AP Gov: Unit 3: Constitutional Foundations and Federalism

Pluralist Theory

• Most people not interested in politics

• Theory driven by people entering and exiting political stratum through interest groups

• People enter into pressure system

• Organized groups drive political change, not individual people

• People can easily get involved

• Group formation is easy

• Competition between groups is necessary

• Allows diverse ideas to be heard

• Creates deliberation with policymakers

Participatory Democratic Theory

• Politics/Policy based on mass opinon/action

• Individuals don’t get more or less involved

• Politics change based on mass opinion

• Interest groups only matter when backed by public opinion

• Effective linkage between mass opinion and policymaking process

• Wisdom of the crowd, median voter theory

• Mitigation of mob rule/tyranny

• Somtimes works in Republican society if it allows direct participation

Elite Democratic Theory

• Small stratum of wealthy/powerful

• Political change driven by elite

• Policy outcomes reflect desires of elites

• Highly educated rule

• Decisions typically preserve order and stability which allows them to perpetuate their position

• Benevolent elites can help pursue a common good

• NOT A CONSPIRACY

Thomas Hobbes

• Wrote Leviathan, explored social contract

• Legitimacy of government established by consent of the governed

• Government has singular purpose endorsed by people

• Government protects security of people who would be otherwise vulnerable

• People give up some freedom to get security

  • Suggested government protects people from themselves

John Locke

• People are rational and reasonable

• People know their rights to life, liberty, and property, and know others have those rights

• Natural Law: Protect your own natural rights, and protect others when possible

• Somtimes hard to remember others have natural rights

• Because people are unstable, social contract created to protect us from infringing on others natural rights, but only how we allow it to

• Social Contract/Government created to solve disputes and protect people

• Government can only do what people let it

• Popular sovereignty important to legitimacy

• If government steps out of line, they lose legitimacy

• People must overthrow government if it can’t regain legitimacy

• Consent of the governed tied to right to vote

Republicanism

• Framers interested in it from Rome

• Provided common knowledge for framers

• Classical and enlightenment thinking blended

Classical Theory

• Civic virtue necessary to sacrifice personal interests for community interests

• Easier in smaller, homogeneous communities, people know each other better

• Republican Citizenship

  • Sacrifices of time and energy, necessary to improve communities

  • Maintains democracy

English Republicanism

• Education and understanding of natural rights creates less corruption

Colonial Governments

• Colonies and states had local representative assemblies

• Consentof individuals and local communities emphasized

• Consent to states, not federal government

• Basis of federalism

• US needs a system that would perpetuate self-government and autonomy

State Governments

• Experimentation early

• Early precedent for checks and balances set

Constitutional Applications

• Article 1 Section 8 enumerates powers of federal government (federalism, separation of powers, limited government)

• House and Senate Structure (civic virtue, republicanism, social contract, consent of the government

Democratic Model Applications

• Congressmembers wealthy and powerful (elite theory)

• IG’s compete (pluralist theory)

• BLM/Organized Protest (participatory theory)

Articles of Confederation

• US had been in crisis

• 2nd Continental Congress used to govern

• Not very stable (moved around a lot, relied on all states, constantly under threat)

• Solidified precedents set by 2nd Continental congress

• Treaties and Fiscal Policy solidified

• Finance becomes government responsibility

Structure of Articles

• Citizens mostly belonged to states, not central government

• Citizens vote for state legislature/local government

• State legislature sends delegates to unicameral Congress

• Each state got one vote, but could send multiple delegates

• Could lay taxes, create and army, make treaties

• Two committes - one to manage federal government, the other to administer federal powers in states

• Issues

  • No formal executive branch

  • Law administration had to be approved by state governors

  • State courts/judges inclined to help state

  • Congress very responsive to states

  • Delegates had short terms

  • Difficult to install long-term policy

  • “Firm Friendship” of states (very decentralized)

  • Unanimous vote needed to amend

1780’s

• Articles government wanted money from states

• Government didn’t have money

• Disunity

• Native Americans/Outside Powers took advantage

Shay’s Rebellion

• Soldiers didn’t get pension because government didn’t have money

• Soldiers couldn’t pay taxes, rebelled

• Articles government did nothing

• Drove discussion at Philadelphia Convention

Philadelphia Convention

• No discussion allowed outside

• Each state gets one vote

• Subcommittee system (complex issues tackled by small groups)

• No decision final

• Open-ended

• No one opposed to federal power recruited

Representation of States and People

• Constitutional Government directly represents people

• Under Articles, citizens vote for state legislature, who votes for delegates

• Under Constitution, each citizen votes for member of national legislature

• Popular sovereignty in national legislature established

Great Compromise

• Between Virginia Plan (direct representation) and New Jersey Plan (articles system)

• HOR: Proportional and Direct

• Senate: Not proportional and indirect

• Shorter terms in lower house (HOR) and longer terms in upper house (Senate)

• Different powers for each house

Enslaved Representation and Taxation

• South wants enslaved counted for representation but not taxation

• North vice versa

• 3/5ths Clause: Every 5 enslaved people, three count for representation/taxation

• Representation tied to taxation

• NOT about human rights

• Control over slave trade left to states

State/Federal Power and Sovereignty

• Two sovereigns

• Federalism

• Federal government only in its sphere

• Federal government supreme in its sphere

• Separate spheres for federal and sovereignty

Interpolation, Adjudication, Amendment

• Constitution needs stability and mutuability

• Amendment proposed through supermajority in both houses

• ¾ vote required in states

• Difficult to amend

• Invisible/Unwritten constitution (implied regulation, more eacily changed)

Citizenship

• Constitution doesn’t solve

• Federal government can dictate naturalizations

• Stipulations around citizenship

• 14th amendment changes this

Amendment Process and National Parties

• Reflects problems with Articles

• Many ideas for new amendments

• Parties prevent ¾ of the states from ratifying new amendments despite national support

Power and Centralization

• Debates over whether centralized government can use necessary power

• Worries about terrorist attacks and international stability

• Do crises justify intervention?

Federalism

• Balance between federal and state power

Enumerated Powers

• Powers given solely to the federal government

• Article 1 Section 8

• Development of Navy

• Regulation of interstate commerce

• Patents + Copyright

Denied Powers

• Powers denied to the federal and state governments

• Article 1 Section 9 + 10

Concurrent Powers

• Powers both have at the same time

• Can occur as long as on government’s exercise of pwoer doesn’t impede another’s

• Taxation (both governments tax, taxes added on top of each other)

Reserved Powers

• Powers given solely to the state governments

• 10th amendment (non-enumerated, non-denied powers reserved to states)

Licensure

• Understood to be controlled by states through 10th amendment

• Federal government has been trying to control recently

Supremacy Clause

• Laws must concur with higher laws

• Constitution is supreme

• Federal laws are next and must obey Constitution

• Constitution > Federal Laws > Treaties/Acts of Congress > State Constitutions > State laws/statutes > local ordinances

• Acts of federal agencies are equal to treaties/acts of Congress

Necessary and Proper Clause

• Congress can effectuate any laws that are necessary to carry out its powers

• Not a blank slate

• Article 1 Section 8

• Subject to Supremacy Clause

Commerce Clause

• Congress can regulate commerce with foreign nations and between the states

• What counts as interstate commerce is controversial

• Led to many SC cases

State Mutuality and Sovereignty Clause

• All states are equal (none have authority over others)

• States can’t limit rights of US citizens

• States can’t control borders

• Horizontal Federalism

Pre-Emption Doctrine

• Occurs when state and federal laws contradict

• Field pre-emption

  • Federally exclusive areas

  • Occurs when state laws interfere too much, it is impracticable

• Conflict pre-emption

  • As long as state and federal law don’t contradict too much, can coexist

Fiscal Federalism

• Federal government gives state governments money to implement policy

• Federal government can withhold money to incentivize state governments

• Grants-in-aid used to give money to state governments

• Some state programs are reliant on federal funding

Block Grants

• Single chunks of money allocated based on available funds, not calculation

Formula Grants

• States must qualify for money

• Use annually reached calculations to determine how much each state needs

Project Grants

• Given to individuals/corporations directly

• Must applys

• Government uses these to produce specific impacts

• Evaluated and renewed based on success

New Deal

• Marks big change in federalism

• Before, individual grants came from state/local governments

• After, federal government gives grants directly to individuals

• New systems of collaboration between federal government and state government created

• Tennessee Valley Association (TVA)

  • Created jobs and improved infrastructure in Tennessee Valley

• Federal government gets to control more things

  • National Minimum Wage floor established

  • Conflict pre-emption

Great Society

• Huge swath of programs initiated by Lyndon B. Johnson

• More cooperation between federal government and state governments

• More fiscal federalism

  • Elementary and Secondary Education Act (ESEA)

  • Federal government allocated money directly to schools based on poverty level

• Medicaid

  • Run by state governments

  • Federal government matches state government contributions

  • State runs programs, federal government regulates

  • Block grants given to state governments for programs

Cross-Cutting Sanctions

• Used to convince states to follow federal regulation by threatening to take funding away across multiple fields

Crossover Sanctions

• Used to convince states to follow federal regulation by threatening to take funding away in the same field as the regulation

1980’s-1990’s

• Devolution

  • More power to state governments through fiscal federalism

  • Move freedom to states, less coercion through fiscal federalism

• AFDC-TANF

  • AFDC had strict federal rules on welfare checks

  • TANF allows states to design welfare programs

  • Different states put different requirements on welfare

  • Example of devolution

Post-2008

• Polarized federalism

• States become associated with ideology

• ACA

  • Republican states sued after passage

  • Democratic states defended Obama

  • Republican states didn’t use extra ACA funding

  • Democratic states added a bunch of funding to welfare programs

Policy examples of Federalism

• CHIP

  • Children’s Health Insurance

  • Federal government expands healthcare

• DOMA

  • Allowed states not to recognize marriages in other states

  • Same-sex couples denied regulation, led to lawsuits

• No Child Left Behind (NCLB)

  • Students had to meet education standards for the state government to continue receiving benefits

  • Fiscal federalism

• Help America Vote Act (HAVA)

  • State governments had to replace voting machines, get benefits

  • Didn’t get much federal aid to do so (major trend)

• Clean Power Plan

  • Obama gives each state a target for carbon emissions

  • Each state has to create a plan which the federal government would help with financially

  • Shot down, but good example of federalism

• College

  • Required to be accredited

  • Msut ensure all universities are up to par with national regulations

14th Amendment

• Fundamentally changed federalism

• Clear definition of national citizenship, distinction drawn between national and state citizenship

• Federal citizenship definite, state depends on residence

• States can’t make laws that restrict rights of federal citizens

• Fundamental rights can’t be taken away without due process

• Equal protection of the laws

• Federal government has power to limit state governments

• Expanded Bill of Rights to states (incorporation)

McCulloch v. Maryland (1819)

• National Bank created, branch in each state

• Maryland had heavily taxed its branch of the national bank, almost bankrupting it

• Question over whether Congress can create a bank and whether Maryland can regulate it

• Ruled bank was Constitutional and could not be limited by states

US v. Lopez (1995)

• Congress passed law forbidding guns in schools

• Controlled k-12 education and community safety, often seen as state domains

• State governments didn’t stop the act (acknowledged supremacy clause)

• Individual sued and won, claiming implied powers were too loosely related.

Gibbons v. Ogden (1824)

• Congress had allowed an individual control over a waterway

• State of NY allowed another individual to have control

• US uses commerce clause, wins

• First time using commerce clause

US v. EC Knight, Hammer v. Dagenheart, Carter v. Carter Coal

• Limits on trusts and child labor from federal government

• Companies sued, claiming it was outside of commerce clause

• Supreme Court sided with corporations, said moral regulation of companies left to state government

• More skepticism of use of commerce clause nad N+P during late 1800s

Wickard v. Filburn, Jones v. NLRB, US v. Darby Lumber

• New Deal laws limited corporations

• Corporations sued but lost

• Big shift from late 1800’s to early 1900s

Katenbach v. McClug, Heart of Atlanta Motel v. US

• CRA era politics used commerce clause to restrict private segregation

• Businesses sued

• Court sided with CRA

• Fiscal Federalism (sanctions/incentives)

US v. Morrison (2000)

• Violence against women act (VAWA) allowed women to appeal domestic violence and rape cases to federal courts

• States sued and won, connection with commerce is too weak

Gonzalez v. Raich (2005)

• California resident used California law to protect marijuana use to ease cancer treatment

• Federal law enforced, Raich sued

• Supreme Court says federal government can regulate transport, but California resident still protected by California law

• Conflict preemption

South Dakota v. Dole

• Act passed to compact drunk driving in South Dakota

• National Minimum driving age act passed

• Each state had to create their own minimum age, or they would lose funding

• South Dakota sued and lose

ACA

• Federalism expands options for influencing politics

• Health Insurance

  • Offered to employees by employers

  • Federal government incentivizes employers so they can pay less

  • Health insurance companies try to prevent nationalization (expansions of medicare/medicaid)

• RomneyCare

  • Inspiration for ACA

  • Insurance can be purchased through state

  • Policy diffusion

• Creates huge array of ways to get health insurance

Fairweather Federalism

• Parties support states/federal rights when it is convenient

• Ideologies are inconsistent

ACA and Medicaid

• Cooperation between Congress and the President

• ACA was challenged by Supreme Court (Checks/Balances)

• Were created by mass opinion (participatory democratic theory)

• NFIB v. Sebelius

  • Challenged ACA

  • Commerce, Necessary and Proper, and enumerated powers were used

Policy Diffusion

• Policymaking in one government can affect another

• State policies can influence other states or the federal government

• ACA stemmed from RomneyCare, a state policy

• States act as “laboratories” of democracy

Marijuana Policy

• Questions over who should regulate (limited government)

• Executive branch doesn’t enforce federal laws, which it can do without legislative approval (separation of powers)

• Lobbying groups are powerful, many ways to influence policy (pluralist democratic theory)

Gerrymandering Reform

• Voting is central to how people express consent to be governed (popular sovereignty)

• States control elections and districting procedures (federalism)

• Parties have lots of influence (pluralist democratic theory)

• Struggles over government supervision of elections (concurrent powers)

TANF/AFDC

• Contention over use of commerce clause (Social Contract)

• TANF gives more control over funds to states (fiscal federalism)

• Multiple access points (pluralist democratic theory)

PATRIOT Act

• Increased intelligence coordination

• Tried to stop security threat (Social Contract)

• Led to protest

• Passed by Congress, enforced differently than expected by Bush (separation of powers)

• Low influence from interest groups on policy itself (elitist democratic theory)

Same Sex Marriage Policy

• Natural Rights, Federalism

• Interest groups very important (pluralist democratic theory)

• Activists very successful (multiple access points)

Federalist 10

• Federalist paper written to support the ratification of the Constitution

• Defines a faction as united group of citizens that believe they have special privileges over other groups

• Factions inevtiably form because people have different interests and they have liberty

• Must mitigate the effects of factions, not the causes

• Supported pluralist theory

• Competition between interest groups creates good political activity

• Republicanism, using elected officials to make decisions, should be used to filter ideas and stimulate deliberation

• Republic must be small enough to prevent corruption but big enough to prevent pure democracy

• Pure democracy leads to factionalism

Brutus 1

• Anti-Federalist paper written against ratification of the Constitution

• If a republic gets too big, the government will be too out of tune with the interests of the people

• Public interest easier to see in smaller republics

• Representatives are likely to act on self-interest

• Republics depend on popular support

  • If the republic is too big, there would be too much disconnect between the government and the people

  • The people would be less willing to follow the laws

• Argues for participatory democratic theory (closer individual connections to the federal government