal income tax (1913)

Peculiar amendments Repeal of a previous amendment (18th vs. 21st on

prohibition) 27th Amendment proposed in 1789, ratified in…

1992

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Proposed amendments Equal Rights Amendment: proposed in each

Congress b/w 1923-1972 prohibition of gender discrimination fails ratification in 1982 by just 3 states

balanced budget amendment (1995) prayer in schools (1971) prohibition of flag burning (1995) anti-abortion amendment (since 1973) anti-polygamy (1898) electoral college reform (since 1789) term limits for Congress (1995)

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Federal-State relations

•Coin money•Conduct foreign relations•Regulate commerce b/w the states•National defense•Declare war•Establish federal courts•Make other ‘necessary and proper laws

•Regulate elections•Ratify constit. amendments•Take measures for public health•Regulate commerce w/in the state•Establish local governments•All other powers not given to federal government or prohibited to states

•Tax•Borrow money•Establish courts•Make & enforce laws•Charter banks & corporations•Spend money for general welfare•Take property for public domain

Federal powers

Concurrent powers

State powers

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Phases of US Federalism Supreme Court a key authority in

evolution of federalism1. 1789-1834: ‘Nationalization’

Marshall Court broadly interprets constitution to expand and consolidate national power

2. 1835-1860: Dual Federalism, 1 federal govt. limited to enumerated powers;

states consider themselves sovereign; tension over states’ rights

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Phases of US Federalism

3. 1860-1933: Dual Federalism, 2 Supreme Court maintains states’ right to

regulate internal commerce, while federal govt. also expands aid & regulatory policies

4. 1934-1960: Cooperative Federalism New Deal: Grants-in-aid to states, national

welfare programs, greater national regulation SC expands use of ‘commerce clause’

5. 1960-1968: Creative Federalism Johnson’s Great Society, ‘war on poverty’

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Phases of US Federalism

6. 1968-2000: New Federalism Reductions in federal aid to states, shift to

‘block grants’ State opposition to ‘unfunded mandates’

amid balanced budget amendments• Clean Water Act, Clean Air Act, Americans

with Disabilities Act Return to states as laboratories, e.g. in

welfare systems, emissions

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State Government State constitutions

the powers of executives differ, altho most have line-item veto along with regular veto

state legislatures often filled by ‘citizen legislators’• 17 states with part-time legislatures, 10 with full-time• range in size from 424 (NH) to 60 (Alaska)• all but one state legislature bicameral (NE)

growing popularity of ‘term limits’: 20 states ‘propositions’, direct (17) & indirect (4) initiatives

State prerogatives: • elections (incl. presidential)• education• public health• transportation

•economic development•law enforcement•criminal justice

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Local Government Counties: ~3000 Municipalities: ~19,300

city council, mayor Towns and Townships: ~16,700

often governed by ‘town meeting’ Special districts: ~36,000

school districts, park districts Disparities: wealth, ethnic diversity

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State & Local Govt. Revenue Sources

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Localities

1990s boom, 2000s bust

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State & Local Associations National Governors’ Association National Conference of State

Legislatures National League of Cities US Conference of Mayors National Association of Counties