POLS 1101 Book Notes Chapters 1-4
POLS 1101 Book Notes Chapters 1-4 Pols 1101
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Chapter One: Understanding American Politics Making Sense of American Government and Politics Many people, we believe, have given up on American politics because they don’t understand the political process, feel helpless to influence election outcomes or policy making, and believe that politics is irrelevant to their lives. A functioning democracy allows citizens to defer complicated policy decisions to their elected leaders, but it also requires citizens to monitor what those politicians do and to hold them accountable at the voting booth. We will answer questions about politics by applying three key ideas: politics is conflictual, political process matters, and politics is everywhere. Why Do We Have a Government? Government: the system for implementing decisions made through the political process The two broad purposes of a government is to provide order and to promote the general welfare. To Provide Order Without government there would be no laws—people could do whatever they wanted. Even if people tried to develop informal rules, there would be no way to guarantee enforcement of those rules. The Founders of the U.S. Constitution noted this crucial role in the document’s preamble: two of the central goals of our government are to “provide for the common defense” and to “insure domestic Tranquility.” Government is necessary to provide security. The Founders also cited the desire to “establish Justice... and secure the Blessings of Liberty to ourselves and our Posterity.” Founder James Madison said, “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Madison continued, people have a variety of interests that have “divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good.” Madison assumed that people are selfinterested: we want what is best for ourselves and for our families, and to satisfy those interests we form groups with likeminded people. Madison saw these groups, which he called factions, as being opposed to the public good, and his greatest fear was of tyranny by a faction imposing its will on the rest of the nation. Factions: groups of likeminded people who try to influence the government; american government is setup to avoid domination by any of these groups America’s government seeks to control the effects of factions by dividing governmental power in three main ways: Separation of Powers: the division of government power across the judicial, executive, and legislative branches Checks and Balances: a system in which each branch of government has some power over the others Ex: President can veto legislation passed by Congress; Congress can impeach the president; and the Supreme Court has the power to interpret laws written by Congress to determine whether they are constitutional Federalism: the division of power across the local, state, and national levels of government To Promote the General Welfare The preamble to the Constitution also states that the federal government exists to “promote the general Welfare.” Government is not inevitable—people can decide that these problems aren’t worth solving. Public Goods: services or actions that, once provided to one person, become available to everyone; government is typically needed to provide public goods because they will be underproduced by the free market Collective Action Problems: situations in which the members of a group would benefit by working together to produce some outcome, but each individual is better off refusing to cooperate and reaping benefits from those who do the work Free Rider Problem: the incentive to benefit from others’ work without making a contribution, which leads individuals in a collective action situation to refuse to work together The government does several things: It creates and enforces laws and protects private property through the criminal justice system. It establishes a common currency and regulates commerce among the states and trade with other nations. It provides public goods that would not be produced or would be undersupplied by the free market, including national defense, an interstate highway system, and national parks. It regulates the market to promote the general good, specifically by addressing market failures in areas such as environmental pollution and product safety. It protects individual civil liberties, such as the freedom of speech and the free exercise of religion. Forms of Government Greek political philosopher Aristotle developed three types of government based on the number of rulers vs the number of people ruled: Monarchy: rule by one Aristocracy: rule by the few Polity: rule by the many—such as the general population Aristotle’s third type of government would include constitutional republican governments. Presidential systems such as ours in the United States tend to follow a separation of power among the three branches. Relationships among different levels of government: In a federal system such as we have in the United States, power is shared among local, state, and national levels of government. In a unitary system all power is held at the national level. A confederation is a less common form of government in which states retain their sovereignty and autonomy but form a loose association at the national level. What is Politics? Politics: the process that determines what government does Three key ideas: Politics is conflictual. Political process matters. Politics is everywhere. Key Idea 1: Politics is conflictual An important implication of the inevitable conflicts in American politics is that compromise and bargaining are essential to getting things done. Another implication of conflict is that it is almost impossible to get exactly what you want from the political process. Key Idea 2: Political Process Matters Politics is the process that determines what government does, none of which is inevitable. Elections allow voters to give fellow citizens the power to enact laws, write budgets, and appoint senior bureaucrats and federal judges—so it does matter who gets elected. Federal Bureaucracy Members: influence over what government does by virtue of their roles in developing and implementing government policies Federal Judges: review government actions to see if they are consistent with the Constitution and other federal laws Citizens: vote; donate time or money to interest groups, party organizations, or individual candidates; or demand action from these groups or individuals An important element of politics is the web of rules and procedures that determine who has the power to make choices about government policy. presidency requirements; debating/ voting in the House and Senate (60 votes out of 100 are needed to enact a new law), approving of new federal regulations A filibuster is a way to extend debate and thereby prevent a vote on a proposal. Key Idea 3: Politics is Everywhere Politics is also a fundamental part of how Americans think about themselves. Virtually everyone can name their party identification (Democrat, Republican, or independent)6 and can place their views on a continuum between liberal and conservative. Actions by the enormous federal government touch virtually every aspect of our lives. people’s political behavior is similar to their behavior in other contexts such as ethnic background, gender, age, etc. Convincing likeminded individuals to contribute to a group’s lobbying efforts is not easy. Each wouldbe contributor of time or money has the opportunity to be a free rider who doesn’t participate yet reaps the benefits of others’ participation. Everything that happens in politics is the result of individuals’ choices. Sources of Conflict in American Politics Conflict must be addressed in order to find compromise and enact policy. Economic Interests A commitment to the free market and economic individualism remains central to our national identity. Free Market:an economic system based on competition among businesses without government interference Economic Individualism: the autonomy of individuals to manage their own financial decisions without government interference Democratic Politicians & Activists: favor more redistributive tax policies and social spending on programs for the poor inclined to regulate industry to protect the environment and worker and product safety; favor fewer restrictions on individual behavior Redistributive Tax Policies: policies, generally favored by Democratic politicians, that use taxation to attempt to create greater social equality (i.e., higher taxation of the rich to provide programs for the poor) Republicans: prefer lower taxes and spending on social policies; more supportive of the free market and less inclined to interfere with business interests; favor regulation of individual behaviors (abortion, gay marriage, etc.) Cultural Values Another source of conflict is differing cultural values. Culture Wars: political conflict in the United States between “redstate” Americans, who tend to have strong religious beliefs, and “bluestate” Americans, who tend to be more secular There is no doubt that many Americans disagree on cultural and moral issues. Racial, Gender, and Ethnic Differences Many political differences arise from racial, ethnic, and gender differences. Who votes for who: African Americans have been strong supporters of Democratic candidates. Whites tend to vote Republican; Latinos tend to vote Democratic, with the exception of Cuban Americans, who generally vote Republican; Asian Americans tend to vote Democratic but less consistently than Latinos. Gender: a gender gap in national politics is also evident, with women being somewhat more likely to vote for Democrats and men for Republicans. The extent to which this diversity continues to be a source of political conflict depends on the broader role of race and ethnicity in our society. As long as there are racial and ethnic differences in employment, education, health, housing, and crime, and as long as discrimination is present, race and ethnicity will continue to matter for politics. The longrunning debate over immigration reform is strong evidence of this. Ideology Another source of differences in interests is ideology. Ideology: a cohesive set of ideas and beliefs used to organize and evaluate the political world Ideology may seem most obviously related to political interests through political parties, since Republicans tend to be conservative and Democrats tend to be liberal. Conservative: one side of the ideological spectrum defined by support for lower taxes, a free market, and a more limited government; generally associated with Republicans Liberal: one side of the ideological spectrum defined by support for stronger government programs and more market regulation; generally associated with Democrats Libertarians: those who prefer very limited government and therefore tend to be conservative on on issues such as welfare policy, environmental policy, and public support for education, but liberal on issues of personal liberty such as free speech, abortion, and the legalization of drugs Personal ideologies are not always consistent because some people can believe in things on both sides of the spectrum. The American public has fairly centrist views and relatively few systematic differences between residents of blue states and red states on a broad range of policies. Most of the country is purple, which indicates a geographic intermixing between the parties and their associated ideological beliefs. Resolving Conflict: Democracy and American Political Values For any political system to survive, it must have the means to resolve conflict. One way used by authoritarian governments is to suppress conflict through violence and limiting freedom. Another way is to embrace conflict as a natural consequences of the differences between people and to embrace political freedom to express views based on those differences. Liberty: political freedom of speech, press, assembly, and religion; these and other legal and due process rights protecting individuals from government control are outlined in the Bill of Rights of the US Constitution Founders wanted to create a system of government that would embrace freedom while providing means to resolve conflict. Democracy: government by the people; in most contexts, this means representative democracy in which people select leaders to enact policies; democracies must have fair elections with at least two alternatives Democracy depends on the consent of the governed: if the views of the people change, then the government must eventually be responsive to those views or the people will choose new leaders. Having a functioning democracy means compromising on issues. Equality: in the context of American politics, equality means equality (one person per vote), and equality of opportunity (the equal chance for everyone to realize their potential), but not material equality (equal income or wealth) Chapter Two: The Constitution and the Founding The Historical Context of the Constitution Articles of Confederation: The First Attempt at Government The first attempt to structure an American government, the Articles of Confederation, swung too far in the direction of limited government. Articles of Confederation: sent to the states for ratification in 1777, these were the first attempt at a new American government; it was later decided that the Articles restricted national government too much, and they were replaced by the Constitution Limited Government: a political system in which the powers of the government are restricted to prevent tyranny by protecting property and individual rights Articles: did not include a president or an executive power; national power laid in the congress where each state had one vote; congress members were elected by state legislatures; no judicial branch; legal matters left to the states; veto power given to each state over any changes with 9 out of 13 approvals; congress lacked real authority Political Theories of the Framers Broad consensus on: (1) rejection of monarchy, (2) popular control of government through a republican democracy, and (3) limitations on government power that would protect individual rights and personal property. Monarchy: a form of government in which power is held by a single person, or monarch, who comes to power through inheritance rather than election Republican Democracy: a form of government in which the interests of the people are represented through elected leaders Republicanism: as understood by James Madison and the framers, the belief that a form of government in which the interests of the people are represented through elected leaders is the best form of government Thomas Paine wrote Common Sense in 1776: indictment of monarchy and an endorsement of the principles that fueled the Revolution and underpinned the framers’ thinking The Founders’ views of republicanism were combined with liberal principles of liberty and individual rights to create their views of the proper form of government. Three crucial ideas are packed into this passage: equality, selfrule, and natural rights. “Consent of the Governed”: the idea that government gains its legitimacy through regular elections in which the people living under that government participate to elect their leaders Natural Rights: also known as “unalienable rights,” the Declaration of Independence defines them as “Life, Liberty, and the pursuit of Happiness”; the Founders believed that upholding these rights should be the government’s central purpose Federalist Papers: a series of 85 articles written by Alexander Hamilton, James Madison, and John Jay that sought to sway public opinion toward the Federalists’ position Economic Interests Political ideas were central to the framers’ thinking at the Constitutional Convention, but economic interests were equally important. The broader economic context of the American Founding was more important than the delegates’ individual interests. There were certainly class differences among Americans in the late eighteenth century. There were significant regional differences. South: agricultural with cotton and tobacco plantations; favored free trade and slave trade North: smaller farms; broad economic base of manufacturing, fishing, and trade; favored government managed trade and commercial development Despite these differences the diverse population favored a stronger national government and reform of the Articles of Confederation. Federalists: those at the Constitutional Convention who favored a strong national government and a system of separated powers AntiFederalists: those at the Constitutional Convention who favored strong state governments and feared that a strong national government would be a threat to individual rights The Politics of Compromise at the Constitutional Convention Conflict over: majority rule vs. minority rights small states vs. large states legislative power vs. executive power (and how to elect the executive power) national power vs. state and local power slave states vs nonslave states Majority Rule vs. Minority Rights A central problem for any representative democracy is protecting minority rights Pluralism: the idea that having a variety of parties and interests within a government will strengthen the system, ensuring that no group possesses total control Small States vs. Large States The question of the appropriate balance come to a head in a debate between small and large population states over representation in the national legislation Virginia Plan: a plan proposed by the larger states during the Constitutional Convention that based representation in the national legislature on population; the plan also included a variety of other proposals to strengthen the national government New Jersey Plan: in response to the Virginia Plan, smaller states at the Constitutional Convention proposed that each state should receive equal representation in the national legislature, regardless of size Great Compromise: a compromise between the large and small states, proposed by Connecticut, in which Congress would have two houses: a Senate with two legislators per state and a House of Representatives in which each state’s representation would be based on population (aka Connecticut Compromise) Legislative Power vs. Executive Power It was a challenge to divide power at the national level Limiting Presidential Power Presidential Powers: power to veto which could be overridden by Congress (⅔ of both chambers), commander in chief of the US armed forces, right to grant reprieves and pardons Selecting the President Our presidential system is unique and closely resembles a parliamentary system. Parliamentary System: a system of government in which legislative and executive power are closely joined; the legislature (parliament) selects the chief executive (prime minister), who forms the cabinet from members of the parliament Framers proposed: 1. the president be selected by an electoral college 2. members of each state’s legislature would determine the method of choosing their state’s electors National Power vs. State and Local Power Reserved Powers: as defined in the 10th amendment, powers that are not given to the national government by the Constitution, or not prohibited to the states, are reserved by the states or the people National Supremacy Clause: part of article VI, section 2, of the Constitution stating that the Constitution and the laws and treaties of the United States are the “supreme Law of the Land,” meaning national laws take over state laws if the two conflict Slave States vs. NonSlave States The southern states would not agree to any provisions limiting slavery. ThreeFifths Compromise: the state's’ decision during the Constitutional Convention to count each slave as ⅗ of a person in a state’s population for the purposes of determining the number of House members and the distribution of taxes Fugitive Slave Clause: northern states agreed to return runaway slaves The importation of slaves continued until 1808. Ratification Nine states were need to ratify the Constitution. Ratification votes would be taken in state conventions. The AntiFederalists’ Concerns The AntiFederalists were most worried about the role of the president, the transfer of power from the states to the national government, and the lack of specific guarantees of civil liberties. Elbridge Gerry and George Mason offered a resolution “to prepare a Bill of Rights.” The Federalists’ Strategies Federalists published the Federalist Papers which were onesided arguments aimed at changing public opinion. Federalists agreed that the new Congress’s first order of business would be to add a Bill of Rights. Bill of Rights: the first 10 amendments to the Constitution; they protect individual rights and liberties The Constitution: A Framework for Government Exclusive Powers Framers view Congress as the “first branch” of government and granted it exclusive powers: to raise revenue for the federal government through taxes and borrowing regulate interstate and foreign commerce coin money establish post offices and roads grant patents and copyrights create the system of federal courts declare war raise and support armies make rules for the military create and maintain a navy Most important is the power of the purse: control over taxation and spending. Necessary and Proper Clause (aka elastic clause): part of article I, section 8, of the Constitution that grants Congress the power to pass all laws related to one of its expressed powers; aks elastic clause Presidential Powers: commander in chief of the armed forces receive ambassadors and foreign ministers issue pardons Most important is in the executive powers clause: “The executive power shall be vested in a President of the United States of America that the laws are faithfully executed.” Judicial: lifetime tenure for justices in good behavior relative independence from the other two branch ability to strike down the laws and actions of other branches Shared Powers The ultimate compromise shows checks and balances at work, with the president serving as commander in chief of the armed forces, while Congress has the power to declare war and to appropriate the funds to conduct a war. Negative or Checking Powers Congressional Checks Congress’s two important negative checks on the other two: impeachment and power of the purse Impeachment: a negative or checking power over the other branches that allows Congress to remove the president, vice president, or “officers of the US” (including federal judges) for abuses of power such as treason, bribery, or high crimes or misdemeanors Power of the Purse: the constitutional power of Congress to raise and spend money; Congress can use this as a negative or checking power over the other branches by freezing or cutting their funding Presidential Checks President’s most important check on Congress is the veto. The Constitution gives the president a formal check on the courts through the power to appoint judges. Judicial Review Marbury vs. Madison (1803): court case that established the judicial review Judicial Review: the Supreme Court’s power to strike down a law or an executive branch action that it finds unconstitutional Is the Constitution a “Living” Document? Changing the Constitution The most obvious way that the Constitution keeps up with the time is by allowing for changes to its language. Proposal and Ratification Two Step Process (proposal and ratification): 1. Congress may propose an amendment that has the approval of ⅔ of the members in both houses OR an amendment may be proposed by a national convention that has been called by ⅔ of states’ legislatures. 2. In either case, the amendment must be ratified by ¾ of the states’ legislatures or state conventions. A Range of Amendments More than 10,000 proposed. 33 were sent to states, but only 27 were ratified. Flexibility and Interpretation The Constitution also remains relevant because it allows for flexibility in how it is interpreted. Ambiguity Ambiguity was a political necessity: Framers were aware that the document would need to survive for generations Worded so all framers would agree Enumerated Powers: powers explicitly granted to Congress, the president, or the Supreme Court in the first three articles of the Constitution; examples include Congress’s powers to “raise and support armies” and the president's power as commander in chief Implied Powers Implied Powers: powers supported by the Constitution that are not expressly stated in it Changing Social Norms Gradual changes in the constitutional interpretation are made to keep pace with the times. Chapter Three: Federalism What is Federalism and Why Does it Matter? Federalism: the division of power across the local state and national governments Sovereign Power: the supreme power of an independent state to regulate its internal affairs without foreign interference In practical terms, federalism is about intergovernmental relations: how the different levels of government interact, and how power is divided. Many questions/conflicts involve defining the disputed boundaries between what the states and national government are allowed to do. Much of US history has been rooted in the struggle to define American federalism. Levels of Government and Their Degrees of Autonomy A distinguishing feature of federalism is that each level of government has some degree of autonomy from the other levels that is, each level can carry out some policies without interference from the others. National Government: national defense, foreign policy State and Local Government: conducting elections, promoting public safety/police powers. provides public education, police/fire departments, land use policies, raising money through property taxes user fees and in some case sales taxes Police Powers: the power to enforce laws and provide for public safety Concurrent Powers: responsibilities for particular policy areas, such as transportation, that are shared by federal state, and local governments Because of lack of autonomy, local governments do not directly share power within our federal system with the state and national governments. A Comparative Perspective Unitary Government: a system in which the national, centralized government holds ultimate authority; it is the most common form of government in the world (80%); states can only carry out policies if the national government opposes them Confederal Government: a form of government in which states hold power over a limited national government The US under the Articles of Confederation is an example Intergovernmental Organization: organizations that seek to coordinate policy across member nations Examples: United Nations, International Monetary Fund, North Atlantic Treaty Organization, European Nation Balancing National and State Power in the Constitution Founders wanted a national government that was stronger than it had been under the Articles, but they also wanted to preserve state's’ autonomy. A Strong National Government Congress’s Powers: raise and support armies, declare war, “suppress Insurrections and repel Invasions”, regulate interstate commerce Necessary and Proper Clause: gave Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers National Supremacy Clause: the Constitution and all laws and treaties that are made under the Constitution shall be the “supreme Law of the Land” If any state law or state constitution conflicts with national law or the Constitution, the national perspective wins. States were prohibited to: enter any treaty, alliance, or confederation, keeping troops or ships of war during peacetime, coin money, impose duties on imports or exports State Powers and Limits on National Power State’s Powers: choose electors for electoral college, central role in amending the Constitution: ¾ of state legislatures must ratify any constitutional amendment (either through convention or the state legislatures), can bypass Congress in proposing amendments if ⅔ of the states call for a convention 10th Amendment: The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people Chisholm vs. Georgia: citizens of one state could sue the government of another state; the 11th amendment made such lawsuits unconstitutional Clauses That Favor Both Perspectives Full Faith and Credit Clause: part of article IV of the constitution requiring that each state’s laws be honored by the other states Example: a legal marriage in one state must be recognized across state lines Privileges and Immunities Clause: part of article IV of the Constitution requiring that states must treat nonstate residents within their borders as they would treat their own residents The privileges and immunities clause was meant to promote commerce and travel between states. These clauses were intended to promote free travel and economic activity among states. FFCC Examples: New York driver license honored in all states, Georgia marriage license honored in all states Hawaii was first to give gays the same rights as straights when it came to marriage (1996). Defense of Marriage Act (DOMA 1996): states did not have to recognize same sex marriages PIC Examples: Michigan cannot charge the owner of a cabin different property taxes based on whether she lives in Michigan or another state, states may not deny welfare benefits to new residents, states can not deny visitors police protection The Evolving Concept of Federalism The nature of federalism has changed as the relative positions of the national and state governments have evolved. The Early Years Federalists: party of George Washington, John Adams and Alexander Hamilton controlled the new government for the first 12 years and favored national power DemocraticRepublicans: led by Thomas Jefferson and James Madison favored state power Establishing National Supremacy McCulloch vs. Maryland (1819): court ruled in favor of the national government and that Maryland did not have the right to tax the bank because of the national supremacy clause Congress through it enumerated powers (coin money, levy taxes, borrow money) had power to create a bank Gibbons vs. Ogden (1824): supreme court held that congress has broad power to regulate interstate commerce striking down a New York law granting a monopoly to a private company operating steamboats on the Hudson River between New York and New Jersey because NY was interfering with interstate commerce. Pressing for States’ Rights Despite such Court rulings in favor of national government, the following decades saw a push for broader states’ rights, as when southern states challenged federalism on issues such as tariffs and slavery States’ Rights: the idea that states are entitled to a certain amount of selfgovernment, free of federal government intervention States’ rights became a central issue in the period leading up to the Civil War Dual Federalism Dual Federalism (“layer cake” federalism): the form of federalism favored by Chief Justice Roger Taney in which national and state governments are seen as distinct entities providing separate services; limits the power of the national government Taney Court expanded the power of the states over commerce in ways that are not accepted today because Congress regulates areas of commerce. Dred Scott and Civil War Dred Scott vs. Sanford (1857): Taney court ruled that slaves are not citizens but are private property and that the Missouri Compromise violated the 5th amendment because it deprived people (slave owners) of property without the due process of law After the Civil War, the Union passed the 13th (banned slavery), 14th (equality), and 15th (freed slave males could vote) amendments. The Supreme Court and Limited National Government In 1873, the Supreme Court soon reinforced the notion of dual federalism, ruling that the 14th amendment did not change the balance of power between the national and state governments despite its clear language aimed at state action. The Court: that the 14th Amendment right to due process and equal treatment under the law only applied to individual’s rights as citizens of the US, not their citizenship overturned the 1875 Civil Rights Acts and argued that the 14th Amendment did not give Congress the power to regulate private conduct but only the conduct of state governments limited the reach of the national government concerned Congress’s authority to regulate the economy through its commerce clause powers struck down attempts by Congress to regulate child labor Cooperative Federalism Starting in 1937 with the landmark ruling National Labor Relations Board vs. Jones and Laughlin Steel Corporation, the Supreme Court gave Congress far more latitude in shaping economic and social policy for the nation. Shifting National State Relations Cooperative Federalism (aka “marble cake” federalism): a form of federalism in which national and state governments work together to provide services efficiently; emerged in the late 1930s, representing a profound shift toward less concrete boundaries of responsibility in nationalstate relations State and local governments maintained some influence as the implementers of national programs, but the national government played an enhanced role as the initiator of key policies. Picket Fence Federalism: a more refined and realistic form of cooperative federalism in which policy makers within a particular policy area work together across the level of government The most important point to be drawn from the picket fence analogy is that activity within the cooperative federal system occurs within pickets of the fence that is, within policy areas. Policy makers within a given policy area will have more in common with others in that area than they do with people who work in different areas. Picket Fence Federalism provides good opportunities for coordination and the sharing of the expertise of within policy areas. Federalism Today Our current system is predominantly characterized by cooperative federalism, but it has retained strong elements of national supremacy, dual federalism, and state’s rights. Cooperative Federalism Lives On: Fiscal Federalism Fiscal Federalism: a form of federalism in which federal funds are allocated to the lower levels of government through transfer payments or grants Grants in Aid Today most federal aid to the states com in two forms. Categorical Grants: federal aid to state or local governments that is provided for a specific purpose Examples: masstransit program within the transportation budget or a school lunch program within the education budget Block Grants: federal aid provided to a state government to be spent within a certain policy area, but the state can decide how to spend the money within that area Example: Community Development Block Grants (1974) were started to help state and local governments revitalize their communities New Federalism New Federalism shifted some important powers back to the states. The Unfunded Mandate Reform Act of 1995 made it more difficult for Congress to impose unfunded mandates on the states. Unfunded Mandates: federal laws that require the states to do certain things but do not provide state governments with funding to implement these policies The shift from categorical grants to block grants has not substantially affected the balance of power between the national and state governments. The amount of money going to states through block grants has been surpassed by categorical grants since 1982. The Rise of Coercive Federalism Three characteristics that reinforced national government: reliance on the national government in times of crisis and war the “rights revolution: of 1950s and 1960s as well as the Great Society Programs of the 1960s the rise of coercive federalism Crisis and War When crisis and war strikes, people look toward the national government for security and help. The “Rights Revolution” and Great Society Programs The “Rights Revolution” and Great Society Programs caused the national government to gain more control over policies that were reserved to state or local governments. During this time, the national government expanded its reach through categorical grants. Other Shifts Toward National Supremacy Coercive Federalism: a form of federalism in which the federal government pressures the states to change their policies by using regulations, mandates, and conditions (often involving threats to withdraw federal funding) The practice involves the use of federal regulations, mandates, or conditions to force or entice the states to change their policies to match national goals or policies of Congress. Federal Preemptions: impositions of natural priorities on the states through national legislation that is based on the Constitution’s supremacy clause Federal Preemptions include unfunded mandates, making the state and local governments pick up the tab for policies that the national government want to implement. The States Fight Back Americans typically say that they trust state and local governments more than the national government. States have one important advantage over the national government when it comes to experimenting with new policies: their numbers. Competitive Federalism: a form of federalism in which states compete to attract businesses, create jobs, and maintain social fabric through the policies they adopt Competitive Federalism is a check on tyranny, but it can also create a “race to the bottom” as states compete in negative way. Fighting for States’ Rights: The Role of the Modern Supreme Court The Tenth Amendment 10th Amendment: ensures that all powers not delegated to the national government are reserved to the states or to the people A state law is void if it conflicts with the Constitution or with a national law based on an enumerated power. In 2011, it is said that individuals/states have the right to challenge the constitutionality of a federal law under the 10th amendment The Fourteenth Amendment 14th Amendment: ensures that no state shall make or enforce any law depriving any person of “life, liberty, or property, without due process of law,” or denying any person the “equal protection of the laws” Remedial Legislation: national laws that address discriminatory state laws; authority for such legislation comes from section 5 of the fourteenth amendment American Disabilities Act (1990): requires employers to make reasonable accommodations for the disabled, and not to discriminate against them in hiring The Commerce Clause Commerce Clause: enumerated power that congress has the power to regulate commerce beo United States v. Lopez (1995): the Supreme Court held that Congress had exceeded its constitutional authority under the commerce clause when it passed the GunFree School Zones Act in 1990. This marked the first time in 60 years that the Supreme Court had placed a limit on the national government’s authority under the commerce clause. tween all foreign nations and between the states Assessing Federalism Today Ideological Complexities Federalism had been broken down between traditional liberal and conservative lines. Liberals: favor strong national power to fight discrimination, push for progressive national policies on issues Conservatives: favor limited intrusion from the national government and allowing the states to decide their own mix of social welfare and regulatory policies Advantages of a Strong Role for the States Advantages: 1. The role that states play as the source of policy diversity and innovation 2. Government that is closer to the people encourages participation in the political process 3. Our federalist system provides more potential paths to address problems 4. Federalism provides a check on national tyranny Disadvantages of Too Much State Power Disadvantages: 1. Unequal distribution of resources 2. Unequal civil rights protection 3. Competitive federalism creates a “race to the bottom” Chapter Four: Civil Liberties Defining Civil Liberties Civil Liberties: basic political freedoms that protect citizens from governmental abuses of power Origins of the Bill of Rights At first the constitution provided very limited protection of rights: a guarantee of habeas corpus rights prohibition of bills of attainder and ex post facto laws George Mason and Elbridge Gerry drafted the Bill of Rights and opposed the ratification of the Constitution like other Antifederalists unless a Bill of Rights were added to protect themselves from the national government. Selective Incorporation and the Fourteenth Amendment The significance of the Bill of Rights increased somewhat with ratification of the 14th amendment. Civil War Amendments: the 13th,14th, and 15th amendments to the Constitution, which abolished slavery and granted civil liberties and voting rights to freed slaves after the Civil War Due Process Clause: part of the 14th amendment that forbids states from denying “life, liberty, or property” to any person without due process of law (a nearly identical clause in the 5th amendment applies only to the national government) Selective Incorporation: the process through which the civil liberties granted in the Bill of Rights were applied to the states on a casebycase basis through the 14th amendment Freedom of Religion Establishment Clause: part of the 1st amendment that states “Congress shall make no law respecting an establishment of religion,” which has been interpreted to mean that Congress cannot sponsor or favor any religion Free Exercise Clause: part of the 1st amendment that states that Congress cannot prohibit or interfere with the practice of religion The combination of these clauses result in general policy of noninterference and government neutrality toward religion The Establishment Clause and Separation of Church and State School Prayer Engle vs. Vitale (1962): ruled that a prayer written by the New York Board of State Regents and read every day in the state’s public schools violated the separation of church and state Aid to Religious Organizations The Court had a difficult time determining principles to govern aid to religious organizations. Lemon Test: the Supreme Court uses this test, established in Lemon vs. Kurtzman, to determine whether a practice violates the 1st amendment’s establishment clause Lemon vs.Kurtzman (1971): justices ruled that a practice violated the establishment clause if it 1. did not have a “secular legislative purpose” 2. either advanced or inhibited religion 3. fostered “an excessive government entanglement with religion” The Free Exercise Clause People can believe whatever they want without government interference, but if people act on those beliefs, the government may regulate their behavior. While the government has restricted religious conduct in dozens of cases, the freedom of religion has been among the most consistently protected civil liberties Freedom of Speech, Assembly, and the Press Generally Protected Expression Standards for Protection The basis for the continuum of protected speech lies in the content of the speech. Strict Scrutiny: the highest level of scrutiny the courts can use when determining whether a law is constitutional; to meet this standard, the law or policy must be shown to serve a “compelling state interest” or goal, it must be narrowly tailored to achieve that goal, and it must be the least restrictive means of achieving that goal Intermediate Scrutiny: the middle level of scrutiny the courts can use when determining whether a law is unconstitutional; to meet this standard, the law or policy must be “content neutral,” must further an important government interest in a way that is “substantially related” to that interest, and must use means that are a close fit to the government’s goal and not substantially broader than necessary to accomplish that goal Political Speech Alien and Sedition Acts (1798): crime to “write, utter, or publish … any false, scandalous and malicious writing or writings against the government of the United States” Schenck vs United States: Schenck opposed US war involvement and printed a leaflet urging young men to resist the draft. Schenck was arrested, and the Court upheld his conviction noting that free speech is not an absolute right Clear and Present Danger Test: established in Schenck vs. United States, this test allows the government to restrict certain types of speech deemed dangerous Brandenburg vs. Ohio: Brandenburg, a leader of Ku Klux Klan was charged for making a threatening speech during a cross burning rally He was convicted under a Ohio law of advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” The Court reversed the conviction stating that threatening speech could not be suppressed just because it sounded dangerous. Direct Incitement Test: established in Brandenburg vs. Ohio, this test protects threatening speech under the 1st amendment unless that speech aims to and is likely to cause imminent “lawless action” Symbolic Speech Symbolic Speech: nonverbal expression, such as the use of signs or symbols; benefits from many of the same constitutional protections as verbal speech Sending money in political campaigns may also be protected under the 1st Amendment since it provides the means for more conventional types of political speech Hate Speech Hate Speech: expression that is offensive or abusive, particularly in terms of race, gender, or sexual orientation; protected under the 1st amendment Speech codes at universities would be struck down because they are not “content neutral” regulations and do not meet the direct incitement test of targeting only expressions that would spur imminent violence. Lawyers at Google, YouTube, Facebook, and Twitter are trying to cut down on Internet hate speech. Freedom of Assembly The Supreme Court has consistently protected the rights to assemble peaceably. Government may regulate the time, manner and place of expression as long as the regulation does not favor certain groups or message over others. Freedom of the Press Prior Restraint:a limit on freedom of the press that allows the government to prohibit the media from publishing certain materials Near vs. Minnesota: The decision of this case reinforced that the first amendment of the constitution prohibits government agencies from seeking to prevent newspapers or magazines from publishing whatever they wish. The Pentagon Papers and New York Times with Bush administration stories are other examples. Less Protected Speech and Publications Governments may easily more regulate: fighting words, slander and libel, commercial speech, and obscenity. Fighting Words Fighting Words: forms of expressing that “by their utterance” can incite violence It can be regulated by the government but are often difficult to define because it depends on the reaction of the targeted person/group. Slander and Libel Slander: spoken false statements that damage a person’s reputation It can be regulated by the government but are often difficult to distinguish from permissible speech. Libel: written false statements that damage a person’s reputation; It can be regulated by the government but are often difficult to distinguish from permissible speech. The current legal standard distinguishes between speech about a public figure and speech about a regular person. Commercial Speech Commercial Speech: public expression with the aim of making a profit Commercial speech can be regulated but the government has to have a good reason to do so. It has received greater protection under the 1st amendment in recent years but remains less protected than political speech. Obscenity One area in which the press has never experienced complete freedom involves the publication of pornography and material considered obscene. Miller Test: established in Miller vs. California, the Supreme Court uses this threepart test to determine whether speech meets the criteria for obscenity It can be restricted by government if criteria are met: if it appeals to prurient interests if it is “patently offensive” if the work as a whole lacks serious literary, artistic, political, or scientific value The Right to Bear Arms 2nd Amendment: “A wellregulated Militia, being necessary to be the security of a free State, the right of the people to keep and bear Arms, shall not be fringed.” The 2nd Amendment states the right to bear arms within the context of serving in a militia, rather than an individual right to own a gun. National Rifle Association believes the 2nd Amendment guarantees an individual the right to bear arms. Brady Bill: mandates a background check and a fiveday waiting period for any handgun purchase. Law, Order, and the Rights of Criminal Defendants Due Process Rights: the idea that laws and legal proceedings must be fair The Constitution guarantees that the government cannot take away a person’s “life, liberty, or property, without due process of law.” Other specific due process rights are found in the 4th, 5th, 6th, and 8th amendments, such as protection from selfincrimination and freedom from illegal searches The Fourth Amendment: Unreasonable Searches and Seizures 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Searches and Warrants Under most circumstances, a law enforcement official seeking a search warrant must provide the court with “personal knowledge” of a probable cause of specific criminal activity and outline the evidence that is the target of the search. USA PATRIOT Act (2001): law passed due to 9/11 attacks; sought to prevent further terrorist attacks by allowing greater government access to electronic communications and other information; criticized by some as violating civil liberties Police can conduct searches without a warrant if the suspect gives consent. The Exclusionary Rule Exclusionary Rule: the principle that illegally or unconstitutionally acquired evidence cannot be used in a criminal trial Drug Testing Courts have long recognized the right of private companies to test their employees for illegal drugs, and testing for performanceenhancing drugs is increasingly common in professional sports. Drug Free Workplace Act: requires employers must develop and communicate policies prohibiting drug use, possession, or sale in the workplace Domestic Surveillance PostSeptember 11 After the 9/11 attacks, the National Security Agency (NSA) had been monitoring the phone calls of many US citizens who have had contact with suspected terrorists overseas. The Fifth Amendment: SelfIncrimination 5th Amendment: ensures that a suspect cannot be compelled to provide court testimony that would cause him or her to be prosecuted for a crime; protects against being tried more than once for the same trial; “nor shall private property be taken for public use, without just compensation Miranda vs. Arizona: Miranda confessed his crime before being read his rights so the information he told the police could not be used against him in court Miranda Rights: the list of civil liberties described in the 5th amendment that must be read to a suspect before anything the suspects says can be used in a trial Double Jeopardy: being tried twice for the same crime; prevented by the 5th amendment Double Jeopardy loopholes: 1. a suspect may be tried in federal court and state court for the same crime 2. if a suspect is found innocent of one set of criminal charges brought by the state, he or she may still be found guilty of the same or similar offenses based on civil charges brought by a private individual The Sixth Amendment: The Right to Legal Counsel and a Jury Trial The right to an attorney is a key civil liberty. Gideon vs. Wainwright (1963): ruling that a defendant in a felony trial must be provided a lawyer free of charge if the defendant cannot afford one. The 6th Amendment also protects the right to speedy trial. The Eighth Amendment: Cruel and Unusual Punishment The biggest concern whether or not the death penalty applies to the 8th amendment. Privacy Rights Privacy Rights: liberties protected by the Bill of Rights that shield certain personal aspects of citizens’ lives from governmental interference Estelle Griswold, director of Planned Parenthood, provided birth control information to married couples, in violation of Connecticut law which banned birth control. She was arrested and fined. However, her conviction was overturned because the law was declared unconstitutional since it violated the zone of privacy found throughout the Bill of Rights. Griswold was significance in establishing the right to privacy. Constitutional Roots: the 1st Amendment right of association, the 3rd Amendment’s protection against the quartering of troops, the 4th Amendment’s prohibition against unreasonable searches and seizures, the 5th Amendment’s protection against selfincrimination, and the 9th statement, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” Abortion Rights Roe vs. Wade: Established national abortion guidelines; trimester guidelines: no state interference in 1st, state may regulate to protect health of mother in 2nd, state may regulate to protect health of unborn child in 3rd. states could forbid except those necessary to protect the health or life of the mother Gay Rights Gay rights have been seen more as a civil right. Lawrence vs. Texas: Under Texas law, sodomy was illegal for homosexuals. In a landmark ruling, the Court ruled that the liberty guaranteed by the 14th Amendment’s due process clause allows homosexuals to have sexual relations.
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