American Government Discussion Outline

 

Why are we here learning about government, politics, and law?

 

It’s generally agreed THE  most important question as a human being is “what is the meaning of life.”  Really what this is asking is "how am I to live?" or, "What is the best way to live?”  But the question “how am I to live?”  means, unless your alone and isolated on a deserted island, "how am I to live with other people?".  This question is usually answered by religious and ethical philosophy.  BUT deciding how to live together necessarily means asking "what rules should we live by?": That is, how should our society be structured? What laws should we have? Who should have power to enforce those laws? What limitations will there be on such enforcement (that is, what rights will people have against arbitrary enforcement of the laws?) etc.  So HIGHLY inter-related with religious and ethical philosophy is the question "what government and laws" should we have?  Questions of government, politics, and law are only one step (if that) removed from the deepest and most important religious, moral, and ethical questions known to humanity.

 

***Thus, an understanding of government, law and politics through the study of them all under the heading of “political science” is FUNDAMENTALLY necessary in deciding how we should live together as a human beings.

 

Moreover, education in civics and government is essential for democracy to exist and succeed. Without an informed electorate, democratic decisions will be based on ignorance or emotions.  Demagogues (leaders who manipulate public opinion through lies and psychological tactics merely for their own political purposes and advantage) will be able to convince the voting public to go along with them (e.g. Hitler).  So any democracy needs its citizens to be informed about the powers of government, limits on powers of government, how government works, how laws are made, what laws there are, what the true political facts are, etc.  Otherwise, the democracy is either not a true democracy (uninformed people will not be making genuine political choices) or it is a fragile democracy (demagogues will be able to easily manipulate the public opinion in harmful ways, especially by eliminating democracy, freedom, equality, etc.—again, see Hitler).

 

POLITICS: =POWER.  No generally agreed definition.  Most commonly quoted definition: “Who gets what, when, and how.”  Decisions over how to allocate scarce resources.  Technically, politics is everywhere, not just in government—family, office, school; Example of roommates: whether to allow loud music? Parties? dirty clothes? Smoking? having overnight guests?  BUT power in society is MOSTLY in hands of government,  and so “political science” studies “political power” whereas the field of sociology studies power in other places: e.g. power in relationships, in families, in the workplace, in organizations, etc.

 

WHY must POLITICAL questions (questions of power) be decided (in families, workplace, society, etc.)?:

                                a. scarcity of resources (jobs, money, health care, housing, food, land, clean water, even life

                But if EVERYONE agreed on how to use those resources, there would be no conflict, and hence, no politics.  But what happens is:

                b. differences in values and priorities what to do with those scarce resources—i.e. logging jobs versus wildlife preservation, rights of pregnant women versus rights of fetus, health care from government private insurance, rights of majorities versus rights of minorities

                                c. insistence that one’s values and priorities dominate over others.

 

"Government"—is the institutions and rules that regulate the inhabitants of a particular geographic area

ALL governments have ability to coerce obedience to its rules (fines, police, courts, prisons, military) –that is, to force obedience to law. 

e.g. National Government, state government, local government, even school government.  If no ability to coerce, its NOT a government.

and in fact, government has a monopoly on the “legitimate” use of force—i.e.ONLY entity that can force adults to obedience; i.e. no private slavery, yet government can “legitimately” coerce you to do as it says.

 

Q: So why have Government? (What’s the purpose?) i.e. why not leave these disputes in hands of private, peaceful decisionmaking

There are several reasons people have offered throughout the years, but by far the most commonly given reason, the most basic reason, is:

to Maintain Order: Ideally, to Prevent violent crimes against people and property, b/c fights over scarce resources (and other things)

                so government and laws resolves conflict through peaceful means.

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Philosophical background to the American Revolution and the Constitution:

To understand today, you need to understand where we came from.   This is NECESSARY to understand the DoI, and the Constitution.     

OLD view of where governments get their power and authority: up to and during middle ages, "divine right of kings"—from Romans 13: 1-2

“"Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God." – NIV; god granted the king (and king's family) authority to rule, so you couldn't disagree with king because that would be to disagree with god.  That’s HERESY/BLASPHEMY.

 

John Locke (English Philosopher) Two Treatises on Government (1690) ***NOT first one to think of all these concepts, but developed them most fully, presented most clearly and forcefully: Treatise One:  Spends entire treatise rejecting divine right theory.

 

Treatise Two:  State of nature=pre-society anarchy.  People were born with god-given, inalienable natural rights—life, liberty, property, but state of nature left those rights unprotected.  Government would protect life, liberty, and property—so people enter into a "social contract"--mutually agree to government (a “Civil Society”) for own mutual advantage and protection; ONLY reason government exists is to protect your natural rights:  legitimate government power is based on consent of the governed (popular sovereignty) because the creator must be greater than the creation; thus, people have right to change government if rulers break the social contract by interfering with natural rights rather than protecting natural rights.  (people are then free to withdraw their consent from the current government (abolish the current government) and put in new government.

Social Contract theory: No government (anarchy, "State of nature") but have natural rightsà but violence between individuals (insecure protection for natural rights)à so people form "social contract"; "Civil Society" (government) to protect rightsàpopular sovereignty (people are supreme, so the only legitimate power comes from consent of governed)à right to abolish government (if govt. breaks social contract and infringes on natural rights)

***I.E. choose freedom over order because people can be trusted more than government.

 

NOTE that is a RADICAL idea.  It directly  repudiates divine right theory based on Romans 13:1-2, saying part of the Christian New Testament is absolutely false.  AND calls into question the authority of every ruler then existing on the planet, saying everyone one of them is illegitimate.

 

E.G. Mayflower Compact first example of social contract by Europeans in North America.  Constitutions ARE social contracts of the people of a nation.  Note it only takes one short sentence: “We the undersigned agree to form a common society with a government and live under its laws.”

 

American Independence:

                American colonies were not given any representation or voting rights in the English parliament, yet they were taxed and otherwise economically exploited by England.  Americans objected not so much to the high taxes or unequal taxes, but philosophically objected that they had no say in the taxes imposed on them:  they proclaimed "no taxation without representation." The more the colonists resisted paying the taxes, the more the King and the British Parliament sent troops to enforce the tax laws, and the cycle escalated until finally it broke down into violent conflict. –(e.g. tax collectors tarred and feathered, then Boston Tea Party, then shots between British troops and armed colonists “shot heard ‘round the world, because it sent political shock waves around the world—here was a colony fighting against the Empire’s motherland, which called into question every empire on the planet.) April 19, 1775.

 

At first the colonists hoped for negotiation to end the fighting, so it was really a “war for representation” and not a “war for independence”  but eventually the colonists gave up hope and called for independence 1776; publicly announced on July 4 (Declaration of Independence was sort of like a press release).  This was a RADICAL idea at the time because such a thing had never been done before. This challenged the authority of EVERY national government then existing on the planet... So they needed to philosophically justify this to the world.

 

                ***The Declaration of Independence (written by Thomas Jefferson at request of Continental Congress) re-states Locke’s theory.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government . . .” (without citing him; i.e. plagiarism.);

 

Then DoI gives a detailed list how Britain (i.e the King) broke the social contract with the colonies, and so finally concludes that the American colonies are justified in declaring independence from the British government.

               

***DoI is so important NOT because it’s historical (which it is) but because of philosophical principles and applications in it....

                ***The Declaration of Independence is the philosophical justification for the existence of the United States government as a nation.  (The Constitution then sets out the structure and details of that government.)  Should really be called “Declaration AND EXPLANATION of Independence.”  Again, this was RADICAL idea at the time, that a colony could declare itself independent; this thought challenged ALL the authority of ALL the empires in the world.  This is why the DoI has always been quoted so often all around the world, because of the PHILOSOPHICAL PRINCIPLES it established. 

And the entire rest of the world governments were on the side of Britain to defeat the colonies and thus defeat this idea, because it challenged ALL of their authority.  (Only France sided with us, and only then because it was politically beneficial to them because England was their main political and military rival.)

 

Q: What government did new United States create?

1.Who rules?         (based on Number of rulers)

a. Autocracy--rule by one (e.g. monarchy=royalty (king/queen); dictator) (Alexander Hamilton wanted a monarchy.)

b. Oligarchy--rule by elite few (e.g aristocracy=rule by best,  plutocracy=rule by wealthy,  theocracy=rule by religious rulers; e.g. Iran)

c. ***Democracy--rule by people (many/everyone (in theory))

                Founders chose because they believed it was the LEAST DANGEROUS form of government (least concentration of power)

 

2. Central/regional govt?  3 types of government based on division of power between national/central govt. and regional (subnational) govts:

a. Unitary government--Britain, most other European democracies—single level of national government only, no separate, autonomous, subnational/regional gov'ts

b. Confederal government--UN, Confederate States of America, —two levels of government (central and regional) with lawmaking powers, but subnational/regional governments are supreme over national

c. Federal government--US, Germany, Canada, EU—two levels of government with lawmaking powers (central and regional), but national government is supreme over subnational/regional governments; also “The Federation” in Star Trek and “The Trade Federation” in Star Wars.

 

Articles of Confederation(1777-89)—a "confederation"  was first social contract of U.S. Was also first “constitution” –the document that comprises or “constitutes” the existence, structure, and powers of a government.

BUT AoC created only VERY WEAK national government:

                *(1) no power to tax--had to ASK states to give it money, and couldn't pay Revolutionary War debts

                *(2) couldn't regulate interstate or foreign commerce, and had no power over states, so states imposed tariffs against each other, states had conflicting business regulations, refused to order citizens to pay debts to non-citizens, states could create own money if wanted, states could make foreign commerce treaties.  The U.S. was basically becoming 13 separate mini nation-states.

*(3) no ability to raise an army to protect against British, Spanish, or even pirates.

                (4) states could make foreign treaties or break US treaties

                (5) no independent, executive leader position

                (6) no courts.

                (7) decisions had to be by supermajority (9/13 states)

                (8) couldn't amend without unanimous agreement of 13 states.

 

NOTE:  not until late 1781 that Revolutionary War was won by the U.S., and not officially declared over by Congress until 1783.

 

U.S. government was laughingstock of the world.  So new Constitutional Convention was called and met in the summer of 1787 in Philadelphia to amend the Articles of Confederation (1787)

BUT delegates soon realized the Articles of Confederation were hopelessly beyond repair, and needed a WHOLE NEW social contract.  A few delegates disagreed and left the convention out of protest, and later made public statements and writings in protest.  But most agreed, and made: 

 ***Second Social Contract of United States was called “The Constitution.”  (from verb “to constitute= to comprise, to form, to make up).

 

SO WHY did we bother to learn AoC? Because almost everything that was put into the Constitution was based on the failures of the AoC.  So learning about the AoC tells us LOTS about the intent behind the Constitution, and disagreement over the intentions STILL is big in politics today.—Both sides of issues surrounding the President, Congress, Supreme Court, powers of State governments, ALMOST ALWAYS refer to “intentions” of the framers and ratifiers of the Constitution (original intent or original understanding). 

 

KEY ELEMENTS OF CONSTITUTION: DIFFERED from AoC: 

1.***MORE power was given to the national government than AoC (tax, regulate commerce, have an army, )

2. FEDERAL system

3. legislature AND added executive and judicial branches Article I: Legislature; Article II: Executive; Article III: Courts

4. Amendments:  Easier to do (will look at in more detail when we look at Bill of Rights)

 

From the records of the debates during the Constitutional Convention, we know that the delegates pushed their own agendas, and

EVERYTHING in the Constitution was a political compromise; it was not “divinely inspired” and no “magic formula” was used.  Like hot dogs: you really don’t want to know how they’re made.  It looks and tastes good from the outside, but it was made through a lot of down-and-dirty political haggling in the mud.  But: 3 BIG Compromises: these were the toughest agreements to reach and biggest fights were over these issues:  national power over states, big versus small states, and slavery. 2 of these almost caused convention to break up. 

                               

ISSUE 1:  A. All agreed the national government needed some additional power over the States, but how much more?

Options: (1) UNITARY abolish the states and have a unitary system (Hamilton)

                (2) National POLICE POWER (from VERB “to police” (to oversee): like a blanket grant of power;

keep the states but let nat’l govt. make whatever laws it wants  Hamilton’s proposal: “power to pass all laws whatsoever”(.)

                (3) FEW STATE POWERS, MANY Central: list a few specific state powers, declare ALL OTHER power given to the national govt.

                                E.G. could say states get education, crime, and health care, national government gets all others.

                (4) FEW FEDERAL POWERS, MANY STATE: list few specific nat’l powers, declare ALL OTHER powers reserved (kept) by states

                                E.G. could say national government gets military, interstate commerce, states get all others.

(5) STATES NEGATIVE FEDS let states "negative" (Veto)  national laws –this would be the return of confederalism.

 

They chose number 4: 1-3 too strong; 5 return to confederalism, and that failed.  So 4: just enough additional national power to create federalism.

Why is this important?  Because (as we shall see) National government has evolved to have the police power (#2) and this is still considered highly controversial and is highly debated in politics.  Again, notice the difference: If a teachers leaves class for a few minutes and says “do whatever you want” you have the police power.  If the teacher say “you can study readings or compare notes together, but that’s all”  you have enumerated powers.

 

This was now a FEDERAL form of government – powers are divided between national and state governments, but national govt supreme.   Thus, theory of Limited Government:  national government is limited in its powers, less is better philosophy towards government.

                               

ISSUE 2: How states should be represented in national legislature?

Must keep in mind that early loyalties were to states, not “U.S.” because states had been like nations, and small states feared bigger states would oppress them just like a bigger nation might take over and oppress a tiny nation. . ..

A. New Jersey Plan (by William Patterson)—small states wanted representation in legislature equally by state, feared takeover by Big states.

B. Virginia Plan (by Edmund Randolph) –large states wanted representation in legislature in proportion to population, thought unfair that small states should get disproportionate vote and decide how large state’s tax money gets spent.

C. "Great Compromise" (aka Connecticut Compromise)--BICAMERAL (2-chamber) legislature (Congress): HOUSE (population) and Senate (states equal—2 votes each); Laws must be passed by BOTH chambers, BUT “All Bills for raising Revenue shall originate in the House of Representatives.” Art. 1. s. 7

Congress= House + Senate

 

ISSUE 3. What to do about Slavery? : Delegates BITTERLY DIVIDED over slavery—convention almost broke up.

A. HOW TO COUNT SLAVES IN THE POPULATION (FOR DETERMINING REPRESENTATION IN HOUSE OF REPS)

1. Slave states wanted to count slaves in apportioning seats in House of Rep; otherwise, North had larger free population and could out-vote South on regulating or outlawing slavery, so south was ADAMANT about counting slaves;

1790 data:  Southern states: slaves were 33% of population; VA 42%, SC 43%.

2. Non-slave states wanted slaves not be counted—hypocritical that slaves are property yet get counted as people; gave Southern whites disproportionately (and thus unfair) large vote;

3. "3/5 Compromise": each slave counts as 3/5 of a person in determining how many FREE WHITE representatives each Southern State receives “and direct taxes). NO RIGHTS given to slaves—e.g. NOT 3/5 vote by the slave. NOTICE that this  encouraged, rewarded the South for having MORE slaves—more slaves=more representation Southern states would receive in the House of Reps.

B. Escaped slaves?—Fugitive Slave Clause Article IV, Section 2. South didn’t want slaves to have a reason to escape to North, so insisted on requirement that North would have to return any escaped slaves:  “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”  Note it only says “claim” and not “evidence” or “proof.”  This led to many (hundreds? thousands?) of free blacks being taken into slavery on false claims. See Solomon Northup, Twelve Years a Slave.

C. SLAVERY REGULATION?—Can Congress regulate slavery as “commerce” according to the Constitution’s Commerce Clause?  North:   Congress should have power to regulate slavery.  South:  Congress should not have power to regulate slavery.  Compromise:  No laws could restrict IMPORT of slaves until 1808 (20 year's time had passed).  I.E. INTERNATIONAL slave trade could be banned after 1808.  This would give South 20 years to bring in enough slaves to continue slave trade without capturing new slaves.

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” Art. I, sec. 9  Basically, they were unable to reach a compromise, and realized the U.S. would split up if they tried to force a deal then, so they put the issue off for twenty years for the next generation of leaders to deal with in the future and hopefully come up with a good compromise then (of course, that never happened, as we eventually had the Civil War.)

 

*** Constitutional delegates avoided using term "slave" or "slavery," in Constitution, because realized it's unseemliness. Instead, used terms like “free and . . . other persons” or “persons held to service or labor.” or “importation of persons.”  ARTICLE I, SECTIONS 2, 9

Now that we have looked at some of the big compromises, including slavery, this makes it a good place/time to talk about:

INCONSISTENCY OF THE FRAMERS:  The American founders were human beings, and like all human beings, they were not perfect.  Like everyone else then and now, they often had mixed motives, had to reach political compromises given what was reasonably feasible at the time, and thus did not always apply their moral ideals consistently.  Thus, on the one hand they were political geniuses and established a nation based on the great ideals of freedom and equality. On the other hand, the founders did not live their lives completely consistent with those ideals.  For example, Thomas Jefferson, who wrote the Declaration of Independence and said “all men are created equal,” owned many slaves and never freed them, not even in his will upon death.  There are some course readings that illustrate this inconsistency mostly from the perspective of those at the time (late 1700’s and early 1800’s) who wanted equal treatment for themselves.

 

                1. Deleted paragraph of Declaration of Independence—criticized King for slave trade; removed because of realized hypocrisy

                2. Petition by slaves to Massachusetts legislature—comparing their situation to that of the states to their oppression by England

                3. Benjamin Banneker’s letter to Thomas Jefferson (and reply)—blacks are as intelligent as whites, and deserve equality

                4. Frederick Douglass: What to a Slave is the Fourth of July—total hypocrisy of white “Christian” majority.

                5. Abigail Adam’s correspondence with husband John Adams—John Adams scoffs at Abigail’s request for women’s rights

                6. Seneca Falls Declaration--1848—First women’s rights convention statement, paralleling Declaration of Independence.

                7. Words of Chief Joseph—leader of Nez Perce Nation, speech to Congress: peace treaties repeatedly broken by U.S.

                8. Trail of Tears—Cherokee Nation driven from the South at gunpoint; thousands died.

                9. John Adams letter—showing his disdain for giving vote to poor (white) men; comparing them to women and children.

 

It’s important to note, though, that the American founders understood when they established the principles of democratic liberty and equality, that the United States was going to be a LONG-TERM Experiment in seeing if those ideals could actually be fulfilled, and they generally believed that slavery would naturally become extinct.  Here is Abraham Lincoln’s explanation why the fact that the founders of the U.S. allowed slavery to continue under the Constitution does not detract from the principle of equality found in the Constitution:

                “It may be argued that there are certain conditions that make necessities and impose them upon us, and to the extent that a necessity is imposed upon a man he must submit to it. I think that was the condition in which we found ourselves when we established this Government. We had slaves among us, we could not get our Constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more; and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties. Let the charter remain as our standard.” A. Lincoln, 7th Lincoln-Douglass Debate, Alton, Illinois, Oct. 15, 1858.

                See also, Lincoln’s Gettysburg Address (1863), where he explains the United States is an experiment whether a people can create a government based on the ideals of liberty, equality, and democracy, and actually put those ideals into practice.  Hence “the American Experiment” is STILL ONGOING... In fact, what many would say, is that The American Experiment is the greatest social experiment ever attempted by humanity. . . . So look at it this way, even if the first experimenters weren’t exactly ideal people, the Experiment itself that they created was and is a profoundly noble experiment . . . . and so the American founders deserve enormous credit for that.

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Ratification Debate:  At the end of the summer of 1787, the Constitution was just a proposal, and had to be debated publicly and ratified by state conventions if it was going to take effect.  Those who wanted strong central government, and thought the proposed Constitution added the right amount of additional power to the national government compared to the Articles of Confederation, supported the Constitution, and adopted the name "FEDERALISTS" to imply they wanted a true division of powers between the states and the national government.

The “ANTI-FEDERALISTS” opposed the constitution, arguing that TOO MUCH additional power had been given to the new national government in the proposed Constitution. In reality “federalists” were more like "unitarians" than "federalists" and Anti-federalists were really "confederalists" So really was “unitarians" versus the "Confederalists."

 

Anti-federalist arguments--"Brutus," and "The Federal Farmer" “Cato,” “An Old Whig,” but many others: COMMON THEME: national government would be too powerful:   standing armies would oppress; Congressional power to set own times of elections would let it take permanent control by cancelling elections; the president might serve for life and become like a king; supreme court would have final say over interpretation of laws with no power to stop them; "necessary and proper" clause would lead to national power and elimination of state sovereignty.

 

Federalist Papers: mostly James Madison and Alexander Hamilton, a little from John Jay ("PUBLIUS") responded to Anti-federalist arguments.   They systematically argued in a series of 85 papers that constitution was best possible constitution.  BETTER ORGANIZED THAN ANTI- Federalists, and wrote more completely, systematically, in favor of Constitution.  According to proposed, Constitution, 9/13 states were needed to ratify the Constitution—to make it take effect as the new social contract.

Federalists NARROWLY won ratification (formal adoption) of the new Constitution—came down to a handful of votes in a couple state conventions, and once the 9 state threshold was reached, the rest joined so that they wouldn’t be left out, as they knew they couldn’t make it on their own.  Last state ratified in 1789.  BUT there were several MAJOR issues that were debated, ***WHICH ARE STILL MAJOR ISSUES DEBATED TODAY.......*** THAT”S WHY WE”RE GOING TO STUDY THEM....   ***AND as we’ll see, many people today think the Anti-federalists turned out to be correct on many points... (or that the future showed both the Feds. and Anti-feds. were partly correct.

In other words, as is the situation in most cases, the truth between different sides is somewhere in the middle.

 

PREAMBLE to the Constitution:  incorporates Locke’s social contract theory: basically declares that the Constitution is a social contract.

popular sovereignty:  We the People, in order to form a more perfect Union, establish justice and ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”:  Constitution is social contract formed by people for their own mutual protection benefit, so people are sovereign/supreme over govt., not other way around.

Rule of Law: if people are sovereign/supreme, then even government must follow the law.  I.E. govt. is UNDER the law, not ABOVE the law.

 

***If the United States is a building, The Declaration of Independence is the foundation, the Constitution is the structure.  Even if the Constitution were completely abandoned, the U.S. would still exist in principle, just without the details of the social contract.  Thus, the Declaration of Independence is even more important than the Constitution...  Our nation’s existence does NOT depend on the Constitution, but on the Declaration of Independence...

 

NATURE OF DEMOCRACY

1. TWO KINDS OF DEMOCRACY classified by who is making (voting on) the proposed laws.

a. PARTICIPATORY/DIRECT/PURE--ALL meet to decide—e.g. state REFERENDUMs (mostly in Western states) where public votes on proposed laws listed on the ballot during regular elections; New England town hall meetings (over 1,000 small towns in Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island).

b. REPRESENTATIVE DEMOCRACY (REPUBLIC)--elect representatives who meet to decide on, vote on, make laws.

                Why?  Infeasible to have all people meet in one place if too large of a group... Thomas Paine, Common Sense—people on island meet first all together; then as too many, elect representatives to meet.

 

Why is this an issue? A democracy of such a large scale (both size and population) had NEVER been attempted in the history of the world, and many people said it could NOT be done.  So this was a serious argument against forming the U.S., whether such an experiment could work.

 

Brutus No. 1   Brutus had several objections in No. 1, but one was very powerful so Madison had to respond to it later. Brutus said: A. Large Republic is BAD:  So many different people, with so many (TOO MANY) different interests, so won’t be able to agree on anything, so nothing gets done (INNEFICIENCY=GRIDLOCK).  Don’t want a government that can’t function.  I.E. U.S. would be too big to function; .

                Big Republicàtoo many peopleàtoo many interestsà no agreementà GRIDLOCK (a grinding halt, paralysis, which is BAD)

                i.e. representatives will be pulled in a thousand different directions at once, and not be able to agree on anything.

 

Madison, Federalist 10: MANY PEOPLE CONSIDER THIS THE BEST STATEMENT ON AMERICAN DEMOCRACY EVER WRITTEN

Large Republic is GOOD (RESPONDS TO BRUTUS’ STRONGEST POINT—GRIDLOCK from a LARGE-SIZED Republic)

                A. FACTION=group whose interest is adverse to the community; Group that acts in own selfish interest, “just looking out for themselves” rather than what’s in the common/public/society’s best interest. (TODAY: SPECIAL INTEREST GROUPS/Parties)

                Thus, factions are DANGEROUS b/c if get control of govt., will make laws that are corrupt and oppress/abuse people.

                B. Controlling Factions: How do you create a government that controls factions (minimizes their danger?)

                                1. Remove Causes (eliminate their existence) (like withholding water and sunlight from a weed)

                                                a. Remove all liberty, thus faction’s can’t form (freedom of association). --Remedy worse than the problem.

                                                b. Make everyone’s interest equal—then factions have no reason to exist. –Impossible.

                                2. Limit Effects (because removing their causes is not a viable option), so minimize their danger.

                                                a. Protection against minority factions:  majority outvotes minority

                b. Protection against majority factions: direct democracy is no protection, as majority faction could outvote

 minorities. so you need Republic, because

                                                                i. representatives are wise, benevolent and will not vote as factions want.

                                                                ii. BUT there a SMALL republic is easy to take over, so a LARGE republic is better.

1. fewer reps per population, so smaller proportion of reps will be the VERY wisest/best

2. harder to manipulate elections with such large area

***3. so many diverse interests, can’t unify into a majority faction (no ONE group can take control) THIS IS THEORY OF PLURALISM.... ***One of the key principles of American democracy:  competing groups balance each other out, no one group is able to gain control, and thus liberty is protected because the only laws that can passed are laws that everyone agrees is good.  ***THUS< GRIDLOCK IS GOOD.......***  This theory of pluralism which explains American democracy is so closely tied to Madison, this theory of U.S. democracy is often referred to as MADISONIAN DEMOCRACY. 

 

Notice it’s a THEORY, because it hasn’t and doesn’t always work in practice (witness American history for examples—e.g. slavery, segregation, genocide of Native Americans, putting Japanese Americans in concentration camps during WWII, oppression of women, discrimination against gays and lesbians, etc.)

James Madison, Vices of the Political System of the United States Apr. 1787Papers 9:350--51 : 

“3. Where slavery exists the republican Theory becomes still more fallacious.”

 

NOTICE:  Both Madison and Brutus agree that the U.S. will be large and inefficient; they disagree on whether this is a good thing.  THIS DEBATE IS STILL ONGOING TODAY... ( Is Gridlock GOOD or BAD???. . .)

 

OVERALL STRUCTURE OF THE U.S. GOVERNMENT:

 

Separation of Powers and Checks and Balances (READ: MONTESQUIEU, Federalist 51)

Locke’s theory justified the EXISTENCE of government, Montesquieu’s theory justified the STRUCTURE of government.

Baron de Montesquieu—French political philosopher, “On the Spirit of Laws” 1748

ANY AND ALL government is dangerous: “every man invested with power is apt to abuse it” Government is humans, and humans are at root selfish—“Power corrupts, and absolute power corrupts absolutely” i.e. Can’t trust anyone... 

                all humans selfishàgovernment is humansàall government corruptàall government dangerous

SO how minimize risk?  i.e. how can you build the structure of government to minimize the risk that selfish rulers will abuse power?

1. Divide government functions into legislative, executive, and judicial subunits/divisions/BRANCHES This is SEPARATION OF POWERS: major functions of government are placed in different branches of overall government.; AND

2. give each a check on each one another:  executive “rejects” legislature’s laws, legislature “impeaches” executive, and legislature is two bodies, one for people and one for “nobles.”   This is CHECKS AND BALANCES:  government branches in a system of SoP have built-in ability to block or influence actions of other branches (sub-units/divisions) of government ***DO NOT confuse SoP with C+B—they’re highly related, but different concepts.  SoP can exist without C+B, but C+B is addition to SoP. (like a hat can rest on a person’s head, but can’t float on its own)

 

AMERICAN SoP/C&B: Framers agreed in part with BOTH Hobbes AND Locke: didn’t trust EITHER people OR govt...

Madison says factions (people) are dangerous; Montesquieu says government is dangerous.

So, framers of Constitution feared masses, AND government (after experience with England).  THREE branches:

Separation of Powers:

1. Article I:  Legislature (bicameral CONGRESS)—makes laws, "enumerated powers"--levy taxes, coin money, regulate interstate commerce, raise army, and "implied powers"--do anything "necessary and proper" (necessary and proper clause a.k.a. the elastic clause) to execute its authority. 

2. Article II:  Executive (THE PRESIDENT)—enforces laws, Commander-in-chief of military, negotiates and signs treaties

3. Article III:  Judiciary (THE SUPREME COURT)—interpret laws (federal laws and Constitution)

 

Checks & Balances:

 President vetoes bills passed by Congress and nominates Supreme Court judges, issues pardons

Congress:  overrides vetoes, creates courts, defines court jurisdiction, House impeaches President and judges, Senate tries impeachments (2/3 vote to convict), confirms Supreme court judges, confirms executive appointments, ratifies treaties (2/3 vote to ratify); because bicameral, each chamber can block other chamber’s proposed laws

Supreme Court reviews acts of President and Congress

 JUDICIAL REVIEW: ability of a court to declare actions by other branches of government unconstitutional (and hence void). IMPLIED by Supremacy Clause (more on this later when we focus on the Supreme Court in more detail)

 

***SoP/C&B chooses liberty OVER efficiency—I.E. framers of Constitution KNOWLINGLY INTENTIONALLY CONSCIOUSLY PURPOSESLY DELIBERATELY CREATED INEFFICIENT GOVERNMENT to maximize protection of liberty....  FUNDAMENTAL...

Compare to England: a unicameral parliament that chooses a prime minister, who of course goes along with majority, and no judicial review.

 

So, TODAY, our government IS inefficient.  People OFTEN complain our U.S. government is in GRIDLOCK.  The President/House/Senate/Court all block each other.   People want laws passed but one party controlling on institution (like the Senate) can block what other institution in control of other party is doing (like the President).   Many people argue we should amend the Constitution and become a parliamentary system like England, and many other democracies, especially European democracies.  BUT whether you think we should make our government more efficient or not, it’s clear the intention of the framers was slow, Inefficient government.  So the THEORY was that inefficiency would preserve limit.  But that hasn’t always worked in practice.

 

***FUNDAMENTAL foundations of U.S. government (among others): Social contract, pluralism, separations of powers, checks and balances, federalism.  There is a term for the sum total of all this: Constitutional democracy:

 

Constitutional DEMOCRACY  Prior to 1787, political thinkers believed you could not have democracy (rule by the people) AND the Rule of Law, because the uneducated, impulsive masses would act irrationally and quickly and impose arbitrary TYRANNY OF THE MAJORITY.  Philosophers like Hobbes argu ed in Leviathan that government need to be be strongly authoritative, ruling with iron fist, to control masses.  Framers of U.S. Constitution didn’t trust either people OR government. In other words, they agreed with Hobbes, Locke, Montesqieu about human nature being untrustworthy. So, THIS IS THE POINT OF OUR CONSTITUTION: TO LIMIT THE POWERS OF GOVERNMENT.  Philosophy of LIMITED GOVERNMENT.  If you don’t care how much power the government has or what it does, you don’t need any piece of paper.  The very reason to write things down is to put both substantive and procedural limitations on the powers of government. 

 

SO, framers of U.S. Constitution  created complex, inefficient system of government that made it hard for masses OR government (either by non-virtuous masses or by non-virtuous minority) to impose tyranny:  Government of enumerated powers, Separation of Powers, Checks and Balances,  bicameral legislature,  federalism, a large-sized Republic (representative rather than direct democracy), a Bill of Rights, separation of church and state, staggered elections, etc.   As explained in Madison Fed 10 and Hamilton Federalist 51, primarily.  And they still weren’t sure it would work; it was an EXPERIMENT, which is still ONGOING.

 

After U.S. succeeded, “constitutional democracy” grew around the world (and is still growing today---e.g. states of former Soviet Union, Afghanistan, Iraq, etc.).   EXCEPT England, which has an “unwritten constitution.”

 

ANTIFEDERALISTS said this was too inefficient, OR that too much power was given to the branches to interfere or override other branches.

Fed 51 (Hamilton OR Madison): “If men were angels, no government would be necessary.” But if men could control men, government must control itself.  So, divide government into offices legislature—2 branches, executive “negative” over legislature, and federal system divided between states and central/national government.  Also, in larger republic, more diverse interests (factions) so that majority coalition is rare.

 

NOTE: The required Ninth state ratified the Constitution in 1789, so the Constitution officially took effect 1789.  Now that we’ve looked at it’s beginnings, we’ll look at it’s components in much more depth and detail: federalism, the bill of rights, and the branches of government.

 

FEDERALISM: (READ: Federalist 45, 46 Anti-federalists (Brutus, An Old Whig (“Where Then is the Restraint”))

Inter-governmental relations between LEVELS not ARENAS of government

                RECALL:  Compromise of New Constitution was FEDERAL system of government

1. National Government of ENUMERATED Powers (tax, commerce, armies,

but also with IMPLIED powers from the Nec. and Proper Clause in Article I, sec. 8)

and Constitution and Federal law is SUPREME over states (Supremacy clause)

2. State governments of RESERVED powers (10th Amendment). 

Q. So why not just rid of states? –i.e.,  What was basic purpose in having power divided between 2 levels? Why federal, not unitary govt?

1. liberty: part of system of checks and balances—factions less likely to control BOTH state and fed govts, thus hard for them to become oppressive, so federalism preserves liberty-- feared a strong federal government would oppress the states (like England had done) so wanted to give central government only limited powers

                2. public good: thought states would better address local matters—states are LABORATORIES OF DEMOCRACY

                big experiment, can make 50 attempts at education reform; see what works and what doesn’t, then other states adopt.

 

BUT Anti-federalists argued that Constitution would go TOO FAR and let federal govt. become more like unitary govt. . .

Brutus No. 1, An Old Whig:  Anti-fed arguments focused on: 1. Necessary and Proper clause as dangerously expanding federal power over states (would let Congress declare that ANYTHING is “necessary and proper.”  2. Federal law is SUPREME under Supremacy Clause

***Thus, 1+2=3:  federal government could practically abolish states and states couldn’t stop that.

Madison, Fed. 45-46, responded to Anti-feds; offers PRACTICAL/POLITICAL rather than legal argument:  says fed govt. WOULD NOT want to oppress the states and COULD NOT do so even if it wanted to:  I.E. even if it had the power, it would never choose to use it, because the people are more attached to their state governments and will defend them, and the states can band their militias together to defeat any tyrannical federal  military.

 

EVOLUTION OF FEDERALISM (***ever greater federal power (balance of power increasing to federal, lessening to states)

               

1787 Federalism Compromise: give Congress list of specific powers, ("ENUMERATED POWERS") but broad limits to those powers                   (Article I, section 8)

                                1. TAX: -"to lay and collect taxes . . ."

                                2. SPEND: -"to provide for the common Defence and general Welfare of the United States"

                                3. COMMERCE:  COMMERCE CLAUSE

                                -" to regulate Commerce with foreign Nations, and among the several States"

                                4. RAISE ARMIES:-"to raise and support Armies"

                                5. IMPLIED POWERS: NECESSARY AND PROPER CLAUSE (like a catchall provision)

                                -"to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers"                       

6. SUPREMACY OVER STATE GOVERNMENTS: SUPREMACY CLAUSE (Art. VI)

                                -ART. VI: "This Constitution, and the laws of the United States . . shall be the supreme Law of the Land“

                                7. 10th Amendment of Bill of Rights (ratified 1791) said:  "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." RESERVED POWERS

                E.g. health care, education, criminal law, contract law, tort law, property rights, family law (marriage, divorce, child custody/support), environment, regulating local and state businesses, employment and labor law, etc.

 

Evolution of federal power Diagram (tiny circles on top, big circles on bottomàhuge circle on top, tiny circles on bottom)

 

1. CIVIL WAR  (1861-1865) victory by North destroyed South’s theory that we were a confederal system of government in which states could secede (leave) the U.S. theory.  Thus, the Civil War basically re-affirmed that U.S. was social contract between PEOPLE . . . NOT a COMPACT BETWEEN STATES.  Notice Preamble to the U.S. Constitution says “We the People”, not “we the states.”

 

2. GREAT DEPRESSION:  Until the Great Depression, state and federal governments had separate and distinct powers/ policy areas; no overlap); Supreme said Court said Congress was supreme, but in limited policy areas (e.g. no employment, health, environ., educ., crime, family, etc.)

a. GREAT DEPRESSION (1929-1941) economy was so bad, states couldn’t cope; people wanted national government to take action,

b. Elected FDR (1932) who promised action; Congress passed NEW DEAL Roosevelt claimed that “new terms” were needed to “the old social contract”:  i.e, legislation attempting to regulate the economy, labor/employment, retirement pensions, etc.

c. BUT Sup. Ct. said 10th Amendment (States had reserved powers.)  acted as barrier/ blocked Federal government from exercising state powers.

AND Commerce Clause only allowed direct interstate commerce, not local state activities that just indirectly affected interstate commerce.

                i.e. Congress had no sword (Commerce Clause), and even if it did, the states had a shield (10th Am.)

d. SO, FDR came up with "COURT-PACKING PLAN"—1937 appoint NEW ADDITIONAL justices to supreme court. 

e. CPP opposed by public + Congress, BUT only weeks later, Court said 10th Amendment meaningless, did NOT act as any legal barrier.

f. BUT if fed. govt. is enumerated powers, where power to enact NEW DEAL?  National govt. argued, and sup. crt. accepted, under  COMMERCE CLAUSE, because ALL HUMAN ACTIVITY (EVERYTHING) effects the economy in some small way.  

g. Obamacare U.S.S.C. tax ruling (NFIB v. Sebelius, 2012): anything you don’t do can be taxed.

h. Thus, today with a FEW TINY TECHNICAL exceptions, fed. govt. has POLICE POWER under Commerce Clause and Tax Clause

i. Since 1937  New Deal laws still today—e.g. HUGE budget items: Medicare, Social Security to help people with economic security  --U.S. now JOINTLY regulates in areas that used to be ONLY state areas—employment, health care, environment, education, crime, etc.  Now LOTS fed laws.  LOTS.  Some say good, some say bad. Same arguments that Feds and Anti-feds argued.

j. PREEMPTION:  federal law (“X”) pre-empts (overrides/supersedes) any inconsistent state law (“not-X”) (either expressly inconsistent or impliedly inconsistent) by action of the Supremacy Clause—e.g environmental rules, medical marijuana, doctor-assisted suicide

 

But besides the federal government doing something directly, it can also make the state do it

4. REVENUE SHARING—when the national government gives money to state and local governments.  Recall in the New Deal, the states couldn’t handle the problems of the depression.  The federal government began to share it’s money with the states, but this REALLY increased in the 1960’s and 1970’s.  Fed. Govt. gives tax money to states and cities.  citizensàcities, states, fed govt; fed govt.à state govt. and cities.

                                TODAY: varies by state and year, but roughly 25%.  Cities: combined from Fed, state govt.: roughly 33%

                GRANTS-IN-AID name for specific revenue sharing program (specific money for specific purpose).  Usually just “federal grant.”                TWO BASIC TYPES:

                                1. BLOCK grants (few or no restrictions) 1995 Crime bill-money to police departments

                                2. CATEGORICAL grants (many conditions/restrictions) e.g. 1995 Crime bill--money to hire police officers

                               

                SO WHY does revenue sharing increase federal power? categorical grants have SPENDING CONDITIONS—state can’t take money unless agree to them, and states can NOT afford not to take the money...  e.g. Louisiana was the last state to hold out against raising the drinking age to 21 (tourism is a big part of New Orleans, especially the French Quarter and Bourbon Street/Mardi Gras), BUT highway funds in Louisiana are DESPARATELY needed.

SD  v. Dole(1987) . -no highway funds unless 21 drinking age (1984) Sup. Crt said states are free to decline $ if they want.

                                                -no highway funds unless 55 m.p.h. speed limit (repealed 1997)

                                                -no highway funds unless .08 BAC (blood alcohol content) 2000

                                                -no medicare/medicaid money unless state programs meets satisfaction of Dept. of Health and Human Services

                ***NEVER been a SINGLE example of ANY state that’s been able to hold out in the long run against ANY spending condition.

 

5. UNFUNDED MANDATES: Congress tells the states they have to do something, yet provides no money to help them do it. (because its politically and financially convenient for Congress). Examples:

                                                -Americans with Disabilities Act--remodeling of state/local govt. bldgs.

                                                -pollution controls (municipal drinking water purity) (Clean Water Drinking Act?)

                                                -Motor Voter (voter registration at driver's license or welfare offices)

                                                -No Child Left Behind (school testing and student performance requirements)

                                                --Homeland Security (police, firefighter, hospital emergency response preparedness)

 

6. SUMMARY:  TODAY

A. Federal Government ALMOST has the POLICE POWER (instead of enumerated powers) under COMMERCE CLAUSE

                don’t need rest of enumerated powers in Art. I, sec. 8 because ALL HUMAN ACTIVITY AFFECTS THE ECONOMY

                Remember Hamilton’s proposal: “power to pass all laws whatsoever”(.)

B. Supremacy clausePRE-EMPTION (superseding of state laws) EITHER express OR IMPLIED... e.g. medical marijuana

C. Anything fed. govt. can’t do directly, it achieves by coercing states using  CONDITIONS ON REVENUE SHARING, or by imposing unfunded mandates.

D. 10th Amendment  essentially meaningless/useless today; Supreme Court has said the states have no legal protection in the Constitution from the national govt.; the ONLY thing that protects the states is the political process; i.e. if they have political support from the people or not.

               

 

***** What does all this evolution of U.S. federalism m ean?  Not really a unitary system (yet.), but steadily moving that way, with states largely becoming administrative units of the federal government.. Estimate: 4/10 state/local bureaucrats are simply administering federal programs.

 

               

***EXAM 1 COVERAGE ENDS

___________________________________________________________________________________________________________

 

***EXAM 2 COVERAGE BEGINS

 

Civil Liberties  Main text of the Constitution listed/enumerated the powers of the government (Article I, section 8).  Most constitutions also have a Bill of Rights lists powers that government does NOT have; i.e., list of things people can do free from GOVERNMENT interference.  LIMITS on government power.  Bill of Rights applies only to GOVERNMENT, NOT TO PRIVATE individuals, business, schools, organizations, etc. –can kick anyone out of your house you want because you don’t like their beliefs, what they’re saying, etc.  ***Because a Bill of Rights is limitations on GOVERNMENT, BoR DOES NOT APPLY TO PRIVATE ACTION (persons, business, private university, churches, etc....  You can kick anyone out of your home if you don’t like their opinion, their race, their religion, and it does NOT violate the Constitution.  Also, legislatures are free to make laws that bar private discrimination (in education, employment, housing).

 

BIGGEST WEAKNESS of proposed Constitution was no BoR-- stumbling block to ratification of the constitution:  Federalists didn’t want to open up the drafting process again, so they pushed for ratification AS IS without a BoR. This meant any BoR would have to be amendments.

 

BRUTUS No.2:  A. ALL GOVERNMENT SHOULD HAVE BILL OF RIGHTS: 

1.When social contract was formed, individuals didn’t surrender all of their “natural rights.”

2. Surrender of all rights is unnecessary for government to operate, AND

                                3. Reservation of rights needed to prevent against tendency of all rulers to abuse power for selfish gain by oppressing people

                B. (Response to Hamilton): Constitution NEEDS BILL OF RIGHTS: federal government power will be so broad and “complete” (Enumerate Powers+ Nec. and Prop. Clause+Supremacy Clause) so exceptions needed.

 

 Federalist 84: Hamilton argues against the claim that the U.S. Constitution needs a Bill of Rights: (it’s not that he didn’t want a Bill of Rights, he just wanted the Constitution ratified and feared that if it wasn’t, they’d never get one ratified, and the U.S. would break apart under the AoC)

His main argument: a Bill of rights is DANGEROUS, because listing some rights implies lack of other rights (i.e. Congress DID have power)

                e.g. I say "you have a right to use blue or black pen on exams" directly implies you don’t have a right to use red pen.

 

Several states likely would NOT ratify w/o BoR, so Federalists reached a bargain/compromise with some (NOT ALL) of anti-federalists: Federalists promised that if anti-federalists supported ratifying the constitution, FIRST thing new U.S. government would do would be to send a proposed Bill of Rights to the states (as amendments).  Even though ultimate votes in many states were razor-thin victories, enough anti-federalists were convinced to support the Constitution that Constitution was ratified (9/13).  And even many of the states (VA, NY, NC, RI) listed in their ratification declarations certain basic rights of the people; especially the freedom of the press and a right of conscience (religious liberty).

 

RECALL that Amendments:  (modification/revision) 2-step process, each step having two alternatives, so 4 different ways total:

1. Formal proposal:  2/3 Congress (both chambers)  OR 2/3 States call single national convention which proposes amendment,

2. Ratification: ¾ states legislatures OR 3/4 states in separate, individual conventions approve the proposal.

Always used: 2/3 congress, then ¾ states.  EXCEPT 21st Amendment (repeal of prohibition), which was 2/3 Congress, ¾ state Conventions

 

In 220 years, thousands of amendments proposed, only 27 amendments made it through process.  ***AND, given 10 amendments were added by 1791, there have been only 17 amendments in over 200 years...  Thus, amending the Constitution is a VERY politically difficult process.  Recent failures: equal rights amendment, school prayer amendment, flag burning amendment, balanced budget amendment, campaign finance amendment, electoral college amendment.

 

17 rights were proposed by Madison (natural rights including right to revolt because power derived from people; strict separation of powers); Congress passed 12 (# constituents/representative; congressional pay); states approved 10 (arbitrary number):  BILL OF RIGHTS (1791).

 

                1st AMENDMENT: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  ***ABSOLUTELY NECESSARY FOR DEMOCRACY TO FUNCTION...  Can’t have democracy without freedom of speech.

Most important right in a democracy—without ability to discuss public policy issues, or debate effectiveness of government leaders, citizenry can't make informed choices, and thus can't reasonably exercise right of vote.  Can't self-govern if can’t discuss how you should be governed

                2nd Amendment—“right to bear arms”—highly debated today; historical evidence highly mixed but consider the “Dissent of the Pennsylvania Minority” (who disagree with their state’s ratification of the U.S. Constitution because, among other things, it had no bill of rights, and proposed a bill of rights that included the following:  “That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game.”  Supreme Court ruled it an individual right in 2008 case, D.C. v. Heller.

                3rd Amendment—“no quartering soldiers”—England forced people to let English soldiers stay in their homes.

                4th through 8th Amendments—rights of criminally accused/criminal suspects, which together make up the large majority of all the rights in the bill of rights.  These includes right against unreasonable searches, seizures, right against self-incrimination, right to jury trial, right against cruel and unusual punishment.  Why?  Because one aspect of tyrannical governments is arbitrary arrest, imprisonment, torture, execution, etc. without charges, evidence, trials, etc. . . . THUS, all these rights are meant to protect ALL people, not just actual criminals...  They protect the INNOCENT from having their privacy invaded, or being wrongly convicted of a crime. And these rights say they apply to “people” (all people within U.S. Territory), NOT just citizens.

                9th Amendment  Concern (ala Hamilton, Fed. 84) that listing rights would imply denial of others, so 9th AMENDMENT (ratified 1791) "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." 

                I.E. “PEOPLE HAVE OTHER RIGHTS (than Ams. 1-8); WE JUST HAVEN”T LISTED THEM ALL.”

BUT 9th Amendment has been interpreted as Hamilton argued—Sup. Crt has said no other rights; 9th Am. pointless, because no principled way to know what this means—is it natural law?  if 5/9 judges like it?  EX: right to abortion, or right of fetus to life?  or both?  then which outweighs? It’s as if it were covered with permanent “ink blot” and so forever unreadable, or if it said “skribbledyblop.”  It’s meaningless.

Only handful of NON-listed rights, Supreme Court has said they exist in the 14th Amenment: 

14th Am. Privileges and Immunities Clause:  “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”:  right to vote, to travel (both implied by basic freedom required in a democracy);

14th Am. Due Process Clause“nor shall any state deprive any person of life, liberty, or property, without due process of law” FAMILIAL PRIVACY (limited to intimate decisions involving sex, procreation, childrearing, and heterosexual marriage, and the right to refuse unwanted medical treatment, including life-sustaining nutrition and hydration)—i.e. you can choose who and whether to marry, whether to have children (either have kids or not have kids using contraception or abortion) and then raise your kids as you want—private schools, subjects learned.—i.e. familial privacy; freedom of choice involving family matters —HIGHLY controversial—what is “privacy”? what does it include?  Should it be narrower/broader than what Supreme Court has said?  e,g, gay marriage?

 

                10th AMENDMENT of Bill of Rights (ratified 1791) said:   "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."  RESERVED POWERS

                BUT 10th Am. interpreted as having ALMOST NO substantive meaning, ALMOST NO substantive limitation against fed. govt.

 

ORIGINALLY Bill of Rights applied only to NATIONAL govt; 14th Amendment (1868) applied BoR to states (and all state sub-units) as well, although the Supreme Court didn’t actually do this until the middle of the 1900’s.  Now, 14th Amendment “incorporates” most of Bill of Rights.

 

Freedom of SPEECH:  Recall: most important right in a democracy because absolutely necessary for democracy to function...

Why free speech?  Why is it something we want to protect?

                1. DEMOCRACY—we’ve already seen, how can you govern yourselves unless you can discuss and debate policies. so Free speech is NECESSARY for democracy to function.

                2. TRUTH—MARKETPLACE OF IDEAS; people “buy” correct or better ideas; can’t know if truth unless it competes freely

                                but this means you must allow “false” “bad” or “evil” ideas to compete, or else you can’t be sure that you’re “buying” the

 better belief. i.e. can’t make fully informed choice without fully hearing both/all sides. E.g. can’t choose X unless you can fully and freely compare it to Y and Z. else it’s NOT a free decision. i.e. “choose” with only one choice is NOT a choice. 

                “I disapprove of what you say, but I will defend to the death your right to say it.” Francis M. Voltaire, French Philosopher, 1694-1778.

 

Outline of how the Supreme Court has interpreted and applied the First Amendment’s Free Speech Clause—absolute if read literally:

                “Congress shall make NO law abridging the freedom of speech . . “ so what is freedom of speech?

TWO ways government can regulate speech:

A. METHOD of communication—Time, Place, and Manner regulations is easy—no loudspeakers at night in a residential; no nudity on broadcast TV during daytime (when children are probably watching); no yelling political speeches in university classrooms when class is in session. TPM regulations must be “reasonable” with exceptions that go beyond the scope of this course.

B. CONENT of communication--Difficult and Controversial:  1st Am. is worded in absolute, so how has Supreme Court addressed content?:

Can be viewed as concentric rings of protection:

1.  strong protection: political and religious beliefs and opinions, no matter how hated, is highly protected core of free speech, almost absolute: “No such thing as a false idea.” (Gertz v. Welch).  Govt. must show “compelling” or “necessary” reason to restrict.

2. intermediate protection—commercial speech, symbolic speech (conduct that communicates a message; like school dress codes the regulate your clothing, hair, jewelry;  burning something in protest, wearing a colored armband).  government must show “important” or “substantial” reason to restrict.

3. little or no protection—threats, advocacy of violence, fighting words, defamation, obscenity (extremely hard-core pornography).

why are these not protected? Because they all have little to communicate regarding “ideas.”  hate speech can be prohibited ONLY if it’s also fighting words; vulgarity can’t be prohibited because it’s necessary to convey IDEAS themselves (e.g. depth of emotion involved).

 

As can be seen, CONTENT DISCRIMINATION (topic/subject matter) is sometimes allowed (depending on circumstances, such as government property (like prison, government workplace, building or even public school classroom), broadcast media, school assignments)

BUT VIEWPOINT DISCRIMINATION (view/position) is ALMOST NEVER ALLOWED

 

Example of Freedom of Speech: Texas v. Johnson (1989) great case for illustrating free speech principles:  FACTS:  man arrested for “desecrating” U.S. flag (burning it in public) violating a Texas law. ISSUE: Is burning U.S. flag protected under free speech in 1st Amendment? Holding: Yes, protected.  Majority Opinion:  Government may not prohibit idea simply because it disagrees with the idea or even finds it offensive. This is government-enforced viewpoint discrimination of political speech..... Government declaring “right”/”true”/”correct” belief...  This the very heart of the protection of freedom of speech.

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Religious Liberty: Also one of key foundations of American Government contained in First Amendment: minimizing involvement between government and religion.  Notice:  it’s not “no involvement” because that’s impossible:  humans will vote, or exercise political leadership, etc.  based on their religious beliefs. So a “total” separation of church and state is impossible.

 

First Amendment: “Congress shall make no law respecting an Establishment of Religion, or prohibiting the Free Exercise thereof.” Two sides of same coin:  Government can not interfere with religion EITHER WAY: by prohibiting it, or requiring it.  Basically establishes government neutrality towards religions. 

 

                Why minimize involvement between government and religion?  That is, Framers wanted to separate church and state, but why?  Negative historical experience in Europe and the American colonies.  Europe and colonies had religious Establishments:  one particular religious denomination was declared the “official” religion of the nation or colony, and given preference in the law.  Members of other religions could not vote, hold political office, were fined, were even imprisoned, beaten, tortured, and/or executed.

 

                1. Prevent persecution:  protect minority religions and religious believers—so majority religion can’t use government to oppress minority, this leaves religious believers free to practice their own religion free from coercion which would force them to violate their religious conscience. – religious majorities had implemented laws that discriminated, fined, imprisoned, or even killed religious minorities.  U.S. colonies: regular beatings of Baptists by Anglicans; Congregationalists (Puritans) killed “witches” in the Salem Witch Trials.

                                -e.g. Protecting religious minorities was view of Thomas Jefferson, and many others.

                2. Prevent religious civil war:  Protect religious people from each other—i.e. prevent violent social conflict otherwise could lead to severe political divisiveness, bigotry, and persecution between different factions, even if no majority—sectarian differences fragment society and lead to civil war even (like former Yugoslavia; Lebanon). no religious civil war, which might occur if religious groups think they can use the power of government to establish their religion over all “the unbelievers.” U.S. colonies:  Protestants hated Catholics, and in some colonies and first state Constitutions, only Protestant Christians had equal civil and political liberty.

                                - e.g. view of preventing religious civil war was view of James Madison—see his Memorial and Remonstrance

                3. Prevent religious corruption:  protect religion in general from the corrupting influence of government—corrupt worldly influence from control by, or dependency on, government        -e.g. view of Roger Williams, evangelical minister in mid 1600’s, but many others as well.

 

                ***In sum, avoiding government involvement with religion is meant to PROTECT religion in general, religious minorities, and religious believers in general; i.e. meant to PROTECT AND NURTURE RELIGIOUS LIBERTY...—belief, expression, practice.  In other words, the Separation of Church and State is to NURTURE religion...  You can’t nurture ALL religions if you allow ONE religion to take control and persecute the rest. Once one understands the correct reasons behind the separation of church and state, then one understands why the U.S. was NOT founded as a “Christian Nation.”:

 

The U.S. Founders’ Views of Religion

 

Overview:  There is a currently a great deal of public misunderstanding regarding the religious views of the founders of the United States government. Today, strict separationists argue the founders were mostly deists who wanted a strict separation of church and state such that the U.S. government would have no connection with religion at all. On the other hand, many conservative Christians today argue the founders were mostly very devout Christians who founded a “Christian nation” and wanted no separation of church and state.   As is often the case in life, the truth is somewhere in-between.

 

1. disestablishment The established Protestant Christian churches in the American  colonies and very first state Constitutions were the Anglican Church, along with the Congregationalists (Puritans).  A broad coalition of persecuted minority religious groups wanted disestablishment of any official religion so that they could have equal religious themselves.  Thus, evangelical Protestants at the time (Presbyterians, Methodists, and especially Baptists, who were regularly beaten), Catholics (who were hated by most Protestants), Jews, Providentialists (believers in one god who guides and helps us in this life), and deists (believers in one god who does not get involved in human affairs until the afterlife) all joined together to support disestablishment.  Providentialism and deism were relatively popular religions at the time, especially among the educated class.  This coalition of minority religious groups wanted to remain united in their effort at disestablishment, so they tried to focus on their COMMON, SHARED religious beliefs:

                --there is one god (the term for belief in one god is theism)

                --moral goodness comes from and is defined by this god, such as principles of honesty, peace, caring, respect for elders, etc.

                --this god is also on the side of liberty and democracy, not monarchy or tyranny

                --that in the afterlife, this god will judge us (individually and collectively as nations) for our sins against what god is on the side of.

As this coalition of many different believers in god (pluralistic monotheism) became a majority and won political victories for disestablishment in the 1770’s, 80’s and 90’s, they changed their state constitutions to prohibit any religion from being the established state religion.

 

2. Independence Also, American were divided on independence from England.  Roughly one-third wanted independence, one-third did not (“loyalists”) and one-third were somewhat undecided.  The established churches of course tended to support England, especially the established Anglican Church.  Americans wanting to gain support for independence needed to attract as many supporters as possible, and so anything that might religiously divide supporters was carefully avoided as much as possible.  Thus, to appeal to all the various religious groups that wanted disestablishment, official statements like the Declaration of Independence and the first American constitution, the Articles of Confederation, avoided religious terms that would refer only to one type of theism such as Christianity—thus terms like “Jesus, Christ, Chistian, Christianity, Bible, Biblical,” etc. were avoided.  Instead, they use theistically neutral terms that a broad coalition of theists with different religious beliefs could all agree on and support. Thus, the Declaration of Independence uses the terms “laws of nature and nature’s God,” “Creator,” “divine providence” “Supreme Judge.”  The Articles of Confederation, the first U.S. constitution, says “Great Governor of the World.”  

 

3. The Constitution: Similarly, there was quite a political struggle to ratify the Constitution.  It barely passed.  To gain as much support as political support possible, the writers of the Constitution continued to apply disestablishment principles by not connecting the U.S. government to any particular religion, and prohibiting any religious test as a qualification to serve in office in the U.S. government.  Other than that, the preamble to the Constitutions merely notes that the purpose of the Constitution is to “secure the blessings of liberty.”  The First Amendment, added two years later, even further strengthens disestablishment by granting the free exercise of religion to all religious groups and prohibits the U.S. government from establishing any official government religion.

 

4. Public speeches by Presidents and official U.S. government declarations:  A brand new nation, especially the first ever of its kind, is a very fragile thing.  The last thing the early Americans wanted was for religious divisions to destroy what they had worked so hard to create. Thus, public speeches by the presidents, including their official proclamations, like their Thanksgiving Proclamations, continued to use neutral theistic terms (e.g. no terms like Jesus or Christ) that could be agreed to by the plurastically theistic coalition of Americans.  Washington: “almighty god” “lord and ruler of nations” Adams: “supreme being” “author of all good” ; Madison “great sovereign of the universe” “beneficient parent of the human race” “divine author of every good and perfect gift.”

 

The common term for this minimization of the involvement between religion and government is the separation of church and state.

NOTE this was NOT a “strict” separation of church and state, because it was permissible and expected that public officials would promote the COMMON, SHARED theistic religious beliefs listed above in an inclusive way, but that public officials should AVOID taking a position on which religion or religions or denominations among that broad theistic coalition was the “better” or “best” or  “true” denomination or religion.  In other words, it was generally understood and believed at the time that public officials and public institutions should promote religious morals, but should avoid taking positions on religious doctrine.

 

The entirety of Madison’s notes of the 1787 Constitutional convention, the Federalist Papers, and the surviving transcripts of the debates over ratification of the Constitution show no one thought the U.S. government was going to be connected to any particular denomination religion, let alone the Christian religion.  In fact, the few writers that did use Christianity in their arguments opposed the Constitution as heretical or blasphemous because it was NOT based on “biblical principles” or “God’s laws” and thus it was a “godless” constitution that gave equal rights and privileges to the religions of “pagans,” “Jews,” “Turks,” “infidels,” “atheists” etc.  One leading Christian minister and writer even argued that Christians should not give any obedience to the new American Government precisely because the U.S. Constitution had nothing to do with Christianity—see. Reverend Samuel Wylie,The Two Sons of Oil, 1803

Best direct statement at the time:  The 1797 Treaty of Tripoli, part of the Barbary Treaties (Treaty of Peace and Friendship) ratified unanimously by the U.S. Senate and signed by Pres. John Adams in 1797, and published in major U.S. newspapers without any public controversy says “. . .the government of the United States of America is not in any sense founded on the Christian religion . . .” (italics added).  And according to the U.S. constitution article VI, treaties are official U.S. law.  Thus, official U.S. law in 1797, agreed to by all the Senators and the president, states that the government of the United States is not in any sense founded on the Christian religion.

Note: One common reply by supporters of the “Christian Nation” argument is that the phrase “the separation of church and state” is not in the Constitution. But remember from our course so far:  NONE of the key terms that define the U.S. national system of government are in the Constitution:  neither the terms  “checks and balances” nor “separation of powers” nor “bill of rights” nor “enumerated powers” nor  “limited government” nor “federalism” nor “representative democracy” nor even the word “democracy” are found anywhere in the U.S. Constitution. There is not even a “right to vote” listed in the Constitution.  These are all just shorthand terms and phrases used to describe the basic, fundamental structures that were put into the Constitution.  

Since our founding period, we as a nation have continued this relatively neutral monotheism when we do connect the U.S. government in any official way to religion.  For example, the phrase “In God we Trust” was added to coins in 1865 and the phrase “under god” was added to the pledge of Allegiance in 1954.

Conclusion:  if by “Christian Nation” one means the majority of the population as well as the dominant religion and culture is mostly Christian, then yes, the United States has always been and still primarily a “Christian Nation.” But if one means by “Christian Nation” that the U.S. government was founded on the Christian religion, then no, the United States was not “founded as a Christian Nation,” although it was founded on a religiously neutral, pluralistic monotheism, and was certainly NOT anti-religious or even non-religious.

The FIRST AMENDMENT and religious liberty today:

So what are your rights today?  Basically (this is oversimplifying things a bit and there are some relatively minor exceptions), the Supreme Court currently rules that together the Free Exercise Clause and the Establishment Clause requires the government to be mostly neutral between different religions, and between religion and non-religion.  So the Supreme Court has broadened the equality of religious liberty beyond mere theism, to include essentially any type of religious belief, or no belief at all.  You can believe anything you want, and the only limitation on how you can practice your religion is that you must comply otherwise with religiously neutral laws (e.g. You can’t commit human sacrifice because that violations murder statutes).

 __________________________________________________

Civil Rights—Freedom from ARBITRARY (irrational/unjustified/unreasonable) Discrimination by government; i.e. a right to equality

 

The government “discriminates” all the time in most policies and laws—e.g. only families with lower incomes qualify for government-provided student loans.  People with more money are being “discriminated against” by government.  Only more intelligent people are admitted as public university students, so less intelligent people are being “discriminated against” by government.   Government hires the most qualified workers for jobs, so less qualified workers are being “discriminated against” by government.   But the question is whether treating people differently is justified and reasonable or is it instead arbitrary and unjustified.  Many types of discrimination have historically been based on nothing more than unfounded fears and prejudices and negative stereotypes.   Among these types are race, sex, and sexual orientation.

 

RACE: Arguably the MOST IMPORTANT POLICY ISSUE IN AMERICAN HISTORY—1787 Constitutional convention, territorial expansion tensions, civil war, Jim Crow laws,  civil rights movement, today: affirmative action, legislative redistricting; most of social welfare, education and criminal justice policy is entangled with issues relating to race.

 

Must understand background of Civil War: remember Congress did ban the international slave trade in 1808, which the Constitution allowed.

 

But, they didn’t want the number of slaves decrease, or else Southern whites would get less votes in the House of Representatives (remember: under the Constitution, each slave counted as 3/5 of a person) and free blacks would of course add political opposition to slavery. So most Southern states (all but SC and LA) made it ILLEGAL to educate your slaves, give them property, OR TO FREE THEM (called “manumission”); forbidden for slaves or free blacks to own guns. Marriages between slaves were not recognized as legally valid.  It was illegal in the South to speak out or publish writings against slavery (free speech was not protected).  Even in the U.S. Congress, Southerners got Congress to adopt a “gag rule” which prohibited any member of Congress from suggesting in Congress that slavery be abolished.  All these things preserved slavery in the South.  Read Frederick Douglass’ Narrative of the Life of Frederick Douglass for an excellent true story of, and analysis of, Southern slavery.

 

But slave states needed to keep power in Congress to block attempts at restricting or abolishing slavery, needed number of slave states to always equal number of free states in the Senate, otherwise free states could outvote slave states.   Southern States could easily perpetuate slavery in their own states; what they had a hard time doing was expanding slavery to keep slave states equal to free states . .. So for the South, the EXPANSION of slavery into new states was critically necessary to the survival of slavery.  This is why the South absolutely insisted that slavery be allowed into new territories and states.

 

Missouri Compromise (1820)—Missouri enters as slave state, North/South dividing line west of MO, up to edge of Louisiana (NW) Territory

Compromise of 1850 (1850) –Texas Slave, California Free, New Mexico and Utah territories created but neutral on slavery, end slavery in D.C. but enact a Fugitive Slave Law which toughened enforcement of the Fugitive Slave Clause of the Constitution.

Kansas-Nebraska Act (1854)---With let each state decide; “Bleeding Kansas” mini-civil war within Kansas. Fed troops needed to stop.  Kansas finally admitted as a free state in 1861.

Dred Scott v. Sanford—(1856) slaves not citizens of U.S. or states;  NOT PART OF SOCIAL CONTRACT....  states can’t make them citizens, slaves are "property" and fed government can't make them citizens and thus take away your property, so slaves can be brought into all states and territories. ***NO POLITICAL/LEGAL COMPROMISE IS POSSIBLE—SLAVERY MUST BE ALLOWED TO EXIST EVERYWHERE in U.S.;  ACCELERATED CIVIL WAR ONSET, because no the ONLY way to stop slavery is by war.  No other option possible.  Generally agreed it’s the worst Supreme Court decision ever, because (a) said blacks are property, not humans, and (b) forced civil war to occur.

 

Late 1850’s, Southern whites increasingly were upset with the North: 

                1. The North openly refused to recognize Dred Scott; didn’t allow slavery to spread to spread to territories;

                2. Northern states wouldn’t obey fugitive slave clause and refused to return escaped slaves;

                3. Northerners helped slaves escape through the “underground railroad.”

                4. The “abolition” movement to abolish slavery was gaining support in the North, and abolitionists published newspapers and elected officials who had anti-slavery views.

                5. The anti-slavery novel Uncle Tom’s Cabin was a massive bestseller in the North and increased abolitionist feelings.  The book was banned in the South.

                6. In 1859 a white Northerner named John Brown raided a military arsenal then located in Harper’s Ferry, Virginia and unsuccessfully tried to inspire a slave uprising.  He was caught by Southerners and hung.  Southerners were outraged and believed he was part of a growing Northern conspiracy to end slavery by create slave rebellions, but many Northerners believed Brown was a martyr for a righteous cause.

 

Tensions were very high between the North and South, with the South already threatening to leave the U.S., by military force if necessary, if the North wouldn’t leave slavery alone.  e.g. John C. Calhoun, Senator from South Carolina, the leading proponent of the Southern “states’ rights” position, in 1850 his farewell speech to the U.S. Senate dealt entirely with the issue of slavery, and said unless the North leaves the issue of slavery alone, and ends the movement towards abolition, it will lead to the break-up of the U.S., because the South will secede (leave the U.S.) to keep slavery.

 

Abraham Lincoln was an Illinois politician who rose to fame when he ran for the Senate and debated judge Stephen Douglas. Their series of lengthy debates throughout the state of Illinois dealt entirely with one issue only:  should slavery be allowed to expand or be prohibited from expanding into new U.S. territories.  The fact Lincoln was willing to stand up against the South won him fame and admiration in the North.

 

Lincoln’s Election Nov. 1861 Lincoln won the Presidency.  Lincoln was against the expansion of slavery, and he also said he was morally against all slavery and argued that it should one day become extinct. A majority of Presidents up until Lincoln had owned slaves themselves, and Lincoln was the first U.S. President ever whose policy was that slavery should be restricted in any way.  So that was the last straw for the South. They already were a minority in the House of Representatives, they would soon lose the Senate if slavery wasn’t allowed to expand into new states, and now there was a President who would not veto attempts by Congress to limit slavery. The only way now that the South could preserve slavery would be to leave the U.S.

 

Southern states then seceded and formed Confederate States of America in 1860.  By Feb. 1861, Southern states issued “declarations of secession” justifying why the were seceding (leaving) the U.S. They argued that the North had violated the South’s “constitutional rights” to “property.” (i.e. slaves) —by outlawing slavery in territories, refusing to return escaped slaves, trying to have slavery be abolished, helping slaves escape (through the Underground Railroad), etc.  See the Southern Address (by Southern members of Congress),  Jefferson Davis’ Farewell Address, State Declarations of Secession (e.g. Texas Declaration of Secession: “We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity . . . That in this free government all white men are and of right ought to be entitled to equal civil and political rights”), CSA President Jefferson Davis’s inaugural speech to the CSA Congress.  See perhaps most clearly, Confederate States of America Vice-President Alexander Stephens, in his Cornerstone Speech in Savannah Georgia, 1861, just after the formation of the CSA but before the Civil War had begun:

“The new [Confederate] constitution has put at rest, forever, all the agitating questions relating to our peculiar institution -- African slavery as it exists amongst us -- the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the "rock upon which the old Union would split." He was right. . . .  The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old [U.S.] constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. . . . Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error.  . . .Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner- stone rests upon the great truth, that the negro is not equal to the white man; that slavery -- subordination to the superior race -- is his natural and normal condition. . . . This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. . . .”

The Civil War began 1861.  Lincoln issued the Emancipation Proclamation in 1863, which technically only freed slaves in “areas still in rebellion” by a deadline; so it wouldn’t have freed slaves in border states (e.g. Kentucky, Missouri) and not in any Southern States that surrendered by the deadline.  But after the deadline came and went without any Southern States surrendering, Lincoln then extended the proclamation to all U.S. territory.  Note that the European powers had remained neutral, and Northern naval blockades of Southern ports risked war with Britain, France, who wanted trade with the South, etc., but by making the war expressly over slavery rather than whether states could leave, it made it harder for European nations to remain neutral, or to object to blockades.

 

Note in Lincoln’s Gettysburg Address (1863) he notes the United States is a great as-yet-undetermined-experiment in whether a nation “conceived in liberty” and equality can exist and survive in the long run. And in his Second Inaugural,(1864) he points out that the Civil War is God’s punishment against both the North and South for allowing and having human slavery, and he said the North and South should reunite “with malice towards none.”

 

For excellent summaries of the Civil War, see James McPherson’s book Battle Cry of Freedom, or Ken Burns’ PBS video series, The Civil War.

 

Civil War was fought from 1861-1865;  U.S. government defeated the CSA in 1865:  then U.S. Constitution amended:

13th Amendment (1865): “Neither slavery not involuntary servitude . . . shall exist within the U.S.”—FIRST AND ONLY right that limits power of PRIVATE individuals, not just Government.  See the movie ”Lincoln” about the passage of the 13th Amendment.

                Then, South implemented “BLACK CODES” denying right to vote, and imposing harsher criminal sentences on blacks (why? white-only juries, white-only judges, with white-only witnesses allowed could convict any political activist).  So, North passed 2 more Amendments.

14th Amendment (1868): “no state shall deny to any person the EQUAL PROTECTION of the laws.”  ALMOST ALL modern constitutional civil rights flow from the Equal Protection CLAUSE.

15th Amendment (1870): “the right to vote shall not be denied on account of race”. Although seemingly redundant with the 14th Amendment, supporters argued it was better to be safe than sorry, given the Southern white’s past attempts at evading the Constitution.

THUS, 13, 14, 15th Ams.  Called “Civil War Amendments” Almost all modern constitutional civil rights come from EP Clause of 14th Am.

 

Reconstruction 1866-1877—at first, North (through military occupation) made states respect rights of former slaves through enforcement of the 13, 14, and 15th Am..  They had to rebuild, or ”reconstruct” the South which had been devastated from the war, but rebuilt not just physically but also politically and legally.  Because the now free black population was so large, (1870 census:  entire South: 34%; MS: 55%, SC: 57%).  Mississippi elected two black senators, and South Carolina’s Congressional delegation was majority black. But within a few years, North grew tired of occupying the uncooperative South, and finally lost the political will to continue to oversee that the South was respecting civil rights of free blacks.   Finally, in the contested 1876 Presidential election between Republican Hayes and Democrat Tilden, some of the Southern State legislatures agreed to let Hayes have their electoral votes, but only if Hayes and the Republican Party agreed to end reconstruction, and they did.

 

Then, without Northern enforcement of equality, Southern whites first needed to retake political power again—the only way they could do that, given that blacks had so many voters and representatives, was by stopping blacks from voting. But since they didn’t have the political power to do that legally, they turned to terrorism:  KKK (Ku Klux Klan) and other para-military white supremacist groups murdered thousands of black leaders and political activists, or even regular citizens if they exercised their right to vote.  At their peak the KKK had between 250,000 and half a million members, led by former Confederate general Nathan Bedford Forrest.  There were massacres of blacks attempting to vote Black votes dropped substantially, so voting whites were able to retake political power.   In Louisiana alone, there were several massacres of blacks who were attempting to vote.  Such Massacres occurred in New Orleans, Opelousas, Kinder, and Colfax.  So the Southern whites had retaken power through outvoting fearful blacks who were threatened, beaten, or even killed if they voted.  And since the white plantation owners had mostly been given back their land, and the free blacks were given none, former slaves had to go back to work as sharecroppers, often on the very same plantations where they had been slaves.

 

Once whites took back political power in the South, they  bypassed the 14th and 15th Amendments, through 1. segregation, and 2. voting discrimination.  This solidified and perpetuated rule by white supremacy.  This lasted for almost a century (until the 1960’s) when segregation and voting discrimination was finally outlawed.

 

A racial class system based on white racial supremacy was re-implemented through two major systems:  voting discrimination and segregation.

 

1. VOTING DISCRIMINATION:  South Bypassed the 15th Amendment: SOUTH DENIED BLACKS THE RIGHT TO VOTE, by:

(a) violence—lynchings, beatings, arson to homes, etc, led by the KKK (Ku Klux Klan). scared blacks into not voting.

THEN once whites outvoted blacks and retook control, they made it legally difficult for blacks to vote:

a. poll taxes—had to pay a tax to vote (free blacks of course had been former slaves, so had no savings to pay.  There had been a proposal to give each former slave 40 acres and a mule to become self-sufficient, but the plan was politically defeated, and the large plantations were given back to their white owners.  Thus, free blacks were forced to be sharecroppers with little income, renting land from the very same whites who had been their former owners.  White majority in the South either (a) didn’t care about poor whites, or (b) selectively enforced the poll tax only against blacks.

                                b. literacy tests—same enforcement as poll taxes.  Remember law had made it a crime to give any education to slaves, so

most free blacks could not yet read.  For those that could, different tests given to different races. Or, the test might be VERY difficult to pass even for whites (e.g. Alabama literacy test) so passing score differed depending on your race.

                                c. Grandfather Clause (Louisiana started in 1898 and 6 other Southern states followed: said you were exempt from poll and literacy tests if your grandfather could vote prior to 1867 (which was prior to the 15th Amendment).

                                d. One-Race party Primaries: Democratic Party in the South refused to let blacks take part in any party conventions, nominations, or primary elections

                e. racial GERRYMANDERING: manipulating voting district boundaries to maximize your chance of winning.  I.e. redrawing legislative districts (after each census “reapportionment”) to (usually) dilute a voting group’s strength.

                                In other words, rigging the voting district boundaries so that you will win, and your opponent will lose (at least more likely).

                                South engaged in racial gerrymandering, e.g. splitting up concentrations of black voters into majority-white voting districts.

 

                                And note that besides these legal means, whites continued to use death threats, lynchings, and other violent terrorism continued against blacks if you tried to vote or become politically active.

 

After these voting discrimination laws and practices were implemented, there was NOT ONE black elected official in the entire South, and the voting rate by blacks plummeted to .2%  (not two percent, but point-two-percent.) But slowly, these discriminatory laws were eliminated over the fierce objections by white southern governments and white southerners:

 

                1915: U.S. Supreme Court ruled Grandfather clauses unconstitutional.

                1948: U.S. Supreme Court ruled Democratic Party could not exclude Blacks from primary election voting as that achieved essentially the same result as if it were official government exclusions of blacks from voting

                24th Amendment (1964): outlawed poll taxes

Voting Rights Act of 1965--outlawed literacy tests;   1982 Section 2 Amendments to the 1965 Voting Rights Act-- prohibits any practice or procedure (e.g. such as redistricting), regardless of intent, that results in voting discrimination.  This had the effect of outlawing racial gerrymandering.

 

Note the end of the Civil War was 1865; the Voting Rights Act was 1965.  So the South had the rule of white supremacy for a full 100 years after the Civil War.  This is why many historians say the South lost the Civil War but won reconstruction.

 

                But even after the passage of the 1965 Voting Rights Act, as civil rights groups attempted to get blacks to register and vote, whites resorted to terrorism:  assassinations such as Mississippi NAACP leader Medgar Evers in 1963, 3 Mississippi freedom riders in 1963 (made into the film “Mississippi Burning”), and MLK in Memphis 1968; bombings of black churches, one which killed several children in Birmingham; firebombing of Greyhound bus that carried both whites and blacks going to register black voters; thousands beaten by white citizens and/or white police.  So again, federal troops, federal agents from the FBI, federal marshals, etc. had to come in and investigate crimes, protect both black and white civil rights activists.

 

2. Racial SEGREGATION:   South bypassed the 14th Amendment:  "Jim Crow" Laws (SEGREGATION) (legally forced physical separation/isolation) segregating whites and blacks in just about EVERY possible public place—neighborhoods, schools, restaurants, theatres, courtrooms, trains, busses, hospitals, hotels, churches, restrooms, water fountains, parks, swimming pools, beaches, the military, jails, prisons, cemeteries, even Bibles used to take oaths in court.  And private businesses (shops, restaurants, etc.) segregated as well.  Interracial daters were not only ostracized but often violently beaten; interracial marriage received a long prison term.  White homeowners were forbidden by law from selling their homes to a “noncaucasion.”  This is all VERY similar to what Germans did to Jews in the 1930’s; that is, up to the point where Germans began outright extermination of the Jews. 

               

Plessy v. Ferguson (1896)  Louisiana law required "equal but separate accommodations" for white versus black railroad passengers. Plessy 7/8 white, 1/8 black, not allowed to sit in white car.  He argued 14th Amendment’s Equal Protection Clause prohibited segregation.  Supreme Court said legislation need only be “reasonable.”  Here, Louisiana wants to uphold public peace and order based on longstanding social traditions and customs (implying violence result if races mix).  2. law doesn't interfere with POLITICAL equality.  Constitution can’t make races SOCIALLY equal if races voluntary choose not to mix.  3. Segregation does NOT stamp blacks with a badge of inferiority, unless blacks CHOOSE it to have that meaning.. (ABSURD—defies common sense AND the reality that EVERYONE knew was true at the time...) Like saying “the sky is pink with green polka dots.”  If you’re not insane, then EVERYONE realizes you’re obviously hiding from the truth. 

 

See the film “The Help” for a mild portrayal of segregation in Jackson, Missisippi at the start of the Civil Rights era.  

See the Film “Something the Lord Made” for a portrayal of racial prejudice in general during this time.

 

This became the SEPARATE BUT EQUAL doctrine

DISSENT: Justice Harlan---“True intent and meaning” of civil war amendments would protect civil rights of freedom an citizenship, prohibits even "badges of slavery."  Our constitution is colorblind, and neither knows nor tolerates classes among citizens.”

 

In reality, the “equal” part of  “separate but equal” was never anywhere near equal, but this fact was ignored by the Supreme Court for decades.

Eventually, in the late 1940’s and early 1950’s, the Supreme Court started to strictly enforce the “equal” part of “separate but equal”—requiring equal funding for school buildings, teacher salaries, textbooks, course offerings, lab supplies, busses, extracurricular activities, etc.  But what of INTANGIBLE things that you can not put a numeric measure on?

 

Brown v. Board of Education (1954) (Brown I) Unanimous 9-0

8-year old black girl denied enrollment in Kansas public school because school segregated. Crt: separate but equal is "inherently unequal" Although tangible things might be equal (like school buildings, teacher qualifications, etc.), INTANGIBLES are unequal (like ability to exchange views with others) Also, social science studies have now shown PLESSY was mistaken:  separation conveys feelings of inferiority on the minority group, which has detrimental educational effect.  Thus, OVERRULED PLESSY v. FERGUSON.  14th Amendment Equal Protection Clause DOES prohibit segregation...

 

BUT Southern whites hated this ruling.  They openly (AND VIOLENTLY) resisted it—Southern governors, legislatures, school boards, police departments, and judges all refused.

EX:  1957 Governor of Arkansas used state national guard troops (with guns.) to stop black children from going to school.  So President Eisenhower had to send over 1,000 troops from the 101st Airborne division and 10,000 national guard troops(.) to Little Rock to enforce integration and protect the black children from violent retaliation. 

EX:  1962, Governor of Mississippi refused to stop whites from violently rioting (and in fact he had called on them to do so!) against the admission of first black student, James Meredith, to the University of Mississippi in Oxford, Mississippi. In fact, several hundred armed whites besieged federal marshalls who holed up in an administration building on the campus.  The armed whites believed the Marshalls had Meredith with them. Two deaths resulted from the several-hour long shoot-out in the middle of the night.  President Kennedy then had to send several thousand U.S. troops to prevent further violent rioting by whites, and the troops stayed for a year to protect Meredith.  Because this was the final occasion where armed northerners (the federal marshalls) actually fought with weapons against armed southerners (the white rioters who were trying to find and kill Meredith) over issues of racial equality, some historians have only half-jokingly called this “the Battle of Oxford” or “the last battle of the Civil War.”

 

White school districts did everything to avoid the ruling—redraw attendance zones, tear down schools, build new schools in different neighborhoods, or simply close entire school districts! Like in Little Rock, Arkansas in 1957, where President Eisenhower had to send thousands of U.S. Troops in to stop angry white mobs from using violence to prevent the nine black students (the “Little Rock Nine”) from attending the high school.  Eventually, after a decade of noncompliance, the Supreme Court, Congress, and the President all became active in enforcing desegregation through stronger court rulings, Congressional legislation, and Department of Justice enforcement of Congressional legislation.  So in late 1960’s and 1970’s this enforcement began to actually implement desegregation.

 

Martin Luther King  “I Have a Dream” speech, 1963 was instantly recognized as being one of the greatest speeches in U.S. history, most historians and scholars consider this speech and his actions makes King a “founder” of the U.S. as much as Madison, Hamilton, Jefferson, etc.

Notice his metaphor is that “freedom and equality” was a “promissory note” but which is a “bad check” when blacks try to cash it, as it comes back “marked “’insufficient funds.’”  I.e. the American Experiment in equality and freedom is STILL ongoing and trying to achieve its goals...

 

Korematsu v. U.S. 1944—Americans of Japanese ancestry and Japanese resident aliens were forced into “relocation centers” away from West coast (like NV, UT because of panic over sabotage for a possible Japanese invasion of the west coast.  Half of the interned people were children.  Barbed wire  fences, guard towers, cramped group barracks, most in the middle of deserts with harsh winters and hot summers etc.  Lost jobs, homes, everything.  Japanese American challenged.  Court said "military urgency" required deference to Congress and military, even though racial classification is subject to “highest scrutiny.”    DISSENT:  “concentration camps.”; blatantly racist and unconstitutional

*Fred Korematsu Born in San Francisco area (American Citizen); applied for but rejected from military for poor health; worked in defense industry.  After refusal to go to concentration camp, arrested, convicted, sentenced to 5 years in prison, but paroled and sent to camp in Utah.

*Eventually, Civil Liberties Act of 1988: President Reagan signed, formal apology and $20,000 per person interned, for a total of $1.25 Billion.

Why tell you about this case?  TheAmerican philosopher George Santayana (1863-1952) said: "Those who cannot remember the past are condemned to repeat it" (from "Life of Reason I").  So let’s remember, so that we won’t repeat it.   See the film “The Siege” for a fictional more modern possibility.

 

***Today, 14th Amendment Equal Protection Clause prohibits almost all race discrimination by government—the government must show some COMPELLING reason—it’s necessary to treat people differently—e.g. affirmative action. 

 

Congress also has outlawed many types of private discrimination:

A. Title II of the Civil Rights Act of 1964 (as amended) (42 USC sex. 2000) prohibits discrimination in places of public accommodation because of race, color, religion, sex, or national origin. Places of public accommodation are businesses:  shops, restaurants, hotels, movie theaters, etc.

B. Title VII prohibits racial discrimination in employment—e.g. hiring, promotion, wages. and prohibits “hostile work environment” because of a person’s race otherwise a business could just treat a person so badly until they quit, in a way to otherwise get around the law.

C. Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), prohibits discrimination in the sale, rental, and financing of dwellings, based on race, color, national origin, religion, sex, familial status (e.g. single unwed mothers, etc.), and handicap (disability).]]]

 

SEX discrimination Historically, at time of constitution, women in general had fewer legal rights of men: couldn’t vote, serve on juries, have many professions—e.g. doctor, lawyer, judge, clergy, elected official, etc.   Married women, however, basically lost their separate legal identity under "coverture."  Wife's identity was "covered" by the husband, and thus couldn't contract, own property, inherit, even be held responsible for own torts or crimes—everything flowed to and from husband.  He could even "discipline" wife as if a child.  In practical legal effect, it was as if the wife was a child of the husband; the property of the husband, and couldn’t divorce him except under extreme abuse or extreme infidelity; even rape of your wife was not a crime (i.e. husband had a “right” to sexual relations with his wife).  The loss of the women’s identify to her husband was symbolized by losing her family name and becoming merely “Mrs. Smith” (the wife of Smith.)

 

                Unmarried women had more rights than married women, but not a lot:couldn’t vote, have many professions—e.g. doctor, lawyer, etc.

In 1850's, New York started trend of eliminating coverture, which was gone by around 1900. . . 

 

19th Amendment (1920):  Women received the right to vote, BUT women still not fully social or legal equals: STILL prohibited from voting and from many professions, received much lower wages for same job, limited marriage and divorce rights, marital rape exception, etc.

 

Throughout 1960’s and 1970’s, Supreme Court started applying Equal Protection Clause to protect women, but the Court almost always upheld the different (lesser) treatment of women.  Because of this, women’s rights groups worked to amend the Constitution:

 

EQUAL RIGHTS AMENDMENT:

Section 1. Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

 

It passed Congress in passed in the above form in 1972, but with a 7 year deadline.  An extension was given, but it was not ratified by the necessary thirty-eight states by the July 1982 deadline. It was ratified by only thirty-five states. So the ERA never passed.

 

U.S. v. Virginia (1996)                                         

FACTS: Woman denied admission to all-male military college, Virginia Military Institute (VMI).  VA said women couldn’t handle rigor.

Held: "exceedingly persuasive justification" needed.  Here, alleged policy of diversity in higher education opportunities contrary to history of state's intended exclusion of women from higher ed.  Govt also says interest in maintaining unique atmosphere of physical training, absence of privacy, and "adversative" approach.  No evidence that women can't handle these if they want to. Separate women's military college doesn't offer same atmosphere, prestige, resources, etc., so women wouldn't have access to equal education. (Ala “Separate but equal”)

 

There’s not much sex discrimination that is allowed by law now—military combat positions, e.g. selective service registration, infantry, tank and submarine crews, different ages of sexual consent, abortion regulations, separate bathroom facilities, etc. Also limited gender affirmative action.

 

 Congress has also outlawed PRIVATE Discrimination:

Title VII of Civil Rights Act of 1964 also now  prohibits employment discrimination on the basis of sex (hiring, promotion, wages), including the prohibition of sexual harrassment, because it’s a hostile work environment that can force someone to quit, which would otherwise get around the law.

Title IX prohibits educational discrimination, which includes disparate sports teams ratios—e.g. teams, members, spending.]]]

 

3.  ALL OTHER classes/categories of people: the law must be rationally/reasonably related to a legitimate/valid government purpose/interest ).  ALMOST ALL laws survive minimal scrutiny.

*mental disability--(zoning ordinance restricting home for mentally disabled not okay) Cleburne v. Cleburne Living Center, Inc. (1985)

                                -most job and academic rewards based at least in part on mental ability . . .

*intelligence—public university admissions and government employment

*age-- (mandatory retirement age for state police okay) Mass. Brd. Of Retir’t v. Murgia (1976), voting, juries, alcohol, marry, drive, soc. sec.

*weight, strength—military, police, firefighters requirements for strength, weight, endurance

*wealth--school financing (San Antonio Indep. Sch. Dist. v. Rodriquez (1973)), medicaid, food stamps, most student loans, tax rates

 

Sexual orientation--Bowers v. Hardwick (1986) said states could criminalize homosexual sodomy (gay sex) (5-4 vote).  

Romer v. Evans (1992) said state can’t eliminate gays and lesbians from protection of the laws.

Lawrence v. Texas (2003) Court overruled Bowers v. Hardwick (1986) and said “emerging understanding” that homosexual are entitled to some bask civil rights-to be free to engage in sexual or romantic relations between consenting adults of their choosing, free from it being made a crime. 

U.S. v. Windsor (2013):  Court said IF a state recognizes the legal validity of same-sex marriage, then those marriages within that state must also be recognized by the federal government. 

 

But this still leaves lots of unopened questions about gay rights in the states: are same-sex marriages in one state valid in other states?  Must al states allow same-sex marriage?  And what bout child custody?  Adoption?  Inheritance?  Hospital visitation? Health insurance? Housing discrimination?  Employment discrimination? Etc.

 

Private Discrimination: Not Congress, but Hundreds of Cities and many states (e.g. California) prohibit public and private employment discrimination on the basis of sexual orientation, and Congress has come close to amending Title VII to include sexual orientation, but narrowly lost on votes.

__________________________

 

Psychologically, all forms of arbitrary discrimination are based on an irrational fear or misunderstanding of the unfamiliar or unknown:

Xenophobia, a Greek term, literally means “fear of strangers” but it is defined as “An irrational or unreasonable fear, distrust, or hatred of strangers, foreigners, or anything perceived as foreign or different.”  Scientists have discovered at least three significant explanations for xenophobia:

 

1. Low Self-Esteem. Most commonly, a person with low or lacking self-esteem is able to manufacture a (false) sense of “self-esteem” by making a comparative judgment that “I am better than that other person and therefore I have self-worth.” This is comparative self-worth, rather than an absolute worth which would say “all people are equally valuable as human beings because we are human beings.”  For example, white supremacists try to make themselves feel better about themselves by believing that other races are inferior.  In fact, this was a primary argument in the American South during the U.S. Civil War to get non-slave-owning whites to fight for slavery: slavery meant that whites were “better than” blacks, and the ending of slavery would mean that poor whites were now “at the bottom” of the comparative worth scale.  The solution here is to try to reach out to people who hate others and help them see that they do NOT need to hate others in order to feel good about themselves, and in fact they will feel better about themselves when they understand that ALL people EQUALLY have INHERENT worth as human beings.   Of course there is no guarantee a prejudiced bigot will listen to you.  All one can do is try.

 

2. Scapegoating.  Often, people with problems, especially social problems like unemployment, look for “someone” or “something” to blame, and this often can translate into blaming some “group.”  This is called “scapegoating” when you falsely blame an individual or group and assign them all the responsibility for some bad thing occurring, when they might have been only a small part, or none at all, of the cause.  E.g. Hitler blamed all of Germany’s problems on the Jews, despite the fact that Germany’s problems were very complex and due to the aftermath of World War I.

 

3. Indoctrination.  Also, many children are raised in families, neighborhoods, or communities (or even nations) where prejudicial stereotypes are taught.  So children grow up to become adults who “hate” that “other” group (nationality, religion, race, sexuality, etc.) that is somehow different.  It’s mere indoctrination, without any rational basis, but children grow up conforming to the surrounding social norms without questioning them. E.g. the Westboro Baptist Church in Kansas teaches its children that everyone in the United States except them are going to hell because our nation does not execute all gays and lesbians.  The only reason those children grow up believing this is because its all their family and church have ever told them.

 

See the film “American History X” for examples of all three of these.  Also see the book  The Social Animal, by Elliot Aronson.

____________________________________________________________________

 

CONGRESS (Article I)

Constitution establishes a  bicameral (two-chamber) legislature called CONGRESS. (SENATE and HOUSE OF REPRESENTATIVES).

1.  Major Differences in composition:

HOUSE: representation by population, minimum 1 per state, 435 total—2 year terms but no limit on number of term; 25 years old

 populist institution (respond to will of people)

                Federalist 52: House 2-year terms because constant elections will keep a close connection between representatives and the people.

SENATE: representation by states, 2 per state, total 100—6-year (staggered) terms but no limit on number of terms; 30 years old

:aristocratic (respond more to elites) ***Constitution originally had Senators elected by state legislatures; wanted Senate to be an aristocracy isolated from, and a check against, rapid changes in public mood;  so elite chose the elite.  17th Amendment in 1913 changed to popular elections for Senators (as part of Progressive-era reforms which favored democratic participation)

                Federalist 62: Senate 6-year terms because:

                a. check against other chamber of legislature

                b. check against people: long terms means representatives will be free from sudden, intense passions of factions (masses) in elections

                c. good policy: long terms means experience in public policy and making laws, so better and wiser laws

                d. govt. stability: long terms means stability in government, especially for relations with foreign governments

Aristocratic nature of Senate (moreso than House) is still true today.

               

 2. Major differences in powers between House and Senate (Checks/ Balances; review CaB diagram in your notes):

       HOUSE:           a. originate bills that "raise revenues" (TAX) b/c will affect state proportionate to population

                                 b. pass a bill of impeachment (of President, other executive officials, or federal judge)

       SENATE –       a. Try a case of impeachment (once House has accused federal official of wrongdoing by passing bill of impeachment)

                                                takes 2/3 vote to convict (remove federal official from office)

                                b. -ratify treaties signed by president by 2/3 vote.  President can negotiate, but doesn’t matter. EX:

                                c. -approve high-level executive nominees and federal judges nominated by the President by majority vote

 

3. Major powers in relation to other branches (two chambers together as CONGRESS; review history of federalism in your notes):

                Article I, section 8: tax, spend, regulate commerce, raise and regulate military, necessary and proper laws

                Today, Supreme Court has ALMOST given POLICE POWER to Congress through the Commerce Clause. 1 Sup. Crt. justice away.]]]

 

4. Functions (common to both House and Senate)

                a. lawmaking-actually only function expressly listed in Constitution, but LEASE done; rest are inherent/implied or have developed.

                                b. investigation—inherent power in ANY legislature: learn what problems exist and their solutions, to make best laws

                                this is what Congress spends a majority of it’s time doing—e.g. post 9-11 investigations into EVERYTHING relating to 9-11

                                c. oversight of executive branch agencies—(subset of investigation, but done so much it’s treated as adifferent category)-- make sure the agencies are doing their job—making proper regulations, enforcing proper laws, spending money properly, etc.

                                d. client service/casework—help citizens with problems (usually with bureaucracy—e.g. social security check didn’t come)  (this is most often what legislative staff does, sometimes more than all other legislative functions put together, because good PR and gets votes.)

 

5. Organization    Congress is 535 people, needs to run smoothly/efficiently, so two structures (internal organizations) that help coordinate:

                b. political party organization i.e. Dem/Rep:  Why?  someone needs to coordinate functioning of House and Senate, and parties have arranged these, even though no mention in Constitution of parties.  Party in charge of a chamber controls what procedure regarding which bills are voted on, how long the debate is on those bills, committee assignments, etc. There are dozens of party positions, but here are some of the main party leadership positions:

House:     Speaker of the House: position created by Constitution. LOTS of power in House.

Majority Leader:  elected by the House members from the political party with the most seats in the House

Minority Leader: elected by the House members from the political party in the House minority

                                Senate:     President Constitution says V.P is president of Senate, but Constitution says Senate should choose:. 

President Pro Tempore :  Temporary President in the V.P.’s Absence (chosen by majority party).

little power, but Constitution says VP of U.S. decides vote if tie in Senate, but ties are rare.

Majority Leader: elected by Senate members from the political party with the most seats in the Senate; LOTS of power in Senate.

Minority Leader:  elected by Senate members from the party in the Senate minority

 

 (Presidential Chain-of-Command: Pres., VP, Speaker of the House, President pro Tempore, then Cabinet Secretaries in order of Dept’s creation.)

 

a. Committee structure:  Constitution doesn’t mention, but VAST MAJORITY of work of Congress is done here

—investigation, oversight, drafting, etc.

i. Standing Committees and subcommittees: permanent committees in EACH of the House and Senate based on policy areas—like education, health care, foreign policy, energy, the environment, etc. Since 2 chambers, duplicate committees)— created on first day of first Congress in 1789.  Why?  (1) efficiency (delegate workload and spread workload around) and (2) they allow policy expertise in a policy area (which also is efficient and more effective). They become top U.S. experts. Party leaders assign committees.

                                subcommittees committees are subdivided into subcommittees, also based on policy area.  Again, efficient and effective.

                EX:  Committee on Energy might have subcommittees on Oil, Natural Gas, Nuclear, Solar, Coal, etc.

               

Legislative (Lawmaking) Process (How a Bill becomes a Law) (How a Law is Made) (see flowchart) (SUPER-CONDENSED VERSION...)

 

                BIG FLOWCHART ON BOARD

 

BILL (proposed law) Introduced (sponsored) by Legislator in either House or Senateàassigned committeeà assigned subcommitteeà investigated, amended and voted on in subcommitteeà investigated, amended and voted on in committee, conclusions and recommendations sent to full chamberàamended and voted on in full chamberà sent to other chamber (same process repeats.)à [conference committee (if H&S version not identical) then back to H&S for yes/no vote]àpresidentà law if signs or if veto, back to H&Sà law if 2/3 override in H&S. 

THREATS to veto are common, actualVETOS UNCOMMON, OVERRIDES of vetoes are RARE.  If no veto or signature in ten days, automatically becomes law UNLESS Congressional term expires, then NOT law =POCKET VETO .

One other thing worth noting:  in the House, 435 people, so speakers and debate have STRICT and short time limits.  BUT Senate has NO limits.

FilibusterSenator continues to speak in order to block vote on legislation.  Rarely done; threat is more common.  Southern Senators tried to filibuster Civil Rights legislation in the 1960’s.  Watch the classic Jimmy Stewart Movie, Mr. Smith goes to Washington.  BUT CLOTURE—Senate can stop it by 60% (3/5) vote, but very rare--almost never stopped, because each Senator wants to keep the power in case they themselves want to use it in future without being prevented.  One example: civil rights legislation in 1960’s: cloture ended Southern Senators’ filibuster.

 

*** Only a tiny handful of bills ever make it through this process to become law.  Vast majority die in committee.  Also, both parties use procedural technicalities all the time that are part of parliamentary procedure to stall or block legislation.

 

_______________________________________________________

PRESIDENT  (Article II)

What is the President? Primary, individual elected leader of the United States. 4-year term, limited to 2 elected terms plus a minority of a third term (22nd Am. 1951, after FDR elected to 4 terms and was first president to break tradition set by Geo. Washington of self-imposed limit of 2 terms);  35 years old; natural born citizen (feared foreign-born leaders would have loyalty to their “homeland”, not U.S.  This is pretty much obsolete today, and this disqualifies lots of foreign-born U.S. citizens: Arnold Schwarzenegger (Gov. of California), Madeline Albright (Secretary of State under Bill Clinton); Henry Kissinger (Secretary of State under Nixon) also current governor of Michigan.

 

HOW chosen? ELECTORAL COLLEGE;  Almost all elected leaders in the U.S. are chosen by POPULAR VOTE (whichever candidate gets more votes by individuals citizens) but NOT president.  President is whichever candidate gets a majority of ELECTORAL VOTES.  Each state is assigned a number of electoral votes (combined number of representatives and Senators) and whichever candidate wins the popular vote within a state wins ALL the electoral votes from that state.  Majority of electoral votes wins presidency.  If tie vote, or no majority, House of Representatives votes (1800 and 1824) with each state’s delegation casting one vote for one of top 5 electoral vote-getters.  WHY? Because no national unity then, people were state citizens first, and feared larger states would always elect their leaders, so wanted to make them get support in other states.  Of course now, this is obsolete, unfair, undemocratic (popular vote winner can still lose.—Al Gore in 2000 and 2 other times) (sometimes bad policy (5 largest states have majority of electoral votes, and candidates only go there and other big states). BUT won’t change, because amendments are difficult, and LOW on list of priorities.

 

How removed?  IMPEACHMENT:  for “treason, bribery, or other high crimes and misdemeanors”  serious crime OR abuse of power, or neglect of duty (e.g. do nothing but play golf all the time). House majority passes bill of impeachment, Senate tries case of impeachment, 2/3 vote convicts (removes from office).  Basically, it’s a political definition, not a legal one, of any serious wrongdoing.  So for example, Pres. Bill Clinton was “impeached” by the House (the House made an allegation of wrongdoing), but the Senate did not convict him in the trial they conducted of those allegations, so Clinton was acquitted of any wrongdoing and thus was not removed from office.

 

What are the president's powers? (Article II)

1. executive: a. administrative chief (nominate head of cabinet depts. and ind. agencies) over fed. gov. agencies, hiring, property, 

b. commander-in-chief of the military—civilian always in charge of military (framers feared strong military—almost didn’t have one)

c. chief ambassador-- main representative of U.S. to foreign nations around the world---negotiates treaties

SO, to help these 3 executive roles, president can:

(i)  nominate top administrators, civilian leaders of military, and ambassadors; AND

(ii). issue “EXECUTIVE ORDERS” relating to management of personnel and property (e.g. aff. action, national parks), military policy (e.g. troop, ship, plane locations), and foreign relations.

2. legislative: propose laws, veto laws, call Congress into special session, required to inform Congress of “state of the union”  (originally a mere formality, but now in the age of mass media, it’s been turned into a huge public relations media event).

3. judicial: a. nominate federal judges, which many people argue is the most powerful power by the president, because supreme court rulings can affect the basic structure and powers of government, as well as the rights of the people, for decades or even centuries.

b. pardon persons of FEDERAL crimes, EX: Pres. Ford pardoned former Pres. Nixon.

 

How much power was president EXPECTED to have?

Anti-Federalist (Cato) (and BRUTUS)—President would be King: power to veto laws, as commander in chief, and to pardon crimes would let president use military to take over, pardon criminals who supported him, and block (veto) legislatures from stopping him.

 

Federalist 70 (Hamilton): Rather than counter-arguing that president would be weak, argued FOR vigorous and energetic president, NOT feeble

--Don’t want weak PLURAL EXECUTIVE (council/committee/group);

rather a UNITARY EXECUTIVE (one person): unity, duration (4 years), power (can act quickly and decisively)

--unity would allow president to engage in decision, activity, secrecy, and dispatch (haste) rather than disputes, gridlock, info leaks, and delay

--unity also allows both blame and accountability (know exactly who to give blame or reward to), unlike a council would

*** the actual, full extent of the constitutional power of the president is one of the great yet-unanswered questions of our constitution.

                               

How much actual, real power DOES the president today have in practice?

 

Foreign policy: lots:  commander-in-chief of military, also President establishes official U.S. policy towards other countries.

Domestic Policy: very little.  Congress makes laws, not the president. Federal Reserve has big influence over the economy.  All president can do is ask other institutions like Congress to do things like change taxes, health care, education, etc.

 

A near total consensus among Presidential scholars today, that the president has little real power acting individually; what the president must do is PERSUADE others (Congress, U.S. public, other world leaders, UN) to go along.  SO what makes a president persuasive? POPULARITY.

 

So, What is the source of the President's popularity? Presidential APPROVAL/POPULARITY:

                ***1. ECONOMY: HIGH correlation, even though LITTLE-TO-NO influence over economy... (Like sitting in a rowboat on the pacific ocean) Human nature wants to assign responsibility (blame or reward), rather than accepting as complex, or that it “just happens.”

                2. RALLY-ROUND-THE-FLAG EFFECT (National tragedies or crisis—e.g. WAR: Bush Sr. around 90 just as Gulf War won; WTC/pentagon attack, Bush Jr. above 90% within days after attack—record high for ANY president since measured.)

3. HONEYMOON PERIOD (first 100 days after take office)—people (even opposition) give new pres. benefit of doubt; “wait & see”

                Thus, this period is key for a president to pass laws the president wants—100 days to pass president’s agenda.

 

                NOTE: SCANDALS unpredictable.  Sometimes devastating (Nixon & Watergate), sometimes little to no effect (Clinton & Lewinsky)

 

****EXAM 2 Coverage ends***

_____________________________________________________________________________________________________________

 

***FINAL EXAM COVERAGE BEGINS

 

                               

BUREAUCRACY: people that administer the functions of an organization (either govt. like UL or private corp. like MacDonalds)

Federal Bureaucracy: Congress creates and funds programs (U.S. military, Social Security, Medicare, student loans, etc.):  Congress enacts programs into law; the bureaucracy (as part of the executive branch) implements and enforces those programs.

FUNCTION/PURPOSE: (WHY have?)--Congress DELEGATES some of their lawmaking powers and responsibilities to agencies--efficiency, expertise, avoid political accountability. So what is the extent of the power delegated?

               

Organization of executive branch (President is only the tip of the iceburg.)

                President, Vice President, Executive Office of the President: direct support staff for President (advisors, office help, etc.)

15 CABINET departments—MAJOR departments organized by policy area, (Ag. Commerce. Defense, Educ., Energy, HHS, HUD, Interior, Justice, Labor, State, Transp. Treasury, VA, Office of Homeland Security)  heads (secretaries) appointed by Pres/senate confirms.

AND Hundreds of "independent agencies nominated by president and confirmed by Congress for a FIXED term in office, or appointed by bipartisan commissions (EPA, FBI, CIA, EEOC, FCC, Federal Reserve Board, NASA, OSHA, SEC, FAA, IRS, FEC, NTSB, NLRB and government corporations--Postal Service, Amtrack)  Congress/Press thought important to keep these somewhat free from politics

                -e.g. Federal Reserve Board main agency for managing the U.S. monetary system—want to avoid politics for economic stability.

 

President directs, but only few top positions appointed--rest of 3 Million are CIVIL SERVICE:  NOT elected, not appointed, but instead hired by qualifications, fired only if incompetent.  EX: post office, social security office, etc. 

 

Power:    1. IMPLEMENT Congressional statutes at their discretion (within Congressional statutory authorization and direction of President)

                                EX: IRS implements tax rates sets by Congress, collects taxes, makes sure people pay, etc.

2. Make ADMINISTRATIVE RULES/REGULATIONS which have force of LAW  (e.g. EPA rules; IRS tax regulations, NTSB train and auto safety, OSHA safety guidelines, FAA airport and airplane security—no knife blades, boxcutters, etc.)

BUT limits to this power because (a) Congressional laws override regulations; (b) president can direct (c) judicial oversight/review.

                And USSC says ONLY if Congress has CLEARLY defined the scope of the agency authority (i.e. what rules it can make).

 

 MODERN EVALUATIONS: LOTS of debate about bigger v. smaller government, more efficient government, etc.

1. BENEFITS: Pro:  HELP PEOPLE: medicare, medicaid, social security, student loans, food stamps, unemployment comp, disability.

Con:  WASTE, FRAUD, ABUSE—doesn’t solve problems; people abuse + commit fraud, unneeded (crop subsidies), can’t afford.

2. REGULATIONS: Pro: HEALTH AND SAFETY: consumer products, transportation safety, environmental cleanliness, workplace safety.

 Cons:      A. Excessively BURDENSOME—complex, confusing, costly for businesses (EPA, OSHA); hinders productivity, profits.

____________________________________________________________________________

 

JUDICIAL BRANCH (Article III) Basic function/purpose: Interpret laws; i.e. resolve disputes over laws, such as U.S. Constitution.

                (Federal Judiciary)” What does the Constitution say about Federal Courts?

A. REQUIRES ALL fed. judges nominated by pres., confirmed by Senate, serve during “good behavior” (which means life terms; i.e. until you die or retire) UNLESS IMPEACHED for “bad” behavior: serious crimes, bribery/corruption, abuse of power, neglect of duty

B. Gives fed. courts jurisdiction only over FEDERAL LAW (statutes, treaties, Const., regulations) (except “diversity” jurisdiction)

C. Creates SUPREME COURT, but gives Congress power to create federal courts other than SUPREME COURT.   So . . .

 

ORGANIZATION of Federal Courts: (What system has Congress created?)

Federal District Courts—trial courts, minimum one per state, geographic area, 91 total,

Federal Circuit Courts of Appeal— appeals from Dist. Crts, geographic jurisdiction. of several states, 11 + DC

Supreme Court over almost all cases appealed to it (Fed Crts. App AND State Sup. Crts IF FED. Law involved).  e.g. 2000 Presidential election, Florida election law BUT both sides argued that the Constitution and federal election law violated.

 

>7,000 cases/yr; accept about <100.  USSC’s own rule, for Supreme Court to hear appeal, 4/9 justices must agree to hear it.

Handful ORIGINAL JURISDICTION, listed in Constitution—e.g disputes between states, dispute between states and foreign governments, etc

 

How does the Supreme Court decide its cases?

9 justices (arbitrary odd number so no ties), majority vote decides.

 

Power/Function/Role:

1. Under separation of powers, all courts INTERPRET laws.  Not that controversial.  BUT what IS controversial is #2:

2. Power of JUDICIAL REVIEW: power to declare actions by other branches of government void if they conflict with the Constitution.  Judicial Review is NOT listed in constitution, but USSC said in Marbury v. Madison (1809)  IS a logical inference, implied by the Supremacy Clause and fact that Supreme Court applies the Constitution.  Judicial Review is basically giving courts power to make sure government doesn’t violate social contract with people.  Today, ALL U.S. courts have power.

 

Debate between Federalists and Anti-federalists surrounding Court was over the power of judicial review: (a new concept at the time.)

Federalist 78: (Hamilton) tried to reply to anti-federalist arguments that judicial review made Supreme Court too powerful (dangerously so).

1. Supreme Court is “LEAST DANGEROUS BRANCH”. Why? no power of the purse (like Congress); no power of sword (like President).

EX:  USSC ruled in favor of Cherokee Indians in lawsuit to prevent government from taking their land; Pres. Jackson refused to enforce it.

EX: USSC ruled Lincoln could not detain prisoners without giving them certain constitutional rights (habeas corpus), and he ignored the ruling.

Federalist 81 (Hamilton): opponents of Court fear it will override the Congress through jud. rev. but Sup. Crt. won’t do b/c fears impeachment.

 

Brutus responds:  1. With life terms and no review of Court’s judicial review, Court will impose own interp. of law and be unstoppable.  2. Impeachment is useless check, because it applies to criminal wrongdoing (federal judges serve during “GOOD BEHAVIOR.”) 

Brutus was accurate; only a handful of federal judges have ever been impeached (less than 10 in the entire history of the U.S.)

EX: 2000 presidential Election, Bush v. Gore—half of country was furious with the supreme court for deciding the election, but nothing happened to them.

 

How is judicial review today?  2 main views how judicial review should be exercised: (what the proper ROLE of judges/courts should be):

Judicial Activism: judicial review frequent, because courts should ensure justice and fairness, if arguable violation of Constitution.

                Justice is more important than following the exact letter of the law; should be no hesitation to use judicial review.

                Judicial review is simply enforcement of the terms of our social contract (the Constitution).  It makes sure our elected leaders                        act within the limits of their powers and do not abuse power.

                Judicial Restraint: judicial review rare, because courts should uphold democratically-made laws unless blatant violation of Const.;

                                i.e. should be used rarely, avoided if at all possible, and thus used only when absolutely necessary, as a last resort.

                                Role of courts is to interpret laws, NOT make laws.  Activism is “judicial legislation” and antidemocratic because it                                   overturns the decisions of the democratically elected branches of government, who represent the will of the people.

                Counter-arg: it IS the role of USSC to enforce the BoR and Const., enacted by the democratic majority, against majority tyranny.

1. Activism is increasing in past decades by BOTH liberals and conservatives judges.

2. ONLY WAY for Congress to override Supreme Court’s exercise of judicial review would be

(a) amend Constitution—always threatened, but almost never done—recall, only 17 amendments in over 200 years (since BoR)

(b) impeach judges—almost never done—less than 10 federal judges EVER impeached in history, because of serious crime.

THEREFORE Supreme Court can do what it wants, and no one can stop them.  EX: Brown v. Board of Education; Roe v. Wade;  2000 Pres. Election—1/2 country was OUTRAGED, but no amendments, no impeachment.

 

Modern Evaluations of the Supreme Court: (What factors influence judges when they vote (including judicial review.)

Political science studies show clear, consistent evidence that USSC votes based on political ideology (liberal-conservative) and judicial philosophy (activism-restraint).  Note there are at least two different ideologies and two different judicial philosophies, which means judges can be any one of at least four different combinations (e.g. make 2-by-2 table and see).  Thus, there is no necessary logical connection between any particular political ideology and any particular judicial philosophy.

 

Disputed, unclear, inconsistent, or minimal evidence that Supreme Court reacts to Congress, Pres, Public opinion, interest groups, or other factors.

 

POLITICAL BEHAVIOR  How people act/behave within a political system (within the constraints of the social contract)

                ***DRAWING:  Socializationàopinionizationà participationàrepresentation.

SOCIALIZATION (the learning process by which people acquire beliefs):  ALL human learning is socialization; here political socialization.

 

Agents of  (Political) Socializationthat is, sources of information/influence. (family, peers, religion, historical events, life cycle, education, media) how they socialize you is by giving you information.  But what about OPINIONS, INTERESTS, VALUES???

 

Parents:  raise you to be conservative, most likely you’ll be conservative.  Raises you to be liberal, most likely you’ll be liberal.  And most likely what your mother teaches you, rather than your father.

 

Friends:  “Chicken and egg” question:  Do you like people who agree with you, or do you decide to agree with the people you like.  Probably a little of both:  you seek out like-minded individuals, and then those friends reinforce your beliefs. 

 

Religion:  family and location where you’re born largely determines your religion:   E.g. If you’re born in Thailand, you’ll be a Buddhist, China a mixed Buddhist-Taoist-Confucianist, Japan a mixed Buddhist-Shintoist.  If you’re born in Central Africa, you’ll be an animist.  If you’re born in North Africa or the Middle East you’ll be a Sunni Muslim, unless you’re born in Iran, where you’ll be a Shiite Muslim, or unless you’re born in Israel, where you’ll be a Jew.  If you’re born in India, you’ll be a Hindu, unless you’re born in the Punjab province, in which case you’re a Sikh.  If you’re born in Europe or North or South America, you’ll be an orthodox Christian, unless you’re born in Utah, in which case you’ll be a Mormon (Church of Jesus Christ of Latter-Day Saints).  Thus, it depends on the religion, the denomination, the church, your parents’ views, etc.  If you were raised to worship the ghost of Elvis while dancing naked eating cat and dog meat, that’s what you’d believe was right.

 

BUT CONSISTENT evidence found regarding life cycle, education, and media:

 

Life cycle: marry, kids, career and income, house and mortgageà conservativism (more at stake in community, want to preserve those interestsàwant safety, stability, securityàlaw and order, lower taxes, to preserve family and wealth

 

Education               age < 14: (elementary school) blind, unquestioning patriotism and obedience to authority (parents, teachers, ministers, police, govt. leaders, etc.) i.e. you don’t question them, you love your country and you obey authority.   NO questioning or criticism.

age > 14: (high school, + especially college) more education = more liberal. why? 2 views (no clear answer):

                                                a. Liberals claim: enlightenment: political awareness, sophistication and tolerance (which makes one more liberal).

                                                b. Conservatives claim: indoctrination by liberal college faculty (70+ % of social science faculty are liberal)

                                                                Social sciences and humanities are where politics would be discussed more, not physics, math, etc.

 

Media: ***BIGGEST Agent of Socialization. continues throughout adult life   Ideal role in Democracy?:              

A. "Mirror" role: mirror reality (“all the news that’s fit to print”) pass on bare facts, without imposing any subjective interpretation

                                ---Just facts; no commentary, opinions, analysis, editorializing, etc.; like a mirror doesn’t tell you whether you’re looking good or bad, healthy or sick, it just shows you what you look like, and you judge your own appearance.

                B. "Watchdog" role: investigative journalism, keep eye on politicians/govt., act as safeguard of public liberty against corruption/abuse

                                                also political commentators/analysts fulfull this role. like another “check” in the system of “checks and balances.”

                                                This is the dominant philosophical view of the media by our founders and the Supreme Court and 1st Amendment.

                                                --facts + opinions

                                                 

PROBLEM: one person’s watchdog role is another person’s political bias.  Bias affects not only HOW you cover news, but WHAT news you cover.  EX:  MSNBC liberal, FOX conservative.  Vastly different stories covered, and vast difference in how the same stories are covered.

                THUS, in any media outlet, you’re getting a HIGHLY incomplete, and possibly very biased, version of the news.  Thus, the only way to get a more accurate, complete version of the news is from a large VARIETY of news sources, from differing political biases, and from both inside and outside the U.S. (like the CBC or BBC).

 

What do people think and believe:  The nature of our political opinions, beliefs, and attitudes.

 

PUBLIC OPINION: Preferences of adult population on matters relating to govt. and politics; NOT entertainment, sports, consumer products.

OPINION POLL/SURVEY measures public opinion.  Common examples: pres approval, pre-election predictions, exit polls, etc. 

Political Parties, Candidates, interest groups use.  SO: How can you know if you can trust the results? 

A. Sample:  group you measure (asked questions).  Must be RANDOM Otherwise, biased sample (e.g. women, wealthy, younger, living in Lafayette, etc.).  Generally, using the telephone is cheapest and mostly unbiased.  Internet: HIGHLY BIASED—access, motivation, etc.

B. Question Wording NO perfect way to word poll question—best you can try as best as you can: simple, clear, UNBIASED.

                e.g. abortion: “right to control our own bodies” v. “right to murder unborn babies”; “health care issue”” or “health care crisis”

 

Ideology –TOTAL SET OF POLITICAL BELIEFS (the sum of all your opinions), not necessarily having consistent underlying principles, but often they do, and many people would argue one’s political opinions should have consistent underlying principles.

 

1. Traditional (mistaken and incomplete) view of ideology:  a ONE-dimensional “left-right” ideological spectrum only, something like:

 

                Very Liberal ---------Liberal-----------Moderate/”Middle-of-the-Road” --------Conservative--------Very Conservative

 

The terms “left” or “left-wing” are often used for liberalism, and “right” or “right-wing” are often used for conservatism, because in the 1700’s in England, the liberal party was seated in the left wing of the chamber of the English Parliament, and the conservative party was seated in the right wing of the same chamber.  The slang terms stuck.  Thus:

Left-wing ideology = liberalism (the primary liberal, left-wing U.S. political party = Democratic party)

Right-wing  ideology =conservatism (the primary conservative, right-wing U.S. political party =Republican party)

 

BUT really there are TWO dimensions of political ideology:

                1. personal/idividual/moral/social liberty: i.e. what is the proper role of government in regulating our personal moral decisions?

                2. Economic liberty:  i.e. what is the proper role of government in regularing our economic decisions and relationships?

 

So what do the general labels “liberal” and “conservative” mean?

 

NOTE: these labels are mere stereotypes that grossly oversimplify things, but here is what journalists and politicians and citizens usually mean when they use the general terms “liberal” or “conservative”:

 

LIBERALS  generall DO favor moral liberty but do NOT favor economic liberty.   In other words, liberals generally do NOT want government to regulate issues of personal morality,  but DO want government involvement in the economic issues and thus enforcement of social and economic equality (both equality of opportunity and equality of result through taxation and redistribution of wealth).

 

CONSERVATIVES are the opposite of liberals:  they generally do NOT favor moral liberty, but DO favor economic liberty.  In other words, conservatives generally DO want the government to regulate issues of personal morality but do NOT want government regulation of economic issues:  they favor a “free-market” economy and equality of opportunity but NOT government-forced equality of result (e.g. redistribution of wealth).

 

E.g:  COMPARE common examples of both personal and economic issues:

personal liberty: E.G. Flag burning, pornography, abortion, euthanasia and doctor assisted suicide, drugs, gays and lesbian rights

                Liberals generally want little or no government regulation of these issues; but conservatives do.

 

                economic liberty: minimum wage, working hours, workplace safety, the environment, taxes, social welfare, affirmative action

                                Conservatives generally want little or no government regulation of these issues, but liberals do

 

                NOTE there ARE issue exceptions that don’t fit this pattern—e.g. guns:  liberals want heavy government regulation of individual gun ownship, but conservatives want little government regulation of individual gun ownership .

 

AND many individuals don’t fit these molds.  These are just the GENERAL policy positions of  “liberalism” and “conservatism.”

 

2. BUT:  There is a MUCH more complete and accurate understanding of ideology:  Ideology is really TWO dimensions: 

a. liberty that variously goes by the terms of personal/individual/social/moral  (one can either favor or disfavor this liberty)

b. economic liberty (one can either favor or disfavor this liberty)

 

3. This means there are FOUR possible basic political ideologies (2 x 2 combinations plus a fifth in the middle):

               

a. liberalism (from the root word “liber” which meant “free” in ancient Greek) is what we traditionally know as “liberalism” (also “progressivism” from the root word  “progress.”):  liberals/progressives want wants government regulation of economic issues, which includes some redistribution of wealth, and the elimination of all forms of discrimination, so as to achieve what they call  social (or economic) justice.”  But they want little government regulation of personal morality.  The extreme form of left-liberalism is called socialism/communism/Marxism, which believes there should be no such thing as “private property”; instead everything should be owned in common by the people (that is, the government) and government should decide all wages, prices, type and number of goods produced, etc.) but yet people should be allowed  total freedom to do what one chooses in matters of personal morality.

Political parties:  Left-liberal ideology:  Democratic Party.  Socialist-leaning ideology:  Green Party, Socialist Worker’s Party.

 

b. conservativism (from the root word “conserve” meaning “preserve” or “safeguard”) is what we traditionally know as “conservatism”:  conservatives want government to preserve traditional moral order, but want little government regulation of economic issues, which econmically is know as capitalism or “free market” economics.  There is no general term for the extreme form of right-conserviativsm, although one type of extreme form is theocracy (rule by religious leaders), which argues there should be no such thing as “rights” when it comes to personal morality because we should follow god’s commandments regarding what is right and wrong; another extreme type is laissez faire economics, which argues there should be absolutely no government regulation of economic issues.  There is no general term for the extreme form of right-conservatism because one can support theocracy without laissez faire economics, or one can support laissez faire economics without a theocracy. 

Political Parties:  Right-conservative ideology:  Republican Party.  Far-right-leaning ideology:  Constitution Party

 

                c. libertarianism  (from the root word “liberty” meaning freedom) wants little government regulation of either personal or economic issues; generally all they want is a police force and military to prevent violence against persons or property, and just enough taxes to pay for that those things, but that is all government should do. Another term often used for libertarianism is individualism, because the individual’s choices should almost always outweigh what society acting through government wants to tell the individual what to do.  The extreme form of libertarianism is anarchism, which argues NO government should exist whatsover; to anarchists the term “legitimate government” is an oxymoron, as being ruled by others (even by a democratic majority) is simply a lesser degree of slavery than direct “ownership” by a master.

Political Parties:  Libertarian ideology: Libertarian Party.  Anarchist ideology:  there are no political parties that represent an anarchist ideology, because they do not believe any form of government is legitimate, and forming a political party to work within any political system would be implicitly recognizing the legitimacy that political system.

 

d. The fourth ideology, which is the opposite of the libertarian ideology, unfortunately goes by a variety of names because no generally-agreed upon term has yet been adopted by people who believe in this ideology.  The most common terms used by its believers are communitarianism, although many other terms might be used instead..  This ideology believes the collective rights and interests of the community (the majority of people) should outweigh the rights of individuals, in both economic and moral issues.  Or, if the interests of the “nation” overrules individual rights, it is called nationalism.    The extreme form of communitarianism and nationalism is fascism, which worships the government and “people” over any contrary individuals that would go against it.  Fascism is also known as nazism, because “Nazi” was the short term for the political party of Adolf Hitler (the National Socialist Party, or “Natzionalsocialismus” party). “The state is a means to an end. Its end lies in the preservation and advancement of a community of physically and psychically identical homogeneous creatures.” Adolf Hitler, Mein Kampf [in other words, any physical or psychological “differences” in people must be eliminated; thus “individual rights” do not exist]. 

Political parties:  Communitarianism:  One sub-group of the Reform Party;  Fascism:  American Nazi Party.

 

e. Centrism  (from the root word “center” meaning “middle”) is placed in-between the other ideologies.  Centrism generally supports a mixture or balance between individual freedoms, a free market econmy, but also “reasonable” government regulations of personal and economic issues.  This ideology has also been called pragmatism, from the word “pragmatic”  meaning “practical,” which takes a flexible “whatever works” approach to policy issues, rather than adopting rigid ideological stands on issues of either personal or economic issues.   Because centrism is by definition a “middle-of-the-road” ideology, there is no extreme form of it.

Political Parties: Centrism:  One sub-group of the Reform Party; the Natural Law Party.

 

4. Note that each ideology is driven by what it sees as the HIGHEST Goal of government:

                Liberalism/progressivism:  creating social and economic justice

conservatism: fostering personal morality

libertarianism:  preserving liberty and freedom

                communitarianism:  establishing order in society

                centrism: achieving practical solutions (that is, a balance of freedom and order in both personal and economic issues).

 

Concepts that cut across or transcend ideology:

 

Patriotism can exist with any of the ideologies; patriotism simply means “love of country.”  But patriotism is like the love of a parent for a child; it encourages good behavior but recognizes, acknowledges, and corrects bad or unhealthy behavior.  Too many people unfortunately confuse patriotism with nationalism, which is a quasi-religious blind worship of the “nation” which usually then includes a blind, unquestioning obedience to the government and government officials.  Thus, to a true patriot, criticism of government leaders or government policy shows a great love of country, because it is like a parent using “tough love” to discipline a misbehaving child.   A nationalist, on the other hand, cannot tolerate criticism of government leaders or government policies, because to the nationalist, that is akin to criticizing god (who is never wrong).  So a nationalist will use the slogan “Love it or leave it” but the patriot can respond with “Love it by improving it” or “Improve it or lose it.”

 

Also note that the question of “who rules” is separate from ideology:  I.E. a democracy could be based on a libertarian, progressive, conservative, or communitarian ideology. Or, an elite group (aristocracy or oligarchy) or an individual (monarchy or even a dictatorship) could enact laws based on any of the ideologies as well.  So, whether power/rule is in the hands of one, a few, or the many, the laws enacted will depend on the conception of ideology held by the one, few, or many that are in charge.

_________

Other aspects of our political views apart from ideology:

Knowledge of politics: VERY low percent e.g. <50% can name Vice President, <10% can name Chief Justice of U.S. Supreme Court.

Interest of politics: VERY low percent

Efficacy (internal and external): how effective one feels in influencing government (can they “make a difference” if tried): low

Trust in political institutions: was high <1963, then JFK, RFK, MLK, Malcom X, Warren Commission, Vietnam, Watergate; low since that era; BUT BOOST after 9-11-2001.

Tolerance-- willingness to grant basic civil liberties to people whose views you dislike or even hate.  HIGH in abstract (80-90%)

                BUT  LOW in practice—e.g. let make speech, work as teacher, have book in library, etc.: Citizens: LOW: 33%

__________________

 

PARTICIPATION:

Conventional participation: political activity that lawfully uses the existing democratic system (working within the accepted democratic process).  Active: join political party, join interest group, vote, write letter to editor, contact representative, work on a campaigns, engage in community activities, lobbying, etc. Passive: follow political news.

 

Conformity and  OBEDIENCE:

Unconventional behavior:--work external to political system--challenging/defying existing political institutions/processes/systems/structures:

                Why?  feel alienated from politics and society, no sense of external efficacy in political system, so need to go outside system

Peaceful: Civil Disobedience: intentional but peaceful, nonviolent resistance/disobedience to a law (extreme form:  Pacifism—violence should never be used, even in self defense or to resist violence against innocent people) e.g. Buddha, Jesus, Gandhi)

(You do NOT resist arrest or punishment for breaking the law)-Gandhi  SEE THE MOVIE

                E.G. Henry David Thoreau: Civil Disobedience (1849) (refused to pay taxes and was jailed)

Civil Rights Movement: Martin Luther King: Letter from Birmingham Jail (1963) marched against discrimination and was jailed

Civil Rights Movement began when Rosa Parks refused to yield seat to a white person on a bus in Montgomery, Alabama in 1955.

Violent: Terrorism. (US.:  OK city bombing, anti-abortion, IRA, WTC attack, Palestinians against Israel)

 U.S. Code of Federal Regulations: "...the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives" (28 C.F.R. Section 0.85).

Current U.S. national security strategy: "premeditated, politically motivated violence against innocents."

United States Department of Defense: the "calculated use of unlawful violence to inculcate fear; intended to coerce or intimidate governments or societies in pursuit of goals that are generally political, religious, or ideological."

 

OBEDIENCE:

And yet, too much obedience can cause a huge problem.  Example:  WWII Nazi Germany.  Tens of millions of Germans went along with the oppression and extermination of Jews.  After WWII, social sciences—political science, psychology, sociology, etc. wanted to understand how could highly educated and intelligent people support genocide?. 

 

Obedience and conformity: To what degree do people blindly obey authority for no reason other than that an authority figure says they should do something?

 

1. Degree of obedience:

 

Stanley Milgram 1960-63 "Obedience to Authority"  Told subjects they were testing the effect of negative stimulus (a shock) on memory retention of a learner in the room on the other side of the wall. Every time the “learner” got a wrong answer, the “teacher” was to give a higher level electrical shock to the learner.  The voltage dial said “Danger: Severe Shock” at 375 volts.  The learner actor began to cry out at 150 volts “Experiment.  Let me out of here.”  I won’t be in the experiment anymore.  I refuse to go on.”  At 180 volts “I can’t stand the pain.”  AT 300 volts, after an agonizing scream, he shouted he would no longer answer the questions.   At 315 volts, there was just an agonizing scream.  After 330 volts, there was silence from him (no scream, which indicated he was either unconscious or dead.)  The experimenter simply told the teacher “The experiment must continue.”  The earliest anyone stopped was at 300 volts, and 65% went all the way to 450 volts.  All around the world this was repeated, with similar or higher results.  Highest was Germany:  85% obedience.  French documentary film in 2010 created fake game show “Game of Death” based on Milgram’s experiment; 80 percent of contestants gave lethal shocks to an opposing “contestant” (who was really acting).

 

2. Why such a high degree of obedience?  Debated for thousands of years: evolution?  Created by god with free will but a sinful nature?  Merely bad upbringing?  Nature or nurture, or both? Regardless why we’re this way, humans are in general dangerous to each other!

 

3. But what if you point out to people their harmful behavior (harmful obedience or conformity)?

 

Psychological principle:  “cognitive dissonance” (mental disharmony) created whenever we have two inconsistent, conflicting beliefs.

                Such as:

                                1. “I’m a good person.”                          Or            1. I’m a smart person.

                                2. “My behavior is bad.”                                        2. My behavior is foolish.

 

                This creates cognitive dissonance: mental disharmony.  There are two alternatives to avoid cognitive dissonance: Change one’s behavior, or change one’s belief that the behavior is bad.  Which is easier?  Behavioral studies show most people simply change their belief that there behavior is bad into their behavior is okay or even good!.  If a person changes their behavior, they still must suffer several negative consequences:  Guilt over harm caused by their behavior in the past, embarassment, humiliation, and loss of self esteem for engaging in the bad behavior, and loss of the benefit of that behavior (e.g physical pleasure, psychological security, a lavish lifestyle, etc.)    BUT, If one gives up the belief the behavior is bad, there is NO negative consequence.  So, one simply changes one’s belief that the behavior is bad, through many possible easily-made rationalizations.  “I’m not hurting anyone” or “I’m not hurting anyone but myself” or “It’s my right to do that” or “It’s really not that bad” or “you’re exaggerating the risk” or “other people don’t think it’s bad” or “everyone else does it”  or “my leaders say its okay” etc. etc., etc.  This rationalization reduces or eliminates cognitive dissonance.  This helps explain why the German people went along with Nazism and its oppression of Jews, or why Southern Whites enslaved and then segregated African Americans, etc.

 

_____________________________________________________________________________________________

 

Participation: JOIN PARTIES  Ideology often but not always leads to joining a particular political party.  Often there’s a political need for a party to get support, so it appeals to a group—says it will support a group, if the group supports it in return.  Historically, there have been 4 key divisions within societies.  Why important to know? B/c STILL huge basis of political party differences today all around the world AND U.S..

                a. ethnicity: center-periphery (dominant v. minority ethnic group)

                b. religion: church-state (religion v. religion, religion v. nonreligion)

                c.  geography: Land-industry (rural v. urban, region v. region)

                d. socio-economic class: owners-workers (business v. unions, rich v. poor)

 

U.S. Parties : Democrats slight majority overall versus Republicans according to surveys of self-declared party identification)

                Democrats                               Republicans

                Minorities                               whites

                Catholics, Jews                       evangelical protestants

                Urban centers                          suburbs, rural areas

                New England, Midwest          South, West

                Unions                                    business owners/execs

                Working class                          upper class

               

2 PARTY SYSTEM—All other democracies have a multi-party (more than two-party) system. WHY do we have only 2 major political parties?

History of 3P: single issue/leader (e.g. Reform Party, Ross Perot); other 2 parties "steal" platform. Why 2-party monopoly (i.e. DUOPOLY): 

1. MAINLY "winner-take-all" elections, (single member districts with plurality winner) in Congress, states, localities, UNLIKE  Proportional Representation (PR): (multi-member district with at-large representatives) Almost every other democracy gives representation by % of vote: most established democracies, all former Soviet states, recently freed South Africa, even Japan and New Zealand adopted recently (1993) Mixed system: England, Germany (half parliament by individual district, half by PR) "Mixed Member System"

U.S. is establishing multi-party systems with proportional representation in Afghanistan and Iraq

 

Participation : Join SPECIAL INTEREST GROUPS tries to influence public policy —i.e. influence law by supporting parties or candidates but do NOT provide candidates for political office themselves (that’s what political parties do). Also, whereas political parties adopt and fight for policies across a broad range of issues, special interest groups focus their efforts on one narrow policy area (hence the term, a “special” interest).

                A few of the biggest/most powerful interest groups:

                1. American Association for Retired Persons—AARP –-about 40 million members;

                2. National Rifle Association—NRA—about 4 million members.

                3. Labor unions (National Education Association (NEA)—3 million members; AFSCME (state and local govt. workers 1.4 million)

                4. Umbrella business organizations (U.S. Chamber of Commerce—official 300,000 business, but also 3 million local members of local and state Chambers of Commerce. 

                               

Participation: VOTING in ELECTIONS

HISTORY of VOTING RIGHTS Late 1700's: only white property-owning males could vote.  I.E. it was a democracy in name, but a plutocracy in practice.  We’ve already looked at how right to vote was expanded first to non-property-owning white males, then to black males, then to women in general. ALSO: 26th Amendment (1971) 18-year-olds.  So, almost none of you (if any) could legally vote when the Constitution was first adopted.   So understand that most people take the right to vote for granted; don’t realize long, difficult political battles to gain the right.

 

HOW do people vote?  (Voting Determinants)

Presidential Elections:  A.***Party  (biggest determinant by far--usually core of 37-43 percent for each party)

                                B. Swing voters (remaining 20% undecided voters):

                                                1. Most swing voters are unsophisticated (i.e. don’t compare multiple issue positions): ***Economy ("right track") "retrospective voting"—verdict on peace and prosperity  ***most often the deciding determinant in Pres elections, unless there's some other BIG crisis or scandal like WWII, Vietnam, Watergate, or Iran Hostage Crisis, EVEN THOUGH ALMOST NO INFLUENCE BY PRESIDENT ON ECONOMY.  Like a president in a rowboat on the ocean, claiming credit for calm sea (but denying blame when the sea is rough).

                                                                                                                                                               

HOW MUCH DO PEOPLE PARTICIPATE:

Conventional Participation: levels ***VERY LOW in U.S. across all forms of conventional participation.   Unconventional participation is rare.

 

Voting Turnout: (whether to vote):  Most common method of participation, and so most commonly studied by political scientists.  Relatively low turnout compared to most industrial democracies.

Presidential elections: LOW in U.S.: declining to close to 50% of all voters. (3/4 of citizens register, 2/3 of those vote).

MUCH less in other elections—midterm 40%, primaries 30%, state/local <20%, some local elections are less than 10% (e.g. local judge election)

***WHY care?  b/c if democracy is rule by people, but most people aren’t voting, then it’s rule by a relatively elite few, which is oligarchy.  Of adult voters, if half vote, and half who vote pick the winning candidate, then only 1/4 or less of the adult population is picking our leaders. 

 

Q: So WHY is VOTING turnout so low? Education in U.S has increased, voting rights extended to all citizens, but STILL low.

                And lower compared to most democracies, especially much lower compared to most European democracies. Why?

                Obstacles unique to U.S.:  no requirement to vote, polling on workdays, polls close too soon, polls close in East before West, primary outcomes often pre-decided, registration is a hassle, no mail-in ballot option, too many elections (state, local, national, primaries, etc.); 2-party system limits choices/no clear differences, 2 parties “race to the middle” toward MEDIAN VOTER so no real choice, divided government in our separation of powers weakens clear accountability

 

Q: But why is ALL Political Participation Low? (BESIDES the unique U.S. obstacles just mentioned?

 

Americans USED TO participate a lot by joining groups.  Memberships down: fraternal orgs (Kiwanis, elks, moose), MOST church membership, labor unions, volunteer associations, bowling leagues, bridge clubs even political participation like voting, parties.  Why not anymore?  AND education and income have increased in U.S., so more resources to participate, and voting rights have vastly expanded.  Then why such decline in participation, including the large decline in voting?

 

Robert Putnam: Bowling Alone (2000): "Social capital"= feelings of personal connection to your community;  i.e. social trust/connection/involvement with other people that encourages cooperation for mutual benefit.  This is developed by group activities, because you build a personal connection to, stake in, the community.: if I TRUST you'll do your part, and I care about you, then I'm more likely to do my part (even feel it as a duty) which reduce collective action/free rider problem.  SOCIAL capital has declined in last 100 years.  WHY??? Best Explanation: technological transformation of leisure  ALMOST ALL leisure activities of 100 years ago, and other aspects of society, are less inter-personal today—that is, they involve MUCH less person-to-person human interaction...

                                                Old Form                                                New Equivalent                 
                                                neighborhood park                  drive to state park

                                                Neighborhood bar                   drive to bar/nightclub

                                                Town square news                  TV, radio

                                                Meet to chat                           e-mail and internet chat

                                                Neighborhood restaurant        fast-food, drive-thru, home delivery

                                                Go to local concert                  buy, listen to CD

                                                Go to play/theatre                  watch movies, watch TV, rent videos

                                                Watch/play sports                  watch on TV

                                                Outdoor exercise                     home exercise machines

                                                Interactive games                    computer/video games

                                                Walk to corner store               drive to distant mall, shop on internet

                                                Sit on Front porch                  no front porch, inside air-conditioning

                                                Drive in open buggy               sit inside sealed window air-conditioned car.        

                                                Go to local bank                      ATM machine

                                                Live in same town                   relocate often

                                                Work in same town                 commute to work in other town

                                                Work in office                         Work from home via computer

 

Technologyà lack of personal interactionàlack of trust/personal connection/"social capital"àlack of social/political participation

Thus, technology brings enormous benefits, BUT at enormous costs as well . . .  How fix the problem?  No simple or easy solution . . . And thus the big question:  Can democracy survive the continued growth of technology?.  Do the costs outweigh the benefits?  Should be all go back to pre-industrial technology?  Like the Amish have maintained? Movie: The Village?

 

The point is, technology brings us great benefits in medicine, communication, transportation, etc.  BUT at a GREAT COST.  (See also Neal Postman, Amusing Ourselves to Death).  Is technology more harmful than beneficial.?

 

REPRESENTATION—what are RESULTS of participation, especially ELECTIONS?

ELECTIONS: Function in representative democracy: elect leaders to enact voter-preferred policies (which confers legitimacy on govt.)

This should be obvious—no one is going to vote for someone who they think is going to do the opposite of what you want.

BUT Congressional policy (laws) match preferences of public only about 2/3 of time.  (i.e. 1/3 is NOT what public wants.) WHY NOT 100%?

 

1. Represenatives have different views of Representation i.e. what their proper role is as a representative.  (Data:            )

                DELEGATE: act as represented wants, regardless whether in their best interest or not.  Arrogant to presume know better than public.

                TRUSTEE: act in interest of represented, regardless of what they want.  Irresponsible to do what you know is mistake/bad/wrong.

                POLITICO: sometimes one, sometimes the other.  Do what public wants, unless REALLY bad/wrong.  MOST politicians.

               

2. In party primary elections, where the parties pick their own candidates who will late compete against other parties’ candidates in the final general election, voters tend to be die-hard party members, more extreme ideologues than general public.  So in the general election, you tend to have a very liberal Democrat candidate versus a very conservative Republican candidate; thus whoever gets elected, they are out-of-the-mainstream, and so will tend to support policies a majority of the public is against.  Classic example:  March 2005, Republican Congress and Pres. Bush got involved to stop the withdrawal of a feeding tube from a permanently comatose women in Florida, Terry Schiavo.  Polls showed 80-90% of the public was in favor of allowing the woman’s husband to let her body die, but religious conservatives within the Republican party pressured Republican officials to get involved.  Courts finally blocked that legislation and allowed her husband to withdraw the feeding tube.

 

 3. Interest groups:  most of your campaign money comes not from ordinary citizen-voters, but from big donors like interest groups.  So you’ll tend to vote in favor of where the money comes from, because without big money, you can’t get re-elected.

 

                                What influences floor vote? On what do legislators base their votes?

Kingdon: "How did you go about making up your mind on the ____ bill?  Percent of legislators who mentioned ____ as influential:

1. Colleagues in Congress                       40%

2. Voting Constituency                           37%

3. Interest Groups                                  31%

4. Presidential Administration                25%

5. Party Leaders in Congress                  10%]]]

 

4. DIVIDED GOVERNMENT (Divided Party Government)— RECALL: candidate-centered, not party-centered campaigns.  If so, then statistically, we’d expect near randomness in party control of House, Senate, and Pres. Thus, ½  *  ½  *  ½  = 1/8 of time we would expected unified government.  (In fact vast majority of last 40 years have been divided government).  But if President and Congress (one or both chambers) controlled by different parties, who do you blame? Thus, lack of accountability.  (And both parties know this, so allows them to play the blame game and avoid accountability.)  e.g. national debt.  Each party blames the other, Congress and Pres. blame each other, when BOTH Democrats and Republicans, Presidents and Congresses have ALL been equally responsible. 

                                               

5.  INCUMBENT ADVANTAGE—Incumbent is person already elected and serving in office, running for re-election (in a democracy).

Incumbents always have a big advantage.  WHY?

                a. ***campaign contributions BIGGEST FACTOR: 

                FEC 2004 Congressional campaign data:  Incumbents: 1.1 Billion, challengers; 160 million.  7 times advantage.

                                Why?  Already proven winner, and can already directly influence public policy; large majority of $ from industry PACS

                                Most political scientists who have done studies on the financing of campaigns say money is the number #1 influence in winning an election—whichever candidate has more money, usually wins.  So if you have the money, you can ignore what voters want, because all you have to do to win is outspend your opponent.  Thus, winning elections is ALL about money and nothing but money.

2000 elections: spending under 500:000 odds zero.  under 1 million, odds were 24:1. 1-1.5 M odds 15:1. Over 1.5 million, still 3:1.

                b. name recognition—obviously, they have been in the news for several years (.e.g. Eddie Murphy in The Distinguished Gentleman).

                c. media coverage--free, and can manufacture it by granting interviews, having press conferences, announcing law proposals, etc.

                There are other advantages (such as gaining support by doing favors for voters) but money is the biggest one by far.

 

SOLUTION TO INCUMBENT ADVANTAGE:  TERM LIMITS? (by law, limit elected officials to number of terms in office)

                Both sides in favor and against term limits want same goal:  prevent corruption, abuse of power, and poor representation by legislators. BUT two sides differ whether term limits would be the solution or the cause of corruption and abuse of power, and poor representation.  But, U.S. Supreme Court has ruled term limits would violate the Constitution, because no limit is put on the terms.  So amendment would be needed.

_______________________________________ 

 

Modern Congress: What has our Congressional representation—i.e. the political ambitions and policies of Congress--resulted in?

Practically ALL modern scholars who study Congress and who observe what it’s members do agree that the #1 priority of members of Congress, which takes priority over EVERYTHING else, is getting RE-ELECTED.  Why?  Without that, you can’t get help the public by making laws, you can’t get fame, power, prestige, money, etc.  Everything flows from actually being a member of Congress, so STAYING one is TOP priority.

This means EVERYTHING a member of Congress does takes getting re-elected in mind: public speaking, news interviews, news events, mailings, advertising, client service, taking popular stands on issue and avoiding controversial stands. ESPECIALLY SPENDING MONEY...

 

To win election, you promise to lower people’s taxes AND at the same time give them more government benefits (paid for by taxpayer dollars). And then once you’re elected, you win re-election by actually lowering people’s taxes AND at the same time giving them more government benefits paid for by taxpayer dollars.  Thus, members of Congress always increase the number of “entitlement” programsSocial Security, Medicare, etc. and increase the spending done on them.  .  Thus, the budget NEVER actually gets reduced or even frozen at the same mount!  Lawmakers of BOTH parties continue to support bigger, more complex federal government.  Despite what they say, extremely few members of either the Democratic or Republic party have suggested that the federal budget actually be reduced; they simply disagree on how much spending should increase .  And to get re-elected, members of Congress put in the annual federal budget lots of PORK BARREL spending, which is money allocated to a specific voting district, rather than as part of a general spending program across the country (e.g. most commonly local roads and bridges). AND military spending: since 2004, U.S. spends nearly as much or more on military as entire rest of world COMBINED. 

 

But one can’t keep spending and giving away money if one doesn’t have the money to spend or give away.  For example, entitlement programs—Social Security and Medicare—pay out far more benefits than they take in through tax revenues.  So when Congress doesn’t have enough tax money to pay for the money its giving away, it borrows money and thus gets in debt.  So after several decades of heavy borrowing, the U.S. government is now deeply in debt.  This is called the U.S. national debt.

 

THE NATIONAL DEBT (NOTE:  these figures are changing so rapidly (in a bad way) that these class notes can not constantly keep up with the worsening figures, so keep in mind current financial figures are worse than what you are reading.)

 

Deficit is amount a budget is short in a given year; i.e. you spend more than you take in as revenue. 

 

Debt is cumulative total debt owed (i.e total of current and all past deficits). Always been a little debt, it got bigger during WWII and then wasn’t so much a problem until 1980’s. Currently over 16 trillion dollars, and rapidly rising (by about a trillion per year).

               

Who owns the debt?:  --several trillion held by “public” i.e. citizens with retirement accounts, along with domestic and foreign investors (big U.S. and foreign banks and foreign governments: China, Japan, Korea, Taiwan, England, France, Germany, etc); who buy U.S. treasury bonds and notes.

--several trillion held by U.S. government (i.e. owed to itself) i.e. i.e. “entitlement” programs Social Security and Medicare “trust funds.” What is in the trust funds is simply the government's promise to pay itself back at some time in the future. I.e. there is NO trust fund. It’s as if you took all the money out of your kid’s college fund and promised to pay it back.

               

WHY is the debt problem getting worse?  Entitlement programs (social security, Medicare, Medicaid) are about 50% of the annual federal budget and growing as an overall percent, but they don’t take in enough taxes to pay for all the current and future benefits.  Unfunded future liabilities in coming decades, according to Boards of Trustees of Social Security and Medicare, is over 100 Trillion dollars.   [Currently 100% debt-to-GDP ratio;  Congressional Budget Office (CBO) estimates:  768% debt-to GDP in future if nothing done to fix Social Security and Medicare.]

 

What if we can’t afford the interest payments anymore?  As the debt increases, more and more of the federal budget MUST go to pay the interest on the debt.  At some point, problem will get so bad, interest payments will threaten to take up entire budget.  Possible solutions:

1. Default/declare bankruptcy.  Government can NOT just ignore the interest payments; this would mean the government would default on it’s loans; and everyone the U.S. government owed—citizens, businesses, banks, foreign banks and foreign governments, that have lent us would suddenly lose TRILLIONS of dollars. Big ripple effect:  deflation, a probably global depression, perhaps possible global economic collapse, could be worse than the Great Depression or the near-collapse in 2008.  

Example: --This is what some South American countries did in 1970’s—e.g. Bolivia, Argentina—defaulted.  But since they were such a small part of the global economy, there was very little ripple effect.

But the U.S. can make its own money, so it can just print more money to pay off its debts. This is option 2:

2. Print currency:  the government can print TRILLIONS of dollars of new money to pay the debt.  Problem: If you add more money, then inflation of prices eventually occurs. Print off LOTS more money, and hyperinflation (very high inflation) occurs.  EVERTHING costs a lot more, and very quickly.  Businesses can’t afford to raise wages to match, but then no one can buy much of anything, so many businesses go bankrupt, millions lose their jobs. This can result in economic depression as well.

EX: --American Revolutionary War, Continental Congress printed so much money; the Continental Dollar became worthless.

--Also Confederate States of America printed off currency to fund its war effort; the Confederate Dollar became worthless.

—Also like the old Weimar Republic in pre-WWII Germany—The currency became so worthless, the Government began printing currency in denominations of BILLIONS of Deutchmarks (DM).  There is a photo of a person carrying a wheelbarrow of currency around, just to buy food.  Example of Weimar Germany hyperinflation in 1923:  1 DM for loaf of bread at start of 923; by end of 1923, same loaf of bread cost roughly 1.26 BILLION DM.

AND the government can’t just fix wages and prices, as people and merchants realize the money is worthless, so they’ll turn to OTHER nation’s currencies (British Pound, Japanese Yen, European Euro, Chinese Yuan, Swiss Frank, etc), or precious metals (gold, silver, etc.) or other means of payment, thereby spiraling the existing money into worthlessness.  Also severe shortages result, for example, as everyone tries to buy all of a store’s food supply before the price increases even more.

CURE:  re-value the nation’s currency by declaring the old currency worthless, and start over with new bills with a limited supply.  Lots of people—anyone with the old money-- loses out big-time this way!  You still have economic depression.

So they way to prevent option 2 is:

3. MUCH higher taxes AND BIG spending cuts.  This is called AUSTERITY.  But much higher taxes and big spending cuts will severely hinder if not cripple the economy—imagine all your taxes are doubled at the same time Social Security, Medicare, and defense payments are frozen or reduced—that’s a whole lot of people with far less income to spend.  So again, MASSIVE economic problem—at lease a recession, maybe even another Great Depression.

So the way to prevent severe austerity is:

4.***  The BEST (least bad) solution is to do something NOW rather than put it off.  In other words, slowly raise taxes a little each year AND slowly slow the growth of entitlement programs by reducing the increase in spending each year or even freezing them for a few years.  The problem of the national debt is so huge that both inceases in taxes and reforms to entitlement programs will be needed.   BUT Congress is deeply ideologically divided.  Currently, the Democrats refuse to make any needed reforms to entitlement programs, or to even slow the increase in spending on them.  The Republicans, on the other hand, refuse to raise any taxes, even on corporations or the wealthy.  So things only happen when one or the other party can get enough votes to impose an entirely one-sided imbalanced solution, but both entitlement reforms and tax increases will be needed to solve the problem.

 

When will this reach a crisis? Even experts aren’t sure, BUT it’s starting to look really bad in the next 10-20 years, as the Baby Boom generation retires and so the costs of Social Security and Medicare start going way higher.  And the problem will accelerate as the U.S. government has a harder time borrowing, the interest it pays will have to be higher in order to get people, banks, or nations to loan it money, and thus interest payments will increase, which means we’ll have to borrow more to pay that interest, and a negative feedback loop might thus be created.  This phenomenon is called a debt spiral.

               

What are possible SOLUTIONs to prevent a massive national debt in the future?

1. BALANCED BUDGET AMENDMENT to the U.S. Constitution would require Congress to balance the annual budget. A proposed balanced budget amendment to the U.S. Constitution passed in the House but failed in the Senate in 1997. Senators didn’t want to be forced to cut spending as it would reduce their re-election chances.

 

2. Short of a balanced budget amendment, Congress could cap borrowing as a percent of the economy—e.g cap debt at 20% of the economy. But again, this would handcuff politicians who want re-election.

 

3. Reform current spending programs:

a. Entitlement programs: Reform Social Security and Medicare: e.g., make them means tested, raise the retirement age, lower benefits, slow the annual percent of increase of benefits, prohibit Congress from spending money that is supposed to be held in the trust funds, etc..

b. Defense Spending—cut costly and obsolete programs, reduce the nuclear triad; end costly defense of Europe and Japan when those regions are wealthy and thus perfectly capable of paying for their own military defense, etc.

 

BUT all these possible reforms and cuts are all politically dangerous for any candidate or official to support. Elected officials want benefits and re-election NOW; so they leave it for someone else to deal with in the future when it reaches a crisis.  And the public keeps demanding lower taxes and more government benefits NOW.  So basically, the current generations are enjoying all this borrowing and spending, and sticking the next generations with a massive debt problem, because a majority of people and politicians at the moment refuse to deal with the problem.

________________

 

American National Government Course summary: 

Remember: Politics=power.  So WHEN YOU BOIL IT ALL DOWN who has political power in the United States?

 

4 most common views of power in U.S. (This is what political science studies, remember?) (What U.S. IS/SHOULD BE)

 

1. Democratic Pluralism:  Robert Dahl: Who Governs? Policy made by different groups that dominate each policy area (e.g. loggers and environmentalists decide national forest policy)                 BUT no ONE group dominates MANY or ALL policy areas.  Thus, diverse people and interests govern.—ala Madison’s factions in Federalist #10.

AND basic rights of minorities are protected against majority decisions of the majority, because majority isn’t always right/good.

If aliens from outer space came down and asked? "The American Creed"  "Habits of the Heart"—Alexis de Tocqueville

  All things we’ve looked at during the semester:

                1. Democracy (self government) with popular sovereignty—elections, majority rule

2. Limited Government--Separation of Powers, Checks and Balances, Federalism, Enumerated Powers, Sep. of Church and State

3. Pluralism (diversity of groups)--Ethnic, religious, economic, regional, etc.

                4. Equality (of opportunity) (both political and economic)—Equal Protection Clause

5. Freedom/Liberty --Bill of Rights

 

2. Majoritarianism: policy made by majority: universal participation, political equality (of vote), majority rule.  Over the long enough time period, the majority eventually gets its way (e.g. first slavery, but then the end of slavery; first no women’s rights, then women’s rights, first federal government wasn’t involved in creating jobs or providing a social safety net like Medicare and Social Security, now it is, etc.).

 

3. ELITISM:  policy is made by a few individuals or organizations that make up a relatively small percent of the overall population, because of either wealth/power/interest/motivation.  Thus, on paper, in theory we’re a democracy, but in reality we’re an OLIGARCHY. (rule by elite few) and actually a PLUTOCRACY (rule by wealthy)—e.g. big corporations, wealthy individuals, government leaders, political party leaders, large and powerful interest groups.

 

a. Elitism (negative view): C. Wright Mills, The Power Elite:  Elitism is a bad (democracy is good, oligarchy is bad). Why? because government policy either neglects or oppresses the masses.  But more than just that . . .

1. political participants are elites: --older, educated, high income people (formerly white males) more involved in politics.

                65-74 voting turnout twice that of 24-35;  advanced or professional degree three times that of high school;

2. elites in public choose elites representatives—again, Congress 2000: 40% lawyers and 25% millionaires, and

2000:  House 86% white, Senate 97% white, House 85% Men, Senate 97% Men.

2002 Half of 62 entering Members of Congress were millionaires, compared with less than 1% of population.

I.e. white male millionaire lawyers

                3. elite representatives guarantee their own lock on power: 2-party system, incumbent advantage.

4. policy enacted by representatives favors elites—lower tax rates on rich, corporate subsidies, low wages for workers, etc.

 

V.O. Key, The Responsible Electorate, American public is competent to participate in politics—they manage to reach meaningful decisions, so rule by an elite few is bad.  Thus, we are oligarchic-plutocratic-democratic hybrid.

 

b. ELITISM (positive view): Thomas Dye and Harmon Zeigler: The Irony of Democracy; Walter Lippmann, the Phantom Public (The American public is incompetent to participate in politics—no interest, awareness, tolerance, etc.) classical political philosophy: Plato’s Republic; Socrates, Aristotle only “the best” (i.e. the wisest) are fit to rule:

Yes, Elitism exists but it is GOOD that our nation is run by elites (that is, is an oligarchy).

WHY?, because the MASSES of common, ordinary citizens are politically unaware, uninterested, uninvolved, intolerant, uneducated,etc.  The are INCAPABLE of governing themselves, and don’t bother to do it even if they could, and we don’t want ignorant, uneducated masses to rule.

ELITES, however, elites ARE politically aware, interested, involved, tolerant, educated etc.  Thus, they rule our nation much better than the masses could or do.  In other words, elites are caretakers of the U.S.—they are trustees who safeguard our nation.

                Note that elections are an aristocratic institution:  we vote for “the best” to govern.  This presumes some are “better” rulers than others.  Otherwise, democratic rulers would be chosen by lottery. e.g. like jury service is a civic duty for all today; Ancient Athens, Greece democracy: all free male adults were selected by lottery to govern in the Senate.

Thus, we are an aristocratic-democratic hybrid.

 

Note:  this view that elitism is good is controversial, and relatively few people adopt this view. BUT it has a long history—Alexander Hamilton and some few other framers of the Constitution did not trust the masses; Hamilton even wanted a King so that a strong authoritarian ruler could keep the masses in check. 

 

***If both forms of elitism are partly correct, then our nation is an aristocratic-oligarchic- plutocratic-democratic hybrid.

____________________

 

Also note that the framers of the Constitution intentionally created what is called a “mixed regime.”  Where elements of different types of regimes are blended together:

                Rule by one (Autocracy): the  President

                Rule by a few (Oligarchy/aristocracy): the U.S. Senate  (remember the U.S. Senate was originally appointed by state legislatures)

                Rule by many (Democracy): U.S. House of Representatives

 

                Also recall the lawmaking process for federal laws:

                House + Senate + President à Law

 

                So then, one could argue that in our U.S. system:

                Democracy + Oligarchy + Autocracy à Law.

 

So then maybe we are a democratic-aristocratic-oligarchic-plutocratic-autocratic hybrid . . . ?

 

The point is that our system is not 100% anything, it is a mixture of many different types of political rule.

 

So the American Experiment is still ongoing, and it will ALWAYS remain ongoing as long as there is a United States of America.

______________________________________________________________________________________________________________

 

***Don’t forget the final exam is partly cumulative!  See the final exam review guide for details.  J