Poli 100 Exam 1

Barone, “The 49 Percent Nation,” National Journal

• Predicts Republican majority= Incorrect prediction

• religious divide, geography most important in determining partisanship

Big issues according to Barone

• Abortion

• Gun rights

• Environment

• Feels like you cannot compromise on this

Issues Barone does not mention

• immigration (republicans used to be pro immigration)

• education (climate change, vaccines/masks)

• Free speech

• LGBTQ rights

• feelings based

Barone: Prediction

• republican party will be dominant bc rural areas in percentage are growing faster than urban areas

• BUT: some states becaame democratic

• Others grew bc of tech centers and education favors democrats

Religious divide

• Religious observance (Catholic) determines party identity in Christians

• Non-Christian/white groups: These religious groups who observe often still likely to vote democrat

Geogrpahy in party identity

City-dwellers: democrats

Rural: Republican

Swing states have mix of cities and rural areas

Those in city don’t interact with republicans and vis vera

Non-interaction leads to polarization

Judis and Tiexiera, “Majority Rules - The Coming Democratic Dominance.” The New Republic.

• why are we so polarized?

• We are no longer divided on income (republican high income/ class and dem working class in past)

• New dividing line— culture and race

• growing idetnties in democratic paarty

Professionals: ideopopulism

Growing identity

College professors, lawyers, tech industry

Deal with ideas and services

high income democrats (not bussinessmen, managers)

All growing groups in dem party

• professionals

• working women

• minority voters (asian, hispanic)

• young voters— millenials, especially women

Why was Judis and Trexera’s prediction incoreect?

These groups do not all end up leaning democrat

Increase in Hispanic and Asian voters for Republicans

White voters without college degree start to favor republican party more than they did in 2000

Big takeaways from two parties tied// demographics

Groups have a homogenizing effect on Political preferences

Group identities are often held more deeply than the political preferences they shape

The two parties are basically tied in terms of popular support and have been for 30 yrs

Demography does not equal destiny

Politics used to be on size of govt

Richer groups wanted larger size of govt

More able to compromise than politics based on race, religon

Government functions

Protects citizens

Defends the country from foreign aggression

Provides services--education, roads

Regulates social and economic relationships

Role of church

Most everyone agrees govt is necessary; disagreement over size of govt

What are institutions?

• rules or sets of rules that determine how decisions are made;

• we want them to be stable and enduring and difficult to change

what is government

rules and institutions that help decide how to make and enforce agreements for a group.

Authoritarian governments

• concentrate power in one person or

  group, repress political and civil rights; strive for cultural

  homogeneity

• what founding fathers were against

Democracy

• -a system of rule that permits citizens to play a significant part in the governmental process, usually through the election of key public officials

  In other words, hallmark of democracy is free and fair elections

  Free press, free speech

  Other principles: one person one vote

what is a republic and is america one?

A republic is a form of democracy in which power is vested in elected representatives

Therefore America is a republic and is also a democracy

Key concerns for framers (2)

• 1. Feared concentration of power (bad experience with Britain)

• 2. Favored giving people power, but feared passions of the “common man”

• End result: a set of rules and processes requiring time, effort, and resources to make collective decisions (eg how a bill becomes a law)

Big clevages that made it diffciutl to ratify constitution

• Big vs small states: proportional or equal represnettaion 

  • Senate: equal; house of rep: proportional 

• Slave vs free states (south vs north)

  • 3/5 compromise

  • Slave trade allowed to continue

  • “Kicked can further down the road”

• Centralized vs de-centralized govt

  • Federalist vs anti federalists

  • Federalist papers

What is Fed. 10 about?

• Faction: group of people with common belief

• What is bad about factions?

  Public good is disregarded in conflict of rival parties

• What can we do about factions?

  • Need larger republics

  • Greater population= more clevages 

  • Cross pressures dont allow fro building of political majority

what is Fed 51 about

• Madison argues branches of govt ought to be separate

  • So that no group has too much power

• Checks and balances

  • Ambition must be made to counteract ambition

  • Bc founding fathers skeptical, worried for tyrannical power

Articles of confederation

• ineffective system with no centralized power

• impossible to change

• led to convention 2

Convention 2

• After many protests

• Virginia vs new jersey plan

• No one wanted state or central to hold all power

• Great compromise ( connecticut compromise)

• Not a quick system but better than AoC

• Framers wanted legislative to be strongest and judiciary to be weakest

  • Still difficult to amend consittuion- but plausable

    Now less plausible

    Divide btween southern vs northern states

“Kicked the can down the road”

• slavery compormise during constitution

• 3/5 compromise

  No ban to slave trade for at least 20 yrs

  Slaves must be returned to enslavers

Federalism

• Multiple levels of govt with shared authority over the same area and same people

• Subunits (states in US) have constitutional status.

  • not local govt

• rare

Other systems- Unitary & Confederation

• Unitary-- power is in hands of national governmen; subational units are administrative (eg Great Britain, France, Japan, South Korea)

• Confederation- each of the subinitts retains its own sovereignty. Eg articles of confederation, UAE, EU

Why federalism in US?

• 1. Theoretical rationale: Federalism checks the growth of tyranny

• 2. Greater attachment to states at founding

  • Not the case today

• 3. Pragmatism=had to ratify

• 4. Size

State constiutional powers

• Determine the times, places, and manner of holding federal elections

• 10th amendment- “all powers not granted to the national govt in the constitution nor prohibited by it to the states are reserved to the states respectively or to the people (reserve powers)

Congress consitutional powers

Enumerated powers: coin money, conduct foreign relations, declare war, regulate commerce, tax, spend

Necessary and proper clause (aka elastic clause)

Supremacy clause

3 constitutional gray areas

1. 10th amendment

2. Necessary and proper clause/elastic clause (McCulloch v. Maryland 1819, implied powers)

3. Commerce clause- Article 1, section 8 grants Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes

What is commerce?

• Expansive view of commerce mostly after 1937: almost any commercial activity is commerce Gibbens v Ogden 1824, civil rights (eg Katzenback v McClung 1964)

  • Such as not allowing black people to stay in hotel s in South 

• Tread towards lens expansive view? Lopez v. U.S.  1995- first case in half a century where Court ruled Congress was overstepping commerce power

• Starting in 1910s: federal govt implemented income tax to gain more money

 Dual federalism

1789-1937, Layer cake model

2 distinct layers of govt

Separate powers and spheres of influence

Fed: internal improvements, tariffs, etc

States: commerce, banking, insurance, slavery, health, education, criminal, etc

why did dual federalism end?

Great Depression: 25% of entire workforce unemployed

“Switch in time that saved 9”

Declaration of Independence

• List of greivances

• Challenged divine right of king george to make laws

• Led to creation of unique form of govt based on federalism

• Allowed for dispersion of power both horizontally and important for federalism, vertically

Incorporation (increasing federal power)

14th amendment explicitly says state cannot violate rights and liberties of citizens that are granted by the federal govt

Increasing federal power case examples

• Necessary and proper clause

  • McCulloch v Maryland (1819): creation of national bank

• Interstate Commerce Clause 

  • Gibbons v Ogden (1824): commerce on Hudson River

Cooperative Federalism

• marble cake federalism

  • Intermingling of federal, state, and local authority

• Fluctuation over time in federal and state power but with overall trend toward federal power

Why would states willingly give up their powers?

• 1. Can’t handle cries: great depression, disasters

• 2. Coordination problems: reneging/shirking

• 3. Avoid cutthroat competition:

Fiscal federalism

• federal govt hold spurse strings and can use it to make state do things

categorical grants

• ansfer of funds from feds to states which specify conditions under which money will be granted. Very little state discretion

  Eg Medicaid, Head Start, “great society” programs, school lunch program

Block grants-

• unrestricted “no strings” grants to states and localities

• Only 10% of grants

• Eg temporary assistance to needy families (TANF)

Unfunded mandates

• A legal requirement imposed on states by Congress that comes with no federal money to pay for it

• Ex: 

  • Americans with disabilties Act of 1990

  • Help America vote act

  • No child left behind 

Benefits of federal system

1. Diversity of needs and retention of state traditions--one size doesn't fit all

2. Competition among states can be good

3. Brings govt closer to people which enhances popular sovreignity

4. Training ground for future leaders

5. States are laboratories for policy experimentation

Disadvantages of federalism

• 1. Exacerberates economic inequalities

• 2. Justice varies from state to state 

• 3. Hard to assign blame--case of Katrina, Flint

• 4. Lack of uniformity complicates business transactions, negative externalities

• 5. “Race to bottom”

Civil rights vs liberties

Civil liberties: protect individuals from govt interference

Civil rights: protections by govt against discrimination on the basis of individual characteristics like gender. Race, disability, and sexual orientation

Two groups of “freedoms” civil liberties

1. Freedoms of expression, belief, association

2. Protections for those accused of crimes

The supreme court and civil liberties

• The federal judiciary plays a key role in the interpretation fo civil liberties and civil rights

• Language of the Constitution can be ambiguous and vague

• Interpretations change over time

• A balance between different rights and/or liberties

Bill of rights

• Concerns national government would intrude on rights (congress shall make no law…)

• What about the states?

• Selective incorporation via the 14th Amendment

The fourteenth amendment

“...no state shall deny to any person within its jurisdiction the equal protection of the law”

Used to apply the bill of rights to the states on a case by case basis selective incorporation

Numerous complexities associated with civil liberties

1. The Constitution can be vague and ambiguous

2. Societal and technological changes make interpretation difficult

3. Civil liberties can conflict with each other and with safety considerations (free exercise of religion and vaccines)

4. Civil liberties can also protect groups and actions that most Americans dislike or disapprove of (eg Nazis, Westboro Baptist)

Example of vague language constiution

• congress cannot interfere in free speech or establishing religion

• What is “speech”? What does “establishing a religion” mean?

  • Speech includes burning a flag and contributing money to campaign

Example of technological changes in constiution: the fourth amendment

protects people from unreasonable searches

• What is a search? GPS and the founders”

  • US v Jones (2012)--is it unlawful to put GPS tracker on suspect’s car without warrant

  • Is the GPS tracker conduction a search?

  • Court said it did warrant search and police violated the constitution. Jones’ sentence was overturned

Freedom of Speech

Implies Individuals have the right to make whatever statements, verbally or otherwise, that they choose

Considered a “fundamental freedom” and deserves strict scrutiny

Limits on free speech

Generally free but few legal limitations

Potential limits

1. Limites in wartime or danger

2. Obscenity not protected

3. Libel and slander not protected

Protection and National security: Sometimes speech not protected

• Schneck v U.S. (1919) “clear and present danger” cant falsely shout fire in crowded theatre. WW1

• Dennis v United States (1951) “a clear and probable danger” Cold war

• But since 1950s the SUpreme court has looked at free speech cases with intense scrutiny and usually upholds free speech

Court usually upholds free speech

• Klansmen used racial slurs, if US govt continued to suppress caucasian race then might be some revengence taken 

Established incitement test: govt cannot forbid advocacy for use of force or law isolation unless advocacy is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”

Free speech summary

“ If there is a bedrock principle underlying the First amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”

Obscenity not rotected— but what is it?

• Legal term for written materials of sexual or vuolent nature

• Miller test

Miller Test

• Miller v California

• Material is legally obscene  when meet following

  • An average person applying contemporary local standards finds that work appeals to prurient interests

  • Depicts in patently offensive way secual conduct specifically defined by applicable state law

  • Lack serious literary, artistic, political, or scientific value

  • 5-4 deicion. Brennan for minority is okay unless directed at minors or exposed to unwitting adults

Libel and slander

If you utter or publish false statements about a person you can be sued by the person and can’t claim the first amendment protection

Hard for public official sand public figure to sue press (New york times vs Sullivan 1964)

Must prove writer/speaker acted with “actual malice and disregard for the truth”

Freedom of religion: two clauses

• 1st amendment: congress shall make no laws respecting an establishment of religion (establishment clause) or prohibiting the free exercise thereof (free exercise clause)

• Seem to conflict

• What does it mean to establish a religion? Doesn’t say what a religion is. Very perplexing area of constitutional law. 

Interpretations of the establishment clause

• 1. Separationist position--”wall of separation” prohibits most if not all forms of aid or support (Jefferson’s letter to Madison)

• 2. Nonpreferentialist position/accommodationists- means govt can’t support onereligion over another or support over non religious. Govt aid is acceptable as long as it is nondiscriminatory (popular in supreme court past 10 yrs)

Prayer in public schools

• Engel v Vitale landmark--the court ruled school-led prayer unconstitutional even if nondenominational and voluntary (8-1)

• Separationist view 

• Very unpopular to this day

  • For decades not implemented

People in authority can’t lead prayer, but people can have voluntary prayers on their own

Right to privacy

• Imply the right of an individual to deal with personal life without govt interference

• Usually Involves reproductive rights

Griwold v Conneticut 1965

• the constitutional right to privacy for married couples to use contraceptives. The ruling struck down a Connecticut law that criminalized the use of birth control

Roe v Wade

• Legal right to abortion 

• Right to privacy

• States have added restrictions

  • Parental consent, waiting periods, mandatory ultrasound laws

  • And changed the trimester framework to the concept of fetal viability (Planned Parenthood v Casey 1992)

Dobbs v Jackson Women Health Organization 2022

Overturned roe v wade bc wasn’t in law

Fourteenth amendment 1868

• Without due process of law, state cannot deny equal protection under the law 

• Incorporation (incorporating state law to federal law)

Bill of rights

Scared govt was going to get too powerful and infringe on rights

Worry that only things written down will be covered

Civil rights

• The legal or moral claims that citizens are entitled to make on the govt (eg votng, eing represented, being treated equally)

• Civil rights represent those protections by govt or that govt secures on behalf of its citizens

• ongoing struggle

The Founding and Civil Rights

• American Revolution about securing civil rights for colonists

  • “No taxation without representation”

  • “Unalienable rights” of “life, liberty, and the pursuit of happiness”

• Fed 10: tyranny of majority against minority group was a real possibility

  • His solution was to fragment power, Assumption was that all groups would pursue self-interest to protect themselves.

  • What if minoity doesn’t have capacity to defend itself?

Black Civil RIghts—Slavery

• Slavery condoned in constitution as part of grand bargain to get ratification

• In the early 1800s, slavery was mostly side issue in washington. As new states joined the union, one slave state always came in with one free state, so slave state could always veto national policy to end slavery

• Further western expansion made balancing of free and slave states impossible eventually. In 1819, the southern border of Missouri was made the northernmostplace where slavery could take place (MISSOURI COMPROMISE)

Why does missouri compromise fail to hld in 1850

• Northern whites come to realize slavery puts region at cometitive disadvantage. No labor costs in the south\

• Free soil party emerges

• California comes up for statehood in 1850, and north holds a hard line on it coming in as free state without a slave state to offset

  South asks for fugutive slave law in return

what is Dred Scott v Sandford (1857)

• Court (with southern majority) ruled 7-2 that the framers had never intended African Americans to be citizens. Scott had no right to sue

• Black people “enjoyed no rights which a white man was bound to respect”

• RUled any federal law that interfered with right of an individual to his/her property, including enslaved people, was unconstitutional

• Considered worst decision in Supreme Court history

• 1860 election--Lincoln wins “free soil, free labor, free man”

The 2nd founding-1865 to 1870

• 13th amendment abolished slavery (formally emancipated enslaved people)

• 14th amendment granted citizenship to “all persons born or naturalized in the United states” called for equal treatment and due process 

• 15th ammendmenr gave african american males the vote

what is Reconstruction 1865-76

• the north places federal troops in south to oversee transformation of the region from slave to free society. Why?

  • Black americans in north were genereally not allowed to bote during pre Civil war period either

  • Northern republicans realize emancipation of enslaved people will increase the south’s power dramatically

  • If voting rights weren’t guaranteed, democrats miguht become majority party

why does reconstruction end

•  The recession of 1874 led to large republican losses in congress. To resolve tied presidential election of 1876, republicans agree to end its occupation 

what were methods used to exclude black people from voting

• Various mechanism were used to exclude african americans from voting:

  • White primary

  • Poll tax

  • Literacy tests

  • Grandfather clauses

wha is Plessy v Ferguson (1896)

• Plessy arrested for riding in whites old railroad car

• Court argued “equal protection of law” referred only to “political equality”

  • Ruling further argues black amerians “socially inferior”

  • Hence segregation upheld in “social” institutions

• Created “separate but equal” doctrine

  • As long as social institutions were equal, laws that separated by race were constitutional

  • origin in the purpose… to exclude black people from coaches occupied by white” not to exclude white people from cars occupied by black people

Civil rights vs liberties

• Rights are what govt allows you to do; govt has to interfere to protect those citizen’s rights 

• Librties--govt cannot interfere with you

• Brown v Board of Education

• “Separate but equal” is “inherently unequal

• Violated equal protection clause in 14th amendment

• Black schools got less resources; worse quality education

• Also causes black children to feel inferior to white children at young age

• Decided in 1954, very controversial, but decided 9-0

  • Even though some disagreed, they thought if they decided unanimously, it would be taken seriously

Regents of University of Calfornia v Bakke (1978)

• Rolled back affirmative action based on race

• Court applied “strict scrutiny” arguing that race can be a ftor not not only factor

Students for Fair Admissions, UNC v University of North Carolina (2023)

• Ruled that race cannot be a factor in college admissions

• Based on the Equal Protection clause of 14th Amendment, the court decided only way race can be used to judge college applicants is through essay that describes how an applicant’s race as shaped by who they are as a person

what is letter from a birmingham jail

Letter written by MLK jr in jail

“Injustice anywhere is a threat to justice everywhere”

Four basic steps: collection of facts to determine whether injustice exists, negotiation, self-purification, and direct action

Negiotation failed in Birmingham so slf purification and direct action was next

Changing Politics Brings About the Potential for Black Civil Rights

• Bedrock principle:  Usually political parties and other organized interests don’t do things out of kindness.  There must be something in it for them.

• With most Black Americans living in the South in the early 20th Century, the group had very little political leverage.  In the South, group members couldn’t vote.

• Great Migration in 1930s and 1940s from South to North and service in World War II changes things a lot.

• 1948.  Truman fears he will lose the presidential election. Realizes Black voters in northern cities could tip the election to him.

• Truman signs Executive Order to integrate US Military units.  Supports Civil Rights law.

First Efforts to Secure Civil Rights Occur on the Judicial Front

• Brown v. Board of Education (1954) – overturns Plessy v. Ferguson (1896) separate is inherently unequal

• Focuses on the psychological impact of segregation

• Decision is narrowly tailored to schools

• Enforcement of the Court’s decision proved difficult. (“with all deliberate speed”)

• In 1962, eight years after Brown, less than one-half of 1 percent of black students in the South were attending desegregated schools.

Realizing Judicial Wins Would not be Enough

• Civil Rights Movement rises to fight for equal rights for African Americans – Attempts to win over public opinion

Legislative accomplishments:  The 1964 Civil Rights Act

• authorized the national government to end segregation in public education and public accommodations.

• 3 main provisions

  • Ban on racial discrimination public accommodations

  • Ban on discrimination in employment

  • Ban on discrimination at any educational institution receiving federal money

Extensions since 1964 on civil rights

• Extended to Age with Age Discrimination Employment Act in 1967

• Extended to include Housing discrimination in 1968

• Extended to Disability in 1973

• In 2020 the Supreme Court in a 6-3 decision decided that gay and transgender people are protected under Title VII of the Civil Rights Act of 1964

what are The Voting Rights Act of 1965

• authorized the Justice Department to suspend restrictive electoral tests in southern states that had a history of low Black turnout.

• Sent federal officers to ensure compliance.

• mandated preclearance before “covered jurisdictions” changed election laws

• Supreme Court struck preclearance formula down in Shelby v. Holder 2013.

The Legacy of Civil Right

• civil rights movement branched out to include women, the elderly, people with disabilities, LGBT, and ethnic minorities. 

• built a foundation of laws, judicial precedents, and administrative regulations

• Continuation of fight for civil rights today in terms of employment, education, criminal justice, systemic racism, voting rights