Constitutional Underpinnings and Federalism
I.
Democracy and Other Forms of Government A. Types of Government. 1.
Totalitarian Regime—a form of government that controls all aspects of the political and social life of a nation. 2.
Authoritarianism—A type of regime in which only the government itself is fully controlled by the ruler. Social and economic institutions exist that are not under the government’s control. 3.
Aristocracy—Rule by the “best”; in reality, rule by an upper class. 4. Theocracy—rule by self‐appointed religious leaders.
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Oligarchy—Rule by a few. 6.
Anarchy—The absence of government. 7.
Democracy—A system of government in which political authority is vested in the people. It is derived from the Greek words demos (“the people”) and kratos (“authority”). B. A Democratic Republic. A republic refers to a form of government in which sovereign power rests with the people rather than with a monarch. A democratic republic refers to a republic in which representatives elected by the people make and enforce laws and policies. By itself, a republic can have many undemocratic features. Democratic republic and representative democracy really mean the same thing—government based on elected representatives—except for the historical quirk that a republic cannot have a vestigial king. 1.
Principles of Democratic Government. These include universal suffrage, or the right of all adults to vote for their representatives, and majority rule, which means that the greatest number of citizens in any political unit should select the officials and determine policies. 2.
Constitutional Democracy. The key concept is limited government, a government in which government powers are limited either through written document or through widely shared beliefs. Without such limits, political decisions may be based on the whims or ambitions of individuals in government. II. The Colonial Background Conditions in the early English settlements were unimaginable by today’s standards. Why were so many people willing to relocate in America? A. The first New England colony was established in 1620. The people were dissatisfied with the Church of England and sought a place where they could practice their religious beliefs. The Mayflower compact set forth the idea of consent of the governed. B. More Colonies, More Government. People in each of the colonies became accustomed to making decisions that affected the internal order of the colony. While each colony had only limited authority to make decisions, in practice most governmental actions that affected the people were 1-1
made within the colony. The colonies were not really united as a political force before the First Continental Congress (1774). III. British Restrictions and Colonial Grievances In 1763 the British Parliament began to pass laws that treated the colonies as a unit. The major reason for these laws was to raise revenue to help pay off the war debt incurred during the French and Indian Wars (1756‐1763). IV. The Colonial Response: The Continental Congresses A. The First Continental Congress. The colonists began to realize as a political unit they would have more influence with Parliament. The focus of these political meetings was to restore the political structure that was in existence before the passage of legislation affecting the colonies. B. The Second Continental Congress. This is the Congress that made Washington the general in chief and pursued the Revolutionary War. V. Declaring Independence July 4, 1776—the Declaration of Independence 1. Universal Truths. The opening text—“We hold these Truths. . . “ 2. Natural Rights and a Social Contract. People have natural rights (“unalienable Rights”) including life, liberty, and the pursuit of happiness. These rights are held to be inherent in natural law, not dependent on government. An important component of the Declaration of Independence was the concept of a social contract, a voluntary agreement among individuals to secure their rights and welfare by creating a government and abiding by its rules. Like the Mayflower Compact more than 200 years before, The Declaration of Independence was based on the idea of consent of the governed, and that governments had the responsibility to protect the natural rights of its citizens. If the government failed to do so, the people had the right to revolt. 3. The Significance of the Declaration: It established the legitimacy of the new nation in the eyes of foreign governments and the colonialists. VI. The Rise of Republicanism Republican as used here must be carefully distinguished from the current Republican Party. While republicans were opposed to rule by the British, they were also opposed to rule by any central authority. They were even skeptical of a permanent union of the states. Each state was seen as the sovereign authority and the only legitimate ruling force. VII. The Articles of Confederation: The First Form of Government States retained most of the power and the central government had a very limited role in the governing process. A. Accomplishments ‐ Under the Articles: The states consented to give up their land claims to the United States as a whole, Northwest Ordinance, Post Office. 1-2
B. Weaknesses of the Articles. The lack of a strong central authority to resolve disputes between the states, and to organize the states for the collective good, including the organization of a militia, was crucial to the development of the Constitutional Convention. C. Need for Revision of the Articles. Events such as Shays’ Rebellion convinced many political leaders that the national government, under the Articles of Confederation, and individual state governments were incapable of resolving the most pressing problems. The solution appeared to be the establishment of a stronger central government. VIII. Drafting the Constitution A. Factions among the Delegates. The beliefs of the delegates ranged from the near‐monarchism of Hamilton to definite decentralized republicanism. Some of these last people left when they saw the federalist tenor of the proceedings. B. Politicking and Compromises. 1. The Virginia Plan. Bicameral; this was actually fairly close to a parliamentary system, with power concentrated in a lower house that was to choose the executive. The major problem with it was that representation was strictly by population, to the disadvantage of the small states. 2. The New Jersey Plan. Unicameral, a one‐state, one‐vote plan that would have created a relatively weak central government. Again, the executive was to be elected by the Congress. 3. The Connecticut Compromise. The Great Compromise (or the Connecticut Plan) provided for a bicameral legislature with one house based on population, the other with equal representation for each state. In this plan, Congress did not choose the president. 4. The Three‐Fifths Compromise. Delegates from the South wanted slaves to be counted in determining representation in Congress. Delegates from the North objected. The Three‐
Fifths Compromise, struck to prevent southern delegates from abandoning the convention, provided that each slave would count as 3/5 of a person. 5. The Slave Trade and Future of Slavery: A slavery compromise was struck to keep the South from abandoning the convention. 6. Other Issues. To the benefit of the agricultural South, export taxes were banned. As a compromise, both the president and the Senate had a role in choosing the membership of the Supreme Court. D. Working toward Final Agreement. 1. The Madisonian Model—Separation of Powers. The legislative, executive, and judicial powers were to be independent of each other. 2. The Madisonian Model—Checks and Balances. Power was divided between the three major branches and each branch was encouraged to confront the other two branches. This idea was based on the assumption that “ambition must be made to counteract ambition.” Since each 1-3
branch of government would attempt to gain more power, each branch would serve to check the power of the other two branches. 3. The Executive. An Electoral College meant that the president was not to be chosen by Congress, but not by a popular vote, either. IX. The Final Document A summary of the results: popular sovereignty, a republican government, a limited government, separation of powers, and a federal system where both the national and the state governments each have their own sphere of influence. X. The Difficult Road to Ratification A. The Federalists Push for Ratification. 1.
The Federalist Papers. The Federalist Papers were an attempt to persuade the public to
support the new form of government. Federalist #10 and Federalist #51 provide an excellent
view of James Madison’s political theory concerning human nature. 2.
The Anti-Federalist Response. A defense of traditional republicanism. B. Ratification. 9 of the 13 states needed. The vote by the Virginia ratification convention was
essential and somewhat close. The New York vote was even closer and put the Constitution
“over the top.” At this point, North Carolina and Rhode Island had little choice but to join. XI. The Bill of Rights A. A “Bill of Limits.” Contrary to popular belief, the Bill of Rights did not apply to state governments. The restrictions only were applicable to the national government until the 14th amendment incorporated some of these rights. XII. Altering the Constitution: The Formal Amendment Process Amendments are addressed in Article V of the Constitution. Amendments require a 2/3 vote of both houses of congress followed by ratification by ¾ of the states in their legislatures or special ratification conventions A. Many Amendments Proposed, Few Accepted. From 1789 through 2002, 27 amendments passed, ‐‐ one amendment every 7.8 years—a misleading ratio since 10 of those amendments came within the first four years. From 1791 through 2002 there have only been 17 amendments, ‐‐ one amendment every 12.4 years. B. Limits on Ratification. Recent amendments have usually been accompanied by time limits for ratification, though this is not a Constitutional requirement. C. The National Convention Provision. Such a convention could be called at the request of 2/3 of the states, and could rewrite the entire Constitution The product of such a convention, however, would have to be ratified by the states in the same way as any amendment. 1-4
XIII. Informal Methods of Constitutional Change A. Congressional Legislation. Such interpretation has not been limited to the federal judiciary. Both the legislative and executive branches have interpreted the Constitution. Once an interpretation has been made and there is no challenge to this type of action, there has been a change in the meaning of the Constitution. B. Presidential Actions. These actions can affect the interpretation of the Constitution as well. C. Judicial Review. Key concept: the power of the courts to declare a law or action unconstitutional, as decided in Marbury v. Madison. 1. Not a Novel Concept. It was based on English and colonial traditions. 2. Allows the Court to Adapt the Constitution. D. Interpretation, Custom, and Usage. Ultimately, the Constitution is not just the short document, but the entire body of judicial and other understandings that have grown up to implement it. XVI. Three Systems of Government A. A Unitary System. A unitary system is a centralized governmental system in which ultimate governmental authority rests in the hands of the national, or central, government. This is the most common form of government. Local governments typically have only those powers granted to them by the central government, rather than any reserved powers. Especially important is the central government’s role as provider of funds. Many sub‐national governments rely exclusively on funds from the national government for overhead and program administration, as they may not have the power to tax. B. A Confederal System. A confederal system is a system of government consisting of a league of independent states, each having essentially sovereign powers. The central government in a confederation has only limited powers over the states, which is the opposite of a unitary system. The EU (European Union) is an example of a current confederate system. Each country has ultimate power within the system, although there is an EU parliament and other institutions that set a common European policy. C. A Federal System. Federal systems divide power between the national and lower level governments. Each government has distinct powers that the other governments cannot override. A number of countries use a federal form of government (Australia, Brazil, Canada, Germany, India, Mexico, and the United States). XVII. Why Federalism? A. A Practical Solution. The authors of the Constitution wanted to combine a central government strong enough to maintain order with strong states. B. Other Arguments for Federalism. Other arguments for federalism include the large geographical size of a country. 1.
Benefits for the United States. State governments have served as training grounds for national politicians and as laboratories in which new ideas can be tested. 2.
Allowances for Many Political Subcultures. Federalism can be favored because of sectionalism and political subcultures that led many to advocate decentralization. 1-5
C. Arguments against Federalism. Federalism makes it possible for powerful state and local interests to impede national plans, such as happened when some cities and states resisted implementing equal rights for minority groups. Federalism also creates inequalities across states and permits the expansion of national powers at the expense of the states. XVIII. The Constitutional Basis for American Federalism A. Powers of the National Government. Powers delegated to the national government include both expressed and implied powers. Most of the powers expressly delegated to the national government are found in the first 17 clauses of Article I, Section 8. Implied powers allow the national government to make decisions that fall outside the expressed powers. 1.
The Necessary and Proper Clause. Many of these powers are traced to Article 1, Section 8 and the necessary and proper clause, which gives Congress the power to do whatever is necessary to execute its specifically designated powers. 2.
Inherent Powers. The other major source of power is known as inherent powers, powers that are recognized by all sovereign nations. B. Powers of the State Governments. Reserved powers of the states are, according to the Tenth Amendment, all powers that were not delegated to the national government. In theory, states still retain all powers not delegated to the national government, but in reality the national government has expanded the scope of governmental action on a grand scale. Key concept: police power, the authority to legislate for the protection of the health, morals, safety, and welfare of the people. In the United States, most police power is reserved to the states. C. Concurrent Powers. Concurrent powers are powers that are shared by both the national and state governments. Examples include the powers to tax, make and enforce laws, establish courts, and, to a limited extent, the police power. D. Prohibited Powers. Prohibited powers apply to both the national and state governments. The national government is prohibited from taxing exports. State governments are prohibited from conducting foreign policy and from coining money. E. The Supremacy Clause. Article VI of the Constitution (the supremacy clause) mandates that actions by the national government are supreme. Any conflict between a legitimate action of the national government and a state will be resolved in favor of the national government. F. Vertical Checks and Balances. Federalism can be seen as an additional way of preventing government from growing too strong, beyond the division of the national government into the legislative, executive, and judicial branches. G. Interstate Relations. Article IV of the Constitution attempts to resolve potential problems between states by stipulating the following: 1.
Full faith and credit clause—states must honor actions of other states. 2.
Privileges and immunities—citizens of one state must not be treated as aliens when in another state. If the citizen of one state moves to another state, the receiving state must treat the new person as a citizen. 1-6
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Interstate extradition—if a person is alleged to have committed a crime in one state and then flees to another state, the accused person will be extradited to the state where the alleged action occurred. 4.
Interstate compacts—compacts between states must be approved by Congress if the compact alters the power of the contracting states relative to other states or the national government. XIX. Defining Constitutional Powers—The Early Years A. McCulloch v. Maryland (1819). This case settled a constitutional question concerning the powers of the national government. Chief Justice John Marshall’s decision confirmed national power. The power of Congress is not strictly limited to the expressed powers. Marshall held Congress has implied powers to carry out the expressed powers. Further, Marshall upheld the supremacy doctrine by ruling that states could not override federal actions by taxing them. B. Gibbons v. Ogden (1824). This case set the precedent for the national government to regulate a wide range of economic activities. The definition of what could be considered interstate commerce was greatly expanded. In time this definition would allow Congress the power to regulate a wide range of economic activities. 1.
The Background of the Case. Ogden sued Gibbons and the New York state court prohibited Gibbons from operating steam navigation in New York waters. Gibbons appealed to the Supreme Court. 2.
Marshall’s Ruling. Marshall defined commerce as all commercial intercourse and held that because Gibbons was authorized by the national government to navigate in interstate waters, a state court could not prohibit him. XX. States’ Rights and the Resort to Civil War A. The Shift Back to States’ Rights. In the Jacksonian era (1829–1837) states’ rights were reemphasized by the new Democratic Party. However, President Jackson would not tolerate a direct challenge to the supremacy doctrine, as was presented by South Carolina’s nullification doctrine. Because South Carolina received little or no support from other Southern States in this dispute over the national government’s exercise of its enumerated power to set taxes on imports (tariffs), the state had to back down. B. War and the Growth of the National Government. 1.
The War Effort. A major effect of the Civil War was the growth of the national government. The cost of the military led the national government to develop new ways to generate revenue (the first income tax). This increased action by the national government did not end with the war. After the war there was no longer a question as to whether the national government was supreme. 2.
The Civil War Amendments. The post‐war amendments represented a serious enhancement of national power. The national government now abolished slavery, defined who was an American citizen, and attempted (with limited success) to provide rights to the freed slaves that included the right to vote. In time, the Fourteenth Amendment—at 1-7
XXI. The Continuing Dispute Over the Division of Power A. Dual Federalism and the Retreat of National Authority. Dual federalism is a model of federalism in which the states and national government are co‐equal sovereign powers that remain supreme within their own spheres. 1.
A Return to Normal Conditions. This doctrine was, in part, a return to the states’ rights beliefs that prevailed before the Civil War. 2.
The Role of the Supreme Court. The Supreme Court was caught out on the wrong side of the Civil War conflict and lost its legitimacy for a generation. As the Court regained its powers, it used them to define and defend what we now call dual federalism. In particular, the Court denied the federal government any police power at all. B. The New Deal and Cooperative Federalism. Cooperative federalism is a model of federalism in which the states and national government cooperate in solving complex common problems, but in this context it also emphasizes an expanded role for the national government. 1.
The New Deal. In response to the Great Depression, Franklin D. Roosevelt’s administration implemented social‐welfare programs designed to alleviate the bad economic times. Dual federalism, in contrast, had held that programs such as relief for the poor were entirely outside of the federal role. 2.
The End of Dual Federalism. The Supreme Court struck down dozens of New Deal programs as unconstitutional. After Roosevelt threatened to “pack” the Court with newly appointed justices, however, the Court ceased to interfere with the national government’s attempts to legislate broadly under the commerce clause. 3.
Cooperative Federalism. Roosevelt’s programs typically were funded by the federal government, but administered by states and local governments, thus creating a cooperative framework for federalist relations. C. Methods of Implementing Cooperative Federalism. 1.
Categorical Grants. Federal grants became a popular way to help to construct the national infrastructure. In addition to infrastructure needs, states began to see federal grants as a way to provide services to the public. Key concept: categorical grants, or federal grants to states or local governments that are for specific programs or projects. 2.
Feeling the Pressure—the Strings Attached to Federal Grants. Usually such grants must include matching funds from the state or local government. Often, grants have significant strings attached. 3.
Block Grants. Key concept: block grants, federal programs that provide funds to state and local governments for broad functional areas, allow state or local governments more leeway in deciding how to spend funds for a specific type of governmental service such as health care. Policies such as welfare reform have enabled states to act as policy laboratories, trying different policy solutions to see what works best. 1-8
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Federal Mandates. A federal mandate is a requirement in federal legislation that forces states and municipalities to comply with certain rules. Sometimes the federal government will impose a federal mandate to implement a costly policy without providing funds to cover the full costs of the program. XXII. The Politics of Federalism The allocation of powers between the national and state governments continues to be a major issue. States’ rights have been associated with conservatism and national authority has been associated with liberalism. A. What Has National Authority Accomplished? It has been an engine of change in American history. National authority freed the slaves and initiated economic regulation and welfare support in the 1930s. Under Lyndon Johnson (1963–1969) national authority was used to expand support for the poor and to guarantee civil rights to African Americans and others. 1.
Why Should the States Want to Limit National Authority? Some states may be out of step with the majority on an issue such as the right of African Americans to vote. National authority can impose a national consensus on recalcitrant states. States may compete against each other for the best “business climate” by lowering taxes, but national legislation regulating all states makes it more difficult for an individual state to create a favorable business climate relative to other states. Local economic interests may wish to preserve the status quo in order to preserve political influence. Finally, states may feel they can do a better job at regulating activities since they are more knowledgeable about problems within their borders. B. The “New Federalism.” 1.
The “New Federalism.” Beginning with President Richard Nixon (1969–1974), the Republican Party championed devolution, or the transfer of powers from the national government to state or local government. They called this policy federalism, a new use of the term. 2.
Federalism Today. At this point, it is not clear whether competing theories of federalism divide Republicans from Democrats. Democratic president Bill Clinton (1993‐2001) signed legislation transferring significant control over welfare programs to the states, and Republican president George W. Bush signed legislation that increased federal control over education and educational funding. XXIII. Federalism and Today’s Supreme Court. A. The Trend Toward States’ Rights. Since the 1990s, there has been a general trend on the part of the Supreme Court to give greater weight to states’ rights. Rulings have limited national authority under the commerce clause (U.S. v. Lopez), Preemption (City of Bourne v. Flores, Gonzales v. Oregon) and bolstered states’ immunity from suits brought by their own citizens in federal court (Alden v. Maine). 1-9