Chapter 1. The Political Landscape
In the days of the American republic, the only people allowed to participate in ‘democracy’:
- White men
- Over the age of 25
We can contrast this with today when “people” now includes virtually the entire adult population regardless of race, gender, religion, or other socioeconomic indicators.
Change is a constant in the United States. In the past, Americans felt the government was helping them.
- After World War II, the government helped war veterans buy houses through the Veteran’s Administration (V.A. mortgage loans), and they went to school on the GI Bill.
- During the 1990s, many Americans saw the government as a hindrance to the American Dream, not as a helper.
- Following September 11th, Americans felt a surge of patriotism, however many feel an underlying apprehension about how well the United States lives up to the constitutional promises of a perfect union, justice and attaining the blessings of liberty.
The Roots of American Government
Hobbes and Locke
- Both Hobbes and Locke wrote about social contracts. Each had a differing view of the social contract.
- Hobbes believed strong government was necessary to restrain man, and men must give up certain rights to a government
- Locke argued that men formed governments in order to preserve property and justice. If governments fail to do this, the people have a right to revolt since the government has broken the contract.
The Founding Fathers looked to Hobbes and Locke as how to built a government.
Devising a National Government
At the time of the founding, several forms of government exist:
- Monarchy - A form of government in which power in held by hereditary kings and queens based on the ‘divine right to rule’.
- Oligarchy - Power in the hands of the few and conditioned on the possession of wealth, social status, military position, or achievement.
- Aristocracy - A system of government in which control is based on rule of the few.
Theory of Democratic Government
The origins of democratic theory lie in ancient Greek political thought.
Direct Democracy – A system of government in which all members of the public meet to discuss policy decisions and vote on them.
Indirect Democracy – A system of govern that gives citizens the opportunity to vote for representatives who
Republic – A government rooted in consent of the governed.
The first representative assembly in the New World was the Virginia House of Burgesses, created in 1619.
Why a Capitalist System?
The nature of the economic system was of concern to the colonists.
- How much government intervention, if any, should be allowed?
- Could the government limit one’s individual liberties in pursuit of the common good.
The American economy is characterized by private ownership of property and a free market economy.
This form of economic system is called capitalism – a form of economic system that favors private control of business and minimal government regulation.
In 1776, the dominant economic form was mercantilism.
- Mercantilism – an economic system in which the state controls trade and profit for the good of the state or managed trade.
e.g. British East India Company and Dutch East India Company
The idea of “free trade” without the tariffs of mercantilism was unheard of. Countries considered it advantageous to their economic position to have and maintain monopolies. As a newcomer, the United States sought to change the rules of the game.
Other Economic Systems
- Democracy – a system of government that gives power to the people, whether directly or through their elected representatives.
- Authoritarianism – rule by an individual whose claim to sole power is supported by subordinates who sustain control of the system by carrying out the ruler’s orders and by a public that is unwilling or unable to rebel against that control.
- Fascism – A political system that professes sympathy toward many aspects of private capitalism and would resolve conflict between management and labor by using the government to enforce labor relations to ensure full employment and high productivity.
- Libertarianism – Opposes all government action except that which is necessary to protect life and property.
Characteristics of American Democracy (List on board and discuss meaning)
Popular Consent – The idea that governments must draw their powers from the consent of the governed.
Popular Sovereignty – The right of the majority to govern themselves.
Majority Rule – The central premise of direct democracy in which only policies that garner the support of the majority.
Equality – A philosophic disposition toward greater political and social equality of the citizens within a nation.
Personal Liberty – Initially meaning freedom governmental interference.
Civil Society – Society created when citizens are allowed to organize and express their views publicly
The Changing Political Culture and Characteristics
Changing Size and Population
1790s – Population fewer than 4 million in 13 states
1990s – Population of over 270 million in 50 states, plus territories, commonwealths and dependencies.
Changes in Racial and Ethnic Distribution
- During colonial times, most colonists came from Anglo-Saxon northern Europe and shared a Protestant Christian heritage.
- Slaves came from Africa and the Caribbean but had no rights.
- Laborers and indentured servants came from Asia but had no rights.
- Immigration peaked in the early 1900s and again during the 1980s.
1900s – Immigrants came from northern and eastern Europe
1980s – Immigrants came from mostly Asia.
Changes in Age Cohort
- America is getting ‘grayer’ as we live longer.
The Ideology of the American Public
Conservative Liberal Libertarians
States rights Strong federal role Free market economic
Fiscal responsibility Promote minority rights Personal Privacy
Maintain social order Limited Government
Labels are often misleading as most people have conflicting views.
Popular Culture and Views of Government
Most people get their views about government from the electronic media.
Debate Topics (4 groups of 6)
- Campaign Finance
Has campaign finance led to small economic groups dominating politics?
- Foreign Policy
Should the U.S. pursue a strategy of isolationism or multi-lateralism?
- Patriot Act
Does the Patriot Act need to be modified?
Should the U.S. restrict immigration? Or legalize ‘illegal aliens’?
Should Roe v. Wade be repealed?
Tax cuts vs. a flat tax
Is globalization good?
- Death Penalty
Should the death penalty be abolished?
Chapter 2. The Constitution
The Origins of a New Nation
Colonists came to the New World during the 1600s for a variety of reasons including to escape religious persecution, to find plentiful land, and to seek a new start in life.
King James I actually ended up encouraging their independence by allowing the colonists to establish colonial assemblies such as the Virginia House of Burgesses.
- The Colonists were allowed significant liberties in terms of self=government, religious practices, and economic organization.
By the mid 1700s, ties to the Crown had weakened substantially due to distance and new traditions.
- Each of the 13 colonies had its own constitution and liked its freedoms.
Trade and Taxation
England tried to control and regulate trade in the American colonies but the regulations were often difficult to enforce and colonist tended to ignore or circumvent them.
The French and Indian War (Seven Years War) fought from 1756 to 1763 brought about more English oversight and tougher laws on trade.
- The Treaty of Paris that ended the war left the British in control of most of North America.
- The Colonists thought the victory would give them access to new land – but were disappointed when the crown decreed in 1763 that there would be no further westward expansion.
The British Parliament sought ways to pay for the war that the colonists thought infringed on their rights.
- The Sugar Act of 1764 taxed sugar, wine, coffee and other products that were commonly exported by the colonies.
- The colonists responded with “no taxation without representation”.
First Steps toward Independence
- The “Sons of Liberty” started a boycott that eventually led to the British sending troops.
- Despite the resistance, Parliament passed another tax on tea in 1773 granting a monopoly to the East India Company.
- The colonists responded by dumping tea into Boston Harbor in the “Boston Tea Party.”
The Stamp Act Congress in 1765 was the first step toward a unified country.
- 9 of the 13 colonies attended the meeting in New York and drew up detailed list of violations that the Crown committed against their rights
- In 1767, British Parliament enacted the Townshend Acts that imposed duties (taxes) on many products including tea.
- Despite resistance
First Continental Congress
The First Continental Congress met in Philadelphia in September and October of 1774 and consisted of 56 delegates from every colony except Georgia. Their intent was to find a solution to the problem and were open to compromise.
- They called for colonial rights of petition and assembly, trial by peers, freedom from a standing army and the selection of representative council to levy taxes.
- If the King did not agree, the Congress meet again in May 1775.
Second Continental Congress
King George refused to meet the demands of the First Continental Congress. A second was called for May 1775, but fighting broke out before it could meet
The Declaration of Independence
Virginia was the first colony to call for independence. 6 of the 13 colonies instructed their delegates to vote for independence at the Second Continental Congress.
- On July 2, all of the colonies voted for independence except for New York
- On July 4, Congress adopted the Declaration of Independence.
A Theoretical Basis for a New Government
The primary author of the Declaration of Independence was Thomas Jefferson. He drew heavily on the work of John Locke.
The First Attempt at Government: The Articles of Confederation
Britain did not (and does not) have a written constitution. The colonists wanted a constitution – a document to define rights and obligations plus put limits on the government.
At first, the colonists created a loose league of friendship under the “Articles of Confederation”.
Key provisions under the Articles include:
- A national government and national legislature (Congress).
- Congress had the power to:
- Coin money
- Appoint officers to the military
- Run the post office
- Negotiate treaties with Indian nations
Problems under the Articles of Confederation:
Under the Articles, states retained independence and sovereignty – further limiting government power was the fact that 9 of 13 states were needed to pass any measure and unanimity was required to amend the Articles.
Weaknesses of the Articles of Confederations:
Weak Central Government
- No power to tax
- No power to regulate commerce among states or foreign nations
- No ability to ensure the value of money
- No power to regulate duties and tariffs
- No power to implement of enforce laws
- No one to coordinate foreign policy
- Disputes between states about borders could not be addresses
- No one to moderate trade disputes
There were 74 delegates who were selected for the convention. 54 were in Philadelphia and referred to as the “Founding Fathers”
The Virginia and New Jersey Plans
There were many conflicts
Virginia New Jersey Connecticut
Legislature Bicameral Unicameral Bicameral
Representation By population Equal by state lower: Pop
Executive Size undetermined Multiple Single exec
Judiciary Life tenure No power over state Jurisdiction over
Able to veto state leg interstate conflict
Ratification By the people By the states Nominating Conv
The U.S. Constitution
The Basic Principles
A unitary government was unacceptable due to the British experience and confederation had failed under the Articles – so the Founding Fathers created something in between, something they called ‘Federalism’. Under federalism, power is divided among the states and the national government.
Separation of Powers
The Framers feared government and wanted to limit it, so they didn’t want to put too much power into one set of hands. So they divided power vertically and horizontally through separation of powers among the three branches of government. Each branch would be independent and equal with different staffs and functions.
Checks and Balances
The power of each branch of government is checked or limited and balanced by powers held by other branches of government. This way no one branch can tyrannize the other branches or the people.
The Supremacy Clause
Article IV says that federal law is supreme. So if the states and federal government are in conflict, the feds win. This was designed to avoid many of the excesses under the Articles of Confederation.
Formal Methods of Amending the Constitution
The first ten amendments – now known as the Bill of Rights – were ratified by ¾ of the states in 1791.
- The Bill of Rights offers individuals specific protections of personal rights and liberties such as free speech, free press, religious liberty, and procedural safeguards for those accused of crimes.
- Article V creates a 2-stage process for amending the Constitution: proposal and ratification. Amendments can be proposed:
I. 2/3 of both houses of Congress or 2/3 of state legislatures requesting Congress to call a national convention to propose amendments.
II. An amendment can be ratified by a favorable vote in ¾ of all state legislatures or by such a vote called ratifying conventions.
Informal Methods of Amending the Constitution
The formal amendment process is slow and cumbersome to deliberately ensure that any additions to the Constitution are serious and thoughtful, not frivolous. The Constitution, also changes informally through judicial interpretation and through cultural and social interpretation.
The first informal ‘amendment’ to the Constitution my have been John Marshall’s interpretation of the Constitution granted the Supreme Court the power of Judicial Review.
Social and cultural changes have stimulated some of the Court interpretations and have influenced how Congress and the executive branch read the Constitution. Not so many years ago, ‘we the people’ excluded blacks, women, the poor and others.
Chapter 3. Federalism
The Roots of the Federal System
The Framers worked to create a political system that was halfway between the failed confederation of the Articles of Confederation and the unitary system of Great Britain.
They established a system known as federalism – although it is never called by that in the Constitution. Federalism is based on the sovereignty of the people who delegate power to both the central and state governments. The national government and the state governments were to have certain powers in common, their own set of officials and each government was to be supreme in some spheres.
Federalism: a political system in which power is divided and shared between the national/central government and the states in order to limit the power of government.
The 3 major arguments for federalism are the:
- Prevention of tyranny;
- Provision for increased participation in politics;
- And the use of states as testing grounds or laboratories for new policies and programs.
The Powers of Government in the Federal System
The distribution of powers in the federal system consists several parts:
- Exclusive powers
- Shared powers
- Denied powers
o Article I, Section 9 lists the powers denied to the central government
o Article I, Section 10 lists the powers denied to the states
- Enumerated powers
- Implied powers – are listed in Article I, section 8:
Since the Framers were acting in reaction to their previous bad experiences, they offered an extensive list of powers for the newly created federal government to prevent the problems that had been inherent in the articles
The enumerated powers of the central government listed in Article I, section 8:
Exclusive powers to central government
- lay and collect taxes and duties
- provide for the common defense and general welfare of the U.S.
- borrow money on credit
- regulate commerce with foreign nations, and among the states and with Indian tribes
- coin money and regulate the value thereof
- establish post offices
- award copyrights and patents
- establish courts inferior to the Supreme Court
- punish piracy and felonies on the high seas and offenses against laws of nations.
- declare war
- raise and support armies but with no appropriation of money to that use for longer than 2 years
- provide and maintain a navy
- make rules to regulate land and naval forces
- call the militia to suppress insurrections and rebellions
Implied Powers of the central government
- make all laws which shall be necessary and proper for carrying into execution the foregoing powers.
Article I, Section 8 or the “necessary and proper clause has often been used to expand the powers of the national government.
States powers were taken for granted. They were not thought to need articulation – which was a mistake as there has been constant battle between the federal and state governments.
The states are granted some powers in the Constitution. They are:
- to determine the times, places and manners for holding elections for senators and representatives.
State’s rights exist elsewhere in the Constitution. In Article II, states have the right to appoint electors to vote for president. But most of their powers come from the 10th Amendment that says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Guarantees to the States
The states also receive guarantees in the Constitution:
- Article I guarantees each state 2 members in the U.S. Senate and at least 1 representative in the House
- Article I guarantees that slavery will not be prohibited prior to 1808
- Article IV guarantees the citizens of each state the privileges and immunities of citizens of all other states.
- Article IV guarantees a republican form of government
- Article IV guarantees that the central government will protect them against foreign attacks and domestic rebellion.
Relations among the States
The Constitution was designed to make America more united or in other words, to improve relations among states. One way the Constitution provides for better relations among states is by designating the Supreme Court as the arbiter of these disputes.
- Under the Court’s original jurisdiction, disputes between states are argued in and decided by the Supreme Court
o Article IV requires states to give “full faith and credit” to each others laws – this ensures that judicial decrees and contracts are legal and binding in other states.
o In 1997, the Supreme Court ruled that “full faith and credit” clause mandates that state courts must honor the judgments of other state courts, even if it against public policy or state law
The Evolution and Development of Federalism
Federalism had never been tried before. Like most experiments it is basically a series of compromises and often vague. The positive aspect of the vagueness is it flexible and evolves and changes over time.
McCulloch v. Maryland (1819)
The first major decision by the Supreme Court to define the states relationship with the Federal government. The ruling established that:
- the United States could charter a bank
- Maryland could not tax a federal bank
Shortly after McCulloch, the Supreme Court had another opportunity to define the scope of national power.
Gibbons v. Ogden (1824)
In Gibbons, the court ruled that interstate commerce includes more than simply dealing with products. It also includes commercial activity.
The Sixteenth and Seventeenth Amendments
The Constitution made no provisions for a national income tax. When the United States entered World War I, the government recognized the need for a method to fund the war effort. The result was the Sixteenth Amendment that gave Congress the power to levy and collect taxes.
The Seventeenth Amendment also increased federal power. It removed the right to appoint senators from state legislators and put it in the hands of the electorate.
The civil rights era had a profound impact on the distribution of powers between the national and state governments. Most of the blatant discrimination based on race was occurring at the state level. Federal programs began to withhold funds from discriminatory programs and states.
- The federal government would intervene with National Guard troops and the Federal Election Commission to guarantee equal treatment.
The Reagan Revolution
Ronald Reagan was elected on a pledge to return power to the states. Federal aid to state and local governments declined for the first time in decades. Instead, the Reagan administration chose to give states block grants to states for specific activities.
The Devolution Revolution
Despite the many changes during the Reagan administration, the national government still had for more power than the states. Many state governors began to campaign against national power and for more states’ rights. In the 1980s and 1990s, public opinion shifted and people began to think that the national government was too big, too strong, and too distant to understand their concerns.
The Supreme Court has been handing power back to the States – not allowing additional federal powers at the expense of state powers
- Webster v Reproductive Health Services (1989) and Casey v. Planned Parenthood of Southeastern Pennsylvania (1992) gave states increased latitude to make more restrictive laws on abortion
Chapter 4. State and Local Government
The Evolution of State and Local Governments
Governance in the United States is by multiple authorities. Sometimes they work together – other times they don’t.
As we have discussed before, the 13 colonial governments became states tied together under a loose confederation under the Articles. The federal bargain formed at the Constitutional Convention was between the national and state governments. In this lecture, I want to talk about the relations between state and local governments.
States create and determine the powers of local governments in our system. The states established and controlled localities and were the building blocks of the federal system.
Traditionally, states and local governments met on a part-time basis, but as the responsibilities and challenges of governments grew, many became full time.
- As the United States has become more urban and industrial – pressures grew on government to function on a full time basis.
- Early state legislatures were controlled by rural interests and often were uninterested in change – giving low priority to changing needs of urban areas.
In 1962, the Supreme Court forced states to redistrict and become more representative of the state’s population.
- In Baker v. Carr the Court applied the 14th Amendment’s Equal Protection to voters. The ruling of ‘one man, one vote’ requited that legislatures redistrict so that all districts have an equal number of constituents.
During the 1960s and 1970s, the national added to the responsibilities of the state and local governments.
- Federal programs to fight poverty, promote urban renewal and protect the environment were to be administered at the state and local level.
By the 1990s, state and local governments were increasingly important. States, cities and local governments were taking initiative by establishing ties with each other and with other countries to spur economic growth. Governors were now national actors.
Under George W. Bush, results have been mixed. After September 11, 2001, the federal government expanded its role in domestic security, something that had been previously reserved to states.
Grassroots Power and Politics
State politics, and particularly local politics are often more personal and issue-oriented than national politics.
In addition, many of the elections at the lower level are nonpartisan. Access and approaches to public officials is direct.
- Councilmen and women get phone call complaining about issues as:
- barking dogs
- potholes in streets
Local news media also have a significant have a significant impact on issues and agendas. They can define and highlight events and have more influence due to the personal nature of the reporting.
Ad-hoc, issue specific organizations are also more prevalent at the state and local levels as like-minded groups of citizens get together advocate for a single-specific issue.
- A good example of this would be the opponents of the light-rail extension in Rainier Valley.
Once the issue has been solved, the group usually disbands.
The primary responsibilities of state governments are
- public health
- economic development
- criminal justice
- licensing and regulation of professions
o doctors, lawyers, barbers
Additionally, states have become more active in welfare and environmental issues both on their own and as administrators of national programs.
State constitutions were generally written limiting the powers of government. Many of the constitutions were written and adopted prior to the Philadelphia convention in 1787 and included the bill of rights – protections for basic individual liberties.
The issues of slavery and the Civil War complicated state constitutions in the South. After the Civil War, the states of the South were forced to adopt new constitutions acceptable to the victorious North. These constitutions gave significant powers to former slaves and disenfranchised the traditional landholding elites – thus rending the documents unrealistic. Following Reconstruction, these states adopted constitutions reflecting white distrust of power and provided for weak governments.
Western states also chose weak governments – in response to the corrupt political machines prevalent in the Northeast (i.e. New York’s Tammany Hall) and Midwest.
Governors are the chief executive officers of the states.
- They have booth ceremonial roles and policymaking roles.
- Governors are usually responsible for establishing the agenda in their states.
o This usually begins with their election campaign and continues through their term
- Governors also veto authority and executive responsibilities.
o 43 governors have a line-item veto on spending and tax issues
o All governors except NC have a general veto power that allows him/her to reject an entire bill.
Governors have significant impact on state bureaucracies through their appointment powers.
- Some states limit the power of their governor by limiting his/her ability to appoint officials.
- State judges are appointed by governors.
- Governors also have the power to pardon someone who has been convicted of a crime.
o They can commute sentences, grant parole, and extradite individuals
All states except Nebraska have bicameral legislatures – that is made up of a upper house and lower house.
- Typically, the upper house is called the Senate, while the lower is called the House or Assembly.
- In general, the terms of office for the are for 4 years in the upper house and 2 years for the lower house.
- By 1999, 20 states had introduced legislation that enacted term limits.
State limits are still primarily part-time, citizen bodies, which on average has a 25% turnover in each election.
Few envision careers as state legislators – it is often a stepping stone for higher office.
The primary function of courts is to settle disputes and most disputes are matters of state, not federal laws.
Criminal behavior, family law, contracts, land use are all issues for state law and state courts.
State courts operate under different rules than federal courts and have their own appeals process. Most state court systems rely on full-time, qualified judges and multiple levels.
District Court –> Appellate Court –> Supreme Court
Many specialized state courts do not use juries. A judge hears the case and decides, Appellate courts have panels of judges. Most states have a court of appeals in which appeals are heard and a higher appellate court and a supreme court.
State court judges are usually elected to the bench for a specific term.
- 16 states have partisan elections
- 16 states have nonpartisan elections
- 6 states use gubernatorial appointments
- The rest use the Missouri Plan where the governor selects from a list prepared by an independent panel.
Almost all contests for state offices are partisan. Parties function differently in different states. In some states there is little competition between the parties, while in other states it is highly competitive
State campaigns are primarily centered on individuals – but since the voters usually get to meet candidates face-to-face, the individual candidate assumes more importance than party label.
Ballots almost always include initiatives and referenda as well as the names of the candidates.
- Initiatives – the ability of citizens to pass laws and circumvent the legislature exits in 19 states – including Washington.
o Direct initiatives do not allow for debate, deliberation and amendment and can be passed by public opinion.
o Indirect initiatives allow for debate, deliberation and amendment. Legislatures consider the issue first and the bill becomes law only if approved by voters.
o Voters in 24 states have the option to veto some bills – while the governor has no role.
Initiatives can be set aside by courts because they violate state constitution or the Constitution of the U.S.
Local governments are more personal than state governments. Elected officials are often friends, neighbors, and acquaintances living in the community they serve. Most of the officials serve part-time. The responsibilities of local government include:
- Public health
- Economic vitality
- Zoning and land use
- Assistance to those in need
There are many types of local government. Almost all are created by state governments – and derive their powers from the state.
Charters describe the institutions of government, the decision-making process and the scope of issues and services that fall within their jurisdiction.
There are 5 basic types of charters:
- Special Charters. Most state
Types of Local Government
There are 87,000 local governments. They include:
o Counties generally have broad responsibilities such as administering welfare, environmental programs, courts
- Special Districts
o The most numerous type of government today includes school districts, park and water districts. Some are elected, others are appointed.
Executives and Legislatures
Most local governments have some of all of the following:
- Elected executive. Mayor, village president, county executive.
- Elected council or commission. City council, school board.
- Appointed manager. City manager or school superintendent.
Many local governments combine executive and legislative functions. They first make the policies and then implement them.
The most common form of government in mid-sized cities is an appointed professional manager with an elected city council. Large cities tend to have mayors and councils that are both elected.
Unlike the federal government, states and local governments must balance their budgets, yet they are affected by:
- The health of the economy
- Federal government policies
State and local governments depend on different taxes and fees for revenue:
- States rely primarily on income and sales taxes.
- Local governments tend to rely on property taxes and some sales tax income.
In addition, state and local governments receive:
- State governments receive as much as 25% of their funds from the federal budget.
- Local governments receive 15% of their budgets
Relations with Indian Nations
Treaties between the national government and Indian nations directly affect 34 states. Most of these states are in the West, but New York, Michigan, Florida, Connecticut, and Wisconsin are also affected.
The national government has ceded authority to the states, except for several specific areas such as gaming and criminal behavior. The Indian Gaming Act of 1988 gave states limited authority to negotiate compacts with Indian tribes over casino gambling.
The two most important features of federal-tribal relations for state and local governments are land rights and treaty provisions for hunting, fishing and gathering
- Tribal lands, called reservations or land trusts are not subject to taxation or regulation by state government.
- Treaty provisions also grant tribes the right to hunt, fish and gather wild rice and berries on their own and public lands and waterways they once owned.
Chapter 5. Civil Liberties
Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation. Thus, they place limitations on the power of government to restrain or dictate how individuals act. There is often a conflict between individuals or groups attempting to exercise rights and government seeking to control the exercise of some rights in the interests of the rights of others and to keep order. The courts decide how to balance these different interests.
The First Constitutional Amendments: The Bill of Rights
In 1787, most state constitutions had explicit protections for personal liberties and rights.
The Bill of Rights consists of the first ten amendments to the Constitution and includes specific guarantees such as free speech, free press, and freedom of religion.
First Amendment Guarantees: Freedom of Religion
The colonists had an intense dislike and distrust of established, official religion. Many of the colonists had come to the New World to avoid religious persecution and wanted to avoid the same problems in their new country.
- The First Amendment has 2 clauses that guarantee religious freedoms:
- the Establishment clause
- the Free Exercise clause
These rights, like all of the rights in the Bill of Rights are a matter of balance and are not absolute.
The Establishment Clause
The Establishment Clause prohibits government from establishing a national religion.
Thomas Jefferson referred to this as a ‘wall of separation’ between church and state. Yet, the Court has interpreted this clause in a variety of ways.
The key issue seems to be: How high is the wall of separation?
Engle v. Vitale (1962) – the court ruled that a 22 word non-denominational prayer drafted by the school board was unconstitutional.
Finding the balance between church and state has been difficult and there have been a number of efforts by the Court to come up with a workable way to deal with these issues.
In Lemon v. Kurtzman (1971), the Court heard a case challenging direct state aid to pay teacher salaries in private schools. They devised the Lemon Test that a law or practice must pass to be deemed constitutional. To be constitutional, a law must:
1) have a secular purpose;
2) have a primary effect that neither advances nor prohibits religion; and
3) not foster excessive government entanglement with religion
The Free Exercise Clause
“Congress shall make no law … prohibiting the free exercise thereof (religion)” is designed to prevent the government from interfering with the practice of religion. This freedom is not absolute. Several religious practices have been ruled unconstitutional including:
- snake handling
- use of illegal drugs
Practices by fringe or unpopular religious groups are most likely to be banned. In general, when secular law conflicts with religious practice, the free exercise of religion is often denied.
First Amendment Guarantees: Freedom of Speech and Press
A democracy depends on a free exchange of ideas and the First Amendment is designed to protect such exchanges. The Constitutional clause that “Congress shall make no law … abridging the freedom of speech, or of the press has not been interpreted as an absolute ban on government regulation.
Attempts to Limit Speech
According to the Supreme Court, the First Amendment did not protect obscenity, libel, lewdness or fighting words.
The Alien and Sedition Acts
The Alien and Sedition Acts were passed in 1798 to ban any political criticism. The Acts made criticism of government a criminal offense.
- 10 people were convicted before the expiration of the government
- Fines were levied.
Slavery, the Civil War and Rights Curtailment
The public outcry over the Alien and Sedition Acts forced the government out of curtailing speech for awhile. Some states made disseminating positive information about slavery a punishable offense in the North and in the South anti-slavery rhetoric was made unlawful;
During the Civil War, Lincoln suspended the free press and arrested editors critical of him. The Congress changed the jurisdiction of the Supreme Court to prevent a ruling on Lincoln’s actions during the war.
The next national effort to restrict speech occurred in 1917 with the passage of the Espionage Act. Nearly 2,000 Americans were convicted under its provisions.
- Schenck v U.S. – the Court ruled that distributing leaflets opposing the draft were unconstitutional during time of war because it posed a ‘clear and present danger’
In 1969,, the Court devised another test called the ‘direct incitement’ test – stating the advocacy of illegal action can only be abridged if there is a likelihood of imminent harm.
Libel and Slander
Libel – is a written statement defames the character of a person
Slander – is a spoken defamation
False and libelous statements are not restrained by the courts but they can be actionable after the fact. In the U.S., the standards pf proof for libel are quite high.
Obscenity and Pornography
In general, obscenity and pornography are not protected speech. The problem comes with defining obscenity and pornography. The Court has issued a number of rulings, including:
- Roth v. U.S. (1957) – the Court defines obscenity and pornography as: utterly without redeeming social value and if applying contemporary community standards wholly appeals to the prurient interest
- Miller v. California (1973) – the Court defines obscenity and pornography as: patently offensive sexual conduct and lacking serious literary, artistic, political or scientific value (the LAPS test). Miller also set out that community standards were local and not national.
Congress and Obscenity
In recent years Congress has taken on 2 high profile issues related to obscenity:
- federal funding for the arts
- Internet pornography
The Court agreed with Congress that decency could be used in decisions on funding the arts but has yet rule on limiting internet pornography – even when the protections are aimed at minors.
What Types of Speech are Protected?
Symbolic Speech – symbols, signs and other methods of expression. The Court has upheld as constitutional a number of actions including:
- flying a communist red flag
- wearing black armbands to protest the Vietnam war
- burning the American flag
Prior Restraint – the Court rarely allows prior restraint.
- New York Times v. U.S. (1971) – the Court ruled that the publication of the top secret Pentagon Papers could not be blocked.
Hate Speech, Unpopular Speech and Speech Zones
A relatively recent development. Many groups that used to champion free speech now wish to suppress hateful speech. Campus speech codes, city ordinances and the Communications Decency Act are just a few examples.
- In 2002, the Court ruled that there was no symbolic speech in cross burning – it was hate speech designed to terrorize and not protected speech under the Constitution.
- Since 9/11, several commentators have lost there jobs after they criticized the President or U.S. foreign policy.
- Professors have been threatened or censored by university administrators.
The Second Amendment: The Right to Keep and Bear Arms
The 2nd Amendment states “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
This amendment has been hotly contested in recent years particularly since the 1999 shootings at Columbine High School.
- In response to organized crime, Congress passed the National Firearms Act in 1934
- In U.S. v. Miller (1939) the Supreme Court upheld the law
The Rights of Criminal Defendants
Due process rights are addressed in the 4th, 5th, 6th and 8th amendments and their procedural guarantees. These rights have been under attack in recent years due to a strong movement in favor of ‘victim’s rights’ plus society has favored ‘law and order’ issues in recent years.
The Fourth Amendment and Searches and Seizures
The purpose of the 4th Amendment was to deny the national government the power to make general searches such as those used in England against religious and political dissenters in the 17th and 18th centuries.
- The 4th Amendment guarantees “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall be issued, but upon probable cause, supported by oath or affirmation …
The language is still vague but provides some protection. The court has interpreted the 4th Amendment to allow the police to conduct a warrantless search in certain limited circumstances. The police may search, without a warrant:
- the person arrested
- things in plain view of the accused
- places or things that are in immediate control of the accused
- ‘stop and frisk’ individuals under reasonable suspicion
- with consent, no warrant is needed and consent may be given by roommates and other household occupants
- drunk drivers
- open fields
In general, the police may search without a warrant any place that does not have a reasonable expectation of privacy.
Drug testing and DNA sampling have brought a new series of problems.
- In 1989, the Court ruled that mandatory drug and alcohol tests of employees involved in accidents was constitutional.
- In 1995, the Court upheld random drug testing in high school athletes.
- In 2002, the Court ruled that mandatory drug testing of all high school participated in extracurricular activities was constitutional.
- Recently, the Court has allowed the taking of DNA samples from convicted felons without permission or consent.
The Fifth Amendment and Self Incrimination
The 5th Amendment states that “No person shall be … compelled in any criminal case to be a witness against himself.” In other words criminals cannot be required to take the stand in a trial nor can their failure to do so be construed as guilt.
Use of Voluntary Confessions
In 1966, the Supreme Court ruled that ‘voluntary’ confessions had not always been voluntary so they set standards for determining if a confession had been coerced or was truly voluntary.
- Miranda v. Arizona – the defendant was questioned for hours until he confessed and was never informed of his right to an attorney.
- The Court overturned his conviction saying that confession had been coerced.
- Miranda warning provides guidelines to the police
The Fourth and Fifth Amendments and the Exclusionary Rule
- Weeks v. United States (1914) – the Supreme Court adopted the Exclusionary Rule that bars the admission of illegally obtained evidence at trial.
So the Exclusionary Rule is a judicially created remedy to deter police from violating the 4th and 5th amendment rights of suspects.
In recent years, Congress and the Supreme Court have chipped away at the Exclusionary Rule.
- Today, there are a number of ‘good faith exceptions’ allowing the use of tainted evidence – simple errors on warrants no longer invalidate a search.
The Sixth Amendment and Right to Counsel
The 6th Amendment guarantees a right to counsel. In the past, this meant that suspects could hire an attorney. Since most of the accused are poor -- they often did not have counsel.
- Congress required federal courts to provide attorneys for indigent suspects.
- In 1932, the Supreme Court ruled that free lawyers must be provided in death penalty cases
- Gideon v. Wainwright (1963) – Gideon was a poor man accused of a crime and denied a lawyer. The Court held that the due process of the 14th Amendment requires that persons brought to trial in state courts on felony charges are entitled to have a court a court-appointed lawyer if they cannot afford to pay for one on their own.
The Sixth Amendment and Jury Trials
The 6th Amendment provides for a speedy and public trial by an impartial jury. The Supreme Court ruled that jury trials must be available if a prison sentence of six months or more if possible.
- The definition of ‘impartial jury’ has changed dramatically over the years -- no group can be systematically excluded from serving as women and African-Americans once were.
- The Supreme Court also ruled that lawyers cannot choose a jury on the basis of gender as it violates the Equal Protection Clause.
The right to confront witnesses is also a part of the 6th Amendment.
- In 1990 – the Court ruled that this was not an absolute right.
The Eighth Amendment and Cruel and Unusual Punishment
The 8th Amendment prohibits cruel and unusual punishment and is often used in arguing death penalty cases. The Supreme Court has changed its mind on the death penalty several times and currently is considered constitutional. Currently, 38 states allow the death penalty.
- Furman v. Georgia (1972) – the Court ruled that the death penalty constituted unconstitutional cruel and unusual punishment when it was imposed in an arbitrary manner.
- Gregg v. Georgia (1976) – Georgia rewrote their death penalty statute, and the new statute was ruled constitutional.
- McKlesky v. Kemp (1987 – the Court ruled that the death penalty – even when it appeared to discriminate against African-Americans – did not violate the equal protection clause
- McKlesky v. Zant (1991) – the Court made it more difficult for death row inmates to file repeated appeals.
In 2002, the Supreme Court ruled that mentally retarded convicts could not be executed because that violated the 8th Amendment. This reversed a 1989 decision and invalidated the laws of 20 states.
The Right to Privacy
In contrast the previously discussed rights, we now move on to rights that have not been enumerated in the Bill of Rights – specifically, the right to privacy which is not specifically mentioned in the Constitution although the Founding Fathers expected government interference.
- The right to freedom of religion implies a right to exercise private, personal beliefs.
- The protection against unreasonable searches and seizures implies that persons should be secure and private in their homes.
Access to birth control has not always been an issue. In particular, Connecticut had a law in the 1960s prohibiting the dissemination of information about and/or the sale of contraceptives.
- In Griswold v. Connecticut (1965) the Court ruled that the 1st, 3rd, 4th, 5th, and 14th Amendments created zones of privacy including a married couple’s right to plan a family.
- Later, the Court expanded the right to birth control to unmarried persons.
In the late 1960s, abortion was legal in some states. Women’s rights advocates wanted a woman’s right to decide about pregnancy and whether she would carry a baby to term to be a fundamental constitutional right.
- In Roe v. Wade (1973) the Court ruled that a Texas law prohibiting abortion violated a woman’s constitutional right to privacy. Furthermore, pregnancy was divided into trimesters.
o In the first trimester, a woman had an absolute right to an abortion.
o In the second trimester, the state’s interest in the health of the mother must be taken into account.
o In the third trimester, the state’s interest in the safety of the fetus outweighed a woman’s right to privacy.
Since Roe, a number of cases on abortion have been decided – in general they have limited abortion rights in some way.
- the Hyde Amendment passed by Congress and upheld by the Supreme Court bans the use of Medicaid funds for poor women’s abortions.
- Webster v. Reproductive Health Services (1989) the Court upheld the fetal viability tests even though they would drastically increase the cost of abortions.
- Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) the Court allowed Pennsylvania to limit abortions as long as they did not pose ‘an undue burden’ on pregnant women and imposed a 24 hour waiting period.
The uncertain status of abortion rights and privacy right underscore the role of politics in civil liberties issues and how changes in the Court, the partisan makeup of Congress and the beliefs of the president play an important role in the changing nature of civil liberties.
The Court has declined to extend privacy rights to protect homosexual acts.
- In Bowers v. Hardwick (1986) the Court upheld a Georgia law against sodomy in a 5-4 decision.
- In 1996, the Court ruled that a state could not deny rights to homosexuals simply on the basis of sexual preference.
Chapter 7. Congress
The Roots of the Legislative Branch
The design of Congress was greatly influenced by the American colonial experiences and by the Articles of Confederation – so we must first look at the historical experience with legislatures.
Under the British, colonial assemblies were chosen as advisory bodies. These assemblies gradually assumed more power and authority in each colony -- gaining the responsibility over taxation and spending. The assemblies dealt with religious issues as well as agricultural issues.
The First Continental Congress was the first truly national legislative body. He Congress had no enforcement power, but advised colonies to establish militias and organized a boycott of British goods.
The Second Continental Congress drafted the Articles of Confederation in 1777 but the states did not ratify the document until 1781.
The Constitution and the Legislative Branch of Government
Article I creates the legislative branch of the government. Congress is a bicameral institution.
- The upper house is called the Senate. Each state receives 2 representatives.
- 30 years old
- Be a U.S. resident for 9 years
- Legal resident of the state they represent
- The lower house is called the House of Representatives and is apportioned by population.
- 25 years old
- Be a U.S. resident for 9 years
- Legal resident of the state they represent
The Senate has a 6 year term with 1/3 of the seats for reelection every 2 years. Originally, senators were chosen by state legislatures – the 17th Amendment provided for the direct election of senators.
The Senate was designed to represent states interests.
The House was designed the interests of the people.
Apportionment and Redistricting
The Constitution requires that all Americans be counted every 10 years by a census. The census then determines the representation in the House of Representatives.
Since the Constitution requires the House to be based on population and a fixed number of seats demands that after each census the House be redistributed as population shifts. Redistricting is done by state legislatures and has political overtones.
Constitutional Powers of Congress
The most important constitutional power of Congress is the power to make laws. The power is shared by the House and Senate. In order to become a law, a bill must be passed by both the House and Senate.
The powers of Congress are set out in Article I, Section 8:
- lay and collect taxes and duties
- declare war
- raise an army and navy
- coin money
- regulate commerce with foreign nations and among states
- establish federal courts and their jurisdiction
- establish bankruptcy rules
- establish rules of immigration and naturalization
- issue patents and copyrights
- borrow money
- define and punish piracy
- provide for a militia
- exercise power over the District of Columbia
- Override a presidential veto with 2/3 vote of both houses
- Make all laws “necessary and proper” to carrying out the foregoing powers.
The last clause is also referred to as the Elastic Clause. It allows Congress’s powers to be expanded beyond the enumerated list. The Supreme Court has often interpreted the “necessary and proper” clause quite broadly.
The House has 435 members and is where:
- all appropriations bills originate in the House
- impeachment proceedings against executive and judicial members occur
The Senate has 100 members and:
- tries impeachment cases
- remove officials with a 2/3 vote
- provides advice and consent on presidential appointments and treaties with a 2/3 vote
The House tends to be more formal, centralized and has stronger leadership.
- The Rules Committee exists only in the House and exercises substantial control over time and rules of debate
- The house is impersonal, more partisan
The Senate is less centralized, less formal and has weaker leadership.
- The has the possibility of filibustering
The Members of Congress
Members of Congress have two constituencies:
- party leaders, colleagues and lobbyists in Washington, DC
- constituents at home in their district of state
Most House members spend a considerable amount of time in their district – keeping in touch with constituents is a key to success and reelections.
A term limits movement began sweeping the nation in the 1980s. The incumbency advantage and dissatisfaction with the status quo fueled the fires of term limits. Voters seemed frustrated with gridlock and ethics problems. By 1998, 23 states had enacted term limit law.
The Representational Role of Members of Congress
There are a number of ways in which an elected official can represent his/her constituents.
- Trustee – representatives use their own best judgment
- Delegate – representatives vote the way their constituents want them to
- Politico – representatives act as trustee or delegate depending on the issue
The question of representation is very complex.
How Congress is Organized
Every two years, a new Congress is seated. The first order of business is the election of leaders and adoption of new rules. Both houses of Congress are organized on the basis of party for both leadership and committee purposes.
The House of Representatives
The Speaker of the House
The Speaker is the only House officer mentioned in the Constitution. The Speaker is elected at the beginning of each new session of Congress by the entire House. The Speaker and all committee chairs are members of the majority party in Congress.
- This is not a rule, but a political fact
- Generally a Speaker serves until he/she leaves the House, chooses to step down, or if his/her party loses the majority
The Speaker presides over the House, oversees House business and is the official spokesperson of the House.
- If the President and Vice President die, the Speaker would become President
Other House Leaders
Other House leaders are elected by their own parties in party caucuses.
Majority leader – second most important person in the House.
Majority whip(s) – maintains contacts and rally support on the floor among the
Minority leader – leader of the minority party
Minority whip(s) – maintains contacts and rally support among minority
The presiding officer of the Senate, according to the Constitution, is the Vice President of the United States. He is not a member of the Senate and can only vote in case of a tie. The official chair of the Senate is the President Pro Tempore who is selected by the majority party and presides in lieu of the V.P.
The Committee System
Most of the work of Congress takes place in committees. Committees are controlled by the majority party and often set the congressional agenda. They are highly specialized and have staffs of their own.
- Most committees also have subcommittees that are even more specialized.
How Members Make Decisions
The people who live and vote back home are an important influence on congressional decision making. It is rare for a legislator to disregard strong wishes of constituents, especially on “hot” issues.
When members must vote on bills beyond their expertise, colleagues who are knowledgeable about such matters often have a lot of influence. On issues that do not concern one’s district or on which there is no clear preference in one’s district, vote trading or logrolling with colleagues often occurs.
Chapter 8. The Presidency
Ever since Watergate, the president has been under intense public and media scrutiny. The relationship between the president and the public has changed and the relationship between the president and the media has changed dramatically. People looked to the president to solve problems even as their respect for the office declined.
For awhile, it seemed as though no one could perform the duties of president to the general satisfaction of the country. Then came September 11, 2001. George W. Bush’s popularity ratings, however, have stayed almost buoyant.
- Has something changed?
The Roots of the Office of President of the United States
As in the case of Congress, historical experience influenced the presidency. The King of England and the royal governors (appointed by the King) were often at odds with elected colonial legislatures and the people. They had the best interests of England at heart. The colonists had different ideas by the mid-1700s. The colonists distrusted both the King and the royal governors so much so that the Articles of Confederation neglected the executive branch to a large degree.
The Constitutional Convention
At the Philadelphia Convention, the Framers worried about how to frame an executive so that the office would be strong enough to govern, but not so strong that it could abuse power. The majority of the Framers agreed that the executive power should be vested in a single person to be called the president.
Qualifications for Office
The Constitution requires that the president must be:
o 35 years old
o 14 years a U.S. resident
o a natural born citizen
Terms of Office
The length of the president’s term was quite controversial. 4, 7, and 11 year terms were suggested at the Convention and several of the Framers suggested a limit of 1 or 2 terms. Hamilton suggested the president should serve for ‘good behavior’. The compromise was a 4-year term eligibility for reelection.
- George Washington, the first president, served two terms and stepped down.
o This pattern became tradition for 150 years.
- FDR ran for, and won, 4 terms – which led to the passage of the 22nd Amendment.
Impeachment and removal are the ultimate check on the office of the president. The House conducts an investigation and drafts Articles of Impeachment for ‘treason, bribery, or high crimes and misdemeanors. The Senate then tries the case with the Chief Justice of the Supreme Court presiding. If 2/3rds of the Senate votes for the Articles, the president is removed from office.
- Only 2 presidents have been impeached: Andrew Johnson and William Clinton
- Neither was removed
Through 2000, 8 presidents have died in office from illness or assassination. The vice president takes office according to the Constitution. If the office of the vice president were vacant, there could be problems. So Congress passed the Presidential Succession Act of 1947 that stated the order of succession after the VP:
- Speaker of the House
- President Pro Tempore of the Senate
- Secretary of State, Treasury, Defense, and other Cabinet heads in order of the creation of their department.
In 1967, the 25th Amendment was added to allow the president to appoint a new VP if the post were vacant.
The Vice President
The vice president’s primary duty is to assume office if the president dies He/she does preside over the Senate and vote in case of a tie. But historically, the office has had little power and little respect.
A vice president has traditionally been chosen for a number of reasons:
- Geographical balance for the electoral ticket
- Political balance to bring the party back together at the convention – as the president and VP are often from different wings of the party and may have run against each other in the primaries.
- Social and cultural balance. VPs can be used to overcome candidate shortcomings.
The Constitutional Powers of the President
In contrast to Article I’s list of powers for Congress, Article II is quite short and details few powers. Distrust of powerful executive is 1 reason for the vagueness in Article II.
The president received certain enumerated powers in the Constitution. The first line of Article II may be the most important grant of power to the president.
It states that “the executive power shall be vested in a President of the United States of America.”
Much like the ‘necessary and proper’ clause for Congress, the executive power clause has been the basis for implied powers or has been an elastic clause allowing the powers of the president to exceed the list of enumerated powers in Article II.
The Appointment Power
The president has the power to appoint ‘ambassadors, public ministers, consuls, judges of the Supreme Court and other officers’ with the advice and consent of the Senate.
- Today, the President makes over 3,000 appointments to his administration.
- If you count military officers, he makes over 75,000 appointments.
Court appointments, to the Supreme Court and federal bench give the president broad influence that lasts beyond his term of office.
Traditionally, the Senate has approved presidential appointments to his Cabinet, an advisory group selected by the president to help him make decisions and execute the laws.
- Until recently, 97% of presidential Cabinet appointments were approved.
- During the Clinton administration, the Republican Senate refused to hold hearings in over 140 federal judges nominated by Clinton.
- George W. Bush has had far better luck with appointments than Clinton.
- Presidents try to appoint a cabinet that ‘looks like America’ in terms of gender, racial and ethnic makeup.
o Bush’s first 5 appointments were 2 African-Americans, 2 women and a Hispanic.
The Power to Convene Congress
According to the Constitution, the President must periodically inform the Congress on the state of the union. This has become an annual televised address to a joint session of Congress.
The Power to Make Treaties
The president has the power to make treaties but 2/3rds of the Senate must vote to ratify. The president also receives ambassadors. These powers have been interpreted to mean that the president also has the power to formally recognize the existence of a country.
The Senate does not always ratify treaties that the president feels are important. Over the years, presidents have gotten around the Senate through the use of executive orders.
Executive agreements are binding during the administration, but do not bind the next administration.
Presidents can reject any congressional legislation either through a general veto or a pocket veto.
The Congress can override a veto with a 2/3rds vote of both houses.
- Historically, there have been over 2,500 presidential vetoes and only 100 have been overridden.
The Line-Item Veto
Many governors have the power to strike out, or veto, specific lines within a bill. In 1996, the Republican Congress passed such a line-item veto as part of the Contract with America. The goal was to control spending by allowing the president to veto parts of a spending bill.
o In 1998, the Supreme Court declared the line-item veto unconstitutional
The Power to Preside Over the Military as Commander-in-Chief
The president is commander in chief of the army and navy according to Article II. Though Congress also has war powers, the president has been considered preeminent in foreign policy.
Congress has attempted to assert control over aspects of foreign policy on a number of occasions by passing the War Powers Act.
Chapter 9. The Executive Branch and the Federal Bureaucracy
The Roots and Development of the Federal Bureaucracy
In the United States, bureaucracy has become associated with red tape as well as slow inept bureaucrats who avoid work and responsibility.
But what is a bureaucracy? The key elements of a bureaucracy are:
- an hierarchical chain of command
- division of labor and specialization
- clear lines of authority
- impersonal rules and merit based decision making
In 1789, George Washington headed a federal bureaucracy of 3 departments:
The head of each department came to be called a secretary.
The Civil War
The Civil War permanently changed the nature of the federal bureaucracy. Thousands of employees were added in order to mount the war effort. Poor harvests were a serious issue during the war – the troops must be fed – so Abraham Lincoln created the Department of Agriculture in 1862.
Following the Civil War, the government needed to address the legal and financial obligations of veterans and those injured during the war. As such, the Justice Department was created.
The types and nature of government service were increasing which resulted in the rise of federal employment. Thus, the increasing demand for government services led to the expansion of the bureaucracy – which created something else – the use of patronage.
Presidents and party leaders used government jobs to reward electoral and financial support.
From Spoils to Merit
Between the 1830s and the 1880s, government jobs were known as the ‘spoils of politics’. The idea being that public jobs were the spoils for whoever won an election. So when a new party won, the entire bureaucracy was fired and supporters of the winning candidate were hired.
By 1880, government had become too political, there was no job security, and people were not doing their jobs because they were unqualified as they were someone’s political friends.
In 1883, Congress passed the Civil Service Reform Act more commonly known as the Pendleton Act in an effort to reduce patronage and build a merit-based system of public jobs. The Act created the principle of federal employment based on open competitive exams and created a bipartisan Civil Service Commission to oversee the reforms. The new system gave job security to federal employees because they could not be fired because of election results or political whims.
- People are now hired because they are appropriate for a job and have the rights skills.
- The down side is that some civil servants have too much job security.
National Efforts to Regulate the Economy
As the country continued to expand, new territories became new states and the federal government continued to get bigger in response. The industrial revolution brought big business into the picture – particularly big railroads – which brought along price fixing, monopolies and unfair business practices.
In response Congress created the first regulatory commission called the Interstate Commerce Commission (ICC).
In 1900, Theodore Roosevelt asked Congress a Department of Commerce and Labor to oversee employer-employee relations due to the labor practices such as child labor, low wages, long hours, unsafe working conditions and the refusal of employers to allow unions to protect employees.
The ratification of the 16th amendment (allowing the government to tax personal income) also caused the government to get larger. The infusion of taxes also made it easier to support new services, agencies and programs.
What Should Government Do?
Government was regulating business, but there were people who did not think that it was the proper role of government. Some people wanted a laissez-faire attitude toward business.
The New Deal and Bigger Government
FDR face high unemployment and weak financial markets during the Great Depression. In order to deal with the crisis, FDR created a large number of new federal agencies and
federal programs. He created programs such as the (Agriculture Adjustment Act, National Industrial Recovery Act, and Civilian Conservation Corp ) which were quickly passed by Congress but halted by the Supreme Court.
- In 1937, the Supreme Court argued that far ranging authority to regulate the economy was beyond the scope of the president and Congress and invalidated much of the New Deal.
FDR was frustrated and proposed adding appointees to the Court to change the majority vote – the Court quickly changed its mind and began voting in favor of the New Deal programs.
World War II and its Aftermath
WWII also caused the government to grow. Returning veterans demanded new services resulting in the GI Bill for Education and the Veteran’s Administration housing programs. The Civil Rights Movement and their demands also caused government to grow through agencies like the:
- Equal Opportunity Employment Commission (EEOC)
- Department of Housing and Urban Development
The Modern Bureaucracy
Critics often complain that government is not run like a business – but government exists for the public good, not for profit.
Government leaders are driven by reelection goals while business are out to increase their share price. Businesses get money from customers, government gets it from taxpayers
Who are the Bureaucrats?
There are 15 Cabinet level departments in the federal government today. There are more than 60 government agencies and 2,000 other subunits of the U.S. government. There are about 1.78 million civilian employees in the executive branch.
- 30% of those work in the Postal Service
- 33% work for the Department of Defense
- Most of the employees are part of the civil service.
- 10% of the federal bureaucracy is not covered by civil service laws.
o These include about 600 people appointed by the president
o Some with the advice and consent of the Senate and senior presidential employees
o Independent regulatory commissioners appointed by the president; low-level non-patronage positions.
Only 11% of federal workers work in Washington, DC – the rest are scattered in regional, state and local offices throughout the country.
- Since 9/11 the government has grown
Agencies fall into four categories
- Cabinet departments
- Government corporations
- Independent agencies
- Regulatory commissions
The Cabinet Departments
The 15 Cabinet departments are major administrative units that have responsibility for conducting broad areas of government operation. These positions account for 60% of the federal workforce.
Departments vary in prestige, power, size, and have access to the president.
Government corporations began in the 1930s. They are businesses created by Congress to perform functions that could be performed by private business but aren’t usually because they are not profitable.
- These include Amtrak and the Tennessee Valley Authority
Independent Executive Agencies
Independent executive agencies have narrower mandates than a Cabinet department. They usually perform a service function, not a regulatory one.
- They include: CIA, NASA and the EPA
Independent Regulatory Commissions
IRCs exist to regulate a specific economic activity or interest such as the National Labor Relations Board or Securities and Exchange Commission. They are independent because once their membership is appointed by the president, they cannot be removed without cause. They also have staggered terms of office to ensure that no one party gets to appoint all members.
Politics and Government Workers
The Hatch Act, enacted in 1939, was designed to protect federal employees from being forced to contribute to or work for election campaigns. It was also supposed to prevent federal employees from working in concert to elect members of Congress or the president.
When Congress creates a federal agency, department or commission, it is actually delegating some of its powers listed in Article I, section 8 of the Constitution. Congress sets parameters, guidelines and then leaves it to the agency to work out the details. How agencies execute congressional wishes is called implementation.
Iron Triangles and Issue Networks
Agencies, interests groups and congressional committees often have stable relationships and patterns of interaction that are referred to as ‘iron triangles’
The Sugar Industry
Chapter 10. The Judiciary
In many ways, the Supreme Court remains more cloaked in secrecy than the other
branches of government. Congress and the President actively seek publicity and attention while the Court doesn’t not. The Supreme Court steadfastly remains private – cameras are forbidden in the court.
Public opinion does permeate the Court. In the case of Bush v. Gore, the court released oral arguments on tape only 1 hour after arguments were concluded. In fact, there are still demands for a more public and transparent court.
Alexander Hamilton once called the judiciary “the least dangerous branch of government.” Federal courts have changed over the course of the history of the United States. Yet, they are still constrained by 2 limitations:
- They can rule on issues, but cannot fund programs or their implementation.
- They also cannot force compliance with their rulings.
Most Americans do not know much about the judiciary and the role it has played in creating a strong national government and in social reform.
Jurisdiction – The power of a court to act upon a case.
Judicial Review – The power of the U.S. Supreme Court to declare actions of the president, the Congress, or other agencies of government at any level to be invalid or unconstitutional.
Standing – A person’s right to initiate legal action because he or she is directly affected by the issues raised.
Precedent – The legal principle that previous decisions influence future decisions unless explicitly overruled. It is the basis for stability in law, built on the expectation that judgments will consistent with one another unless there is reason for change.
Stare decisis – Latin for "to stand by things decided." Stare decisis is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true.
Appeals – A formal request to a higher court that it review the actions of a lower court.
Certiorari – An order or writ from a higher court demanding that a lower court send up the record of a case for review.
The Constitution and the National Judiciary
Article III of the Constitution established:
- the Supreme Court in which the judicial power of the United States is vested
- life tenure or ‘good behavior’ for judges
- judges receive compensation that cannot be diminished during their service
- such inferior courts as Congress may choose to establish
- original jurisdiction of the Supreme Court
The intent of Article III was to remedy the failings of the Articles of Confederation that left judicial matters to the states.
The Judiciary Act of 1789 and the Creation of the Federal Judicial System
Congress established ‘inferior court’ through the Judiciary Act of 1789. This Act established the federal judiciary in the same 3-tiered structure that we know today.
The Judiciary Act also set the number of justices for the Supreme Court at 6 (since it is not set in the Constitution. It would eventually set at 9 by the Judiciary Act of 1869.
At first, the Supreme Court was not a high status post. Justices left the Supreme Court to take ‘better jobs’. All Justices rode the circuit meaning they literally had to ride a hours around to hear court cases on appeal.
The Marshall Court
President John Adams appointed John Marshall Chief Justice in 1801. He changed the Court in many ways and brought prestige and importance to the bench. He is often considered the most important Justice to have served the Court. Among the reforms and policies he instituted:
- delivery of a single court emphasizing unity when possible;
- deciding cases that would assure the Court to be the final arbiter of constitutionality;
- enforcing the authority of the Supreme Court to declare state laws invalid;
- broad interpretation of the “necessary and proper clause” and the supremacy of the national government.
Judicial review is the power to decide if a law or other legal issues contravenes the Constitution. This power is not mentioned in the Constitution. The Marshall Court established the power of Judicial Review for itself and posterity in Marbury v. Madison (1803)
Marbury v. Madison (1803) – The preeminent U.S. Supreme Court case because of its declaration of the Court’s power of judicial review – the power to declare federal legislation or executive actions unconstitutional and consequently unenforceable through the courts.
The American Legal System
The American legal system is a dual system:
- state courts – actually 50 different ‘systems’
- federal courts
Both systems have 3 tiers:
- trial court – litigation begins and courts hear the facts of the case at hand (original jurisdiction)
- appellate courts – decide questions of law, not fact
- high or supreme courts
Before a court can hear a case, it must have jurisdiction or the right to hear that particular case. There are 2 basic types of jurisdiction: original and appellate. Original jurisdiction is a court’s authority to hear disputes and determine the facts of a case. Appellate jurisdiction is the power to review or revise a lower court decision.
The U.S. Supreme Court has both types of jurisdiction – the only original jurisdiction cases the Court hears involves:
- 2 or more states
- the U.S. and a state
- foreign ambassadors or diplomats
- a state and the citizen of another state
The Federal Court System
Federal courts of original jurisdiction are called district courts. There are 94 district courts with over 655 active judges who hear cases. Every state has at least 1 district court and do not cross state lines. The largest states – CA, NY and TX – each have 4 district courts.
The bulk of the workload of federal courts occurs in district courts – over 272,000 cases in 2000. In general, federal district courts hear cases that involve:
- the federal government as a party
- a federal question, constitutional issue, treaty with another nation, or a federal statute
- civil suits in which parties are from different states and the amount of money at issue is over $75,000
Each federal district has a U.S. attorney who is nominated by the president and confirmed by the Senate. He or she is the chief law enforcement officer for that district.
The Court of Appeals
The United States Courts of Appeals (formerly known as the Circuit Courts of Appeals) are the intermediate appellate courts in the federal system. There are 11 circuit courts referred to number plus the D.C. Court of Appeals and the U.S. Court of Appeals for the Federal Circuit.
In 2003, there were 167 active judges and 80 senior judges appointed by the president and subject to Senate confirmation. Judges are divided into rotating 3 judge panels and each circuit has a senior judge who is the chief judge of the circuit.
Courts of Appeals have no original jurisdiction. A litigant does not have an automatic right of appeal. Most cases do not have further than district courts and those cases that go to the Courts of Appeals rarely go further. Courts of Appeals try to correct errors of law and procedure.
Decisions made by Courts of Appeals are binding on district courts within their geographic territory. Only the Supreme Court sets national precedents. The doctrine of stare decisis is the key to our system and means “let the decision stand” in Latin. This means that judges rely on case law (past decisions) to shape their opinions which lead to continuity and predictability in the legal system.
The Supreme Court
The U.S. Supreme Court reviews cases from lower courts and acts as the final interpreter of the U.S. Constitution. It decides numerous cases of tremendous policy significance and ensures uniformity of interpretation for national laws and the Constitution.
Since 1869, the Court has had 9 justices nominated by the president and approved by the Senate. One justice is nominated by the president to be the Chief Justice; other justices are known as Associate Justices
The Chief Justice presides over public sessions of the Court, conducts the Court’s conferences and assigns the writing of opinions.
How Federal Court Judges are Selected
The Constitution does not set qualifications for federal court judges or Supreme Court
Justices. The selection of judges is a very political process. Judges are nominated by the president and confirmed by the Senate. Often president solicit suggestions from members of the House of Representatives, Senators, their political party and others.
In general, presidents try to select well-qualified individuals on the bench. However, they also use judicial appointments in order to advance their own political philosophy. When the Senate and president are of different parties the process can be quite confrontational and politically charged.
Who are Federal Judges?
Typically federal judges have:
- held previous political office such as prosecutor or state court judge
- political experience such as running a campaign
- prior judicial experience
- traditionally been mostly white males
- been lawyers
Appointments to the U.S. Supreme Court: Nomination Criteria
Competence – Most nominees have prior judicial experience
Ideological or Policy Preference – Most presidents seek nominees who share their political philosophy and policy preferences; however, it does not always work that way.
Rewards – often nominees are personal friends of the president or are party activists.
Pursuit of Political Support – Sometimes a president will use an appointment to shore up political support, for example, he may appoint a specific person to gain support among those groups.
Religion – traditionally there was a ‘Jewish’ seat on the Court though most judges have been protestant.
Race and Gender – only 2 African-Americans and 2 women have served on the Court