Flashcards in midterm Deck (263):
novel aspects of the 2008 presidential-election campaign-why novelties?
1. They help us learn history: novelties are a departure from patterns of the past, after all.
2. They help us begin to predict and explain new directions.
3. They are intellectually interesting -- at bottom the only thing that motivates serious study of any subject.
4. they serve as natural experiments to help us refute and thereby test hypotheses. For example, two novelties in that election could refute the hypothesis that American voters are not willing to elect a black to national office or the comparable hypothesis about a woman.
novel aspects of the 2008 presidential-election campaign-
1. both candidates for president were mere senators – not current or former legislative leaders and not former executives of any sort. Rarely has a senator, mere or not, been elected president – only twice in the 20th century. The modal prior job of presidents has been governor. Why? Perhaps because governors have to lead and decide, appoint and delegate and take responsibility, whereas mere senators have to do naught but flap their jaws.
2. one candidate was black. That never happened before. Would it make a difference? Consider the “Bradley effect” hypothesis. When Democratic LA mayor Tom Bradley ran for governor in 1982 against Republican George Deukmejian, polls wrongly predicted Bradley’s victory. The hypothesis is that some voters who were polled about gubernatorial or racial preferences lied in Bradley’s favor because they were embarrassed to express their racial prejudices. Can you think of a rival hypothesis? Maybe some nonprejudiced Republican voters told pollsters they liked Bradley lest they seem racially prejudiced.
3. there was a woman on a ticket. Well, that did happen once before: in 1984 Democrat Walter Mondale tapped NY congresswoman Geraldine Ferraro, who recently died, as his running mate. They lost, of course, but against a very popular opponent.
4. no member of the incumbent administration was running. The President was not, of course, but nor was the Vice President or any Cabinet secretary. The last time that happened was 1952.Yes, McCain was of the same party as President Bush, but those one¬time rivals were not close and had not always agreed on policy.
Retrospective Economic Voting Hypothesis
good or bad economic conditions help or hurt the incumbent
Problems with the Retrospective Economic Voting Hypothesis
1. President Reagan won an easy victory in 1984 despite presiding over the deepest recession since the Great Depression. BUT: The economy was rapidly improving during the year before the election. So maybe it is only recent economic conditions that count.
2. What constitute good and bad conditions? In the past, these have been reckoned in terms of historically abnormal inflation or unemployment and sometimes economic growth and worker productivity. But in Fall 2008, for all the news about a credit crisis, there was not yet a recession.
3. Is it bad news or personal pain that influences a voter? We heard some dramatic bad news in fall 2008, but it was still pretty abstract. How many voters had been hurt by Wall Street failings? Credit was threatened, but for most voters it was not—or not yet —impaired.
4. Is it the incumbent party or administration that draws praise or blame for economic conditions? We did not really know. Why? Because that was the very first election since 1952 in which no one from the incumbent administration was running.
Why so much attention to the president, not Congress? It is Congress that passes laws, gives the president much of his authority and all of his budget, and represents the full diversity of the country? 2 hypotheses:
1. The president has some peculiar powers. (Think about what they are.)
2. Presidential votes have considerable down-ballot influence: you are likely to support your presidential candidate’s fellow partisans for lower offices.
Can the candidate who wins the most primary votes or the most convention delegates but falls short of a majority be denied the nomination?
Consider the 2 rules?
a) Majority Rule: Pick the candidate who wins a majority of votes.
b) Plurality Rule: Pick the candidate who wins the most votes, even if less than a majority
In most states, Plurality Rule is used in congressional general elections. But because the candidates are almost always two, the plurality winner is almost always the majority winner.
-Nominations are another matter. Often the serious candidates are more than two. If none wins a majority of primary votes, a runoff is often held. Or in a convention, delegates keep voting and negotiating until a majority is reached.
-if no one has majority going in, some say best to pick plurality since closest to majority-but that's not true
-the moderate candidate, who isn't loved but least objectionable to both liberal and conservatives in the party, will get the majority-no majority opposes the moderate
First Continental Congress in 1774
Sam Adams counted-conciliatory conservatives outnumbered radical revolutionaries overall but revolutionaries were a majority in a majority of colonial delegations. He then proposed unit rule: each delegation would cast one vote. That sounded reasonable on its face. So a majority of delegates voted for it. But as a result, Congress encouraged revolution by passing a harsh rather than a conciliatory statement of grievances to the British government, although a majority of delegates preferred a conciliatory statement-majority of delegates favored C but a majority in a majority of colonies favored R, which passed thanks to unit rule
In American politics at all levels, often the most effective way to complain and seek redress is to call your elected representative (councilman, assemblyman, congressman). Why would he -- or his staff -- help you?-2 hypotheses
Hypothesis 1. It’s his duty.
Hypothesis 2. Every time he helps a constituent he picks up a vote.
Hypothesis 2 is based on an institutional incentive, but why, if that hypothesis is right, has our nice incentive system not ameliorated the problem of excess demand for classes at UCLA? Hypotheses:
H1. It has, to some degree, but the problem is huge.
H2. Legislators don’t directly run UCLA. Regents do.
H3. You have scant incentive to complain: You will finish your high-demand courses
before the problem can be cured, and then you no longer care.
two kinds of political theory
examines how to justify or evaluate political institutions and policies (e.g., What kind of government should we have?).
seeks to explain and predict political behavior, policies, and institutions (e.g., Why do we have the kind of government that we have?)
(sometimes what kind we should have and why we have it match)
Why have government?
Plato-The Republic-3 answers
1. justice is simply the will of the stronger, hence that there is no transcendent standard of justice. The underlying assumption is that governments are put in place to serve the interests of the rulers - - who are few compared with their subjects. (To impose the rulers’ will. )
2. government helps people achieve mutual security by protecting them from each other and also from foreign invaders: you are a net loser if you can prey on others but they in turn can prey on you, so you prefer protection from predators (murderers, rapists, thieves, frauds) to the chance to prey (to murder, rape, steal, defraud). More generally, government fosters mutual advantage, or mutual cooperation. That both justifies government and explains its existence. (To help subjects attain their own goals by solving cooperation problems. They arise when something is costly enough to the doer that no one wants to do it but beneficial enough to others that everyone wants it done. )
3. A third answer to the question of why government exists is that government helps individuals to solve coordination problems (To help subjects attain their own goals by solving coordination problems. They arise when a common goal requires that all follow the same plan, but the feasible plans are more than one and incompatible. )
2-problem with government
Government coerces. It limits our liberty. It stops us from doing things we want to do. How can one benefit by being stopped from doing what one wants to do?
2-How can one benefit by being stopped from doing what one wants to do?
-The answer: Everyone benefits from having his liberties limited, provided everyone else has his liberties likewise limited. That way everyone is protected. Strictly speaking, what benefits you is not the limit on your own liberty but the limits on everyone else’s liberty
2-Prisoner's Dilemma and gov.
-Prisoner's Dilemma-gov. forces both to keep quiet-arrange not to confess-because otherwise better to confess so both will and not get good outcome overall
-a PD is a situation where two players would both be better off cooperating or helping each other (here both play “Don’t Confess”) but are led by their individual interests to defect (not to cooperate, here to play “Confess”).
-PDs are examples of cooperation problems-the purpose of government is to get people to cooperate. This requires that government be allowed to use coercion, including taxation, to ensure that individuals act in a socially preferred way.
3-coordination problems-cars example
Two people drive toward each other on the street. Each can stay either on the left or the right side of the road. This illustrates the need for some kind of rule to avoid crashing. Here government provides the arbitrary rule – the convention-that ensures coordination-the players do not particularly care which rule of the road is chosen, left or right, as long as they can be assured that all drivers abide by the same rule. This characteristic is the mark of a pure coordination problem.
-solved by convention
3-coordination problems-“Battle of the Sexes"
A husband and wife are trying to pick a place for the evening’s entertainment. Above all, each would like to be with the other, but each also has a preferred destination. The husband prefers a wrestling match; the wife, ballet.
This too is a coordination problem. It differs from the pure coordination problem of the “Rule of the Road” game because the players are not indifferent about how to coordinate - - about which coordinating solution is finally chosen.
-solved by communication and agreement
One of the greatest coordination problems, exemplified by the Biblical story of the Tower of Babel, is.....
is communication. If you and I speak different languages we cannot communicate. To communicate we must coordinate round a common language: we must both speak English or both speak Old Etruscan or whatnot.
the (somewhat arbitrary) rules of coordination.
How do we succeed in coordinating what we do?
-communication and agreement
-Sometimes one possible coordinating solution is especially salient: it stands out as the focal solution, the one everyone thinks of first.-when say meet in Santa Monica, assume the pier because landmark
difference between cooperation and coordination
-Cooperation and coordination differ in a notable way. In cooperation problems, even if someone knows that others will cooperate, he will not: force may be needed. But in coordination problems, if someone knows that others will coordinate in a certain way, he will too: force is not needed.
-another difference: Agreement between players can always solve coordination problems. If you agree to coordinate with others, you will keep your word because it is in your interest to follow the same plan they are following. But in a cooperation problem, if you agree to cooperate with others, you are better off breaking your word.
Social contract theory
propounded in the 17th and 18th centuries, notably by Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. The basic idea is that government is the creature of a unanimous agreement, a “social contract,” to solve cooperation problems by coercing us all to cooperate with each other-In its positive version the theory says: Government is the creature of a social contract. In its normative version the theory says: Government ought to be the creature of a social contract
How realistic is the social contract?
Apart from a few odd examples, such as the Mayflower Compact, have real governments ever been founded by social contracts? Locke thought that by doing such things as voting, not emigrating, etc., citizens implicitly endorsed the social contract. Alternatively, one could construe the contract as hypothetical and argue that citizens would consent if asked.
Hobbes saw the absence of government, or “state of nature,” as a prisoners’ dilemma (PD) to be solved by unanimously contracting to obey a king, or “sovereign.” But this approach to cooperation spawns a coordination problem:
cooperation is fully secured only if we somehow coordinate by obeying the same king. That problem we would solve by singling out the most salient pretender to sovereignty, the strongest warlord around – the Santa Monica Pier among candidates for king. But the contract itself was a simple agreement among citizens to surrender their freedom to the same sovereign.
Government (or good government)=
= obedience to the will of the stronger (Thrasymachus)
or mutual cooperation (Glaucon and all the contractarians)
= or obedience to one sovereign (Hobbes)
= coordination round one candidate for sovereignty
= obedience to the “will of the stronger” after all, or obedience to the Santa Pier
Monica Pier of royal pretenders.
: Governed by officers responsible to an electorate. That electorate may be small: not necessarily all the people get to vote. Opposite: Authoritarian (government’s will is imposed on people; it is not responsible to those it governs).
Ultimate power held by the mass of people. In this comparatively narrow sense, democracy is not a bundle of all possible virtues, just this one. Opposite: Autocratic (one-man rule), oligarchic (self-perpetuating ruling clique), or aristocratic (rule by nobility based on birth).
two types of democracy:
direct and indirect/representative
People vote directly on all questions of policy. Example: New England towns run by town meetings. This is rare in pure form, but some democracies, notably Switzerland and California, are partly direct: many important decisions are made by referendum, and in California many referenda are initiated by voters through petition.
People vote for representatives who decide policy. Most modern democracies are of this sort.
Power of government is limited. People have rights (e.g., the US Bill of Rights) that the government does not grant but must respect. Opposite: Totalitarian government has complete power over every aspect of a citizen’s life, as in Nazi Germany, USSR. Limited governments are also constitutional, in the following sense: there is a recognized written document, or at least a clear, exact, widely shared understanding that specifies the powers and limits of government.
The US is...
limited, representative, and democratic
South Africa was (before the end of apartheid) ....
representative (of whites) but not very limited or democratic.
France under revolutionary mob rule was...
Monarchs in medieval Europe were....
of limited powers, but their rule was not representative or democratic.
Pennsylvania after the American Revolution was...
representative and democratic but not very limited.
Great Britain before the expansion of the franchise (1883) was...
limited and representative but not democratic.
New England Town government is...
limited and democratic but not representative.
Modern Iran is...
somewhat democratic and representative but not so limited.
relationship between limited, representative, and democratic
There is a nice connection between these attributes. Sometimes the want of democracy or representation comes not from narrow suffrage or the absence of elections but from obstacles to electoral competition, or free electoral choice, and that is a mark of unlimited government.
State with no king. Opposite: monarchy. Madison used the term "Republic" to mean representative democracy; he couldn’t conceive of representation with a king, as in modern “constitutional monarchies,” where the king’s role is mostly ceremonial.
Presidential or Separated Powers:
There is a chief executive independent of the legislature. Opposite: parliamentary, where parliament can hire and fire the executive (which, in parliamentary systems, is called either the cabinet or the ministry or the government, and is headed by a prime minister).
-new type-Here the elected president appoints a cabinet that must be approved and can be fired by parliament. If the president has a majority in parliament, he runs the government – much as in the US when President and Congress are of the same party. But if not, then he is forced to appoint a prime minister and cabinet from opposition parties. In that case the system is more or less parliamentary (the President has some “reserved powers”). Best example: France.
A union of territorial polities (states, provinces) that divide sovereignty (ultimate power) with a central government. We can imagine a continuum on which to place different systems according to the degree of relative power the national government possesses
Independent units have near total authority over their internal affairs. Best current example: Switzerland. Older example: the U.S. before 1789.
Both central government and lower units (states) exercise direct power on citizens (e.g., US, Canada, Germany).
Lower units don’t exercise much power (e.g., France).
Confederal (Cantonment), Federal, and Unitaru
-exist on spectrum
Odd Types -Socialist:
Government owns major industries and maybe other enterprises and more or less directly runs the economy (e.g., Cuba).
Odd Types-Social Democracy
Government is responsible for providing a comparatively high level welfare benefits to all its citizens (e.g., Sweden, Britain).
A king or president not freely elected by the citizenry tolerates a popularly elected parliament (e.g. Morocco).
The Founders' baggage/set of experiences
-comes in 4 parts: British history, intellectual resources (principles), early American history, and problems of federation
17th Century England.
A Civil War toppled King Charles I, along with his head, and established a republic, called the Commonwealth, under Oliver Cromwell. After Ollie died, Parliament restored the monarchy under Charles II. The Glorious Revolution then kicked out Charles's Catholic successor, James II, made William III (the Dutch ruler) and Mary (his wife and James's daughter) co-monarchs, and in effect established parliamentary sovereignty.
Whigs vs. Tories
-In the English Civil War, Roundheads (Cromwell supporters) were pitted against Cavaliers (monarchy supporters). The Roundheads became Whigs; the Cavaliers, Tories. These were England’s first two parties.
-Whigs sought representative government; Locke's Second Treatise on Government
-Tories believed in the divine right of kings; Hobbes had argued in effect for the unchecked power of a king or other "sovereign" separate from and not beholden to his subjects.
-The Whigs won-US Founders were ardent Whigs.
Intellectual Resources on the founders
1. The social contract theory of Locke
2. The Baron de Montesquieu.
3. Intellectual Climate of the Day: the Scottish Enlightenment
4. The Pattern of English Government.
5. Colonial Government
6. The Iroquois League
1. Locke and Social Contract
Locke believed in government by consent, where government is bound by an implicit contract to protect the people's "natural right" to "life, liberty, and estate." There is a dual contract: one, among the governed, to set up a government, and another, between the governed and the government. Locke envisioned a limited government -- a trustee for the people's sovereignty - - and did not accept Hobbes's idea that the king should be all powerful.
2. The Baron de Montesquieu.
Montesquieu celebrated the English (later British) system of government as resting on a separation of powers, where the executive (King) is separate from the legislature (Parliament), itself separated into Lords and Commons. He argued that separation protected each part from abuse by others: none could dominate. The Founders admired this idea. Note that the Founders largely ignored—they did not appreciate—the role of the prime minister; they thought the king was the real chief executive.
3. Intellectual Climate of the Day: the Scottish Enlightenment
The great Scots philosopher David Hume argued that there wasn't in reality a social contract. He thought government always came from conquest or usurpation. He proposed as a criterion for evaluating the justice of a government its ability to protect property and the common good. Even so, a just government would be one that resolved the PD effectively, for the common good is comparable to the mutual advantage of contract. Like Hume, the Founders thought it was important to protect property, not only for the good of the rich, but for everyone. Another towering figure of the Scottish Enlightenment, Hume's great friend Adam Smith, did not come to exert influence until later: The Wealth of Nations was published in 1776.
4. The Pattern of English Government
English government had three parts: the King, Parliament (Lords & Commons), and Ministers (chosen by the King). Or it had four parts if you add the English tradition of politically independent courts. The Founders admired the English system and tried in some ways to emulate it.
5. Colonial Government
The Founders were familiar, of course, with the written charters (constitutions) of the state governments (which also, in large part, mimicked the English system).
A typical charter created an office of governor (appointed by the King in most colonies but elected in Connecticut and Rhode Island). It also featured an elected legislature, usually a bicameral one with a lower house chosen by a comparatively broad electorate. These charters generally mandated a plural executive, as in California today, where several independent executive officers (such as the attorney general and the secretary of state) divide executive power. Most states also had Councils to advise the Governor and to consent to his acts, as an additional check on executive power.
6. The Iroquois League
This is the confederation of five, later six, American Indian tribes that had the most advanced republican government of the time and for a while was the dominant power (or hegemon) of North America. The League was founded in the 14th century by Hiawatha and Deganawida, who wrote an elaborate constitution.
The League solved a fundamental cooperation problem. The cooperation problem among individuals is a prisoner’s dilemma, of course. Government might solve it by forcing cooperation among them. But that can cause PDs to bubble up to a higher level. Governments that resolve the PD among their citizenry often find themselves in a PD among governments. Wars, trade barriers, and other cooperation problems abound.
Deganawida's insight was to force cooperation among the tribes by forming a confederation, and then to make it open: any tribe could join and receive the benefits of membership. That helped prevent a further PD among confederations.
6. The Iroquois League-The resulting system was...
confederal, republican, and representative, it had some direct democracy, it had a sort of female suffrage (males served in office but could not vote), and it had racial and religious equality.
6. The Iroquois League-The Constitution of the League Included:
Unequal representation (larger tribes are over-represented),
A Semi-hereditary matrilineal system for choosing council members,
Initiative and referendum,
Unit rule (small tribes have veto protection),
Open membership (other tribes are welcomed to join).
. Early American History
Great Britain gave written charters (constitutions) to the colonies. Colonial governments were mostly "republican," with a (usually crown-appointed) governor and an elected legislature.
Now a very brief review of events you have heard about before: --
1754 At Iroquoi request, British government calls the Albany Convention to coordinate policy and defense among the colonies against France. Benjamin Franklin and others attempt unsuccessfully to create a confederation of all colonies.
1757-1763 Seven Years (French and Indian) War against France.
1765-1770 Britain imposes tax and trade restrictions on the colonies to recoup war expenses and assert its authority (e.g., the Stamp Act and the Quartering Act, which forced colonists to house English soldiers). Most were rescinded in 1770, leaving only a duty on tea.
1773 British Coercive Acts and Boston Tea Party (Sam Adams led American rioters).
1774 Quebec Act bars westward migration (to protect Iroquois) and establishes Catholic Church in Canada. Both items offended many colonists. 1st Continental Congress called to coordinate defense. Battles of Lexington and Concord: Revolutionary War begun. British trade embargo. King formally “withdraws his protection" from Americans.
1775 Battle of Bunker Hill: American militias almost win. 2nd Continental Congress convened, sets up Continental Army. Washington made Commander-in-Chief.
1775-1781 Revolutionary War
1776 July 2nd, Congress votes independence.
1777 Articles of Confederation proposed. They were our first national constitution (with lower-case “c”).
1781 Victory at Yorktown. Articles ratified.
1783 Treaty of Paris – Britain recognizes US independence.
1786 Annapolis Convention: A few states along the Potomac send delegates to a convention to solve interstate trade problems. This becomes the model for the Federal Convention.
1787 Shays's Rebellion in Massachusetts: Shays, a Revolutionary War army captain, leads farmers in revolt against mortgages. Congress looks weak in its failure to defend Massachusetts. In the end, Massachusetts has a strong enough militia that put down the rebellion.
Northwest Ordinance: Congress divides up new (western) territories.
Federal Convention: Congress calls meeting to revise Articles. Convention writes brand new Constitution instead.
1788 Constitution ratified; first election.
1789 President Washington and First Congress take office.
Problems of Rebellion
A great problem of political science is to explain revolutions. Childlike textbooks typically cite British policies that irritated otherwise loyal Anglo-Americans: the Crown reduced American autonomy, enacted external taxes and trade restrictions, and imposed the Quebec Act. True enough.
But two explanatory problems remain:
(1) The complaints are not obviously great enough to justify or motivate the extreme act of rebellion, in effect a civil war between lately loyal subjects and their king – not to mention their transatlantic kith and kin.
(2) Potential revolutionaries always face problems of collective action, or the achievement of shared goals – how to coordinate strategy, and then how to enforce cooperation among people who must bear quite a cost. Those problems are usually solved by the established government. But how is that a possibility among rebels?
Potential rebels face two dual problems of collective action:
1. Dual problem of cooperation: (a) Government has means to compel cooperation. (b) Rebels lack the means to compel cooperation among themselves.
2. Dual problem of coordination: (a) Most people wish to follow a common government (the alternative being anarchy or civil war), and the de facto government is the focal solution to their coordination problem of whom to follow—like the Santa Monica Pier. (b) Rebels usually lack a focal solution to their own problem of whom to follow: they have no Santa Monica Pier.
The solution to the collective-action problem (1) is...
is that Americans then, unlike potential rebels at many other times and places, were already well organized for coordination and cooperation: they already had long experience of self-government, with 13 full-fledged governments and a more recent practice of inter-government coordination by committees of correspondence and Continental Congresses. Those 13 governments were run by elected representatives more than by appointed officers of the Crown. There lay Britain's undoing: the governments of England and (after 1707) Britain had delegated too much power for too long to American voters and their elected representatives down to the local level, putting in place no sheriffs or judges, no tax collectors, and no one authorized to spend money on the militia who was beholden to the Crown rather than the colonists.
The solution to the second problem:
the fact that a few taxes and trade restrictions hardly qualified as a casus belli, especially for a population that regarded itself as British and had lately welcomed British military protection, is that the Americans may have protested against some Crown policies (most of which were rescinded in response) but did not start the Revolutionary War and did not declare independence until the conflict had grown. Britain first revolutionized colonial government by asserting powers previously allowed the colonists. Then it militarily assaulted and occupied Boston and imposed martial law. Next it initiated the clash of arms by attacking Lexington and Concord. It also extended its armed assault by imposing a naval blockade, by itself a major act of war. And to top it all off, the King effectively declared his independence, before the colonists declared theirs, by "withdrawing our protection" from the American colonies.
How did the Americans do it?
Because the British let them do it by giving them self-government
Why did the Americans do it?
At first they didn’t. The British did.
Articles of Confederation and Perpetual Union
the first US constitution. The only constitutionally established organ of government was Congress. Each state could send two to seven members, who could be recalled and were paid by their states. Each state had one vote.
Congress had quite a bit of nominal power but scant means of executing its directives. It taxed the states directly (not the people). It could borrow and coin money, appoint high officials, run a post office, manage Indian and foreign relations, declare war, and resolve maritime and territorial disputes.
Humdrum legislation required 9 of 13 states' votes. Changes in the Articles required 13 out of 13 states. The president was elected for one year. Congress didn't meet very often. A small committee ran the government and appointed executives (secretaries of War and Foreign Relations, Postmaster, Sup. of Public Finance) and other committees, including ad hoc courts to resolve interstate and maritime disputes.
Under the Articles, the U.S. did some things: it maintained a tiny army, borrowed money, collected some money from the states, sent diplomats abroad to negotiate with Britain, France, the Netherlands, and Spain, created and maintained a postal service, and established courts that resolved maritime and territorial disputes between states.
Problems with the Articles at the State level:
There was a surfeit of democracy. All-powerful legislatures emerged. For example, the Pennsylvania legislature did not respect individual rights. North Carolina and Rhode Island virtually wiped out debt obligations. Such actions undermined confidence in money, credit, and contracts, harming the prospects for economic development. Also defense appeared weak. Shays's rebellion was seen as a failure of Congress: there was no army to protect states from rebels, Indians, the British, and the Spanish. Last, interstate tariffs caused trade between states to decline.
Problems with the Articles at the National level:
The federal government could not compel states to pay taxes. Also it had no standing army. Congress had little international clout. For example, Minister John Adams couldn't negotiate a trade treaty with Britain because Congress lacked credibility. The British preferred to negotiate directly with each state. Also the British still had troops in the American Northwest though they had promised to withdraw them.
the benefits of federation:
1. A federation facilities cooperation and coordination among states.
2. Local autonomy expands benefits to all by comparison with a unitary
system. This is illustrated by the following example. Suppose our class is a country with three states-one has 80 democrats, next has 60 dems and 100 reps, the third has 80 reps-if the country is unitary, republicans would win because they outnumber democrats 180 to 60-and 180 people would be pleased with the outcome-if our country were federal, the democrats would win in state 1, the republicans in state 2 and the republicans again in state 3, making 260 pleased with the outcome
costs of the federation:
-threats to states by the central government and by big states
-founders worried about both
solution to the threat to states by central gov.
write a constitution that protected the states.
solution to the threat to states by big states
1. Require the approval of a super-majority of states to make significant changes. That makes it hard to do anything drastic without an overwhelming amount of support from the states. This was Deganawida's scheme and also the way things were under the Articles of Confederation, which gave each state one vote.
2. Create new states. The Northwest Ordinance of 1787 divided up the western territories conquered by Virginia during the Revolution into units that could petition to become states. Virginia gave land to the United States, and that kept one state from being all powerful.
compare this strategy with that of the leaders in the USSR and Yugoslavia trying to prevent disintegration
They did not pursue a similar strategy and ended up with severe problems. Smaller units in their federations feared domination by one very large state (Russia in USSR, Serbia in Yugoslavia). The key difference is between Clintonites, like Gov. George Clinton of N.Y. (along with Pres. Yeltsin of Russia and Pres. Milosovic of Serbia), who did not want to be dominated by any strong federation, and Jeffersonians, like Gov. Thomas Jefferson of Virginia, who conquered the Northwest, then gave it to the U.S.: The former seek to hold onto power in a narrow domain, whereas the latter are willing to accept subordination to a greater nation.
The Founding Fathers took these steps to create our Constitution:
1777 The Articles of Confederation are proposed.
1781 The Articles of Confederation are ratified.
1786 The Annapolis Convention settles water problems among Potomac states and
asks Congress to call a wider convention of states to address problems of governance under the Articles.
1787 Congress does four things:
1. A Congressional committee under Charles W. Pickney III starts revision
of the A of C.
2. Congress enacts the Northwest Ordinance.
3. Congress calls a Federal Convention to revise the A of C.
4. Congress submits the new constitution to the states for ratification.
1787-1788 The states ratify the Constitution (now with a capital C).
Eventually 27 amendments are added. But apart from them the U.S. Constitution consists of a Preamble (We the people …) and seven articles:
Article I - Congress
Congress, the national legislature, consists of a House of Representatives, with state representation proportionate to state population, and a Senate, in which each state has two votes. The House is popularly elected for two-year terms. The Senate was elected by state legislatures (no longer) for six-year terms, staggered so one-third is chosen every two years. Congress has the power to tax the people directly and to spend and borrow.
Congress can also regulate commerce and provide for national defense. Article I is most of the Constitution.
There is a President, a chief executive, who has the power to command the armed forces, appoint federal officers, and veto legislation. The President is chosen by an electoral college (as it has come to be called) whose members are elected by the states, each state choosing as many electors as it has Representatives and Senators. State law says how electors are chosen - - nowadays by popular vote.
Federal judges have life tenure. The Constitution establishes a Supreme Court. Lower-level courts are left for Congress to authorize.
Article IV-Interstate Comity
Provides for states to get along with each other; for example, they must recognize each others' contracts and other legal acts and extradite fugitives and escaped slaves.
An amendment to the Constitution must be proposed by a two-thirds vote in both houses of Congress, or by a convention called by Congress at the behest of two-thirds of the states. It must then be ratified by three-fourths of the state legislatures or ratifying conventions.
Article VI-Federal Supremacy
Whenever state and federal laws conflict, federal laws take precedence.
Article VII-Procedure for ratification
The Constitution takes effect when ratified by a majority of votes in the elected ratifying conventions of nine states.
The Federal Convention wrote the Constitution.
Process of writing the constitution
Members agreed to secrecy. Although it was summer in Philadelphia, they hid behind closed windows and thick curtains, garbed in layers of wool and linen, for 5 months.
James Madison of Virginia is considered the Father of the Constitution. Most of our knowledge of the convention comes from his posthumously published Notes.
The Convention started with Madison's draft, called the Virginia Plan. The delegates agreed to use it as a framework. Then they altered it beyond recognition. At first there was debate and piecemeal change. Then came the appointment of the Committee on Detail headed by John Rutledge of South Carolina, who had written many state constitutions. (His claim to fame and his prosperity as a lawyer came originally from the fact that he had successfully prosecuted a white man for murdering a black man, something that didn't happen again in South Carolina until my lifetime.) This committee wrote a new draft, which was close in content to the final version. Then came more debate and change. Finally, the Committee on Style headed by Gouverneur Morris produced the final draft of the Constitution. The words we read are ole' Gouverneur's. (Note the spelling.)
Sources of the Constitution
There are three distinct sources.
1. Background problems, or deficiencies in the Articles of Confederation that led to the call for a Federal Convention: these are the problems they met to solve.
2. Familiar Practice, or constitutional features the Founders had gotten used to, from Britain and the individual states: these were the more or less uncontroversial ways they had always done things.
3. Conflict, Compromise, and Strategy, the differences among delegates and how they were resolved: here lay the hard, pivotal decisions that could easily have been made otherwise.
1. Background Problems
The national government had formal authority but not the effective power to tax. As a result, it did not have the power to defend the US. It also could not effectively regulate commerce. For example, some states instituted tariffs and other barriers to trade between them. And some states made baseless paper money and required that it be accepted in payment of debts. Neither did the Confederation Congress manifest any ability to mount a military defense when needed.
2. Familiar Practice
These included an elected, bicameral (two-house) legislature; the executive appointment of some high officials subject to Senate confirmation, the VP presiding over the Senate, similar to the Lord Chancellor of England, who chaired the House of Lords, and similar to state lieutenant governors.
Familiar practice also had the President as chief of state receive diplomats, issue pardons, and commission officers. These acts fell in the traditional domain of the British chief of state, the King.
Federalism of a weak sort was already in place. Constitutional rights were found in state constitutions, and there was an English Declaration of Rights. Independent courts were found in Britain and (to a degree) in the states. 3/5 of slaves were already counted for direct taxation.
To understand how issues were resolved, let us look first at how the Founders proceeded.
The Virginia Plan
-At the outset of the convention the delegates agreed to rely on the Virginia Plan as the point of departure for further debate. It was proposed by Governor Randolph of Virginia, but was drafted by James Madison. He wrote it as a shell for a constitution: it had many blanks which were to be filled in by the delegates.
-The Virginia Plan proposed the following:
1. Legislature. The lower house would by popular elected. The upper house would
be chosen by the lower house from state nominees. In both houses, states would be represented in proportion to their populations.
2. Executive. The executive would be chosen by the legislature (given the perceived impracticality of direct popular election in so large a country). It was left unspecified if the executive would be a single person or a council.
3. Council of Revision. A council was proposed that would oversee laws and their constitutionality. It could alter or veto laws.
4. Courts. The plan left the structure and jurisdiction of the court system unspecified.
5. Powers of the National Government. The plan did not lay out a list of national powers but gave the national government plenary power when the states were incompetent or harmony among them was interrupted. Also the central government had the authority to coerce states and to veto state legislation. Despite the trappings of federalism, the VA plan contained seed and soil of a unitary system of government.
Madison is generally considered to be the father of the Constitution, but...
he was on the losing side of virtually every key vote. By the end of the Convention the Virginia Plan was pretty much thrown out. Still, Madison ended up being the most prominent and articulate proponent of the final document (especially in the Federalist Papers), and his Notes is the chief record of what happened.
The New Jersey Plan
An alternative proposal, the New Jersey Plan, was preferred by the smaller states. The Articles of Confederation with a shot of Viagra, it proposed the following:
The legislature had only one chamber, in which each state had a single vote.
The executive was a board that was removable by state governors.
The plan envisioned a Supreme Court but left the rest of the court system unspecified.
Above and beyond the powers the national government possessed under the
AofC, under the NJ Plan it could also set tariffs, tax the people directly, and use force against states and individuals to compel compliance with the law.
Six Divisive Issues at the Federal Convention
1. National Government Power
2. Legislative Representation
3. The Specific Limits of the National Government's Power
4. Counting Slaves
5. Is There a Need for Federal Courts?
6. Presidential Elections
1. National Government Power
Nationalists (Virginia, Pennsylvania) vs. Confederationalists (New Jersey)
The issue: How much power should the federal government have? Larger states, such as Virginia and Pennsylvania, wanted a strong national government that could unite the people as a single nation. Smaller states feared national power.
Solution: (Charles W. Pickney III, who had drafted a Congressional revision of the Articles of Confederation) The principle of enumerated powers ensured that everything the federal government could do was specifically listed, chiefly in Article I, Section 8. Also the inclusion in Article VI of a Supremacy Clause ensured that if there was ever a conflict between state and federal law, federal law would take precedence.
2. Legislative Representation
Large states favored proportional representation of states (number of seats proportional to population). Small states favored equal representation, as under the Articles.
Solution: The Connecticut Compromise, or Great Compromise (proposed by Sherman & Rutledge), was that the states would be represented proportionally in the House, but equally in the Senate.
There were other solutions offered. Sherman and others thought about having one chamber only with proportional representation, but requiring a majority of both representatives and state delegations to pass legislation. Pickney suggested that big states have three representatives, medium states two, and small states just one. Madison opposed all these proposals and stalled compromise for a long time because he thought that proportional representation alone was fair. It did not seem to occur to him -- or anyone else, as far as I can see – that bicameralism made it impossible for a majority of states to outvote a majority of people.
3. The Specific Limits of the National Government's Power
Debate arose over whether a simple majority of Congress could pass navigation acts restricting maritime commerce to US ships. Northern states, the home of shippers and ship builders, wanted Congress to have such powers; states in the South, which sought foreign markets for its agricultural products, did not.
Debate arose also over whether the slave trade should be allowed to continue. Virginia (a tobacco growing state, less dependent on slaves) along with most of the North opposed the slave trade. (At the time, chiefly because the cotton gin had not yet been invented, everyone thought slavery would soon end.)
The solution was a compromise suggested by Rutledge that would allow the slave trade to continue until 1808 but would also accommodate the North by allowing a simple majority in Congress to legislate navigation acts.
4. Counting Slaves
The North didn't think slaves should be counted for the purposes of determining state representation, while the South did.
The North opposed the practice for moral and political reasons. Counting slaves would over-represent the South in the national government.
Solution: The three-fifths compromise said 3/5 of slaves would be counted for legislative representation but also for direct taxation of the states by the Federal Government.
The exact choice of fraction comes from a law passed by the Confederation
Congress for taxation of states and was not the subject of debate. It was a focal point (like the Santa Monica Pier) that was available then as customary practice under the AofC.
To us it seems natural to count all and only citizens eligible to vote. But remember: states varied in their property qualifications for voting, and none let women or children vote. Note that even today, representation depends on number of inhabitants, not number of citizens.
side remark on this 3/5 rule and who it benefited:
So illegal immigrants count, but they usually live in heavily Democratic districts. So which party is likely to be the more tolerant of them?
It has become common in recent years to denigrate the Founders as odious racists for counting blacks as only 3/5 of a person. BUT: those who would enforce their bondage wanted to count them as whole persons, whereas those who hated slavery and thought blacks equal to whites wanted to count slaves as zero persons. Why? Because it gave the South more seats in Congress and more electoral votes for President. For example, Thomas Jefferson would not have come close to being elected President without the extra 3/5th.
5. Is There a Need for Federal Courts?
The Nationalists (those favoring a strong national government) wanted them. Others feared they would aggrandize too much power.
Under the AofC there were ad hoc federal courts that did a good job resolving disputes between states but had no enforcement capability. Opponents of establishing federal courts at the Convention suggested that the Federal Government should rely on state courts to enforce federal laws.
Rutledge concocted a compromise that left most of the decision about court organization to Congress. Article III said there should be a Supreme Court and that Federal judges should have life tenure but said little more. Congress was left free to rely heavily on state courts, and for a while it did. By keeping Article III short on specifics, Rutledge skirted controversy and in the long run got what he wanted: a strong, separate system of federal courts.
6. Presidential Elections
1. whether the president could succeed himself-Opponents of succession pointed to the dangers of intrigue and cabal. Proponents suggested that the reelection incentive was necessary for good performance.
2. how the president would be chosen, by Congress or independently. -Opponents of Congressional choice (like Pennsylvania) raised objections based on the violation of the separation of powers principle and also on the danger of corrupt deals between President and Congress.
3. whether states should have a proportionate or an equal voice in the selection of the president. The large and small states were predictably split.
4. whether the president should be elected in one place (the national capital) or in several places (state capitals).
-almost everyone at the Convention wanted Congress to choose the President. Delegates thought the country was too big to allow direct popular vote and also that Congressional selection would protect states. However, the presidential system won. How do we explain this?
Perhaps the biggest innovation of the Convention was the...
presidential system of government. The chief alternative is the parliamentary system.
Presidential vs. Parliamentary systems
1. In a parliamentary system the executive serves at the pleasure of the legislative branch. In a presidential system the executive is independently elected for a fixed term and cannot be dismissed during good behavior.
2. In a presidential system the majority coalition is assembled at the time the president is elected. In a parliamentary system, if there are more than two parties, the electoral bargain is made after the election.
3. In the two systems, the powers to propose, veto, and specify the details of legislation lie with different branches of government:
How Manipulation Led to the Adoption of the Presidential System
Gouverneur Morris forced the adoption of an independently chosen executive by
creating a dilemma for the delegates.
Suppose that Congress chooses the President.
If the president can succeed himself, you get intrigue and cabal, as the president offers favors for legislative votes - - something King George III did all the time.
If the president cannot succeed himself, then the president has no incentive to do a good job.
Because either outcome is bad, Gouverneur was able to convince an initially hostile convention to require an independently chosen president.
Ratification of the Constitution
According to the Constitution itself (Article VII), ratification required 9 of 13 states' approval.
The strategy of the winners (the Federalists) was a combination of deal, delay, and argument.
-The opponents of the Constitution
-concerned about protecting states and individuals from the power of a mighty, external government- came to emphasize that the Constitution had no bill of rights because that complaint resonated most with the public. What a mistake that complaint turned out to be!
concerned about establishing a strong National Government that could regulate trade and commerce, provide defense and a stable currency, etc.
Madison and the Federalists promised Massachusetts and Virginia, two large and key Anti-Federalist states, a bill of rights in order to get them to ratify. Because the absence of a bill of rights was the loudest complaint of opponents, that ploy ended opposition.
Originally, Madison had opposed a bill of rights for two reasons. First, the Federal government was already limited to the exercise of enumerated powers. Second, in trying to specify a list of rights that the Federal Government could not violate, one would inevitably omit some rights, thereby disparaging them.
In NY, Governor George Clinton, the original Clintonite, didn't want to ratify the Constitution and thought that delaying the decision of his state would aid him by fueling the debate and increasing opposition; however, by the time NY met to vote, nine states had already ratified (Madison had closed the deal with VA and MA), and NY was left with little choice. To avoid being the hole in a big US donut, NY ratified quickly.
Argument / Persuasion:
The Federalist Papers were a series of newspaper columns written by Alexander Hamilton, James Madison, and John Jay under the pseudonym Publius. Madison may be said to be our “John Locke” or "Karl Marx": he articulated better than anyone the basic theory that governs the way our system works.
The general theme of the argument made in the Federalist was that the new Constitution was a mix of energy and safeguards. The energy resolved the problems of the Articles of Confederation, while the safeguards prevented tyranny.
The central executive had the energy to force states to cooperate with each other by not allowing them to make separate treaties with foreign states.
Safeguards on liberties were provided by the republican form of government, which ensured that the citizens retained sovereignty.
Also there were auxiliary precautions to ensure that the Federal Government did not abuse its substantial powers.
cheif auxiliary precautions to ensure that the Federal Government did not abuse its substantial powers
1. Federalism, which encouraged competition between state and federal governments for the support of citizenry:
2. An extensive territory, which made it more likely that interests that divided society would cut across territorial constituencies and jurisdictions and make it difficult for factions (majority or minority) to coordinate activities and exert too much power.
3. A separation of powers among the three branches. Madison noted that the separation was imperfect, since each branch had some control of the others. But that just shows that jurisdictions are imperfectly separated. Personnel are perfectly separated: No officer of any branch can serve in or at the pleasure of another branch.
4. A system of checks and balances that kept the balance of power among the different branches in equilibrium by ensuring that no branch can govern alone.
5. The absence of any general grant of federal powers. Federal powers are narrowly enumerated.
One can try to identify an enduring part of Madison's work (as opposed to particular arguments offered to secure Constitutional ratification). In general, he placed great emphasis on institutions rather than individual psychology. Good behavior requires, not "parchment barriers to the encroaching spirit of power," but incentives. Laws and contracts depend on the government to enforce them, but constitutions have to be self-enforcing.
It isn't enough to write a set of restrictions. Incentives are the only way to get compliance. (Benjamin Franklin pointed out that Scottish barristers had to elect one among them as a judge. Why is that way best? The barristers have an incentive to appoint the best among them because he has the most customers, who will be forced to look for a new barrister after his appointment.)
Elections provide an incentive for Congressmen to do a good job. Giving life tenure to judges ensures that they will be free of political pressure. "The interest of the man must be made to coincide with the rights of the place."
How may good behavior be achieved?
Design offices to select the right motivations, and create an equilibrium of incentives, or checks and balances, that make "ambition counteract ambition."
The source of the Preamble's wording is believed by John Rutledge's biographer to be the Iroquois Treaty of Union (1537). John Rutledge apparently wrote it down while attending a lecture by a delegation of Iroquois leaders on their remarkable system. The Preamble of that treaty begins: "We the people to form a union, to establish peace, equity and order..." Note that in both documents the people—not the several tribes or states—are the source of authority.
Congress has two houses: the House of Representatives and the Senate.
The members of the House are popularly elected for two-year terms. A short term ensures responsiveness to the people. The House can initiate revenue (tax) bills and can impeach (accuse of a crime) officials appointed by the executive.
Until the 17th Amendment (1913), senators were elected by state legislatures. Senators serve six-year terms. Those terms are staggered so that a third face reelection every two years. These longer terms, staggered terms, and larger constituencies make the Senate less sensitive than the House to popular whims and passions. Its small size makes it more deliberative than the House - - better able to debate and discuss legislative details.
The Senate tries impeachments and ratifies treaties. Conviction and ratification require 2/3 majorities. The Senate also confirms Presidential appointments, this by a simple majority.
General Powers of Congress
These fall into 9 categories
General Powers of Congress -Military:
Regulate and Fund (State) Militia and Federal Forces
General Powers of Congress -Economic:
-Tax and spend for common defense and general welfare
-Regulate Commerce, interstate and foreign.
-Legislate Bankruptcy, Money, Copyrights, Patents, etc.
Those last two let Congress create a common market. The clauses allowing Congress to spend for the general welfare and to regulate commerce are vague and have been used by Congress over the years to expand its powers greatly. These are "Santa clauses," or splendid constitutional gift packages to Congress.
General Powers of Congress -Political System:
Self-regulate (rules of each house are made by each house.)
Make rules governing time, place, and manner of Congressional elections (which are otherwise run by states)
Admit states to the union
Propose amendments to the Constitution
Make naturalization laws
General Powers of Congress -Personnel:
Confirm Presidential appointees
Impeach and try
General Powers of Congress -Judicial:
Design the federal court system (except for the Supreme Court)
General Powers of Congress -Administration:
Establish, fund, and oversee the federal bureaucracy
General Powers of Congress -Foreign Relations:
Regulate foreign commerce
Senate ratifies treaties
General Powers of Congress -Supremacy:
If there is ever a conflict between federal and state law, federal law wins.
General Powers of Congress -Elastic Clause:
Congress may enact any laws necessary and proper to carry out its enumerated powers.
There are four Santa Clauses: Welfare, Commerce, Supremacy, and Elastic. They endow Congress with enough power to make it the dominant branch. They endow the national government as a whole with more potential power than appeared at first. For their meanings have been stretched and stretched again and again.
Constitution-Limits on Federal and State Government, to Protect Citizens
• No ex post facto laws: A person may not be punished for an act that was only later declared illegal.
• No bill of attainder: Government many not make a law that singles out a particular person for punishment.
• No noble titles. (I hope none of you named your dog Duke or your cat Princess.)
Constitution-Limits on Federal Government Only-to protect citizens
• Habeas corpus: Federal police cannot hold a citizen without a judicial order—the most fundamental right of citizens (or subjects) in the English-speaking world. Congress can make exceptions to meet threats.
• No religious test for office.
• Absolute right to a jury trial for federal crimes.
• No inherited punishment: You cannot be punished for a crime committed by an ancestor.
• Two witnesses needed to convict someone of treason.
Notice how protections target abuses of law enforcement.
Constitution-Limits on Federal Government Only-to protect states
• Slave trade cannot be ended until 1808.
• Direct taxes on states must be apportioned according to state populations.
• No export tax: An import tax is OK. An Export tax would have allowed the Federal Government to tax some states and not others.
• No port preference: Federal laws cannot limit shipping to favor some ports over others.
• No combination or division of states without those states' consent.
• Congress must protect states from military threats.
• Congress guarantees the states a republican form of government.
Constitution-Limits on States Only-To Protect Citizens
• States may not impair obligations citizens have to honor their contracts. (This was a problem in the days of the Articles of Confederation, when renegade state legislatures wrote off debts, etc.)
Constitution-Limits on States Only-To Protect Other States
• States may not impose tariffs.
• States must show full faith and credit to the legal proceedings of other states. Congress can regulate this practice. (This involved such things as recognizing marriages formed in other states. An interesting recent issue under this provision is same-sex marriages, allowed in some states but not all. Now, according to the Supremes, it is a federal constitutional right.
• States must extradite criminals wanted in other states. Likewise slaves, but of course we no longer have any (but you knew that, didn't you?)
Those last two provisions, which alone come from Art IV, not I, are said to establish interstate comity.
Constitution-Limits on States Only-To Protect Federal Power
• States may not issue bills of marque or reprisal, or piracy licenses. Go to Washington, not Sacramento, if you wish to pursue such a career.
• States may not issue their own currency.
• States may not impose tariffs on goods coming from abroad or from other states.
• States may not have standing armies or state navies. State militias are allowed. Until the onset of the Cold War, the Federal Government had only a tiny standing army in peacetime and relied on state forces.
• States are bound by the Supremacy Clause (Article VI), which says that if ever there is a conflict between federal and state laws, the federal law prevails.
We'll see later on, when discussing the 14th Amendment, that states are further restricted in their powers against the federal government.
The President is elected by a majority of electors, each state somehow choosing (nowadays by popular vote) as many electors as it has Representatives and Senators, or if no one receives an electoral majority then the House chooses, each state delegation casting one vote.
The Constitution is pretty inexplicit about presidential powers.
The President must enforce the law, and can demand the written opinion of department heads, makes treaties, and makes appointments.
The president also has a legislative role. He must periodically inform Congress of the state of the union, may recommend legislation, may convene Congress (if it's out of session or is unable to do it itself), and most important, may veto legislation.
As the head of government the president has both executive and legislative roles (specified above), but the President is also the head of state and as such has special powers. This distinguishes the US from many other countries, where the chief executive, usually the prime minister, and the head of state, called King or president, are different people.
As head of state the president is commander in chief of the armed forces, may pardon crimes, commissions military officers, and receives diplomats from abroad, thereby recognizing countries -- and in effect managing foreign relations.
Article II-The rest of the Executive Branch-VP
The Vice President is the President of the Senate. Through most of our history the VP was not even considered to be a member of the executive branch and did not attend cabinet meetings.
Article II-The rest of the Executive Branch-Departments of Administration
The Constitution leaves the establishment and organization of the federal bureaucracy to Congress.
Article III—Courts-The Jurisdiction of Federal Courts extends to:
• All cases under the Constitution, federal laws, and treaties.
• Cases involving foreign diplomats.
• Maritime cases.
• Cases to which the US is a party.
• Diversity Jurisdiction -cases that cut across sovereign boundaries (e.g. a case between citizens of two states).
limit on what federal courts can review
: Cases and Controversies. The federal courts cannot be asked for an advisory opinion on the constitutionality of a law. It can rule only when a case involving acts covered by that law comes before the courts, at first in a trial, as an actual controversy. The only way to show that a law is unconstitutional is to break it or seek court relief from its strictures and then appeal a negative trial verdict on grounds of unconstitutionality.
The Structure of Federal Courts is as follows:
There is a Supreme Court. There is no limit on the number of Supreme Court justices.
The Supreme Court's original jurisdiction—the cases it can try—extends to cases involving foreign diplomats and states as parties.
The Supreme Court's appellate jurisdiction—the cases from which it can hear appeals—can be limited by Congress. In practice, Congress has given the SC appellate jurisdiction over almost everything.
In addition to the Supreme Court, the Constitution allows other federal courts. The structure and jurisdiction of these courts is left up to Congress.
A couple of the federal courts' important features are life tenure for judges and the case and controversy limitation.
Rules for Amending the Constitution
There are in total four distinct routes to amend the Constitution. There are two ways to propose and two ways to ratify an amendment.
Proposal is by 2/3 of both houses of Congress or by a national convention called by Congress (simple majority) at the request of 2/3 of state legislatures. The latter has never been tried.
Ratification is by 3/4 of state legislatures or state ratifying conventions. The latter has been used but once.
The Constitution has been amended only 27 times. It is harder than being green.
The Amendments of the Constitution
The first 10 amendments are the Bill of Rights (BofR).
Originally, the BofR applied only to the federal government, not the states. The first 10 amendments are generally phrased as things Congress can't do. Focus is on Congress because Article I—the Congressional article—lists all the powers of the federal government. Why? Because the executive and courts can act only by enforcing laws or fulfilling responsibilities under laws passed by Congress.
Religion—The federal government can neither establish an official religion nor impede the free exercise of religion.
Expression and Association—Citizens have the right to free speech, press, assembly, and petition. (It is worth noting that speech and press are not “rights” but things that “Congress shall make no law abridging.”)
Congress cannot bar gun ownership (but nothing is said about state law).
No quartering of soldiers
The federal government cannot order citizens to house soldiers in peacetime.
Rights of Suspects—No Unreasonable Search or Seizure
Federal authorities must have “probable cause,” or good reason - -reason judged good by independent courts -- to search or seize persons or property. Except in emergencies, the cops need a search or arrest warrant.
V. Rights of the Accused before Trial
A person has a right to a grand jury indictment before being tried.
There can be no double jeopardy. A person can’t be tried twice for the same crime, but federalism dominates over double jeopardy. Example: police officers who beat Rodney King were tried twice because the trials were at different levels of government.
A person may not be compelled to give self-incriminating evidence.
Every citizen is entitled to due process of law.
A person is entitled to just compensation if the federal government takes his property for public use.
Rights of Accused at Trial
The accused has the right to a speedy and public trial.
The trial must be local and by jury.
The accused must be informed of the accusations against him.
The accused must be allowed to cross-examine witnesses against him.
The accused has the right to compulsory process: he may subpoena witnesses.
The accused has the right to competent legal counsel
Rights at Civil Trial:
For federal civil cases, a person has the right to a jury trial if the amount at issue exceeds $20, and the case must be tried according to the common law—the system of judge-made law inherited from England.
Rights of Accused after Trial
The federal government may not set excessive bail or fines or impose cruel or unusual punishment.
Enumeration Does not Disparage Other Rights
Rights not listed are not thereby disparaged. Madison, who wrote the Bill of Rights, needed this amendment to square his handiwork with his earlier protest that a bill of rights would disparage unlisted rights.
Residual Powers Left to States or People
Any power not enumerated in the Constitution cannot be exercised by the federal government, only by the people themselves or the state governments.
Other Amendments-rights of states
11th amendment: Sovereign Immunity (1795)
A citizen of one state cannot sue another state in a federal court.
Other Amendments-Presidential Accession
12th amendment-separate VP election
22nd-pres limited to 2 terms
25th-New Method of Electing VP
Separate VP election (1804)
Before this amendment every presidential elector cast two votes, making it possible for two people to receive the votes of a majority of electors. The one with more votes then became President, the runner-up, Vice President. When Jefferson and Burr teamed up, in 1800, all the Republican electors voted for them, but this meant that Burr had as many votes as Jefferson—even though the Republicans’ intent was to make Jefferson President and Burr V.P.
January 20th, “Lame Duck” (1933)
This amendment moved up the President’s inauguration day from March 4 to January 20. It ensured that the outgoing president spent less time in office after the November election—less time as a “lame duck.” (This is called the Lame Duck Amendment, but because it fixed the problem I prefer to call it the Duck Tape Amendment.)
President Limited to Two Terms in Office (1951)
This amendment arose in response to FDR’s four terms.
New Method of Electing VP (1967)
This timely amendment says how a vacancy in the VP position is filled. The President appoints a replacement, subject to Congressional confirmation. (This was used when Nixon’s VP, Spiro Agnew, resigned. Nixon appointed Gerald Ford. When Nixon resigned and Ford became President, Ford in turn appointed Nelson Rockefeller V.P.) This amendment also spells out the procedure whereby the V.P. serves as acting President in case the President takes a leave or is incapacitated.
Other Amendments-Equal Rights
13th: end slavery (1865)
14th: rights against states (1868)
15th: black suffrage (1868)
(these above 3 all result of civil war)
19th: female suffrage (1920)
23rd: DC Vote for pres (but not Congress) (1861)-DC has 3 electoral votes.
24th: Bans Poll tax (1964). Beforehand one had to pay a tax to vote in Southern and
border states. That effectively disenfranchised the poor, especially blacks.
26th: Allows 18 year-olds to vote (1971).
Rights against States (1868)
This amendment gives rights to citizens against states.
It says the citizens of the states have the same privileges and immunities as the citizens of the US.
It also says the states cannot deprive anyone of life, liberty, or property without due process of law. It says as well that anyone born here is a citizen.
Finally, it guarantees all citizens the equal protection of the laws.
Over time, and particularly about three-quarters of the way into the 19th century, the “due process” clause was extended to include not just procedural safeguards but substantive ones also. The doctrine of substantive due process led eventually to the incorporation of Bill-of-Rights’ protections against the states. This meant that the BofR, or most of it, came to apply not only to the Federal Government but also to state governments. Over time the Supreme Court came to interpret the due process clause more and more broadly. Curiously, one would think that the privileges and immunities clause would have served as the basis for such expansion, but the courts early rejected a broad reading of that clause. Nevertheless, not all of the BofR has been incorporated. Amendments 3,7, and the part of 5 which entitles the accused to a grand jury indictment have not been. Only a couple of years ago did the Supremes begin to incorporate 2, gun rights. Certain things were not incorporated because they were inapplicable or not considered fundamental rights. In the case of the grand jury provision, lawyers believe that the accused is probably better served without a grand jury indictment; suspected criminals generally waive this right anyway. The 7th amendment is not applicable because it requires that civil law cases (involving more than $20) be tried according to Common Law, but Louisiana does not use the common law.
The rest of the 14th amendment is a lot of dated business about punishing the South.
-The following amendments furthered the US political system’s centralization. They had the effect of weakening individual citizen’s relations to their states and strengthening their identification with an American nation.
-16th-allowed federal income tax
-17th-established direct popular election of the senate (1913-Thirst)
-18th-Prohibition of the sale of alcoholic beverages (1918).
-21st: repeal of Prohibition (1931)-Greed
-27th: no congressional pay raise between elections
Allowed Federal Income Tax (1913). It came in the era of Democratic dominance
of Congress and the presidency (1912, Woodrow Wilson elected president). At first this tax
was 2% for about 5% of the public. Supporters ridiculed those who thought the rate would
ever exceed 10%.
No Congressional Pay Raise Between Elections (1992). When Congress gives itself a pay raise, it can go into effect only after an election has taken place. That applies to the House only, not the Senate (1992). This was first proposed in 1789: it took about 200 years for 3/4 of the states to ratify.
Old (19th century)
Internal governance, such as police and roads and public schools, were run and paid for entirely by states.
Later (early 19th century) the Federal Government started to pay for “internal improvements,” chiefly roads and canals, based on the Welfare Clause of Article I, which Madison had read as a restriction on federal spending, not an expansion of federal power.
By the 20th Century the Federal Government was giving direct grants-in-aid to the states.
Now there may be said to exist a partnership between federal and state
governments, with the senior partner deriving its paramount influence from four Santa Clauses
1. Elastic clause (Article I)
Because Congress may enact any law necessary and proper to carry out its enumerated powers federal authority has extended considerably.
2. Welfare Clause (Article I)
This is the Federal Government’s power to tax and spend “for the general welfare.”
3. Supremacy Clause (Article VI)
Money to states can come as a part of revenue sharing scheme. Much more often it has come in the form of grants in aid, but these usually have come with federal “strings” attached. An example is the Federal Government requiring states to institute a speed limit in exchange for federal highway funds. Another example is the federal government using highway funds to get states to impose a 21-year drinking age.
The Federal Government has used its expanding powers to protect civil rights. Under the....
4. Commerce Clause many anti-discrimination policies have been implemented. An example is the passage of laws prohibiting private companies from discriminating in employment and housing.
What protects states against an expanded federal government?
Why do states still survive as real political entities?
What has happened to the desire for state power?
The idea that the Federal Government is limited to enumerated powers and the 10th amendment’s guarantee of residual powers to the states are now quite weak.
The best protection states have against Federal encroachment is their representation in Congress. There they have an incentive to protect each other’s interests.
More important, the demand for protection of state autonomy has declined since the Founding because Americans tend to think of themselves as Americans first and residents of states second - - often a distant second. Also the Federal Government does a much better job of protecting civil rights than states do, and cleavages dividing American society are cross-cutting in nature, so that citizens’ regional (state) allegiances often cut across their other (professional, class, education, etc.) associations.
Government is shaped by:
• The Original Constitution
• Precedents and Practice
Many traits of government in the US come from individual decisions and practices throughout history.
-Constitution allows us to try out different practices, or conventions before settling on certain ones-flexible-can be interpreted in a number of ways
This consists of the many statutes passed by Congress that flesh out the Constitution with cabinet departments, inferior courts, and the rest of the beehive of national government.
Supreme Court Decisions Interpreting the Constitution
These are by far the most celebrated interpretive acts. We collect some of the very most important under five heads.
1. Cases affecting the Branches of the Federal Government
2. Cases on Federal and State Powers (Levels of Government)
3. Individual Rights and Liberties
5. Political Representation
1. Cases affecting the Branches of the Federal Government-
-Marbury v. Madison (1803)
-Ex Parte McCardle (1869)
-Chaddha v. INS (1983)
Marbury v. Madison (1803)
It was written by Chief Justice John Marshall and established the Supreme Court’s power of judicial review, echoing Hamilton’s Federalist 78. It gave courts the ability to find legislative acts unconstitutional, affirming a judicial check on Congress.
It was not easy to get away with strengthening judicial power in this way. Marshall was a Federalist: his was the party of Washington and Adams. But the opposing Republicans, of Jefferson and Madison, had just taken power and were suspicious of the courts, peopled as they were by Federalist judges. They were opposed, moreover, to judicial review, and quite willing to ignore the rulings of Federalist judges.
Marbury (a Federalist) was appointed by the outgoing president, John Adams, as a justice of the peace for D.C., and his commission was signed and sealed, though not delivered, by the outgoing secretary of state, who (as it happened) was none other than new Chief Justice John Marshall himself. But new Secretary of State Madison under new President Jefferson refused to deliver the commission. Marbury sued, asking the Supreme Court to issue a writ of mandamus - - a court order to an executive officer - - to Madison to deliver Marbury’s commission.
Could the Court do that? Congress had said in the Judiciary Act of 1789 that the Supreme Court could issue such orders. Marshall faced a dilemma. If he found for Marbury and issued the order he would have slapped the Republicans (good), but Madison would have disobeyed, thereby weakening the courts (bad). If he found for Madison, he would have accomplished nothing and appeared a wuss. He charged between these two horns by ruling (1) that Madison broke the law by not delivering the appointment, and (2) that a writ of mandamus was the right remedy, but (3) that the Supreme Court could not issue it because the federal Judiciary Act, which said the Court could issue it, was unconstitutional. By authorizing such writs, that act attempted to expand the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution. Marshall thereby slapped the Republicans and affirmed the Court’s power to pronounce laws unconstitutional all at once. He got away with it because, by ingeniously discrediting a law that allowed him to issue orders to Jefferson and Madison, he left them with no court order to disobey. They could not protest the decision, even though Marshall had staked out considerable powers for the Supreme Court, because his act of judicial review gave them exactly what they wanted in this particular case.
Ex Parte McCardle (1869)
This case established that Congress can limit the Supreme Court’s appellate powers, as Article III pretty clearly says.
McCardle was an editor in Missouri who was condemned by a military tribunal during the Reconstruction period following the Civil War. To get out of jail and save his neck, he asked the Supreme Court for a writ of habeas corpus. Meanwhile Congress intervened by eliminating the Court’s power to hear appeals or habeas petitions from the military tribunals. The Court agreed that Congress could indeed limit the Court’s powers in this way.
In practice, Congress has more often expanded the Court’s appellate powers. Why would it do such a thing? Perhaps because that way Congress doesn’t get blamed for making tough choices: by expanding the Court’s powers, Congress passes the buck.
Chaddha v. INS (1983)
This case rejects all legislative vetoes as unconstitutional, thereby perfecting the separation of powers. All the constitutional powers of the Federal government are listed in Article I, as powers of Congress. Over time, Congress has delegated many of its Art. I powers to the executive branch but allowed itself to veto executive decisions; sometimes a single house could do that. In one case, the House had legislatively vetoed an Immigration and Naturalization Service (INS) decision to let an illegal immigrant (Chaddha) stay in the U.S. The immigrant appealed and the Supreme Court ruled that legislative vetoes are unconstitutional because Congress could only act by passing laws subject to Presidential veto. More generally, once Congress delegates a power, that power becomes executive until Congress takes it back with a new law. A veto without a new law would be an executive act, something the Constitution does not allow Congress to do. This case clarifies and affirms the separation of powers, an idea not expressly stated in the constitution.
2. Cases on Federal and State Powers (Levels of Government)
-Dartmouth College (1819)
-McCulloch v. Maryland (1819)
-Gibbons v. Ogden (1824)
Dartmouth College (1819)
New Hampshire’s legislature tried to change the charter of Dartmouth College, but the court ruled that the charter was a contract, which could not be changed by the state. This affirmed the Contract clause by limiting the state’s ability to alter contracts, now very broadly construed.
McCulloch v. Maryland (1819)
This case affirms the broad reach of the federal government’s implied powers. The Elastic Clause allows Congress to do whatever is “necessary and proper” to carrying out its other powers, and the Court here interpreted that clause very broadly: if the end is Constitutional then so is any means to it. Maryland tried to tax the Baltimore Branch of the Bank of the United States – and tax it enough to wipe it out. The Supreme Court ruled that it couldn’t because Congress’s power to regulate money implied the power to establish a federal bank (a means to the end of regulating money, hence necessary and proper to that end). Because the power to tax would amount to the power to destroy what Congress had established, this case also affirms the Supremacy Clause.
Gibbons v. Ogden (1824)
This case established that only the Federal Government can regulate interstate commerce. The Constitution says Congress can regulate interstate commerce, but it does not quite say that states can’t also. Here Marshall interpreted the commerce clause broadly, to say that the Federal Government alone can regulate interstate commerce.
The state of New York gave Ogden a monopoly license to operate steam boats on the N.Y. side of the Hudson River, connecting NY and New Jersey. Gibbons had gotten a competing license from the US Government. The court ruled that NY was wrong to license Ogden and bar Gibbons because interstate traffic was part of interstate commerce, and the Commerce Clause makes that not only a federal power but an exclusive one.
3. Individual Rights and Liberties
-Gitlow v. New York (1925)
-Gideon v. Wainwright (1963)
-Miranda v. Arizona (1966)
-Buckley v. Valeo (1976)
-Citizens United v. Federal Election Commission (2010)
-Roe v. Wade (1973)
Gitlow v. New York (1925)
This case first used the Due Process Clause of the XIVth Amendment explicitly to incorporate the 1st Amendment.
As explained earlier, the doctrine of incorporation works through the due process clause of the 14th Amendment to extend the Bill of Rights, or some of them, from the Federal Government to state governments. This broad interpretation of “due process” is called substantive due process - - as distinct from mere procedural due process. It was first used by the Supremes to protect business against tough state regulations, which they condemned as an unconstitutional taking of private property without due process of law, even though legal procedures were followed.
In this case, Gitlow, a publisher, was sent to jail for printing communist tracts. The Court said that NY was right to jail Gitlow because his expression incited treason and was, therefore, not mere “speech” or mere “press” - - not something covered by the 1st Amendment. But had it been covered, the Court ruled, NY would have violated Gitlow’s “due process” right by jailing him, because that right incorporated the 1st Amendment rights: they are not only rights against Congress but, thanks to the 14th Amendment, rights against N.Y.
Gideon v. Wainwright (1963)
This case expanded the prevailing interpretation of the 6th and 14th Amendments by establishing, in federal and state cases, a person’s right to counsel even if he can’t afford it. Then the state must pay.
Miranda v. Arizona (1966)
This famous case expanded the prevailing interpretation of the 5th, 6th, and 14th Amendments by affirming rights to legal counsel and against self-incrimination even during police questioning. The famous Miranda warning, “anything you say can and will be used against you ...” is how the cops observe these rights: it is how they “Mirandize” suspects. See how Gitlow, Gideon, and Miranda all rest on the 14th Amendment as well as the B of A. Why? Because they limit what the states can do. The next 2 do not, so the 14th is irrelevant to them.
Buckley v. Valeo (1976)
This case reaffirmed 1st Amendment freedoms during political campaigns. In 1974 Congress established a lot of limits on campaign contributions, but the Court ruled that Congress couldn’t place limits on how much an individual spent on his own campaign: doing so would interfere with the person’s free speech (protected by the 1st Amendment). James Buckley was a rich senator from NY.
The Court said also that Congress could not keep an individual from spending as much as he wants on political advertisement in support of a candidate or party of his choice. Such spending is protected by the 1st Amendment. The only qualification on such advertising is that it be done independently of candidate and party organizations, for which spending limits are allowed.
Citizens United v. Federal Election Commission (2010)
This decision takes Buckley a step further by allowing corporations of any sort, and unions too, to spend - - and to spend without limit - - on political speech, including campaign advocacy. However, as in Buckley, such spending must be independent of candidate and party organizations: they cannot plan a coordinated strategy.
Roe v. Wade (1973)
The Supreme Court ruled that states could not outlaw or severely restrict abortions. This case affirmed an expanded right to privacy against the states under the 3rd, 4th, and 14th amendment; it is the 4th that usually gets the credit – or blame.
Justice Harry Blackmun based the Court’s opinion chiefly on the 4th Amendment (search and seizure). The court’s reasoning was that implicit in the 4th Amendment is a sweeping right to privacy, and abortion is the private affair of the woman having it. Even the supporters of legal abortion frequently question the quality of this reasoning.
The cases considered thus far under the rubric of rights have been about liberties. Now we look at another category: cases ensuring equality before the law.
-Dred Scott (1857)
-Plessy v. Ferguson (1896)
-Brown v. Board of Education (1954)
Dred Scott (1857)
In this case the Supreme Court said that laws establishing free territories could not stop slave owners from bringing slaves into those places. A slave, Dred Scott, who had been brought by his owner into a free territory, sued. Chief Justice Roger Taney ruled against him on the ground that slaves were property, and no law can take property that has been legally acquired. He added that Negroes did not qualify as “persons” under the Constitution and, therefore, could never again bring suits.
This case was only the second, after Marbury v. Madison, in which the Supreme Court found a federal law unconstitutional. The law at issue was the Compromise of 1820, which drew an east –to–west line dividing slave from free territory in the west.
Republicans under Lincoln interpreted this case to mean that the court would allow slavery to spread. Lincoln’s opponent in the 1860 elections, Stephen Douglas, thought that the decision was really a legal quibble that had no real consequences.
Plessy v. Ferguson (1896)
Challenging the constitutionality of segregation policies, Plessy, a black man, sat in the white section of a train. The court let segregation policies stand, saying that as long as facilities were equal, their being separate was not a problem. Segregation was allowed, provided a facility was “separate but equal.”
Brown v. Board of Education (1954)
This is one of the few instances here the Supreme Court overturned one of its previous decisions unequivocally. It overturned Plessy by ruling that separate is always unequal because—in brief—it draws an invidious distinction. In another novelty, the court cited sociological evidence of harm from segregation. Chief Justice Earl Warren said that the equal protection clause of the 14th Amendment prohibits racial segregation in public schools and, by implication, other state facilities.
5. Political Representation
-This last set of cases is perhaps the most important for our purposes, for these cases have changed the way that national and state governments are run. At first the Court was reluctant to rule on cases involving political representation, but later it came round to play a large role. The first two cases to follow are important only as background to the remaining two, the only ones you need to remember.
-Colgrove v. Green (1946)
-Gomillion v. Lightfoot (1960)
-Baker v. Carr (1962)
-Wesbury v. Sanders (1964)
-Reynolds v. Simms (1964)
Colgrove v. Green (1946)
This case pitted the citizens of larger (more populous) districts against those of smaller districts; since both large and small districts had only one representative in the House, the smaller districts were over-represented compared to the larger ones. In this case the Supreme Court ruled that the creation of electoral districts was a political decision and that the federal courts should never enter the “political thicket” of apportionment. The conservative justice Felix Frankfurter, who in general opposed Court activists, deemed the question of electoral districts not to be “justiciable.” In the past, Congressional districts were often highly unequal in population; old district lines reflected more or less natural boundaries, and state legislators didn’t want to change them and risk losses for their parties. Gerrymandering, the practice of manipulating district borders to control election outcomes, may also have contributed to the disparity in size, but not so much as the persistence of old boundaries through shifts in population.
Gomillion v. Lightfoot (1960)
This case allowed the Federal Government to intervene to break racial gerrymandering. In Alabama a black majority constituency had been redrawn to reduce black voting power. The court moved to protect black voters. It said that the Federal Government could get involved if race was an issue, owing to the 15th Amendment.
Baker v. Carr (1962)
This very important case reversed Colgrove. It said political representation was justiciable: the courts were free to hear challenges to legislatively drawn districts. Winning Counsel Archibald Cox argued that in Colgrove a majority of the court didn’t agree with Frankfurter’s reasoning. There were only seven members on the bench at the time, and only three agreed on non-justiciability: the fourth member had sided against petitioner for other reasons. His was, we say, a concurring opinion, and such opinions do not establish precedent. Precedent is established only when a majority sign the so-called majority opinion (an idea that would have erased most of Dred Scott, had anyone thought of it in 1857). Always remember: “concurring opinion” sounds nice and supportive, but it’s not something the majority-opinion writer wants.
Baker opened the door to the One-Man, One-Vote Rule, requiring equal-size districts. That was affirmed, not in Baker, but in two later decisions.
Wesbury v. Sanders (1964)
This states the rule for congressional elections. The argument was that since Article I says Congress represents the “people,” only people and not “trees and acres and economic sectors” are to be represented in Congress.
Reynolds v. Simms (1964)
This case applied the One-Man, One-Vote rule to state-legislative districts, citing the Equal Protection Clause of the 14th Amendment.
Now district borders must be redrawn regularly to adjust for changing demographics. In the case of Congressional districts the tolerable inequality among districts is ± 1%, whereas for state legislatures it is ± 15%.
This set of decisions had a profound effect on representation in Congress, shifting power from rural to metropolitan regions.
A good indicator of this shift is the change in representation in Congress of rural and metropolitan districts. “Rural” is defined as having less than 40% of the district’s population in an SMSA (Standard Metropolitan Statistical Area). “Metropolitan” is defined as having more than 60% of the district’s population in a SMSA.
Congress went from being about half rural to being less than a quarter rural. Federal benefits for farmers were systematically reduced, and there was large shift in the federal budget from rural to metropolitan regions.
Agricultural subsidies decreased from $225 million in 1964 to $190 million in 1979.
Community development projects (predominantly urban) increased from $295 million in 1964 to $4 billion in 1979.
The Food stamp program (predominantly urban) increased from $80 million in 1965 to $6 billion in 1979.
The One-Man, One-Vote Rule has had a huge effect on transportation. Congress had regulated railroads and trucks so that shippers had to charge the same amount for the same distance traveled, regardless of how sparse or dense the market. The effect was to make urban users of transportation cross- subsidize rural users, particularly farmers. The same was true for air travel. The One-Man, One-vote Rule made Congress much is less rural, and Congress then ended the urban-to-rural cross-subsidies.
The Federal Court System is....
is an administrative department run by the Chief Justice of the United States, currently John Roberts. His administrative role is quite a big one, akin to that of a cabinet secretary.
Our system reflects...
-a strong English legal legacy. (I say English, not British, because Scotland has a different legal system.)
-The federal government and all states except Louisiana have legal systems copied from England. That it should be so was taken for granted by the Founders. Among the qualities copied are the following:
• An independent judiciary. This is enhanced in the federal system by life tenure for judges.
• Respect for individual rights.
• Common Law. After the Norman Conquest of England, judges applied common sense to property and contract disputes. Their opinions circulated (given that the judges were monks who traveled), and as a result a large body of case law accumulated. So common law is case law, or judge-made law. As such it is driven by precedent. When a new case comes before a judge, it is said that the judge simply applies existing precedent, that the judge “discovers” the existing law. However, it is also clear that judges do not just discover and apply the law but also shape it, albeit very gradually.
Law vs. Equity
In civil cases, a law court provides a remedy after the act, while an equity court enjoins the act (before it is committed), e.g., by saying how to keep a contract instead of saying whether one party broke it.
The distinction is based on the British system. In England equity courts, or courts of chancery (the judges are “chancellors”), interpret wills, contracts, and the like. They have no jury. Naturally the court can issue orders, called injunctions, to enforce its decision.
In the US the issue of whether or not to preserve this distinction was fiercely debated. But from 1792 on, federal courts could serve both functions. Equity examples: a court issues an injunction to stop a protest at an abortion clinic, or grants “equitable relief” by ordering things like desegregation of schools.
Original vs. Appellate jurisdiction
Most courts do not have both. A court’s original jurisdiction is the set of cases it can try. A court’s appellate jurisdiction comprises the cases it can hear on appeal.
Judge-made law vs. statutory law
Judge-made (precedent-driven) law includes common law, of course. It is, therefore, most of US law. It stands in contrast to statutory law, or legislation, enacted by the legislative branch.
The law is divided into three subject areas:
• criminal law,
• civil law (property, contracts, personal voluntary dealings),
• public law (cases involving the regulation of government and public affairs, e.g. how public officials are elected, initiatives put on the ballots).
The first two are partly judge-made.
-a written constitution
-a bill of rights
-Case and Controversy Requirement
-Structure of Courts
-US Court System
-Philosophies: Conservative vs. Activist
American Peculiarities: a written constitution
In the US legal system there is a “bottom turtle,” something on top of which the whole legal structure rests. Judges can go back to the original text (They cannot do this in Britain, which has only statute and precedent.)
American Peculiarities: federalism
In the US we have many cross-cutting jurisdictions; this means that different laws and courts can apply to one locale. The US legal system is much more diverse than other federal systems (e.g. Brazil, Germany). In Louisiana we have French law; in Texas, some Spanish law. There are 51 court systems.
American Peculiarities: a bill of rights
The US BofR is more exact than those of other countries. For example, the French “Declaration of the Rights of the Man and of the Citizen” does not have the strict procedural safeguards our BofR does. Also in the US the BofR is ceaselessly discussed and debated and litigated.
American Peculiarities: Case and Controversy Requirement
US courts can issue decisions only in actual controversies, each a real case with two sides that has come to trial. Judges can weigh only the arguments presented by the two sides.
US courts may not issue advisory opinions, or rulings in advance of challenged actions. Somebody has to break the law (or at least seek trial-court relief from its demands) to test it. Other countries have constitutional courts, which can tell the government in advance whether something would be constitutional.
American Peculiarities: Structure of Courts
In the US there are two kinds of courts: Article III and Article I courts.
Article III Courts
These are also called judicial or constitutional courts. They are specified in Article III of the Constitution, the judicial article.
Judges sitting on these courts have life tenure. They cannot issue advisory opinions, that is, they are subject to the case and controversy restriction.
Article I Courts
These are established by Congress under its authority emanating from the elastic clause (“necessary and proper”) of Article I. They are not in all cases barred form issuing advisory opinions. Judges sitting on these courts may not always have life tenure. Examples: tax courts, military tribunals, and territorial courts.
American Peculiarities: US Court System
The US Court System consists of the following:
-The Supreme Court
-US Circuit Courts of Appeals
-US District Courts
-US Bankruptcy Courts
-Court of International Trade
The Supreme Court
The number of Supreme Court Justices is not specified in the Constitution. By Congressional statute, it has almost total say about what it hears. Its order to hear a case is called a Writ of Certiorari. This it can send to any court in the land. Informally the Court is said to “issue cert” – meaning an order to send up a case, not an allocation of mints to litigators who have offended the Supremes with their bad breath.
US Circuit Courts of Appeals
There are 11 Circuits. Their decisions may be appealed to the Supreme Court, provided the Supreme Court is willing to hear them.
US District Courts
These are the federal trial courts. They have only original jurisdiction. They are the first to hear and try cases involving the violation federal laws (e.g. smuggling, counterfeiting, civil-rights violations, drug crimes). Their decisions can be appealed to the Circuit Court of Appeals.
US Bankruptcy Courts
Parallel to district courts - - but for bankruptcy cases, obviously.
Court of International Trade
For tariff cases. Its decisions may be appealed to the US Court of Appeals.
Appeals to Circuit Courts and the Supreme Court can also come from Article I courts, Federal regulatory agencies, and state courts (when a federal issue, e.g. federal civil rights, is raised).
American Peculiarities-Philosophies: Conservative vs. Activist
Judicial decisions are often said to depend on the “philosophies” of judges, and more specifically on how conservative or activist they are. But judicial conservation - - and its opposite, judicial activism - - comes in at least seven varieties. Each consists in respect for a particular thing:
1.Respect for Plain Words (the Constitution’s text).
2. Respect for the Legislative Branch.
3. Respect for Precedent.
4. Respect for the “Political Thicket”
5. Respect for Property and Contracts.
This type of conservatism has had great influence on the way in which property rights have evolved in the US.
6. Respect for Individual Rights.
7. Respect for States’ Rights (or Federalism).
1.Respect for Plain Words (the Constitution’s text).
Emphasis here is on staying close to the literal meaning, the “plain words,” of the Constitution. Such conservatives are called “strict constructionists.” One problem is that some of the most important words, such as “cruel and unusual,” “equal treatment,” “abridge freedom,” “commerce among the states,” “necessary and proper,” and “due process,” are far from plain.
2. Respect for the Legislative Branch.
This brand of conservatism calls for judicial restraint. Here judges will rarely intervene in the acts of Congress and will do so only when the act is obviously and undeniably unconstitutional.
3. Respect for Precedent.
This is also known as the principle of stare decisis, “the decision stands.” Here judges respect the law as interpreted and articulated by previous decisions of the court. Respect is not only for the particular facts of the case but the legal principles the court had earlier applied to those facts. This kind of respect is the common practice. A rare example of a violation of the principle of stare decisis is the Court’s decision in Brown v. Board of Education to overturn Plessey v. Ferguson. Even today’s conservative Court will probably not flatly overturn Roe v. Wade - - though it will doubtless trim its reach.
4. Respect for the “Political Thicket”
Here emphasis is on staying out of anything political, leaving political questions to the other branches. This principle too is rarely violated. The most famous violations are Baker v. Carr and the follow-up representation cases.
5. Respect for Property and Contracts.
This type of conservatism has had great influence on the way in which property rights have evolved in the US.
6. Respect for Individual Rights.
Obviously so-called liberals too can exemplify this type of “conservatism.” The difference between them and so-called conservatives is not that either respects individual rights more but that conservatives and liberals respect different rights more. For example, a conservative may respect the right to own a gun more than a liberal does; with regard to religious freedoms, a liberal might emphasize the government’s lack of authority to establish a state religion to argue against school prayer, while a conservative might emphasize the government’s lack of authority to prevent the free exercise of religion to argue for it. Again, conservatives champion the freedom of political speech by opposing liberal-backed limits on campaign spending, whereas liberals are more prone to defend the rights of pornographers (but less so since feminists have objected).
7. Respect for States’ Rights (or Federalism).
Judges who are conservative in this sense are more likely than others to limit the Federal Government’s authority over the states. Justices Rehnquist and O’Conner, both recently replaced, were especially deferential to states’ rights.
Most of the Supreme Court’s time is spent deciding cases involving only minor issues. Momentous, revolutionary cases are rare. But in the media we hear little about the day-to-day, restrained, and cautious activity of the Court -- much as we hear little about houses that didn’t burn down or wars that didn’t get fought.
Collective Action Problems
-collective action often runs into problems-what’s best for group isn’t what’s best for a rational individual-if everyone does what’s best for just them, worst outcome for group--but if even just 1 person does that and everyone else does collective, everyone except that 1 person is losing-if everyone does it, all lose-defecting from collective agreement is core of prisoner’s dilemma
-second treatise on Government
-move human society away from a state of nature in which every person is a n individual and there are no laws or rules and regulating-putting some sort of structure on it
-The Social Contract-hypothetical situation in which people agree to have government as opposed to being in state of nature because although they do lose some freedom, they receive protection from the actions of others, structure of society
-protection of property
-through legal system/rule of law, society now has structure
-now able to avoid situations like the Prisoner’s Dilemma (PD)
-if gov. didn’t have power to enforce these collective agreements, would fall apart
-not when they were passed that had greatest effect-often later time when supreme court decides to interpret them in some way when full importance is realized
-newspaper editorials to convince anti-federalists to ratify the Constitution
-explain what’s written in the Constitution more
-anonymous-part of canonical expansion of US Constitution
-seen as almost sacred text now-objective word of what people thinking at the time-but not really-more editorials or even propaganda-using whatever argument was necessary
-Madison most famous author-arguing points in favor of ratifying Constitution that he actually opposed-knows targeted audience of anti-federalists, speaking to their concerns
-response-Brutists-also anonymous-appealing to ideas of roman democracy-but that turned into dictatorship, had to assassinate him
-anti-federalists worried about dictatorship, monarchy coming back-worried state gov.s would lose power
-directly responding anti-federalist concerns
-too much centralized power
-state gov.s losing power-worried would lose all their power-federal gov. oppress the state
-states had very different cultures, interests
-concern that if majority group came into power at federal level, could oppress states and make them do things that made no sense in their state-shipping and trade laws (NY cuz of port), national poor person’s party taking power and oppressing wealthier states, etc.
-minority interests not represented-majority would dominate minority
-smaller factions could gain power and lead
-speaking to political minorities in this case
-representatives would represent the majority faction, which would lead to antidemocratic outcomes
-no Bill of Rights (not something federalist papers really discuss-discussed later by politicians)
-federalist responses to these/federalist arguments:
-federalist paper 10:
-response to minority interests not being represented-a dominant political faction would be cause for concern, but a dominant faction is unlikely because size of the US means variety of interests, no faction can become dominant
-increasing the size of the electoral populus would lead to worthier candidates-not just 1 town having a representative-could have representative for large part of state, represents variety of interests-to gain victory, politician goes to average of state’s interests-so won’t represent any 1 group
-sheer size of US would make it hard for factions to coordinate among each other (doesn’t explicitly say, but interpreted)
-harder for corrupt leader to win with larger republics, would need to bribe more people
-federal gov. Will have more power than did in articles of confederation, but that’s needed-but new gov. Will still be limited in what do-and will have safeguards in place-hard to make drastic changes in policy, hard for any 1 group to be able to fully take control of gov.
federalist papers cite as safeguards:
-separation of powers
-legislative-direct vote in house of representatives, or appointed by states?
-judicial-appointed by pres, elected by senate
-elected in diff ways, drawn from different sectors of society, no person can be part of 2 diff branches at the same time
-checks and balances on each other
-pres can veto law passed by Congress-Congress can overrule that with ⅔ majority
-judicial can check legislative-declare law unconstitutional
-Supreme court members appointed by pres-but Congress has to approve
-to make constitutional fundamentally conservative-not direct democracy system in which dramatic changes in policy could occur overnight-hard for central gov. to dominate state gov.s-hard for it to do any dramatic action, dramatic breakaway from what it had done in past
Robert Dahl’s How Democratic is the American Constitution?
-doesn’t find it very democratic
-suffrage-the only people allowed to vote-small amount that didn’t include women, slaves-only white men with property could vote in most states-and in all states, only white men could vote-only about 20% of population could vote
-allowed slavery-didn’t allow Congress to forbid slavery
-presidential electoral college
-Dahl reflects viewpoint of a lot of judges who believe in a living document approach-meant to be continuously updated, fit in context of society at the time
-also take an expansionary view in terms of the powers that the federal gov can legitimately claim
Dahl's views on Senate
-at the time, the way the Senate was elected: by state legislature-chose Senators-this was at best indirect democracy-people people in state elected state legislature, and majority party in state legislature chose candidate-but could be even more undemocratic-system corrupt-whoever had most connections
-Senate more powerful than House-can filibuster-more prestige-6 year terms-at the time, the founders considered the Senate a check on the House
-we now have direct elections of senators
-but still unchanged-the amount of senators does not correlate the population in state-some argue this is not democratic, but Dahl argues that fact that each state has same amount of senators is undemocratic
-represented less per capita in a state like Wyoming
-makes it easy for small rural state to block things that majority of people actually want
-has led to a pro rural bias
-this is unlikely to change-need 3/4 of states to agree to amend constitution-at least the 16 smallest states, 1/3 states, would block that
-base a lot of this off of a expansionary view of the 4 santa clauses-congress clause, necessary proper, general welfare clause, supremacy clause
-people who believe in this viewpoint over time in the supreme court have often cited these powers to expand the power of the federal gov. in relation to the states-originalyl dual system where had equal power-now more 80/20
-update Constitutional interpretation to a modern context-likely to rely on diff interpretations of amendments than articles of Constitutional-because so bare bones hard to update
-limited view of santa clauses
-focus on enumerated powers-powers specifically given in Constitution
-don’t believe in interpreting things in a modern context
-focus on what the founders literally meant at the time
-if we want to update things, we should literally change the Constitution or add an Amendment rather than interpreting in a modern way
Chief Justice Sean Marshall
-his legal precedent has been followed by most following judges
living document vs constructionist
-this living document vs constructionist debate has been going on since 1800s
-cases where tension between these 2
-Marbury vs Madison
-established judicial review
-McCulloh v Maryland
-necessary and proper clause
-Roe v Wade
-right to privacy-right to abortion
-Brown v Board of Education
-separate but unequal is unconstitutional
-overturns earlier ruling
-liberal interpretation of 14th amendment
-Gibbons v Ogden
As it was written, the bill of rights protects us only from the federal gov, not from state govs. Nonetheless, most of the rights listed there are now regarded as rights against the state governments too. Briefly explain how that came to be.
-the 14th amendment, through the due process of the law clause, declares that most of the bill of rights applies to states too-the court case gideon vs wainright declared that states had to provide the right to counsel if subjects couldn't afford it, as citing 6th amendment
-in Gitlow vs New York, they rued that based off 14th amendment's due process, the 1st amendment rights must apply to the states as well
Can the Supreme Court take any law that it thinks is unconstitutional and declare it so? Explain.
No, because of "case+controversy", outlined in Article III, the government may not give advisory messages about whether or not a law is unconstitutional. Instead, they can only hear cases that have a clear controversy
How is the Vice President chosen when that office becomes vacant during the presidential term? (extra credit: according to what amendment)
When vacant, the president chooses a VP candidate, but then it must be approved by the House of Representatives
List 2 of the 4 Santa Clauses and briefly state the content of each.
-elastic clause-congress can enact any laws "necessary and proper" to fulfilling its duty
-supremacy clause-established federal gov. above state gov-so in instances of conflict between federal and state govs, the federal gov will win
According to ____, congressional choice of the president would lead to ___if the President could succeed himself, and to a lack of incentive if not
intrigue and cabal
a lack of incentive/motivation to do well
What case established equal-size congressional districts? What was its chief policy consequence
Wesbury v. Sanders
one man, one vote rule-->shift in benefits from rural to metropolitican districts
rural congressional representation decrease, urban congressional representation increase
policy consequence-reallocation of money; transportation increase
What is the defining difference between presidential and parliamentary systems?
-presidential-independently elected by electors for a set term (independent chief of gov exec)
-parliamentary-chosen by legislature that can fire and kick people out of office-the president serves the purposes and desires and interests of the legislative branch
Why did James Madison think a bill of rights was unnecessary and undesireable?
-congress had no power to violate rights-list of rights would disparage other rights not listed (fixed by 9th amendment)
-thought it was unnecessary because the federal gov's powers were already enumerated, he though thought it was undesirable because people may feel that those in the Bill of Rights were their only rights, when really there are others
What problem compelled Madison to write a bill of rights anyways?
-the people demanded it and the opposition (anti-feds) wouldn't ratify the constitution w/o one
-the dispute between the large states and the small states over whether there should be a constitution compelled him to write a bill of rights to please the large states and get them to agree to ratify the Constitution
According to the 12th Amendment, by whom is the president chosen when a majority of them agree on one choice?
electoral college (electors)
and how is pres chosen in other cases? (majority doesn't agree on one choice)
house of reps chooses
Which court case let candidates spend as much as they wished on their own election campaigns
Buckley v Valeo
And which case allowed unlimited spending on political advocacy by corporations and unions
-often referred to as citizens united
-citizens united vs Fec (Federal Election Commission)
Explain comity (Article IV)
-states need to get along and respect each other's laws; must also return criminals (slaves) previously
-each state recognized legal rights of other states
-refers to interstate comity-makes it a law for states to respect each other's laws-ex: report escaped prisoners
What problem did the Northwest Ordinance solve, and how?
-broke Virginia up into smaller states; solved the problem of larger states threats to dominate over the smaller ones
How have Constitutional amendments always been proposed? and how have they been ratified
2/3 majority of congress-both senate and house
3/4 majority of state legislatures
Briefly (in a short phrase) describe the contents of the 4th amendment
no unreasonable search and seizures
Briefly (in a short phrase) describe the contents of the 10th amendment
any rights not explicitly states in the constitution go directly to the states and people
Briefly (in a short phrase) describe the contents of the 19th amendment
Briefly (in a short phrase) describe the contents of the 26th amendment
18 year olds can vote
What Constitutional principle is attributable to Marbury vs Madison? The principle is called ______, and this means _____. Who wrote this?
Explain his dilemma and strategic decision, using either a narrative of a diagram
-the supreme court has the ability to review laws enacted by the legislature and declare them unconstitutional
-Justice John Marshall
-He had to serve the interests of both the branches of gov (more-diagram??)
Despite the constitutional checks that each branch of gov has on others, our system is supposed to be one of separated powers? what does that mean?
-no person or officer of a branch of gov can serve at the pleasure of another person or branch of gov
-overlap between branches, but the way they differentiate is by not serving in the pleasure of others
-no gov official can serve in more than 1 branch
cases that can be seen on appeal/cases which the court can hear appeals
cases that cross sovereign bounds (i.e. between 2 different states)
Give 2 examples of Constitutional features attributable to background problems
-Congress cannot tax states directly
-Congress can't set up a national army and therefore the nation is left unprotected
Give 2 examples of features attributable to familiar practice
1. separation of powers in gov
2. common law=judgment made law
or, bicameral legislature, or VP is pres of senate
What was the chief difference between the Virginia and New Jersey plans? How was it solved?
-VA: representation based on population size of state
-NJ: proposed that each state gets equal representation
-1 house based on population (house of reps) and 1 house that has equal number of seats regardless of state size (senate)-each state having 2 senators
A river separates 2 US states. Each must decide whether to allow or to forbid access to its ports by the other state's boats. What kind of game are they most likely engaged in ?What does Gibbons/Ogden say about such cases?
-draw table-allow forbid on each side for each state-2nd best for both on 2 boxes and worst/best in other boxes
-congress has the power to regulate interstate commerce