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)


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.


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.


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


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


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.


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.


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

UNIT 2-CONSTITUTIONAL UNDERPINNINGS & FEDERALISM · 2019. 8. 7. · 2. Small but motivated interest...

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Transcript of UNIT 2-CONSTITUTIONAL UNDERPINNINGS & FEDERALISM · 2019. 8. 7. · 2. Small but motivated interest...