Gov 110 Section 1

Session 1-2

1/16/2025 

Chapter 1: The Logic of Politics 

Democracy: a system of collective decision making that treats all participants as political equals (government “by the people”) 

John Stuart Mill 3 purposes of democracy 

• Improving the civic character of the governed 

• Facilitating the discovery of solutions to collective problems 

• Inducing governments to act in the interests of ordinary citizens

Politics & Collective Action

• Allocation of resources which are generally structured by values 

• Who gets what, when and how 

Values ex: attitudes on abortion, gun control, environmental protection and the proper role of government 

Resources ex: money, taxes, governmental spending etc  

Politics involves; 

• A process of collective agreement - while individuals often disagree on the intended or desired goals 

• Often due to differing values 

• Must allocate resources in the face of competing values → many opinions to reconcile 

Collective Action Challenges 

• Democratic nations → large with complex challenges 

• Challenges of political and social choice 

• Combining and ranging preferences 

• Agreeing on a course of action → have to decide how we solve a problem 

• Implementing and enforcing the collective choice →, make sure the solution works and functions the way we intended 

The Political Process

• Requires bargaining and compromise 

• Presence of more people and more complex and divisive issues means → unstructured negotiation generally fails → to complex to take everyone’s opinions into account 

• Things might be harder to implement than they are to discuss in your campaign 

• Institutions are required to fulfill these collective actions → policy making builds workable institutions

Collective Dilemmas 

• Collective actions & coordination

• Prisoner’s  dilemma or cooperation problems 

• Free riding 

• Tragedy of the commons 

• Even with group agreement and willingness to contribute to a collective goal → challenge og how do you coordinate efforts with those of other individuals?

• Coordination problems generally caused by: uncertainty, Insufficient information 

Prisoner’s Dilemma 

• Two person game of strategic interaction 

• Common example in game theory 

• If you confess you get 6 years and if you both confess you both get 6 years 

• If one player confesses you get nothing and the other person gets 10 years (vise versa) 

• If both don’t confess they only end up with one year 

• Nash equilibrium: the middle space where they both confess because they don’t have enough information 

Prisoner's dilemma issue 1 

• If citizens think their contributions to a collective effort is: perceived as small, will not affect success or failure 

• And they can enjoy the collective benefit without making an individual contribution

• Leads to 

  • Many individuals may not contribute to a collective good/goal 

  • And risk of failure

International Politics security dilemma 

• Country A distrusts B → acquires weapons to defend itself 

• Country B interprets A’s actions as a threat 

• Country B acquires weapons for own defense 

• Country A interprets B’s actions as a confirmation of suspicions 

• Cycle continues 

Tragedy of Commons 

Another common cooperation challenge 

• Self interest can still trump the collective effort/goal

• Through in this case a collective good is in danger of being squandered 

• Unless group members cooperate to preserve it 

• If not: destructive of a collective good 

• Recurring issue of self- interest 

Solutions 

• Voluntary cooperation (i.e self government) 

  • Reduces costs 

  • But often an unrealistic solution 

• Privatize 

  • Assign ownership or allocate resources 

• External force or regulation (i.e government) 

  • Coerce compliance with costs and or incentives

• Collective Action Solutions 

• Common features 

  • Rules 

  • Monitor 

  • Compliance

  • Sanction violations 

• All solutions require some form of government or institutions 

The costs of collective action 

Transaction costs: increase as the number of participants rises → time, effort resources 

Conformity costs: difference between and individual preference and the collective outcome 

• Conformity costs will generally increase as transaction costs decrease (and vice versa) 

Delegation 

• Assigning decision-making authority to someone else 

• Often a smaller number of people act on behalf of a larger group 

• Two common reasons → efficiency and expertise 

Concepts of Delegation 

Principals → agents 

• Both may not do what they want the other to do 

• Agent may not act in you best interest 

• Hidden action or information 

Solutions to collective action problems 

1. Voluntary cooperation (ie self government)

   1. Reduces costs but is an unrealistic solution 

2. Privatize 

3. External Force or Regulation (ie government) 

Common features 

• Rules

• Monitor compliance 

• Sanction violations 

• All requires institutions 

Two additional costs 

Transaction Costs → time effort resources etc to make necessary collective decisions - increase as the number of participants rises 

Conformity costs → difference between an individual preference and collective outcome 

Transaction and conformity costs are inversely related → conformity costs will increase as transaction costs decrease and vice versa 

Delation as a solution 

• Assigning decision making authority to someone else 

• Often a smaller number of people act on a larger group 

Why delegate decision making authority? → b/c efficiency and expertise 

A democracy must have some system of representation

Session 3 

The Constitution 

Dangers of Delegation 

• Agent does not act on your best interest 

• Hidden action/information

Madison's dilemma → how political institutions can limit government power in order to preserve individual rights and freedoms and prevent tyranny, while also creating a government capable of accomplishing goals and implementing policy

Articles of Confederation 

• No executive branch → hard to make decisions 

• Each state has one vote 

• Major laws → required 9 out of 13 states to agree (not a simple majority) 

• Constitutional amendment require unanimity (eg direct taxation) 

• Power controlled by the states → most important power entity, one single body had to agree

Problems with the Articles 

• Currency 

• War debts 

• Public order → shay’s rebellion 

• Bottom line → plagued by free rider problems 

• Virtually 13 separate governments following the revolutionary war 

• Confederation = national government derives limited authority from the states but not the citizens 

The US Constitution 

The framers had 2 basic goals 

1. Solve a set of collective action problems 

   1. Solution: more centralized authority → delegation

2. Minimize the dangers from delegation 

   1. Solution: place limits on government 

In sum → crafting an appropriate balance of power 

Bargaining & compromise in the constitution

1. Large vs. Small states (population)

   1. representation

2. Northern vs. Southern States

   1. Issue of slavery 

3. Governmental power v people’s freedom 

   1. How much centralized authority while still protecting individual freedoms 

4. National v state power 

   1. How much centralized authority while maintaining some power for state governments 

Virginia Plan → voters → House of representatives → senate chosen by house 

• House of rep elects the other branches 

• State legislature nominated senators to house proportional to state populations 

• National executive and judiciary have power to veto bills 

Virginia vs. New Jersey Plan (figure 2.2 textbook)

Virginia → two chamber legislature representation based on state population

New Jersey → single house chamber; equal representation for each state regardless of population 

Great compromise → two chamber legislature with lower chamber (house of representatives) based on population and upper chamber (senate) representation equal for every state 

The Issue of Slavery North-South Compromise 

• Would aware they would not come to an agreement about slave labor 

• Had to allow it to unify the country 

• Southern states wanted to count slaves as part of their population 

  • Would gain more representation in the house 

  • Yet these ‘citizens’ had no rights in that state

  • Saw that the north would probably be 

North South compromise 

• 3/5ths rule → counting them as ⅗ of a person 

• No taxing of slavery 

• Return runaway slaves 

• No restrictions on slavery until 1808 

Designing the executive 

Electoral college 

• Apportionment combines population and state-based representation 

• States choose method of selecting electors 

• US house chooses the president when no candidate receives a majority in the electoral college 

  • You vote collectively by state agreement as one block not for individual party affiliation 

How is the electoral college chosen? 

• Up to the states 

• Option 1 → people vote the electorals 

• Option 2 → state legislators choose who is in the electoral college 

• Today the government does not have a lot of say and it remains up to the state 

Session 4 

Electoral College as a Compromise

• Slavery made direct election unacceptable to southern states

• Some founders did not trust voters to choose president

• Direct election also seen as logistically difficult 

• Election through congress was seen as potentially corrupt 

A compromise but difficult to change 

• Electoral college never worked as intended 

• Electors were supposed to be trustees who could prevent unqualified candidates from winning (political parties didn’t exist yet) 

• States now assign electoral votes based on popular with all electors (except ME & NE) going to the winning party

• James madison favored popular vote to elect president but late defended electoral college in federalist papers 

• Hamilton thought it was a good compromise 

The Balance of Power (2.3)

More centralized authority 

• Interstate commerce clause → invoked every time there is an economic bill that impacts all people (Obama care, New Deal) 

• Foreign policy → only congress can declare war but president is commander in chief

• Necessary & proper clause 

Limiting Government 

• Bill of rights 

• Separation of powers 

• Checks & balance

• Judicial review → Marbury v. Madison 

Limits on the People

The constitution: responsive to, yet insulated from, popular will

• Only US house (and not US senate) members were originally selected directly by voters 

• Staggered terms for senators 

• Electoral college 

• Voting rights left to the states 

  • Originally restricted to adult white male property owners

• Appointment of judges 

• No national referenda or initiatives on ballots 

The fight for Ratification → state conventions not legislatures used for ratification

The federalists vs. Antifederalists 

• Antifederalists argued that only local democracy could approach true democracy 

• A country so large and diverse could not be ruled by a single set of laws

• Believed the constitution would be ineffective 

• Needed a national gov to have a standing economy and taxation 

• Rhetoric → nationalism vs states rights 

Federalists Papers: Alexander Hamilton, James Madison & John Jay 

Especially 10 & 11

10: the problem → factions could divide the public 

Solution → yes there is diverse issues but every interest will ultimately be opposed

A large republic interests will compete for influence

Federalist #51

Problem: factional control of government 

Solution: Separation of powers - Pit ambition against ambition

Separation of Powers 

• Montesquieu → concentration of power could be limited by dividing the functions of government 

• Richard Neeustadt → separate institutions sharing power 

• John Locke → natural born rights - life liberty and property 

Divisions of Election Constituencies 

What kind of government do we have in the US? 

Democratic 

• Governmental power comes from the people 

Republican 

• Representation proved indirectly through elections (unlike direct democracy) 

Constitutional 

• Codified prescription and proscription of governmental authority 

Federal 

• Two levels of government - federal and state (dual sovereignty) 

Separated

• Three branches with distinct yet overlapping responsibilities (checks & balances) 

Bicameral 

• Legislature with two chambers (house and senate) 

Presidential 

• The president is elected independently serve as both head of government and head of state 

Session 5 

The US Constitution

• Short → brief, underspecified 

• Ambiguous → often unclear or intentionally vague

• Imperfect → 276 amendments (thus far) 

• Proscriptive → restrictions national government’s power

  • Against power of states (e.g federalism, 10th amendment)

  • Against inalienable power of the people (e.g. civil liberties & rights) 

• Undemocratic → slavery, suffrage etc

  • Electoral college 

  • Senate seat distribution

  • Voting rights 

• Slow to change

  • Supermajority needed to amend → needs a large consensus 

  • Durable and flexible or unyielding & status quo reinforcing? 

→ A lot of the constitution was expected to be fixed/edited by future generations 

→ The second amendment is vague and unclear but we focus mainly on the right to bear arms when the first part says restricted mailita 

Why did the Founders restrict power

• Check unbridled ambition of self interested minorities (Madison’s factions) 

• Check instability caused by tyrannical majorities 

• Ensure stability → change is difficult to enact and thus slow to occur 

• Promote and protect capitalism and the interests of certain classes of people → the founders themselves were an elite group that could potentially be harmed by revolution

Federalism - Overview 

Federalism Defined 

Federalism in the Constitution

Shared vs. Dual Federalism

The Nationalization of Government 

• New Deal

• Great Society 

Contemporary federalism 

• Power shifting back to the states 

• Operational & Fiscal Federalism 

Unitary system: Voters → Central Government → State and Local Government 

Federation: State and local government ← Voters → Central Government

Confederation: Voters → State and local government → Central Government 

• The US constitution follows the federation

• France is a great example of the unitary system  

Qualifications of Federal Systems 

1. Dual Citizenship & Common Geography

2. Some independence → some constitutional guarantees that states have some authority

3. Some mutual influence → same territory just handling different policies 

• Independence sets the state for mutual influence

• Note: Local governments are not a separate level of government → states are free to decide how power is given to local governments 

• State authorities can expand or minimize local authority 

• Established by the states; they don't exercise independent constitutional authority

Why Federalism?

• Colonies became states and they needed independent power 

• Distaste for England’s unitary system 

• Failure of the articles of confederation 

• Pragmatic political compromise at the constitutional convention

Federalism & The US constitution 

• The balance ( & conflict) between state and nation centered federalism

State-Centered 

• Original senate (Until 1913) 

  • Not directly elected by the people it was chosen by state gov

• Public pressure & they 17th amendment 

• 10th amendment → bill of rights promised as incentive for ratification

• Sufficient safeguard for states rights 

Nation - Centered 

• National Supremacy Clause (Article VI) 

• Narrow intent but sweeping language 

• Enumerated powers (Article 1 section 8) 

• Necessary & Proper clauses (i.e Elastic Clause) 

• Interstate commerce clause 

• General welfare clause 

• Implied powers → Mcculloch v. Maryland (1819)

 → not explicitly stated but we think the federal government is able to do because it follows the other aspects 

Full Faith and Credit Clause 

• Article IV, Section 1 

14th amendment & incorporating the Bill of rights 

Interstate commerce clause (Article 1 section 8) 

• Principal vehicle for disputes over federal vs. state authority 

• Commonly becomes a judicial question to determine its meaning & scope 

• Ex: affordable care act → individual mandate Medicaid expansion

Dual v. Shared Federalism (Figure 3.2) 

Dual Federalism 

• Framers intent and original conception 

• Some things that only states do and some that central gov does 

• Authority is mutual exclusive

• Hallmark of 19th century governance 

  • Dred of schott v. sanford  

• The national however has never had this fully 

Shared Federalism 

• Shared (cooperative) federalism

• State of contemporary U.S government 

• Join, cooperative services by federal & state governments 

  • Federal funding to states 

  • E.g Environmental law 

Trend Toward Nationalization 

• Following the 19th century the power has gradually shifted to the national government 

• From dial to shared federalism 

Why? 

• Problems extend beyond state resources 

  • E.g pollution, economic problems, food safety 

• Some issues need a national framework 

• States cannot solve problems collectively 

• Federal politicians seek nations involvement

  • Seize more policymaking authority 

The New Deal Expansion

• FDRs new deal program 

• Massive series of economic regulations and relief programs 

  • Series of legislation passed through congress

  • Minted to combat great depression 

• FDR involved the interstate commerce clause 

  • Congress has the right to regulate commerce 

  • For the first time they created a somewhat welfare state → the government provides certain programs that provides a welfare safety net

The Great Society 

• Agenda launched by Lyndon Johnson & democratic congress

• Passed more than 100 Categorical grant programs

  • Spent over 5 billion in 1964-65 

• Subsidizes state programs but with strings attached 

  • Told states explicitly what they could spend the money on 

  • School construction public housing teacher training etc

• Traditionally state policy then became federal priorities 

Why Nationalization 

• Solving collective action problems 

  • Tragedy of comms 

  • E.g pollution, natural resources EPA

• Coordination problems 

  • Commercial motor vehicle act → centralized state’s driver license

• Strategic political concerns 

  • Easier to lobby congress than 50 separate state governments 

  • National government may be more “politically friendly” e.g civil rights 

Recent Limits on Nationalization 

• Recent supreme court restriction on Commerce Clause authority 

• Many states have revised their constitutions to expand their powers and professionalized legislatures 

• State policy and innovation & action

  • Welfare reform, prescription drug programs, environmental regulation, abortion

Federalism - Operationally

• Tools for federal government to incentivize state cooperation

• Grants

  • Categorical vs. Block (more flexibility) grants 

  • Matching grants too

  • Substantial component of state budgets

  • Federal grants are restitutive across and within states

• Unfunded Mandates 

  • e.g Americans with Disabilities Acts, Clean air Act, National Voter Registration Act, No child left behind 

  • States have to adhere to these new policies but do not get funding 

• Current policy → which public sector should solve certain problems? 

• What should states be responsible for? What should they do together? 

Session 5 

2/3/2025

Civil Liberties 

Civil liberties: freedoms guaranteed to us by the constitution; refers to personal freedoms protected by the Bill of rights (freedom of speech, religion etc), also seen as protection from the government overreach (what the gov cannot do) 

Civil rights: legal rights that protect individuals from discrimination based on certain characteristics like race, gender, etc, seen as protections through government (requires government action) 

• Protections from government 

  • Speech, religion, search & seizures, criminal procedure, privacy

• Slow by steady incorporation to states

  • First came the 1st amendment, then criminal procedure then privacy 

• 14th amendment → vehicle of incorporation

  • Through due process clause  

• Supreme court as the catalyst (not congress) 

• No right is absolute - what are the boundaries 

  • E.g the meaning of free exercise has evolved over time 

Civil Liberties & Bill of rights

• Fundamental individual freedoms - congress shall make no law → protection against tyranny of the majority even a democratically elected one 

• Outlines & guaranteed in the bill of rights (first 10 amendments to the constitution) 

Pre-incorporation example: Barron v Baltimore (1833) & dual citizenship precedent 

14th Amendment

Due process & Equal protection clauses: 

“No state shall deprive any person of life, liberty or property without due process of law no deny to any person within its jurisdiction the equal protection of the laws” 

• Initially designed to protect former slaves and set out define national citizenship

  • Rights of citizenship not subject to state control

• A strategic political maneuver by the republican party during reconstruction 

  • Protect majority control of the national government 

• Due process became integral to selective incorporation 

First Amendment

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the 

Freedom of Speech - First Standard Clear & Present danger

• The words or speech create clear and present danger

Criticism

• Not protective? Too tolerant?

• Opinion laden → depends on the opinions of the justices 

• Vague standards → hard to interpret what is clear and present 

Freedom of Speech and Imminent lawless action

• Brandenburg v. Ohio (1969) → charged with Ohio syndicalism law - used slurs and incited violence 

  • The Supreme Court held that the Ohio law violated Brandenburg's right to free speech. The court found that the Ohio Criminal Syndicalism Statute ignored whether or not the advocacy it criminalized actually led to imminent lawless action

• Speech and criminal syndicalism

• Imminent lawless action test

• Gov can forbid advocating “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” 

  • Intent → does it incent others to engage in immediate unlawful action

  • Likelihood → a danger is present only when it is likely to be carried out 

• Still a prevailing precedent today

Burning the American Flag 

Texas v Johnson

• Burning a flag is an expression of a political idea and this constitutionally sanctioned 

• It is not enough to prohibit expression just because society finds it offensive or disagree 

• Extensions to recent protects for protest → Snyder v. Phelps (2011) & The westboro Baptist Church 

  • Snyder v. Phelps was a 2011 Supreme Court case that ruled that the First Amendment protects the right of a church to picket a military funeral. The case involved the Westboro Baptist Church, which picketed the funeral of Lance Corporal Matthew Snyder, a Marine killed in Iraq

What Speech Distinctions are Made 

1. Content based restrictions 

• Regulating subject matter or political speech

• Much more difficult to regulate content standard - often strict scrutiny

• Must achieve a compelling state interest and be narrowly tailored 

• Value of the speech is balanced against the social interest in prohibiting the speech 

2. Content- Neutral Restriction

• Regulating the time, place and manner in a public forum - when is regulation valid?

• Standard - intermediate scrutiny

• Must achieve a significant government interest and 

• Leave open ample alternative channels of communication (e.g protest) 

• Much easier to regulate than actual content 

Freedom of Expression 

The Press

• Freedom of the press 

• Core restriction is no prior restraint → as a journalist/person you do not need to ask a government entity to print something 

• i.e preventing publication and dissemination

• Freedom of the press was challenged in New York Times Co. V. United States (1971)

  • Were printing about the cost of war and government actions during the war

  • The US worried about giving information during war time

• Matter of national security?

• Supreme court held its possible to publish classified documents without risk of government punishment → free press as a check on government 

• Supreme court ruled that public interest outweighed government → even if its classified it can be published because the public needs to know

Libel & Slander 

• Libel → publishing material that falsely damages a person’s reputation

• Slander → spoken words (not written speech) 

• Important distinction - private citizens vs. public figures 

Obscenity 

• Generally less 1st amendment protection

• Community standards the government may regulate obscene if the speech 

  • Appeals to prurient (i.e excessive or unnatural) interest

  • Is patently offensive

  • Has no serious literary, artistic or scientific purpose 

Religion - Establishment Clause

Prevailing Principles  

• May not favor one religion over another

• Government may not favor religion over non religion

• Sometimes interpreted as a wall of separation between church and state

  • Although such a distinction is too rigid and unrealistic 

Session 6 

Reconciliation: 

The Lemon Test 

Lemon v. Kurtzman (1971) 

• Purpose must not be to advance religion 

• Effect must not advance religion

• No excessive entanglement → consequence of the bill should not produce a favor 

• Excessively vague and contradictory 

  • exL no prayer at public school football games but prayer at the beginning of congressional business 

• Not comply used anymore by many supreme court justices 

• Neutrality test is common today especially in cases with government funding → is the purpose or effect of the law neutral 

Free exercise Clause 

• A common standard historically 

• Government may not prohibit exercise of religion unless it has a compelling interest 

• Ex: having to pray multiple times a day but being in the military 

• Recently more emphasis on whether a law targets the practice of religion vs. only had an incidental effect or is otherwise neutral 

• Employment Division v. Smith → In a Native American religious ceremony they used drugs and then lost their job because they were supposed to be drug free 

• Religious beliefs don’t excuse someone from obeying a valid religiously- neutral law

• Taxes. Child neglect etc 

Due process Rights of Criminal Defendants 

• 4th, 5th, 6th and 8th amendment

• Search & seizure (4) → no unreasonable searches and seizures 

• Self-incrimination (5) → persons shall not be compelled to be witnesses against themselves (Miranda warnings) 

• Sixth amendment 

  • the court ruled that states must provide an attorney to indigent defendants in felony cases (Gideon v. Wainwright) 

  • In 1973 the court broadened its interpretation to include misdemeanors 

  • Jury trial → right to a jury for a serious offensive 

• Eighth Amendment 

  • Cruel and unusual punishment 

  • No death penalty allowed if/for 

  • Arbitrary or racially biased → Furman v. Georgia (1972)

  • Mentally ill → Atkins v Virginia (2002)

  • Minors → Roper v. Simmons (2005)

  • Child Rape → Kennedy v. Louisiana (2008)

Fourth Amendment 

• Protects the privacy, dignity and security of persons against arbitrary and invasive acts by the government

• Exceptions are made ie: border patrol, police checkpoints (reasonable suspicion) → only accept if society;s need is great no other effective means of meeting the need is available and intrusion of people’s privacy is minimal

The Right of Privacy 

• Not explicitly stated in the constitution or the Bill of Rights 

• implied/supported by existence of other rights

• 1st ,3rd ,4th, 9th and 14th amendment 

• Supported in part by 9th amendment (in the view of some justices)

• Griswold v. Connecticut (1965)

  • Court struck down a connecticut law prohibiting the distribution or use of contraceptives 

  • First time the supreme court established a right to privacy

• Roe V. Wade → extended rights to protect 

Restriction on abortion

• Webster v. Reproductive services (1989) 

• Planned parenthood v Case 

• Fonzales v Carhart 

Lawrence & Garner. Texas (2003) → right to protect privacy and sodomy (gay relationship related)

• Other significant civil liberties issues with privacy 

Second Amendment

• Right to gun ownership for the purpose of self defense 

• Mik

  • Finally recognized by District of Columbia s. Heller (2008)

  • Incorporated by states may regulate but not fully prohibit ownership of homes 

  • “Like most rights, the second amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” - Justice Scalia
    
    

Session 7

What about Equal Rights Amendment (ERA)

• In his last days in office Biden tweets that ERA has been ratified and is now the 28th amendment 

• However this is not correct - the situation is legally unclear 

• ERA was passed by congress in 1972 and sent to states for ratification 

• Deadline for ratification has passed when only 35/38 states had ratified it - Congress set this deadline for 1979 

• In 2020 virginia became the 38th state to ratify ERA 

• \some argue the deadline is unconstitutional 

• Neither the US president nor the national archivist can simply make it a law now 

• Congress or the courts could act (remove the deadline retroactively from the preamble? Declare it constitutional?) 

The ERA: The text

Section 1 → equality of rights under law shall not be denied or abridged by the US or by any state on account of sex

Section 2 → the congress shall have the power to enforce, by appropriate legislation, the provisions of this article

Section 3 → this amendment shall take effect two years after the date ratification 

Civil Rights - Overview 

Protections THROUGH government 

Two constitutional revolutions 

• Mid 19th Century: Civil war & end of slavery

• Mid 20th Century: Civil rights movement 

Presidential Debate - Equality of opportunity vs outcomes 

Equality of Opportunity vs. Result 

De jure: discrimination (or equality) Specific law → discrimination/equality 

De facto: discrimination (or equality) → social, economic, cultural biases → discrimination/equality 

• Law doesn’t say it but becomes of systems of in place (what the law leads to in the long run)

Reconstruction Amendments

• Civil war ends in 1865, northern goal was to reconstruct the south → pass legislation to address the legacy of slavery

• Make sure the south knew that they had to follow the constitution and that slavery was abolished 

• 13th amendment abolished slavery

• 14th amendment established citizenship and equal protection of the laws 

• 15th amendment prohibits voting rights and discrimination

Equal Protection Clause 

Fourteenth amendment 

 Forbids states to deny equal protection of the laws to any individual within its jurisdiction

Application of the 14th amendment 

Goals and Intent 

• Set out to define a national citizenship and protect majority republican control of the national government 

Uncertain Guardians & Limitations 

• No real economic or land reform 

• By 1869 southern democrats had begun reclaiming political control of state legislatures 

• All confederate states under white democratic control by 1877

• Presidential election of 1876 → republicans abandon reconstruction to gain democratic support for Ruthererford B Hayes 

  • There was no clear majority in the election → house could not handle dealing with this (no clear majority) 

  • Republicans said to democrats (mostly southern) if you vote for republican candidate we will withdraw federal troops from the south 

  • Democrats agreed as long as there was the end of reconstruction

  • Allowed segregation to begin

Important Supreme Court Cases historically → Plessy v. Ferguson Brown (1896) v. Board of Education (1954)

• Separate but equal was overturned later through 14th amendment 

Congress and Racial Discrimination

Civil Rights act of 1964

• Prohibits discrimination on the basis of race, color, religion, gender and national origin

For instance: 

• Public accommodations 

• Voter registration 

• Public schools 

• Employment 

Civil rights Act 1968

• Prohibits discrimination in housing 

Voting Rights Act of 1965 

• Outlawed discriminatory registration tests & taxes

• Authorized federal administration of voting where discrimination took place

• Resulted in massive voter registration drivers of african americans in the south

• Recent developments - the symptom court and the preclearance provision 

  • Sheldon County v. Holder → invalidated a specific provision - the past provision law - just because we had past discrimination does not mean we have current discrimination - there's need to be more data on where these places are 

Navigating Equal Protection Disputes 

Strict-scrutiny

Applies to: Race, ethnicity 

Standard used: suspect category → assumed unconstitutional in the absence of an overwhelming justification 

• Suspect classification (ie. race, national origin) 

• Only upheld if necessary to promote a compelling government interest 

• Implementation also important - i.e it must be narrowly tailored 

• All appear ambiguous 

• Covers fundamental rights of citizenship 

Intermediate-scrutiny 

Applies to: Gender 

Standard Used: almost suspect category → assumed unconstitutional unless the law serves a clearly compelling justified purpose 

• Semi-suspect classifications (craig v. boren 1976)

• Upheld if substantially related to an important government objective 

Reasonable Basis 

Applies to: Other categories (age, income etc)

Standard Used: not suspect category → assumed constitution unless no sound rationale for the law can be provided

• All other classifications that do not impair a fundamental right 

• Upheld with a legitimate governmental objective 

• Economic and tax regulation 

Affirmative Action 

• Commonly involves hiring practices, government funding for education admissions 

• Special consideration to traditionally disadvantaged groups 

• Central justification 

  • Benefits a diverse environment vs, effort to overcome present effects of discrimination

• Nature of means → How extensive ?

  • Only if necessary to promote 

  • Broad or narrowly tailored: chisel or sledge?

• What is the goal of the action?

  • Compelling government interest 

• Constitutionality?

  • Level of scrutiny? → how much is too far? 

• Regents of University of California v. Bakke

  • Supreme court ruled that using race as the sole criterion for admission is improper

  • Made implementation programs more difficult 

  • Evidence: affirmative action provides solution

• Grutter v. Bolliger & Gratz Bolliger

  • Upholds racial distinctions for universities 

  • Diversity is a compelling state interest 

  • Race cannot be an overriding consideration - i.e quotes are unconstitutional and no explicit race bonus 

• Students for Fair Admissions v. President and Fellows of Harvard college 

  • Private university but received federal funding making it subject to title VI of the Civil rights act

  • Asian american plaintiffs argue Harvard imposes a soft racial quite because the number of admitted Asian students does not reflect their academic achievement 

  • Harvard argues that it is only one of many factors in admissions policies and that Asian americans are overrepresented at Harvard (21% of admitted students but 6% of US population) 

  • Ruling 

    • ruled that Harverd and UNC admissions programs violate the equal protection of 14th amendment 

    • Majority opinion: m14th amendment prohibits unequal treatment because of race constitutions positive discrimination people must be treated as individuals 

    • Dissent ignoring race in higher education will cement unequal opportunity (colorblindness) overturns decades of precedent; leads to less diverse student 

Session 8 

Public Opinion on Affirmative Action

• Americans generally support the abstract concept of equal opportunity and improving the position of racial minorities 

• This changes once explicit policies are considered 

• Most say no to race being considered for college admissions 

• People are very split on affirmative action 

Recent Court decisions 

• A new conservative interpretation of the 14th amendment? 

• Does not allow for race-conscious measures to remedy structural discrimination

• Does allow business to refuse service to minority groups (e.g same-sex couples) as long as it’s based on sincere beliefs 

  • All about reasoning → aka religion is easier to argue 

• Court: government cannot force someone to create expressive content that contradict beliefs

• Free speech vs. anti-discrimination 

What is a Landmark Case?

Substantially change the interpretation of existing law 

1. Established a new legal principle or concept 

2. Overturned prior precedent based on its negative effects or flaws in its reasoning 

3. Distinguishing a new principle that refines a prior principle thus departing from prior practice without violating the rule of stare decisis 

4. Establishing a test or a measurable standard that can be applied by courts in future decisions 

LGBT Rights & Current Court Interpretation 

• Does 1864 civil rights act include discrimination on sexual orientation

• Bowers V. Hardwick 1986 upheld a Georgia sodomy law criminalizing consensual sodomy ruling that the constitution did not protect the right of same sex couples to engage in private sexual activity

• Lawerence v Texas (2003) ruled that sanctions of criminal punishment for those who commit sodomy → court reaffirmed the concept of a right to privacy even though it is not explicitly said in the constitution 

• Obergefell v. Hodges (2015): the fundamental right to marry it guaranteed to same-sex couples by both the due process clause and the equal protection clause of the 14th amendment 

• Propr to Obergefell same sex marriage had already been established by law, court ruling or voter initiative in 36 states 

• Overturned Bake v. Nelson (1971): restricting marriage licenses to persons of the opposite sex does not offend the US constitution 

• Cakeshop v. Colorado Civil Rights Commision (2018): ruled on narrow groups that the Colorado commission did not → employ religious neutrality exhibited hostility towards Phillip’s religious beliefs

  • This was viewed as a creating expressive content so they were able to use this 

• Court did not rule on the broader intersection of anti-discrimination laws vs. free exercise of religion 

• Bostock v. Clayton County GA 2020: title VII of the Civil Rights Act protects LGBTQ people from discrimination in the workplace by employers (a firm firing someone for unbecoming conduct) 

• Previously lower courts held that sexual orientation is not covered under 1964 law 

• Higher court said it was included 

• There is no blanket exception for an employee's religious beliefs but Title VII does include 

• Students protested a Christian University after the campus admin voted last week to uphold rules that ban the hiring of LGBTQ staff from working at the university 

• Board of trustees said that the staff had to reflect and uphold their traditional values 

• Is this ban a violation of the 14th amendment or Civil Rights Act?

• The college is both private and a religious organization

  • Religions organization can give preferential treatment to those who are the brown religious beliefs → only applies to religious nonprofits 

  • Does it include religious affiliation not gender affiliation? 

Important Considerations

• Is it a private or religious organization?

• Does the organization receive federal funding?

• 1993 Religious Freedom Restoration Act (RFRA) is in tension with 1964 civil rights act → future court cases will deal with religious convictions about the meaning of sex and sexuality

1993 Religious Freedom Restoration Act (RFRA

• Government cannot substantially burden a person's exercise of religion unless necessary to achieve a compelling government interest in the least restrictive way

• Some courts rule that RFRA does not override title VII in private employment disputes because RFRA applies only to government actions and does not authorize discrimination by private employers

Future Cases 

• Focus on LGBTQ rights, religious freedom affirmative action voting rights and free speech

• Key trade offs between anti-discrimination protections and first amendment claims 

• Worker rights & religious exemptions 

• Diversity initiatives in hiring 

• Religious freedom and sexual identity 

Session 9 

The Legislative Branch 

House v. Senate 

• International treaties have to be sent to the senate and then get a ⅔ vote to be ratified 

American Political Institutions 

• Articles I, II & III in the US constitution define the legislative executive and judicial branches respectively 

• Formal powers of congress are stronger and more explicit 

  • Judiciary is weakest 

  • Executive is in between but strongest in foreign policy 

• History marked by the ebb and flow of power between branches 

Congress Overview 

1. Occupies the center stage in domestic policy making 

2. Electoral politics an important motivator 

   1. Strong motivator because the terms are short - you end up for reelection often 

3. The majority party & its leaders direct and dominate the action

   1. Opening of seats & the majority party makes a major impact 

   2. Minority parties lack influence

   3. Although meaningful differences between house & senate 

4. Internal rules & organizational structures have a deliberate and critical effects on policy making 

   1. E.g solving the collective action problem 

5. It is always easier to stop things from happening than make them happen 

Congress Main Functions

• Writing and passing of federal legislation

• Proving oversight of the executive branch 

• Representing voters views → everyone from different views want themselves represented in electoral officials 

• setting/controlling the budget (revenue and spending) 

Congressional Representation 

Two Sets of Ideals & Distinctions 

• Descriptive Vs. Substantive 

  • Descriptive representation: representing group characteristics like race, gender, occupation etc

  • Substantive representation: representing the interests of a group

• Trustee Vs. Delegate 

  • Trustee: is free to vote however he/she pleases 

  • Delegate: always votes like constituents want 

Members of Congress Goals 

Fenno (1974) described three distinct goals of legislators: 

1. Reelection

2. Make good public policy

3. Advance your career (in congress) 

• Congress is set up to help them achieve those goals 

• Disagreement about congress internal organization have persisted for many years 

Congressional Districts 

House: 435 Members 

• 2 year terms 

• Representation - population based 

  • california: 39.5 million people; wyoming: 576,851 people

  • California has 52 Wyoming has 1

• Average district population 761,169

Senate: 100 members 

• 6 year terms (staggered) 

• Representation - state-wide 

  • california: 39.5 million people; wyoming: 576,851 people

  • California has 2 Wyoming has 2

• These differences have consequences 

Session 10

The Electoral System 

• Members of Congress and president are elected separately 

• Single member, winner take all districts (plurality winner) 

  • Promotes a two party system → third party groups do not get votes/enough of a majority 

  • Makes drawing district boundaries critical

  • Promotes focus on local interests 

  • Individually responsive but collectively irresponsible? 

• Usually promotes a strong connection between the elected official and the citizens → strong connection to the geographic area

US House Districts 

Redistricting 

• State controlled process of drawing distinctions 

• Few Primary Qualifications: 

1. Equally populated → Wesberry v. Sanders (1964) 

   1. ruled that congressional districts should be roughly equal in population. The case established the principle of "one man, one vote" and helped to end racial discrimination in voting.

2. Contiguous Geographic Regions 

3. Compactness & Community Interests 

• Gerrymandering 

  • Manipulate district boundaries to favor a party 

  • Frowned upon by the courts, but no formal judicial standard 

  • Courts stay out of it → Rucho V. Common Cause 

    • Court case: partisan gerrymandering claims present political questions beyond the reach of the federal courts", vacating and remanding the lower courts' decisions with instructions to dismiss for lack of jurisdiction

  • Incumbents 

  • Racial → unconstitutional to be the predominant factor 

  • Strategies - Cracking Vs. Packing 

Cracking Vs. Packing

• Drawing boundaries in ways that make it easy for your party to win 

Lamone V. Benisek 

Supreme court case on partisan gerrymandering in MD 

• District court ruled that the map was unconditional gerrymander see district 6 

• Does the map burden certain citizens' political beliefs and dilute votes?

What constitutes evidence of gerrymandering 

• Consider US house district 6 in MD 

• Roscoe Bartlett ® won 61.5% of the vote & by 28.37% margin 

• 2012 John Dleany defeated Bartlett with 58.6% of the vote and by 20.5% margin 

Congressional Elections

• Candidate-centered → contrats party-centered elections fo 19th and 20th century

  • Lack of competition for incumbents, didn’t have to fear elections 

• Costly campaigns → millions of dollars 

• drop off & roll-off effects 

• Split-ticket voting → often contributes to divided government 

• Incumbent advantages 

Why Are Incumbents successful

• Name recognition 

• Informational advantage 

• Institutional advantage → congress resources 

• casework/constituent service 

• Credit claiming 

• Campaign money 

Successful because they spend their time working hard for reelection and they can show what they’ve done 

Legislative Organization 

How Bills (Rarely) become laws

• Parties & committees 

• Exist to facilitate decision making 

• The lawmaking process presents many opportunities to block legislation

Problems of Legislative Organization

• Need for information 

• Coordination

• Resolving conflicts 

• How to get committees to agree 

• Solving collective action problems 

Legislative Organization

→ congress has developed two institutions to cope with these problems

• Parties 

• Committees 

Why Parties? 

Legislative rational for two parties 

→ Brand name

→ Secure policy change 

Decisions formally made by majority vote

Powerful incentives for members to join and maintain permanent coalitions 

• Parties can serve individual and collective interests → reelection 

Resources of Majority Party Leadership 

• Controlling the agenda → especially in US house 

• Committee assignments 

• Campaign money

• Perks → office staff etc

• Majority party has tools to ensure loyalty → help members reach individual and collective partisan goals 

Party Organization in the House 

Speaker of the house → chief assistant: majority leader and majority whip

Rules Committee → tool of the majority party → controlling procedural rules to consider bills 

• Only in the house 

• Responsible for scheduling votes 

• Organizing specific rules on how the bill should be debated/decided on

Party Organization in the Senate 

• More collegial and less formal 

• Minority party has greater influence 

• Most structured business conducted through unanimous consent agreement 

Filibusters 

• 60 votes to stop it (i.e invoke cloture) 

• Not for use on executive branch appointees and judges 

Parties are Polarized but Internally Divided

Republican Intra-party caucus 

• Republican governance group (moderate) 

• Republican study committee

• House freedom caucus (most conservative) 

Democratic Intra-party Caucuses 

• Blue dog democrats (moderate) 

• New democratic coalition 

• Progressive caucus (most liberal) 

Congressional Committees 

Purpose of Committees 

• Collective benefit 

  • Facilitate legislative process

  • Information procedural hurdles etc

• Personal benefit 

  • Electoral incentives 

  • Pork barrel legislation, policy and specialization 

• Fixed membership → proportional to party control 

  • Division of labor 

  • Policy specialization

  • Electoral benefit -  logrolling 

• Fixed jurisdiction 

Session 11

German Elections 2025

System of government: Parliamentary

Electoral System: Proportional Representation with 5% threshold 

630 Members of Parliament 

50% elected in districts 50% through party lists 

Paradox of the Presidency 

• Expectations are large 

  • Presidents make promises that they cannot always fulfill 

  • They may say they are doing a lot but they actually are not 

• But the constitution only gives limited formal authority 

• Our expectations often exceed formal resources

• Presidents often struggle to enact their program → which party controls congress? 

• Presidents do not hold as much power as they think they do 

• Presidential power is the “power to persuade”  

• Presidents depend on other political actors → bargaining 

• Negotiation with congress as a key skill 

The Executive Branch 

• Article II: The executive power shall be vested in a President of the United States

Formal Powers: 

• Executive power → faithfully implement and administer the law

• Commander in chief 

• Make treaties (two-thirds of senate to confirm) 

• Appoint Judges & Major executive Branch officials → with advice and consent of the senate (i.e majority vote) 

• Pardons 

• Veto Legislation

• Presidents have expanded their authority overtime 

The President as commander in chief 

• The constitution declares the president to be commander in chief of the armed forces

• But only congress can declare war

• Congress is slow because it is many people → does not have military control 

Presidents have the advantage 

• Only president can commit troops

• Presidents makes the first move

• Is congress willing to refuse support?

• Not essential to have a formal declaration of war (Korean and Vietnam wars) 

• Citizens often rally around president in a crisis 

War powers act of 1973 

• Notify congress w/in 48 hours end incursions after 60 days w/out congressional approval 

• Presidents routinely ignore it 

• Has not been significantly test in cours 

• Congress controls the purse though → reluctant to use it 

The President as Head Diplomat 

• “To receive ambassadors and other public ministers” 

• Two thirds majority of the senate to ratify treaties 

• But: executive agreements do not need senate approval 

The President As Chief Executive 

Article II

• The executive power shall be vested in a president of the United States 

• “Take care that the laws be faithfully executed” 

• The constitution does not define these powers → lead to implied powers that are limited 

• Much discretion given to the president 

• Executive privilege 

• Increased use of executive orders (domestic policy) and executive agreements (international policy) 

• Do not require congressional approval

• Have full power of the law (in the absence of a conflict with congressional law) 

During his term → Biden signed 162 executive orders 120 presidential memoranda 439 proclamations and 88 notices 

• Executive orders are presidential directives: might direct executive agencies to implement policies differently 

• Cannot change law; only congress can 

• Some executive orders reverse policies of predecessor

Session 12 

The President as Legislator 

The constitution gives presidents only a modest role in the legislative arena 

• May call congress into special session 

• Veto laws 

• Must report from time to time to congress with the State of the Union 

• But modern president often send ambitious legislative program to congress 

The Veto 

• Veto bills passed by Congress → congress can override with a two-thirds majority 

• Powerful negative weapon → threat of veto often forces Congress to adjust → may even drop the bill & and influence the lawmaking process 

• Use of veto may also suggest failure to persuade → shows that a president may have failed to get congress to follow their ideas/properly persuade them 

• Line-Item Veto 

  • Passed in 1996 used in 1997 and then declared unconstitutional in 1998 

  • Let them strike out specific provisions but no the whole thing 

  • However they thought the spending was only for congress and not the power of the president 

  • Many states grant this power to their governors (to some extent) 

• Most of the time there is a threat of veto but not actually vetoing 

Factors Shaping Presidential Power 

• Party Control in Congress 

• Time In a President’s Term 

  • Honeymoon → just elected, need more time to get things done 

  • Lame Duck → loose control and people stop following you 

  • Election cycle → house/senate shift normally at midterms 

• The Issue → Foreign v. Domestic 

• Public Approval → not mention people that are unpopular, impacts how much you are able to get done 

  • Going public → if you are liked by voters you will have an easier time getting what you want 

• National events → things might happen that are unexpected 

• Informal abilities → charisma, public speaking skills, association 

  • Presidential leadership → how people view them as a good leader

19th Century Presidency 

• Presidents typically assumed a relatively small role 

• Presidential power has grown over time 

• Little leadership role in domestic policy formulation 

• Accomplishments mostly limited to response to wars, rebellions or other national crisis 

The Modern Presidency 

• Greater executive authority and influence

• Greater delegation to executive branch → congress has given more presidential power 

• America has increased in its role in foreign affairs → growth in population and global power 

• Formal Powers of President are limited but expanding 

• Informal power and ability is critical 

• Presidents are often victim of circumstances → too much credit for good things and too much blame for bad things → despite weather they hold responsibility for these things 

• Framers intended presidents to be stronger in times of crisis (otherwise congress should take the lead) 

Term Limits 

• Not part of the original constitutions → 1951 (22nd amendment) 

• Geoge Washington and Thomas Jefferson voluntarily stepped down after two terms → a norm was established not a law 

• FDR won 3rd and 4th term (WWII) → congress passed 22nd amendment 

• Now part of the constitution 

Presidential Elections 

Nomination → primary and conventions 

General election → electoral college 

Remember: states govern access to the ballot style of ballot voter registration rules etc 

Presidential Nominations 

• Primaries are sequential states (and parties) hold primaries at different dates

  • Primary vs. caucus 

  • Open vs. closed 

• Early primaries are critical → Iowa and New Hampshire 

  • Clinton 1992 “comeback kid” 

  • Howard Dean 2004 “Yeaaaaggghhh” 

• Delegates sent to party convention 

Presidential Primaries 

Early Resources are key to getting the nomination 

• Primary votes 

• Money 

• Endorsements 

• Free media coverage 

• Contributions 

• Endorsements 

• They all feed off of each other 

• Early primaries create momentum 

• Frontloading primaries emphasizes early fundraising 

  • Benefits those with name recognition visibility  

The Electoral College 

Formula → Total electoral votes = # of senators + # of representatives 

538 total electoral Votes (Includes D.C) = 270 to win 

If no candidate receives 270 then the house of representatives decides 

• Electoral votes in almost every state are winner take all (except main and Nebraska) 

Consequences 

• Possible to win the loose vote but win the electoral college 

• Resources and campaigns often geared towards large competitive states 

  • Campaign visits 

  • Campaign advertisements 

• Population based representation with a small state bias