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UNIT 2-CONSTITUTIONAL UNDERPINNINGS & FEDERALISM
Intellectual Origins of the Constitution
• Key ideas: reason, natural law, progress, liberty, tolerance
• Key figures: Locke, Hobbes, Montesquieu, Rousseau
• Despite Enlightenment influence, the Founders went in another direction from their European Enlightenment counterparts
Intellectual Origins of the Constitution LOCKE IN SECOND TREATISE OF CIVIL
GOVERNMENT
JEFFERSON IN THE DECLARATION OF
INDEPENDENCE "When any one, or more, shall take upon them to make
laws whom the people have not appointed so to do, they
make laws
without authority, which the people are
not therefore bound to obey; by which means they come
again to be out of subjection, and may constitute to
themselves a new legislature."
"When in the course of human events, it becomes
necessary for one people to dissolve the political bands
that have connected them with another, and to
assume, among the powers of the earth, the separate and
equal station to which the laws of nature and of nature's
God entitle them..."
Whosoever uses force without right...puts
himself into a state of war with those against whom he
so uses it, and in that state all former ties are canceled, all
other rights
cease, and every one has a right to defend himself, and to
resist the aggressor..."
But when a long train of abuses and usurpations, pursuing
invariably the same
object, evinces a design to reduce them under absolute
despotism, it is their right, it is their duty, to throw off
such government..."
"A state also of equality, wherein all the
power and jurisdiction is reciprocal, no one having more
than another..."
"We hold these truths to be self-evident: That all men are
created equal;"
"[men] have a mind to unite for the mutual preservation
of their lives, liberties, and....property.ä
" that they are endowed by their Creator with certain
unalienable rights, that among these are life, liberty, and
the pursuit of happiness."
" To great and chief end, therefore, of men uniting into
commonwealths, and putting themselves under
government, is the preservation of their property...."
" that to secure these rights, governments are instituted
among men, deriving their just powers from the consent
of the governed."
Revolution & Articles of Confederation
• American Revolution
• Articles of Confederation and its flaws
• Shay’s Rebellion
Philly 1787 and the Framers
• Who were the framers?
• 3 plans for govt.
• Why a republic?
• 2 key constitutional principles
• Federalists v. Anti-Federalists
• The slavery issue
• Theories on Democracy & the Founders (elitism?)
Federalism
• What is it?
• Good or bad?
• Why federalism?
FEDERALISM ADVANTAGES DISADVANTAGES
1. Mobilization of political activity
The various levels of government provide many alternatives for a
citizen to be heard regarding a concern. If a local official
won't listen, a citizen may appeal to someone on the state or
national level.
1. Confusion of political activity
The various levels of government can be confusing to a citizen, so that
he or she does not know which official to contact.
2. Interest groups cannot easily take over the government.
Powerful interest groups cannot force their will upon less powerful
groups because in order to control, they would have to take over
not only the national government, but state and local governments
as well. Small groups of people have a chance to be heard and
influence legislation.
2. Small but motivated interest groups can block the will of the
majority for extended periods of time. Sometimes small groups of
people can impose their will for extended periods of time on the
majority. For example, a relatively small group of southern senators
blocked civil rights legislation for many years after most citizens
favored such legislation.
3. Diversity of policies among states encourages experimentation
and creativity.
50 different state governments tackle similar issues, and a good
solution in one state can be modeled in another. For example, if a
state finds a good way to finance public education, other states can
mimic the plan, altering for special needs. On the other hand, if a
state tries something that fails, at least it affects only one state, not
all.
3. Diversity of policies among states creates inequality between
citizens of different states. Because states provide different levels of
support, citizens in some states have more advantages than those in
other states. For example, welfare benefits vary widely among the
states, as do funding levels for public education.
4. Diverse policies among states are good because uniform laws
don't make sense in many areas.
For example, speed limits on highways should be under state and
local control, as should the minimum age for obtaining a driving
license. Crowded New Jersey should not have the same speed
limits as does wide-open Montana. Young people in farm states
should be allowed to drive at early ages in order to help support the
farm.
4. Diverse policies among states even for speed limits and driving ages
creates confusion and inequality.
Although speed limits obviously need to vary, arbitrary differences in
state laws are confusing and outdated in this era of interstate
highways. Differences in driving ages are not fair to young people in
states with higher age requirements.
The Powers of Federalism
• Expressed/enumerated powers-specifically granted to the federal government
- Key powers: regulate interstate and foreign commerce, tax and spend, war power • Implied powers- not expressly stated in Constitution (elastic or “necessary
and proper” clause; ensured federal growth • Inherent powers- all nations have right to make treaties, wage war, and
acquire territory (inherent in power of a nation) • Reserved powers- held solely by the states; licensing doctors, establishing
schools, establishing local governments, police power (protect and promote public morals, health, safety, and general welfare)
• Concurrent powers- exercised by both federal and state government (tax, borrow money, establish courts)
• Prohibited powers- denied to both federal and state govt. (states can’t make treaties, Federal govt. can’t tax exports)
Enumerated Powers- powers of Congress found in Article I, Section 8 of the Constitution
Establishing National Supremacy. The Growth of Federal Power
1. McCulloch v. Maryland – First brought the issue of state vs. national power before the
Supreme Court – The Supreme Court ruled that the national policies take precedence
over state policies: • Chief Justice John Marshall wrote that, “the government of the United
States, though limited in its power, is supreme within its sphere of action.”
– The court also gave “sweeping approval” to the concept of implied powers. This concept is based on the “necessary and proper” clause of the Constitution (“make all laws necessary and proper for carrying into execution the foregoing powers”) that go beyond the enumerated powers specifically listed in Article I, Section 8.
– 2 Questions Resolved: Congress could establish a national bank and the states had no right to tax it (“the power to tax involves the power to destroy”…i.e. authority comes from constitution, not the states)
Establishing National Supremacy. The Growth of Federal Power
2. Gibbons v. Ogden
– defined commerce broadly to encompass virtually every form of commercial activity. The Supreme Court, more recently, has looked at the commerce power skeptically.
Establishing National Supremacy. The Growth of Federal Power
3. Civil War – settled military the issue that McCullough had
constitutionally.
– The basic issue resolved was that the national government was supreme, its sovereignty derived directly from the people, and thus the states could not lawfully secede from the Union.
– Nullification • Advocated by Jefferson, Madison, and Calhoun.
Establishing National Supremacy. The Growth of Federal Power
4. Civil Rights Movement – A century after the Civil War, the policy issue
became equality.
– The conflict between state and the national government over equality issues was decided in favor of the national government: throughout the 1960’s, the federal government enacted laws and policies to end segregation in the schools, housing, public accommodations, voting, and jobs.
Fiscal Federalism
• Defined: the pattern of spending, taxing, and providing grants in the federal system.
• The major way the federal government has grown in power is through using money as a manipulator.
• Federal aid makes up 21% of state and local governments and 16% of the federal budget.
“He who pays the piper calls the tune”
Fiscal Federalism
• Grants-in-aid are the main instruments the national government uses for both aiding and influencing states and localities. – Began during the
1930’s.
– The real shift towards more federal power began in the 1960’s.
Acts of the Government Involving Federalism Related Disputes
1. Americans With Disabilities Act- required states to make facilities, such as state colleges and universities accessible to individuals with disabilities. No funds to support, though.
2. Civil Rights Act 1964- bars discrimination in the use of federal funds because of race, color, national origin, gender, or physical disability. Southern states blocked legislation for a long time and refused to accept court rulings Many schools today lose funding for all programs if discriminates illegally in one program.
3. Clear Air and Water Act of 1970- national air quality standards but requires states to administer them and to appropriate funds for their implementation
Acts of the Government Involving Federalism Related Disputes
4. Welfare Reform Act of 1996- required work in exchange for temporary relief; no more than two years could be used before parents would be working or in job training. No recipient could have more than five years of assistance cumulatively
– Ultimately, gave states money and gave them freedom to enforce the law.
– 2012 change & controversy
Acts of the Government Involving Federalism Related Disputes
5. Gun Free Schools Act of 1990- forbids the possession of firearms in public schools
– Issue (s): US v. Lopez said Congress extended Constitutional authority to regulate commerce.
– The Government's principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition in two ways. First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy; and second, by limiting the willingness to travel in the area perceived to be unsafe. The Government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health.
– Court concludes that in no way is carrying a handgun related 6. Brady Handgun Violence Prevention Act- mandated that the chief law
enforcement officers in each local community conduct background checks on gun purchasers.
– Printz v. United States and Mack v. US said “the federal government may neither issue directives requiring the states to address particular problems, nor commend the states’ officers, or those of their political subdivision to administer or enforce a federal regulatory program.” i.e. mandate voided.
7. Federal Mandate to Raise the Drinking Age to 21- states are now required to raise drinking age to 21 in order to receive federal funds for highways.
Acts of the Government Involving Federalism Related Disputes
8. NCLB- Largest expansion of federal government’s role in education since LBJ.
• several states in the process of challenging federal education regulations as education has traditionally been viewed as being run by the state and local governments.
9. Defense of Marriage Act- permits states to disregard gay marriages, even if legal in U.S.
Acts of the Government Involving Federalism Related Disputes
10. Hurricane Katrina- best recent illustration of complex relationship between federal and state governments.
11. September 11, 2001- Congress imposed sizable mandates on the states to increase ability to deal with acts of terrorism, but no resources necessary to increase state and local capabilities.
• Issue (s):
• Other issues: – Child labor laws, minimum-wage legislation, unemployment
compensation, antipollution legislation, civil rights protections, income tax, welfare reform, and health care.
The Historical Waves of Federalism • Marshall court decisions (McCulloch/Gibbons etc.)= Federal supremacy • Taney court and dual federalism=state supremacy (Dred Scott case) • Civil War & Reconstruction/16th-17th amendments (income tax and direct
election of senators)= federal power • New Deal=cooperative federalism (big government) • New Federalism/Devolution= Reagan/Republican Congress=power back to
states • Bush/Obama-regulated federalism (NCLB/Obamacare) • Current Supreme court= sometimes support states, sometimes Fed govt
Misc. Issues • Problem of Gridlock- govt. is inefficient and can’t act decisively • Bureaucracy problems (more on this later) • Proposed reforms:
• Members of Congress can serve in cabinet • President can dissolve Congress • Congress can call special presidential elections • Require Presidential/Congressional candidates to run as teams • Single 6 year term for president • House members serve 4 year terms • “Three-in-one out” Congressional work weeks
• Proposed counter-reforms: • Limit tax collections • Require balanced budgets • Line item veto- (declared unconstitutional in 1996 (Clinton v. New York); requires Constitutional
Amendment • Narrow authority of Federal courts
Terms Most Likely To Be On the AP Exam
• Majority rule • Checks and balances • Unitary system • Federalism • Expressed powers • Implied powers • Reserved powers • Cooperative federalism • Categorical grant • Block grant • Mandates • devolution