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Creating a Constitutional Democracy Government 310L Professor Andrew Karch I. An elected Constitution A. Constitution was crafted with public opinion in mind B. Ratification debate as our first national election C. Federalist Papers as a campaign document II. Weaknesses of the Articles of Confederation A. Very weak central government B. Limited powers of the national legislature III. Brokering compromise at the Constitutional Convention A. The structure of the U.S. Congress: the Connecticut Compromise B. Other important compromises 1. Congressional powers and the "necessary and proper" clause 2. Voter qualifications left to the states 3. Presidential powers limited by congressional checks 4. Presidential selection and the Electoral College 5. Judicial authority and the supremacy clause 6. Slavery and the three-fifths clause C. One glaring oversight: the Bill of Rights IV. The Federalist/Anti-Federalist debate A. Anti-Federalist claims B. Federalist response C. Madison: Federalist 10 1. It is impossible to remove the causes of factions 2. Creating a republic will control the effects of factions Key Terms Federalist Papers essays that were written in support of the Constitution's ratification and have become a classic argument for the American constitutional system. Articles of Confederation the first (1781-1789) basic governing document of the United States and forerunner to the Constitution. Connecticut Compromise Constitutional Convention proposal that created a House proportionate to population and a Senate in which all states were represented equally. Necessary and proper clause Constitutional clause that gives Congress the power to take all actions that are "necessary and proper" to the carrying out of its delegated powers. Also known as the elastic clause. Electoral College those chosen to cast a direct vote for president by a process determined by each state. Supremacy clause Constitutional provision that says the laws of the national government "shall be the supreme Law of the Land." Three-fifths compromise Constitutional provision that counted each slave as threefifths of a person when calculating representation in the House of Representatives; repealed by the 14th Amendment. Creating a Constitutional Democracy 1. An elected Constitution was not first document of the US. The Articles of Confederation were. They governed from 1781-1789. 2. Weaknesses of the Articles of Confederation - Very weak central government The constitution was a reaction to this weakness. People thought A of C would not be able to hold the US together. Founders like James Madison thought something new should be written. - Limited powers of the Continental Congress a. could not raise an army b. could not tax citizens directly c. no monopoly over coining money there was not one currency that held the country together. d. could not regulate interstate commerce - Limited executive and judicial powers 3. Brokering compromise at the Constitutional Convention - Constitutional Convention a. Philadelphia, 1787 At this time Virginia was most populace state. So with the Virginia Plan, Virginia is going to have more power than say Rhode Island because it has more people b. Three general decisions at the outset 1. All discussions would be held behind closed doors 2. Delegate would write a new constitution It wasn't worth amending the Articles of Confederation. It should just be thrown out. 3. Initial basis for discussion: Virginia Plan Virginia Plan authored by James Madison and proposed many ideas about how the US should be run. It contained the seeds of the modern Congress. Upper chamber elected by state legislatures and lower chamber elected by voters. - The Connecticut Compromise a. Significance: Created the modern bicameral Congress b. Compromise between the Virginia Plan (based on population) and the New Jersey Plan (each state gets a single vote) c. House of Representatives: representation was proportional to state population d. Senate: all states represented equally - Other Important compromises a. Congressional powers Congress has the power to "make all laws which shall be necessary and proper (vague meaning so that both sides can interpret it the way they want...very suave idea) for carrying into Execution" its responsibilities b. Voter qualifications to be set by the states. c. Numerous checks on executive authority some people wanted president to have power like the British King. So President is commander in chief but only Congress can declare war. This is a reflection of the times and what the founders were responding to. d. Presidential selection: the Electoral College Small state large state divide issue again 1. Two-stage procedure 2. Deal between large and small states the sum total of the number of representatives and senators each state has is the number of electoral votes each state has. Electoral college created a compromise between the large and small states that was needed 3. Winner can receive fewer votes e. Judicial authority and the supremacy clause gives the Supreme Court the power of the land. It can declare what is judicial and what is not. f. Slavery 1. Compromise between North and South they wouldn't tackle this issue for another 20 years. That was the compromise. 2. Slave trade could be abolished in 1808 3. Three fifths clause Southerners would want all slaves to count as people so that they would have a population advantage to the North. However, each slave was counter as 3/5 a person. 4. The Federalist/Anti-Federalist Debate - Anti-Federalist arguments against the Constitution 1. Absence of a Bill of Rights the failure to protect civil liberties that were already take for granted in Americana thought. So Federalists decided to add a Bill of Rights to the Constitution as amendments in order to win ratification in Virginia and New York. This was only a promise though. 2. Power too centralized people thought power was to nationalized which could be a threat to the liberty of American citizens although they did agree that the Articles of Confederation make power to weak. 3. Presidents would become like kings who were going to be the rulers of the new country? The constitution did not contain any term limit for Presidents. So it kinda created an American king. 4. Creation of a political aristocracy are no term limits in Constitution was it kinda created an aristocracy they would not be responsible for listening to the public. Federalist counterarguments Federalist Papers (very skilled writers) series of essays established anonymously at that time to make a positive case that this document (Constitution) was going to be a good thing. Later found to be written by James Madison, Alexander Hamilton, and John Jay. The jest of the argument was external and internal threats. External threats Britian and other countries were interested in making this newly settled land colonies. In order to confront this threat was to have a strong central government to defend the coutry against these external predators. Internal threats Biggest threat to liberty could come from inside the country from tyranny of the majority. The rights of minorities are protected in the Constitution. American citizens are protected because of both federal and state government. You always have power divided. So it would be very difficult of just one faction to impose its power onto everyone. You have power divided in Congress between H.R. and Senate James Madison: Federalist 10 Internal threat to liberty: a majority faction Faction: "A group of citizens who are united by a passion or common interest that is adverse to the rights of other citizen." What causes factions to emerge? 1. Standard part of human condition. People like associating with like minded people. 2. Private property. The unequal distribution of private property. Political implications of this are that it's human nature to want to keep property if you have it and to want property if you don't have it so you can't stop the cause of factions. So the challenge is how can you control the effects of these factions. Well the US is very good at eliminating the effects of these factions by establishing a republic by incorporating a bunch of people with different interests. It's a great thing that the US is so big geographically because it's hard to find people who do share your interests. You don't know about them. No such thing as internet those days. The American Political Tradition the American principles 1. Heterogeneous people Social Diversity - One of the defining characteristics of the US you are an American because of your beliefs...not religion, race, or ethnicity. - Citizenship is not based on ethnicity not based on blood like other countries like Germany. - The US has long been a nation of immigrants 2. Homogeneous political culture 3. Sources of the American political tradition 4. Tensions between American values Who Belongs? - Today's debates about multiculturalism, diversity, bilingualism, etc. are not new 1. Anti-Catholic "Know-Nothing" Party (1850s) 2. Chinese Exclusion Act of 1882 Chinese were sent back Social diversity has always been a part of American debate. The American Political Tradition Government 310L Professor Andrew Karch I. Heterogeneous people A. The meaning of being "American" Americans share a set of beliefs and values that come from classical liberalism. Classical liberalism assesses rights of the individual. Most people have different political ideas, but usually they all believe in these four underlying ideas. - Classical liberalism has four central tenets 1. Individuals have basic rights People have rights that are not to be violated by the government...such as free speech. 2. Political equality each individual has a particular set of political rights. It doesn't matter who your parents are. 3. Limited government 4. Instrumental government Government exists to help the individual B. Social diversity II. Homogeneous political culture A. Common core of beliefs and values Americans believe in individual responsibility. It is the responsibility of the individual to make a living, not the government. Regardless of economic and social background, generally all Americans believe that if you work hard and play by the rules, you can do pretty well. B. Classical liberalism (different from modern political liberalism) C. Emphasizes the autonomy and responsibility of the individual D. Limited role for government III. Sources of the American political tradition Where does American political culture come from? Scholars propose three explanations. A. No feudal tradition no established hierarchy, which establishes very rigid social classes. Class doesn't play that important of a role in American politics like in other countries. Also no established state church. B. A nation of immigrants Many individuals who came to the US were fleeing countries so they were trying to get rid of the government, so they didn't want the same type of government when they came to US. In general, people saw the US as a place to make a better life for themselves. They were optimistic and ambitious people. It was a very difficult undertaking. So the people who came to the US were people willing to deal with hardships in order to make a great life for themselves C. The inefficiency of American government Steinmo says that institutions create cultures. The US is exceptional because it has a Congress that is bicameral, etc. It is the institutions that make the US what it is. You have institutions sharing and separating power. He says since government is so divided, government is not that efficient. You can't rely on the collective. You can't rely on the government. IV. Tensions between American values A. Different types of equality 1. Equality of opportunity vs. equality of result Equality of opportunity (everyone should have an equal chance), equality of result (it is not acceptable to have 60% women and 40% men in law school....opportunity would call this fair as long as they are all taking same LSAT) 2. Group equality vs. individual equality 3. Economic equality vs. political equality 4. Ideal equality vs. real equality philosophical ideal of equality vs. what is actually possible. B. Tensions between equality and limited government Should the Government Redistribute Wealth? - Distinction between equality of opportunity and equality of result opportunity stance you wouldn't look at income, instead you would look at general playing field. - Distinction between economic inequality and political inequality American politicians aren't concerned with economic inequality unless you can buy political influence because of money. - Attempts to create economic equality may not fit with the ideal of limited government. If American believe in equality so much what is so evil about communism? Communism comes into conflict with other American ideals. You want to be free and not dictated by the state. Americans believe in liberty more than equality. Key Terms Political culture Classical liberalism The Texas Political Tradition Government 310L Professor Andrew Karch I. Does Texas have a traditionalistic political culture? - In the 1960s, Daniel Elazar argues that the South had a traditionalistic (emphasizes preservation of the status quo stability motivates government in the South) political culture - Hierarchical society - Paternalistic and elitist there should be a small group that runs the state and its all based on your social standing and family lineage. - Government role is to preserve stability - Political parties are unimportant everything based on informal ties with the elite so parties aren't important - Negative view of the bureaucracy A. Accepts a hierarchical society as part of the ordered nature of things B. Paternalistic and elitist conception of how the state should be governed C. Good government involves the preservation of existing social patterns D. Political parties are of minimal importance E. Negative view of the bureaucracy II. The Texan Creed good Texans disagree with Elazar A. A set of ideas that shape texas politics and government B. Grows out of the unique historical experiences of Texas and Texans C. Five components of the Texan Creed all these values resonate with the American creed 1. Individualism Definition: the belief that each person act in accordance with is or her own conscience. Texans were settling a new land. They were optimistic about starting a new life. Goes along with immigrants as said before. Very ambitious. Risk takers. You can do well if you try. You could triumph over adversity. Challenges in undertaking the land. Political implications of individualism: dependence on government is seen as a sign of weakness. a. Texan icons/heroes: The frontier, the cowboy, the independent oil producer, and the Texas Rangers (mounted militia formed to provide order on the frontier frontier was a dangerous place at the time, generally outnumbered but believed that good offense is all you need) b. Cowboy 2. Liberty Definition: liberty ensures that a person's inherent rights are free from government infringement a. Revolt against Mexico Important symbol of the fight of liberty: the Alamo (February-March 1836) b. The Alamo symbolizes fight for liberty and rugged individuality. 3. Constitutionalism the notion that limits should be places on government through a written document 4. Democracy a government system that gives power to the people, whether directly or through their elected representatives 5. Equality D. Future challenges to the Texan Creed 1. Economic transformation The state economy has evolved into a modern, industrial and service, information based economy. Not really land based anymore...like cattle and ranching 2. Demographic changes the state has an increasingly diverse population. People are moving here (such as from CA) and brining their own values with them. Whites might also eventually be a minority. The Alamo to Mexican Americans symbolizes defeating Santa Anna, but also it might symbolize suppression and conquest for Mexican Americans. Key Terms Traditionalistic political culture Texan Creed Texas Rangers Alamo The Courts Government 310L Professor Andrew Karch I. The federal court system (How much power do the courts have?) A. Structure 1. Supreme Court If unhappy with outcome in lower courts, you can go to the Supreme Court. Only decides about 80 cases a year. These are the cases that have the biggest impact. Ultimately makes a decision about what the Constitution means. 2. US Courts of Appeals 3. US District Courts decide 100,000 cases a year. They are organized into 13 circuits. Each circuit has a court of appeals. B. Nomination process Federal judges are nominated by the president and confirmed by the Senate. Federal judges hold their positions for life after winning confirmation. The appointment process has become increasingly politicized and acrimonious. 1. Lifetime appointment 2. Increasing politicization Has happened in the last 10 years. Started in 1997 with Clinton. Congress only approved 47% of his nominees. Today when someone like John Roberts is nominated by the Presidnet, the process is much more politicized. 3. "Borking" Politicizing the judicial nomination process through an organized political campaign portraying the nominee as a dangerous extremist. Grew out of the 1987 nomination of Robert Bork to the US Supreme Court by Ronald Reagan. Bork was considered so conservative that he was outside the mainstream of legal American thought. And people used his paper trail against him. Some of Clinton nominees were borked, considering they were extreme liberalists. II. Judicial review and statutory interpretation A. Judicial review Judicial review is the power of the Supreme Court to declare null and void laws of Congress and state legislatures that they find unconstitutional. It determines if laws made by Congress are constitutional or not. It is the Court's most important power. Not mentioned explicitly in the Constitution, judicial review was established in 1803. 1. Power to declare laws unconstitutional 2. Not explicitly mentioned in the U.S. Constitution does not say that Supreme Court has the power of judicial review. 3. Established in Marbury v. Madison (1803) Substantive issue: political patronage. Did the President have the power to appoint people? When Jefferson became president, he was going to have to deal with all of these Federalists. Adams nominated several new justices of the peace and the president approved them, and they were stamped with a seal of approval. However, it was late that night. The next day Jefferson shows up to see these new 42 justices commissions. He orders for them not to be delievered, which means the justices can't do their job. So they requested a court order so that they could receive their commissions. The one who did this was Marbuy. He sued Secretary of State James Madison. Constituioina questions: A. Had Marbury's rights been violated because he never received his commission? B. Was Marbury entitled to a remedy? C. Did the Supreme Court have the authority to provide this remedy? Ruling required striking a delicate political balance. Decision: Marbury's rights had been violated (he was entitled to his commission), he was entitled to a remedy, but the Court could not provide this remedy. He goes back to the Constitution, which says Courts only have this power in original jurisdiction. Judiciary Act of 1789 was unconstitutional. B. Statutory interpretation The judicial act of applying the law to particular cases. This is a second power of the Court that differs from judicial review. It applies the law to a particular circumstance and decides what is required in that situation. III. Constitutional interpretation (How does the Court use the powers?) A. Original intent: determines the constitutionality of a law by ascertaining the intentions of the Constitution's authors. Includes primary source research, such as the Federalist Papers, James Madison's notes he took at the Constitutional Convention. This is pretty controversial. Thomas sometimes says that Roe v. Wade should be overturned because there isn't much in the Constitution saying that women have a right to abortions. Downsides of original intent: Everything isn't in the Constitution. When they wrote it, they couldn't tell the future and what type of issues might come up. It can also limit progress. If you're always looking back, you can never go forward. Problems: many new issues that the authors never considered; compromise language (sometimes original intent isn't always clear what is the intent of "necessary but proper?"); should these views still be so influential as they were back then? B. Living-constitution theory: judges the constitutionality of a law in light of the entire history of the United States. Judges should pay attention to what was said at the Convention, but since that time American has shaped new judgments. So you should view the Constitution has a living document that is adaptable and takes into account changes that have occurred since the Constitution. Problems: Everyone is going to have a different interpretation. Therefore this theory is highly subjective. C. Plain meaning of the text theory: determines the constitutionality of a law in light of what the words of the Constitution seem to say. Advantage is that it doesn't require any historical research, no needing to go back to Madison's speeches or notes. Also, it doesn't require judges to evaluate the grand meaning of historical events. Problems: Constitution is a short document that left many issues undecided and vague. So, maybe there really isn't a plain meaning of the text. IV. The least dangerous branch? A. Hamilton: Federalist 78 "The judiciary, on the contrary, has no influence over either he sword or the purse...and can take no active resolution whatsoever." Court is the least dangerous branch. Hamilton is saying that the Court is not a threat to civil liberties, and is not a powerful institution. President has the sword so he can enforce laws. Congress has the purse, so they can decide to fund something or not. "It may be truly said to have neither force nor will but merely judgment." So it can't even enforce it's decision. IT needs the president for that. B. Constrained court view According to Rosenbergh, the courts are unable to produce significant social reform for three main reasons: 1. Bounded nature of constitutional rights It prevents to court from hearing or effectively acting on the all claims. You have to convince the court that the right that has been violated is a Constitutional right. 2. Insufficient independence from the other branches of government Judges are nominated by president and confirmed by Senate. 3. No power of implementation The Court can't implement its decision or execute it. C. Dynamic court view The courts can be effective producers of significant social reform for two main reasons: 1. Independence of the judiciary Judges are appointed and confirmed, but after this is over, judges hold their positions for life. They never are up for reelection. They don't have to deal with election pressures. They don't have to worry about strong public oppression/opinion. 2. Indirect effects on society as a whole The Court can put an issue on the agenda, and make other branches pay attention to the issues. They can indirectly mobilize the other branches or organizations on this issue, such as civil rights. Many civil rights were inspired by this decision, and were mobilized. Key Terms Borking Judicial review Marbury v. Madison (1803) Statutory interpretation Original intent Living-constitution theory Plain meaning of the text Constrained court view Dynamic court view Civil Liberties Government 310L Professor Andrew Karch Civil liberties 1. Found in the Bill of Rights 2. Often associated with the due process clause: no person shall be "deprived of life, liberty, or property, without due process of law." 3. Procedural and substantive due process established there are certain things the government should not be doing because they don't protect civil liberties. I. The due process clause - no person shall be "deprived of life, liberty, or property, without due process of law." A. Civil rights amendments Amendments ratified after the Civil War 1. 13th: Abolished slavery 2. 14th: Redefined civil rights and liberties 3. 15th: Right to vote for all adult male citizens B. Selective incorporation Court has decided on a case-by-case basis whether a particular denial of liberty violates the 14th Amendment. Supreme Court has never said that all rights in the Bill of Rights also apply to states. It is a slower, more incremental process. II. Evolution of free speech A. Clear and present danger doctrine - Schenck v. US (1919) Espionage Act made it illegal to obstruct armed forces recruitment. Court upheld the conviction of a man who mailed anti-conscription (anti-draft) materials during WWI. Supreme Court ruled freedom of speech unless a clear and present danger that language will provoke "evils that Congress has a right to prevent." B. Fighting words doctrine Smith Act was published during WWII. It forbade anyone from advocating the forceful overthrow of the US government. We see a shift in public opinion. More uniting as one. Less tolerance to speaking badly about the government. Chaplinsky v. NH (1942). Chaplinsky was a Jehovah Witness and pacifists. He wanted police protection from a threatening crowd objecting to his pacifist beliefs. He asked policemen for protection, but policemen didn't really help. He called them names. Policemen did the same thing back. Court ruled that Palinsky himself used threatening words, and his words had the potential to disturb the peace. Then came the fighting words doctrine. Some words can be so powerful that they have the potential to start a violent act. C. Balancing doctrine Now you have the Cold War. Senator Joseph McCarthy proliferated the Red Scare. To become part of the government you had to take an oath of loyalty. The Court comes up with Balancing doctrine. Free speech is a fundamental right, but needs to be considered against other government objectives, such as national security. So you don't have an absolute right to free speech. Some objectives can supersede it. The Court is in line with public opinion. It is only when the politics change does the court change. D. Fundamental freedoms doctrine We have another shift in 1960s that lasts until today. It is the Supreme Courts general attitude toward free speech. There are some rights the Americans possess that are so fundamental to the function of American democracy that whoever threatens these rights is in trouble. Ex. Flag Burning. In 1980s Congress passed a law that made it illegal to burn the flag. Someone challenged this law, and the court ruled that this law was actually unconstitutional because it was a threat to the right of free speech. E. The impact of war on civil liberties All these doctrines illustrate that war can put a great strain on civil liberties in a democratic polity like the US. FDR made tons of Japanese go to concentration camps during the WWII. Supreme Court was asked to consider the validly of these camps, and they found them constitutional. III. The right to privacy It is not specifically mentioned in the Constitution and for this reason is very controversial. Supreme Court, therefore, reads it in the 9 th Amendment, even thought no where in it does it mention the word "privacy." The other reason it is so controversial because of the way it has been applied, such as cases involving abortion and sexual behavior. A. Griswold v. Connecticut (1965) Griswold was director of Planned Parenthood in Connecticut. At this time there was a law in Connecticut that outlawed contraception. His wife used contraception. Supreme Court ruled that Connecticut did not have a right to out law Connecticut. They justified that the right to privacy is older than the bill of Rights (remember no mention of privacy in Bill of Rights.) So this state law overstepped the boundaries of what Connecticut could actually do. The public agreed with the ruling. So once again Court is in line with public opinion. Clearest statement of right of right of privacy that you're going to get. 1. Douglas: there is a "right to privacy older than the Bill of Rights." B. Roe v. Wade (1973) Texas state law prohibited abortion. Law was very broad and very clear. Court ruled that this law was too broad. Blackman believed that a women's right to privacy is so fundamental that it can only be challenged when a state had a compelling interest. Court ruled that woman's right to privacy could only be overruled when the state had a compelling interest. Trimester framework. First trimester privacy is only between woman and her doctor. Second trimester the state starts to get involved. Third trimester Blackman stated that this is when the state has the most rights to having a compelling interest in the decision. Compelling interest begins at viability. Large amount of history in the opinion in an effort to show that there is a precedent to this ruling. Objections: 1. Trimester framework was an example of judicial activism/legislation What is the court doing with this framework of trimesters? This is almost sounds like a law and laws should only be made by legislature. Is the Supreme Courts job to draw up a framework like this? 2. Usurped the power of the legislature to pass laws Now the Court can pass laws when they are only elected by the President. 3. In subsequent rulings, such as should a minor tell her parents or should the mother tell her husband, Court opinions map well into public opinion. C. The Supreme Court and public opinion Key Terms Selective incorporation Clear and present danger doctrine Schenck v. United States (1919) Fighting words doctrine Chaplinsky v. New Hampshire (1942) Balancing doctrine Fundamental freedoms doctrine Right to privacy Griswold v. Connecticut (1965) Roe v. Wade (1973) Civil Rights Government 310L Professor Andrew Karch I. Civil rights and equal protection: early decisions Civil rights are about equal treatment under the law. Goes back to notion of political equality. Who you are and where your from shouldn't have an impact on your rights. These rights are often associated with the equal protection clause of the 14th Amendment. Key question: What is the relationship between the courts and public opinion? History: 1. Discriminatory policies after the Civil War were an attempt to protect rights of African American males. Leaders were not very enthusiastic about allowing these voting rights, so they drew up the black codes, which were restrictive laws that applied to newly freed laws but not white males. You also had literacy tests, strict residency requirements, poll taxes, grandfather clauses, and Jim Crow laws. Jim Crow laws required segregated public facilities and schools. This is the late 19 th Century. What did the Supreme Court do? A. Civil Rights Cases (1883): state action doctrine - The Supreme Court takes a restrictive view of the equal protection clause. Civil rights Act of 1875 is declared unconstitutional. Court ruled that there are limitations to what Congress can do. State action doctrine: only the actions of state and local governments, and not private individuals, must conform to the equal protection clause. So basically you can decide if you want to seat blacks in your restaurant because you are a private citizen exercising your private rights. B. Plessy v. Ferguson (1896): separate but equal The Supreme Court developed the doctrine of separate but equal. This didn't stamp anyone as superior or inferior. Segregated public facilities are constitutional as long as they are equal. Some justices disagreed such as Harlan. Justice Harlan's dissent: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." This was a minority view point. II. Political and electoral change A. African Americans moved to the North, where they begin to vote in large numbers. African American officeholders become more prominent. Gradually, their traditional attachment to the Republican Party weakens (Ever since Lincoln they were very loyal to the Republican Party) because they decide that maybe these new laws that Roosevelt is making aren't that bad. Roosevelt was democrat, and their votes are "up for grabs." B. Pivotal presidential election of 1948 1. African-American vote was up for grabs in a close election They becoming an important voting block. 2. Harry Truman advances a strong civil rights platform Needing as many votes as possible in a very close race, Democrat Harry Truman put forward an ambitious civil rights platform: Abolition of poll taxes, more protection of black voting rights, fair employment practices commission, end to segregation within armed forces. So, Truman was reelected. At this time, there is a much greater openness to civil liberties, and the Supreme Court notices this. III. Civil rights and backlash A. Brown v. Board of Education of Topeka, Kansas (1954) Warren had to convince his colleges that Plessy v. Ferguson was about trains and buses (it was an established precedent) and this was about schools. Unanimous Supreme Court decision. Racial segregation of schools is declared unconstitutional. 1. Reliance on psychological studies: refers to the "hearts and minds" of schoolchildren. Segregation gives African Americans a state of mind of inferiority. So segregated schools were producing detrimental effect. 2. Implementation of the decision was to occur "with all deliberate speed" this phrase is not too clear because deliberate means slow and speed means fast. Schools interpreted this phrase more to the deliberate rather than the speed. B. Backlash against the civil rights movement 1. Issues of busing and affirmative action busing would either take AA from a largely African American neighborhood to a white neighborhood or the opposite. People felt that this would disturb their ethnic communities. The Court makes a very important distcions between de jure and de facto: A. De jure and de facto segregation De jure segregation: Racial segregation that is legally sanctioned. De facto segregation: Racial segregation that occurs as the result of decisions by private individuals. Court argues that there is nothing in the Constitution about establishing certain ethnic ratios in the community. 2. Violent racial disturbances in 1968 B. Milliken v. Bradley (1974) Court is forced to address the busing issue IV. Affirmative action Affirmative action programs attempt to increase opportunities for race-or-gender-based groups that have suffered discrimination in the past. Civil rights moment began calling on different parts of society to change their ways. "These organization sneed to take an affirmative step to decreasing discrimination that has happened in the past." Purpose: to increase opportunities for groups that didn't have them in the past. A. Regents of the University of California v. Bakke (1978) Substantive issue: medical school admissions. Davis reserves 15 slots for minority students. The university had denied him equal protection. Constitutional issue: does affirmative action violate the equal protection clause? Extremely fragmented, complicated decision. The justices couldn't really agree. Four members sided with Bakke that this violated equal rights. Four members opposed Bakke because the constitution allowed these types of quotas to decrease discrminitation.Quota systems are not constitutional, but a university has a justifiable interest in having a diverse student body. B. Supreme Court and public opinion Pal said that there are some types of affirmative action that are justified. Medical schools do have an interest in diversity. It's constitutional. But he rejected Davis medical school, because a hard, rigid quota system is unconstitutional. Pal was in line with public oppion on this issue. C. Arguments for and against affirmative action Arguments against affirmative action: 1. Helps some people at the expense of others 2. Negative impact on the people it helps Arguments for affirmative action: 1. Historically the Constitution has not been color-blind or gender-neutral 2. A remedy for past discrimination 3. Many of supporters are still aware of the disparities between whites and minorities, such as income rate or employment rate. These are of concern to the pro-affirmative people. D. Recent ruling on University of Michigan admissions policy Undergraduate admissions policy (giving points to minorities) rejected by a 6-3 vote in Court. Minority applicants were given 20 points on a 150-point scale. Law school admissions policy upheld by a 5-4 vote. Goal of achieving a "critical mass" of minority students. It was a "softer" quota system, and therefore deemed constitutional. Key Terms Civil Rights Cases (1883) State action doctrine Plessy v. Ferguson (1896) Separate but equal Brown v. Board of Education of Topeka, Kansas (1954) "With all deliberate speed" De jure segregation De facto segregation Milliken v. Bradley (1974) Affirmative action Regents of the University of California v. Bakke (1978) Federalism Government 310L Professor Andrew Karch I. Federalism Are there certain jobs that the natinal level does better than the state level, and so they should only have it? A. Characteristics of the different levels of a federal system 1. Each level has its own set of elected officials. They can act independently of the others. 2. Each level has the capacity to raise revenues by means of taxation 3. Each level has independent authority to pass laws regulating the lives of its citizens. B. Opposite of federalism: unitary government very strong central government and local (state) government much less powerful, such as in Great Britain where national gov. can abolish a local gov.. In US, Congress can't reorganize state government. C. Local government and Dillon's Rule In legal terms, local governments are "creatures of the state." Local governments are extremely dependent on state governments. State governments can alter their boundaries, expand or narrow their power, or abolish them altogether. II. Early debates over American federalism A. Compromise between Federalists and Anti-Federalists Some provisions of the Constitution reflect the Anti-Federalist desire for a weak central government. 1. Congress has no general legislative power 2. 10th Amendment "reserves to the states all things that is given to the national government. 3. States were given independent authority Some provisions of the Constitution reflect the Federalist desire for a strong central government 1. "necessary and proper" clause 2. Supremacy clause Constitution major law of the land. National laws trump state laws. On going debate. B. Dual sovereignty: a theory of federalism saying that both the national and state governments have final authority over their own policy domains. People thought this might result in Civil War though, but it did prevent a tyranny of majority from resulting. C. Doctrine of nullification: state legislatures can invalidate an act of Congress that they feel threatens state or individual liberties. Were used for freedom of speech and expression. Important up to Civil War. Not in the Constitution. It has been struck down since then. It tears the country apart and kinda allows the Southern states to disobey the national authority. III. Court interpretations of dual sovereignty A. Necessary and proper clause Congress has the authority to :make all laws which shall be necessary and proper for carrying to execution" its delegated powers. Very vague language so sometimes called elastic clause. 1. McCulloch v. Maryland (1819) Substantive issue: Congress established Bank of the United States. Farmers and debtors really disliked this. So Maryland decided to tax this bank. The Bank refused to pay this tax. Constitutional issues: Can congress create a bank? Can Maryland tax a federal bank? Ruling: Yes and no. Constitution doesn't say anything about establishing a bank so congress can create a bank. Congress has the right to select the proper way to carry out its duties. But Maryland can't tax the bank because they could tax them out of existence the sovereignty of the federal bank would be torn up. Precedent for expansive reading of clause. 2. New York v. United States (1992) B. Interstate commerce clause Congress can regulate commerce "among the states." Crucial distinction between interstate and intrastate commerce. Expansive definition of this clause beginning in the 1930s. Interstate commerce is commerce that takes place between state lines. If you have intrastate commerce, Congress can't interfere. 1. Broad interpretation after New Deal period (1930s) Roosevelt established quotas on agriculture production to lift the depression. One farmer was accused violating the interstate commerce clause because he didn't sell his grain he was upsetting the national economy. This was how the phrase was read up until 1930s. 2. United States v. Lopez (1995) is there a reversal on the way? Substantive issue: Gun-Free School Zones Act of 1990. Constructional issue: Is this interstate commerce? No. The regulation of guns should take place at the state level and not a part of interstate commerce. Rehnquist: "Congress may [not] use a relatively trivial impact on commerce as an excuse for broad general regulation..." C. Spending clause Gives Congress the power to collect taxes to provide for the general welfare. Applied to Social Security program in 1935. Supreme Court ruled that "Congress is wrong" and has also ruled that Congress can attach regulations to the money that it spends. Ex. Highway Act Provision. There is no real connection between teenagers wanting to get drunk and highway repair. But it still happened. If you want highway repair, you have to raise drinking age in your state. IV. Cooperative ("marble cake") federalism Key idea: all levels of government should and do work together to perform governmental functions. The federal system is like a marble cake, not a layer cake. Principles were put into practice during the War on Poverty (1960s): intergovernmental grants the national gov sending money to state and local govs to do certain activities, such as food stamps and highway construction. A. Dramatic increase in intergovernmental grants: Intergovernmental grants: grants from the national government to a state or local government B. Categorical grants intergovernmental grants that include regulations that specify how the money is to be spent. Favored by Democrats. This would be like raising the drinking age. There are certain regulations in how grants should be spent. C. Block grants intergovernmental grants with a broad set of objectives, a minimum of federal restrictions, and a maximum amount of discretion for state and local officials. Favored by conservatives. Grants with no strings attached. It's almost like free money. V. Resurgence of the States The states are responsible for an expanding range of programs and are stronger in terms of their political institutions. Right now state governments seem to be a lot stronger than they used to be. Ex. Abortion, UT tuition, healthcare, environmental and immigration policies. States like CA have increased regulation of greenhouse effect. Conservatives favor giving more power to the states. A. Increased policymaking authority 1. Sources A. Federal inaction and gridlock Because of this, states become more powerful, so that they can decide the issues instead, such as abortion. B. Conscious effort of conservative politicians 2. Justifications B. Institutional reform The problem: Not enough pay, not enough time, not enough help. Only independently wealthy could get involved in government. Stale legislatures didn't have a lot of staff. The solution: Make state legislatures more professional. In 1980s, we have the resurgence of the states, where power is shifted from the national government more to the state governments. 1. Legislative resurgence 1. National trend: the salaries of state legislators have gone up. Justifications: Increasing workload , attract a wider range of qualified citizens, and ethical justification (most people couldn't afford to work for the state legislators, ethical if legislators were paid poorly they might be more willing to take bribes to pass certain laws.) 2. Longer Sessions - National trends: Most states legislatures meet every year. Increase in number of days in session. Justifications: Bills receive the proper amount of time and study; there are no logjams. 3. Enhanced Staff National trend: Increase in number of legislative staff. Justifications: Provide better, more complete information. Manage workload more efficiently. 2. Executive branch resurgence Basic objective: make the governor stronger. Goal just like in legislative resurgence is to make states stronger. Reform era began around 1965. Six institutional reforms A. Short ballot B. Increases appointment/removal power you want the governor to have as much control over the executive branch as possible. C. Increased budgetary power states will let governor to draw up budget. Theme is to make governor more powerful. D. Increased term of office 50 years back, you only had a 2 year term and therefore you would always be thinking about reelection. E. Increased veto power you can reject bill passed by legislature. F. Increased reorganization power governor is in charge of the executive branch and can change it as he/she feels fit. Think about resurgence of the states and the various ways they become powerful. Public policies and such. Test question*** Key Terms Federalism Dillon's Rule Dual sovereignty Doctrine of nullification McCulloch v. Maryland (1819) Interstate commerce clause United States v. Lopez (1995) Cooperative ("marble cake") federalism Resurgence of the states Not enough pay, not enough time, not enough help The Texas Political System Government 310L Professor Andrew Karch I. State constitutions They are statutory constitutions. Compared to the US Constitution, state constitutions are longer, more detailed, and amended more frequently. A. Generally longer and more detailed than the U.S. Constitution compared to 20 page paper, it is 75 pages long. B. Require more frequent amendments than the U.S. Constitution If you want to pass a law, you actually have to make a constitutional amendment. II. The 1876 Texas Constitution A. This constitution is more restrictive than the U.S. Constitution B. Reasons for its restrictiveness 1. Reaction against Reconstruction End of civil war the question is how do you reincorporate the South. Northerners decided that Southerners had to rewrite their own Constitutions. Texans thought that this was a violation of democracy because they should be able to decide whether or not to have a constitution. 2. Reaction against the highly centralized governorship of E.J. Davis (1870-1874) governor had ability to appoint thousands of political officials, power over police force, public education, and so on. This is a government that is arguably "too big." Very expansive policy system. So Constitution is written to prevent another governor like this from ruling the state. 3. Product of a national movement aimed at restoring the ideal of limited government. emphasizing the ideal of limited government which was very common ideal. C. Important provisions 1. Very extensive Bill of Rights even more so maybe than bill of rights of US 2. Severely circumscribed legislative power very weak legislature in Texas. Objective was to fulfill ideal of limited government. A weak legislature won't be able to raise your taxes and so on. 3. Balanced budget requirement - So Texas, except in times of war, can never go into debt. 4. Dedicated funds: require that certain tax money be deposited in particular funds and used only for specific purposes. Ex. When you pay tax for gasoline and 75% of that can only be used to build bridges and highways. 5. Limited gubernatorial authority Plural executive, independent boards. So Texas is one of the weakest governors in the US. This goes with historical events, when EJ Davis was too strong of a governor. 6. Massive overhaul of the existing education system largely because it violated limited government, caused raised in taxes. D. More than four hundred amendments since 1876 Texas in Comparative Perspective A. Very low legislative pay by national standards B. Biennial legislature (meets every other year) instead of every year C. Short legislative sessions From Jan. to May only. Some states meet all the time. D. About 2150 legislative staffers Texas is below the mean in terms of pay and time, but above the mean in terms of staff. III. Major Criticisms of the 1876 Texas Constitution A. The document is too long and too disorganized multiple subsections. Very difficult to follow. Only Alabama has a longer state constitution. B. Excessive constraints on the power of the governor The most fragmented executive branch in the country because of plural executive and independent boards. C. A part-time citizen legislature is insufficient for a large, urban state The legislature isn't up for the job. D. Judges should not be selected in partisan elections Selection should be based on merit. Instead they are chosen on the basis of partisanship republican or democrat. E. There are too many restrictions on local governments in 1876, stae constitution was written with a lot of restrictions on government and now with the growth of Houston and Dallas, some people feel that these cities are too big for the limited government to handle. IV. Amending the Texas Constitution A. Article 17: vote by legislature followed by citizen approval. Establishes the amendment process B. Two strategies 1. Piecemeal revision, incremental reforms Try to eliminate sections that are out of date. Tweak things slightly. Tinker around the edges. 2. Comprehensive revision Scraping the entire document and starting from scratch. This has been attempted several times, even one year after it was written. It has failed though. So what remains is this document, in its fundamentals, looks the same as when it was first written. Is this valid? 3. Repeated efforts at comprehensive revision have failed Key Terms E.J. Davis Statutory constitution Dedicated funds Multiple choice from lectures and reading assignments Identifications all terms will come from the review sheets, what it is and why it is important (3-4 sentences) Short essays broader and more thematic questions Elections and American Democracy - The US hold more elections that elect more officials for public office than does any other country - Founders hoped frequent elections would keep power in the hands of the people and avoid tyranny - The frequency of American elections can be seen as far back as the founders of the United States. This was to disperse power and avoid tyranny. So elections have always been a part of America, but the system has changed so that people have even more opportunity to let their voices be heard in 2008 than they did before. One is because people have gained more the right of citizenship. - We have tighter connection between the governed and the people doing the governing. This is the permanent campaign Permanent Campaign - Definition: the condition that exists when the next election campaign begins as soon as the last one had ended and the line b/w electioneering and governing has all but disappeared. - Electioneering and governing used to be very separate. You would campaign to become elected and then you would govern once elected. Today this line is blurred. Now, to govern, it's almost like running a second campaign to get people to approve of whatever you are trying to win a policy making battle Sources of the Permanent Campaign - separation of election days - the decay of party organizations political parties today are not as strong as the parties 100 years ago. So individual Campaigners aren't as dependent. These old political parties were actually called "political machines." - the spread of primary elections Voters choose who the presidential nominees will be - mass communications technology. Every move a politician makes can now be scrutinized by the nation. You have more active political machine with technology. - the profusion of interest groups - the proliferation of polls The science of polling is much better than it was 50 years ago. Polls give pretty good approximation of what the public thinks. In just a matter of hours...at the max days. - the role of money in politics It costs money to run all of these campaigns, advertisements. Politicians have to raise tons of money to run. Federalist Papers (10, 51, 78, 45) Steinmo Article Rosenberg Chapter Roe v. Wade California v. Bakke McCulloch v. Maryland Federalism Readings in Van Der Slik Texas Chapted by O'Connor/ Sabato/ Haag/ Keith ID Example: The Texas Constitution contains numerous provisions for dedicated funds. Dedicated funds require that certain tax revenues be deposited in particular fund and used only for specific purposes. The state gasoline tax, which is earmarked for spending on highways ....

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