Foundations of American Democracy (Unit 1) |
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The Constitution provides the basic framework of government. It is the supreme law of the land. It evolved from a political philosophy that, although democratic in origin, was cynical, and its framers had economic interests in mind when the document was finalized. In order to understand the practical manner in which the Constitution describes the relationship of the branches of government to each other, to the states, and to the individual, you first must look at what preceded its ratification: the history of British rule of the colonies, the American Revolution, the failed first attempt at creating a workable constitution (the Articles of Confederation), the compromises made at the Constitutional Convention, the debate over an inclusion of a Bill of Rights, and ultimately the debate over ratification of the new Constitution. These factors all contributed to the creation of what has been called a living document—the Constitution of the United States. Our federal form of government has a huge effect on how we are able to function as part of our society.
QUESTIONS STUDENTS MUST ANSWER
1. How did the American revolutionary leaders who wrote the Constitution strive to guarantee individual freedom and liberty while also protecting the public?
2. How has the Constitution evolved from the different theories of government, the debate over its ratification, and the compromises resulting from the Constitutional Convention?
3. How has the Constitution been affected by the courts through the years, resulting in public policies that have an impact on citizens?
Constitutionalism
The United States Constitution, along with the other founding documents such as the Federalist Papers and the Declaration of Independence, resulted in our “Constitutionalism.” They created the principles of American government, including separation of powers and checks and balances among the branches of government as well as a division of power, called federalism, between the states and federal government.
Liberty and Order
How a balance is achieved between the power of government and individual rights.
Competing Policy-Making Interests
Within the Constitution there are built-in mechanisms that create competitive policy-making interests and processes that guarantee that the people’s interests will be represented.
Anti-Federalists
Articles of Confederation
Block grant
Bureaucracy
Categorical grant
Checks and balances
Commerce Clause
Concurrent powers
Elite democracy
Enumerated powers
Federalism
Federalists
Great Compromise
Impeachment
Implied powers
Importation of slaves compromise
Mandates
Necessary and proper clause
Participatory democracy
Pluralist democracy
Ratification
Separation of powers
Shays’ Rebellion
Three-Fifths Compromise
CONTEMPORARY CONNECTIONS
■ Over $6 billion was spent by candidates, political parties, and special- interest groups in the 2016 presidential election—the most in any presidential election. Perhaps that is why many people believe in the elite theory of government, one of the theories of modern governance that we explore in this unit.
■ Federalist No. 10 spoke about the danger of factions that could paralyze government. Today’s Democratic progressive congressional caucus, led by first-term representative Alexandria Ocasio-Cortez, has introduced legislation that does not have the support of a majority of Democrats.
EVOLUTION OF REPRESENTATIVE DEMOCRACY BASED ON THE IDEA OF LIMITED GOVERNMENT
From the roots of our political system in ancient Greece, to the writings of Enlightenment thinkers such as Montesquieu and Locke, to the principles outlined in the Declaration of Independence, our representative democracy has emerged as a distinct republican form of government.
The origins of Greek democracy come from the premise that governmental rule should be that of the many rather than the few. In its purest form, a direct democracy would have every citizen attending a town meeting and voting on every issue with the majority prevailing. Because of the size of the country, this becomes impractical and works only on a limited scale (such as in the classic New England town meeting where, for instance, a town’s budget is approved).
Enlightenment thinkers proposed that a democracy should rely on the consent of the people. They also asserted that there were natural rights that could not be taken away by the government, such as life, liberty, and property. In drafting the Declaration of Independence, Thomas Jefferson made sure these principles of unalienable rights would be incorporated. They were also included in the Constitution. The individual became the central focus of government policy. Such concepts as equality, freedom, and order became the driving forces of our democracy. This principle of limited government is the extension of the philosophy of the Enlightenment thinkers: government is created by the consent of the governed. In both moral and political philosophy, the social contract is a theory or model (originating during the Age of Enlightenment) that typically addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual. Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler (or to the decision of a majority), in exchange for protection of their remaining rights. If people have natural rights, it must also be assumed that government cannot take these rights away. Republicanism stresses liberty and unalienable individual rights as central values, making people sovereign as a whole; it rejects monarchy, aristocracy, and inherited political power, expects citizens to be independent in their performance of civic duties, and reviles corruption. American republicanism was founded and first practiced by the founding fathers in the eighteenth century.
Theories of Representative Democracy
There are three models of representative democracy—pluralist, participatory, and elite. Pluralism involves various groups all vying for control of the policy agenda. No single group emerges, forcing the groups to compromise. A centrist position is achieved, and, although no one group is totally happy, a number of groups, as a result of the bargaining that goes on, agree on mutually acceptable positions. Participatory theory emphasizes participation in politics. Elite theory defines group behavior as deriving from an upper class. Elite and class theory revolve around an economic stratum of society controlling the policy agenda. An upper class, the wealthy of society, is recognized as the elite and controls the linkage institutions of government. The majoritarian model is the purest form of democracy. Its principal tenet relies on direct democracy, with a majority vote characterizing the model. In practical terms, when voters get a proposal on the ballot by the initiative process, they will vote on it directly by using majority rule.
Even though we can make the argument that many interest groups are elitist in nature because of the socioeconomic characteristics of their membership, and that many competing groups can cause gridlock in government, these groups often compete with each other in a manner consistent with pluralism.
Let us support this assertion by briefly describing the characteristics of each of these theories. Pluralists maintain that
■ competing groups are healthy because they provide a political connection to government, offering government officials a choice;
■ the competition often clarifies information and prevents any one group from dominating government; and
■ competing groups have each developed a political strategy to achieve their goals and eventually the resources of one group will independently affect governmental policy.
Elite group theory maintains that
■ power is concentrated in the largest and richest organizations;
■ the unequal nature of the power of groups negates the fact that groups are proliferating; and
■ ultimately money talks, and these large groups will have the most influence.
The participatory model of government maintains that
■ direct democracy that relies on majority rule defeats the idea of a representative form of government;
■ this model can result in a violation of minority rights since all decisions are made by majority rule; and
■ a majority-rule approach to government can only work on a limited basis, such as in a “town meeting” setting.
Merging of Political Theories
Our democracy has components of each of these political theories. No one theory is ideal. Each has its own advantages and disadvantages. However, most political analysts would agree that a democracy characterized by a pluralist society working in harmony and achieving compromise through centrist positions usually has a good chance of success.
Historically, when the Federalist party became the first to lead the government, it was controlled by the elite. Today, many critics of our system contend that there are too many special-interest groups who, through their political action committees, are able to influence key lawmakers. Those officials who are able to achieve consensus seem to have the most success in achieving public-policy goals.
Optional Readings
The Mayflower Compact (1620)
Key Quote:
“Having undertaken, for the glory of God, and advancement of the Christian faith, and honor of our King and Country, a voyage to plant the first colony in the northern parts of Virginia, do by these presents solemnly and mutually, in the presence of God, and one of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience.”
John Locke’s Second Treatise of Civil Government (1690)
Key Quote:
“MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it.”
Baron de Montesquieu: Spirit of the Laws (1748)
Key Quote:
“When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy. In a democracy the people are in some respects the sovereign, and in others the subject.”
FEDERALISTS VS. ANTI-FEDERALISTS
In Federalist Paper No. 10, the Federalists argued that a “tyranny of the majority” could threaten the economic fiber of the nation. Led by Alexander Hamilton, John Jay, and James Madison, they believed the new Constitution, through its checks and balances and the separation of the three branches of government, would ensure protection of the minorities. Through a series of articles published as the Federalist Papers and signed with the pseudonym Publius, they outlined the necessity of a government that would be forced to compromise as a result of the separate powers of each branch. They also believed the Constitution had enough built-in safeguards for the rights of individuals. The Constitution gave each state “full faith and credit” as well as a “republican” form of government. In addition, as the Federalists were quick to point out, the prohibition of the passage of ex post facto laws (laws that were retroactive in nature) and bills of attainder laws (laws that dictated prison sentences for accused who were not given a trial), and the prohibition of suspending the writ of habeas corpus (a guarantee of individual due process rights) gave individuals protection against a tyrannical federal government. Typically, the Federalists represented the upper class: bankers, and rich large-property owners. Their economic philosophy was clearly expressed throughout the Federalist Papers.
The Anti-Federalists, led by the newly emerging middle class, had George Mason and Richard Henry Lee as their chief spokesmen. In a rival publication to the Federalist publications, Pennsylvania Packet and Letters from the Federal Farmer, and through individual essays penned under the name of Brutus, they argued that the principles of the Declaration of Independence would be eroded by the new Constitution. They believed the Constitution would firmly establish an economic elite and create the potential for an abusive federal government, especially in the area of protecting individual rights.
The Anti-Federalists insisted that a bill of rights had to be part of the new Constitution—otherwise, a powerful president supported by the Congress could easily abuse the civil liberties of the individual. Additionally, the sovereignty of the states became a concern, even with the guarantees provided. Nowhere was this argument more heated than in New York. The Anti-Federalists prevented the approval of the Constitution until Madison and Hamilton guaranteed that the first Congress would approve a bill of rights. Typically, the Anti-Federalists represented the farmers and the so-called common people. They rejected the elitist base represented by the Federalists.
In looking at the Federalist Papers, you can see how the U.S. political system was characterized and created from established groups that had differing attitudes toward how best to form a new government. In Federalist No. 10, Madison pointed out that factions could ultimately paralyze effective government. One of the first examples of why Madison was convinced factions could be potentially dangerous was Shays’ Rebellion soon after the Revolutionary War. Former patriot soldier Daniel Shays organized a group of angry Massachusetts farmers attempting to forestall foreclosure of their lands. Frustrated in their attempts to get government support, they took up arms against the local authorities. Shays was arrested, and the revolt failed.
The Anti-Federalist position found in Brutus No. 1 argued against the ratification of the Constitution, stating, “In a republic of such vast extent as the United-States, the legislature cannot attend to the various concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature, that would be continually arising.” Even the overall fight over the ratification of the proposed constitution was waged on “party lines.” Federalists supported ratification. Anti-Federalists opposed ratification. In this case, the policy agenda was the adoption of a new constitution.
Once the Constitution was ratified, two leading parties evolved. The Federalist Party, headed by Alexander Hamilton and made up of the country’s upper class, supported a strong national government and set a policy agenda that would solve the nation’s economic problems. In doing so, the party appealed to business interests such as manufacturing and trade. It believed in a loose construction, or a liberal interpretation, of the Constitution. The opposition party, the Democratic-Republicans, led by Thomas Jefferson after his return from France, where he had been the United States ambassador, was characterized as the party of the “common man.” It believed in a more limited role of the central government and was considered strict constructionist, which is characterized by a conservative interpretation of the Constitution. Its constituency was farmers, merchants, and the middle class of U.S. society.
Illustrative Example
In the 2010 midterm elections a unique special-interest group, the “Tea Party” emerged and played a significant role in determining the outcome of the election. The Tea Party’s name is derived from the Boston patriots who organized the Boston Tea Party in 1773. The modern-day Tea Party consists of Republicans who served in the House of Representatives and a grassroots movement of people who believe in less government, lower taxes, and lower government spending, and has as one of their battle cries, “taking the government back.”
Optional Reading
Letters from the Federal Farmer #1
Key Quote:
“The first principal question that occurs, is whether, considering our situation, we ought to precipitate the adoption of the proposed constitution? If we remain cool and temperate, we are in no immediate danger of any commotions; we are in a state of perfect peace, and in no danger of invasions; the state governments are in the full exercise of their powers; and our governments answer all present exigencies, except the regulation of trade, securing credit, in some cases, and providing for the interest, in some instances, of the public debts; and whether we adopt a change, three or nine months hence, can make but little odds with the private circumstances of individuals; their happiness and prosperity, after all, depend principally upon their own exertions.”
The Constitutional Convention Created Compromises and the Development of the United States System of Government
With the exception of Rhode Island, the states sent 55 delegates to the Constitutional Convention in Philadelphia in 1789. The delegates’ makeup included merchants, lawyers, farmers, and bankers as well as state government officials. Leaders such as Thomas Jefferson, Thomas Paine, Patrick Henry, John Adams, and John Hancock doubted that replacing the Articles of Confederation with the new constitution was the answer to the country’s problems and did not attend. Those present believed a revision of the Articles of Confederation would not go far enough. Hamilton, Washington, and Madison led the fight for a new constitution. Benjamin Franklin, at age 81, was one of the oldest delegates and the only one to sign both the Declaration of Independence and the Constitution.
Philosophically, the delegates were split on how to reconcile basic differences regarding the organization of a new government. They shared a cynical belief that people could not be given power to govern and that political conflict would naturally occur if there were not built-in checks. Because the delegates came from the newly emerging middle class as well as the traditional rich property owners, they quickly saw that factions would exist both in the government and in society. The Federalist Papers (No. 10) pointed out that these factions could ultimately paralyze effective government. Self-interest of the delegates resulted in an agreement that the objective of government should be to protect the property owner. Ultimately a series of checks and balances, outlined in Federalist No. 47, and a structure of government that stressed a separation of powers became the fiber of the new constitution.
Constitutional historian Charles Beard, in his An Economic Interpretation of the Constitution (1913), argued that the founding fathers were concerned with protecting the wealth of the property class. He painted a picture of the delegates to the convention as men who were wealthy and who cared about the financial interests of that class.
The compromises reached at the convention included voting, representation, slavery, and trade. Because wealth was such an important consideration, the delegates decided to let the individual states determine the criteria for voting qualifications. Property became the major criterion, and each state was able to determine who was eligible to vote in the national elections for Congress and the president.
Compromise Results in a Bicameral Congress
The thorny issue of how to create a new Congress split the convention between the larger, more populous, states and the smaller ones. The smaller states, led by New Jersey, insisted that each state should have equal representation. The Virginia Plan argued that a legislature based on population would be more equitable. The Connecticut Compromise, also known as the Great Compromise, resulted in the formation of a bicameral (two-house) Congress—one house is represented equally by the states (the Senate) and the other house is represented by population (the House of Representatives).
The Issue of Slavery Is Resolved by the Three-Fifths Compromise
Once the structure of the new Congress was agreed upon, the divisive issue of slavery had to be resolved. There was never a doubt that Jefferson’s original proposition that “All men are created equal” would never see the light of day in the new Constitution. Nevertheless, the issues of slave trade and slave representation had to be resolved. The southern states agreed to halt the import of slaves in 1808 if the northern states agreed to return fugitive slaves. More difficult was the issue of representation. If each slave counted as one person, the southerners could have easily held the balance of power in the House of Representatives. Thus, the Three-Fifths Compromise was agreed on. Every five slaves would count as three people for representation and tax purposes. There was also a compromise over the importation of slaves, allowing them to be imported after the Constitution had been ratified for 20 years.
The last major compromise dealt with tariffs. The northerners wanted to tax southern exports to Europe and to protect their own manufactured goods. The South did not want to tax European goods so that their own exports would not be taxed. They agreed to tax only imports.
Economic Issues
The delegates also addressed the weaknesses of the Articles of Confederation. Because a primary concern was protection of the property owner, they dealt with economic issues. Congress was given the power to tax, regulate interstate and foreign commerce, create a viable national currency, and, in what later became known as the elastic clause, make “all laws necessary and proper” to carry out the stated powers of Congress.
States were strictly prohibited from duplicating the federal government’s powers that would have an impact on the nation’s economy (i.e., denied the power to coin money, regulate interstate and foreign commerce, and interfere with the federal government’s ability to collect debts).
The Electoral College
The founding fathers established the Electoral College in the Constitution as a compromise between election of the president by a vote in Congress and election of the president by the popular vote of qualified citizens. Article II also outlined the role of the Electoral College (even though that term is not used) in the election of the president. Simply stated, the Electoral College consists of presidential electors in each state. The number of electors is based on the state’s population. The states with the greatest population have the most electoral votes. When the voter casts a vote for president, in reality the vote goes to one of the presidential electors designated by the candidate in that state. The number of electors for each state equals the number of senators and representatives that state has in Congress. Thus, the number can change based on the census. The candidate who receives the most votes receives all the electoral votes in that state. The candidate with a majority of the electoral votes is elected to office. The electors gather in Washington, D.C., in December and cast their ballots based on the results of the November election. If no candidate receives a majority of the electoral votes, the election of president is determined by the House of Representatives.
The Amendment Process
Because there was concern that the Constitution had to be a living document ensuring that self-government would be successful, Article V of the Constitution provides for the amendment process.
If you do not count the Bill of Rights and the prohibition amendments, the Constitution has been amended only 15 times. The revisions have been significant and help to strengthen, expand, and explain provisions found in the original document. The amendments can also be classified in six ways:
■ creating additional power for the federal government such as the legalization of a progressive income tax (Sixteenth);
■ limiting power to the state governments, such as prohibiting a state from making laws that deny equal protection for its citizens (Fourteenth);
■ granting the right to vote to various groups such as black males (Fifteenth), women (Nineteenth), and 18-year-olds (Twenty-sixth);
■ taking away and adding to the power of the voter to elect public officials (Seventeenth);
■ direct election of senators (Twenty-second; limiting presidential terms); and
■ changing the structure of government (Twenty-fifth, presidential succession and disability).
There are two methods used to amend the Constitution. The one that has been used the most requires a two-thirds vote in both houses of Congress and ratification in three-fourths of the state legislatures. The second method is when Congress must call for a national constitutional convention after a request is made by two-thirds of the state legislatures; then, either three-fourths of the state legislatures must ratify the amendment or three-fourths of ratifying conventions held in the states must approve it. There may also be a time limit placed on the ratification of most amendments passed by Congress. One of the most debated constitutional amendments was the proposed Equal Rights Amendment, which would have guaranteed the equality of rights by the United States and every state based on sex. This amendment was given seven years for approval, and then an extension to pass in two-thirds of the state legislatures. It died in 1982, falling short of the necessary votes because of political pressure brought by groups opposed to public funding of abortion and others concerned about the effect that affirmative action would have on various labor laws. Other amendments such as the Twenty-seventh, which places restrictions on Congress passing pay raises for its members, took over 200 years to ratify! The vast majority of amendments, including the Bill of Rights, took less than a year to ratify.
If the Constitution is an enduring document, then one must project that other amendments to the Constitution are a real possibility. Such measures as a balanced-budget amendment, a term-limits amendment for Congress, the abolition of the Electoral College, and a provision for equal rights for women and homosexuals have advocates. However, as was shown after the Supreme Court ruled in Texas v Johnson (1989) that flag burning is a legal form of political protest, Congress failed to pass a constitutional amendment supported by President George H. W. Bush making it illegal to burn or desecrate the flag.
The Bill of Rights Is Debated
After the U.S. Constitution was ratified in 1789, the future success of this young new republic hung in the balance. After struggling with the Articles of Confederation, the United States found in the Constitution a new opportunity to demonstrate that its form of limited government could work. In 1791, fulfilling a commitment made to the Anti-Federalists at ratification conventions, an additional ten amendments, the Bill of Rights, were ratified, keeping a promise made to the Anti-Federalists at the state ratifying conventions. In fact, the entire rationale for including a Bill of Rights in the Constitution was to reinforce this concept of limited government. From the opening words of the First Amendment, “Congress shall make no law respecting,” to the due process guarantees of the Fifth and Fourteenth Amendments, the government is told that the rights of its citizens must be protected.
Current Debate over the Role of Government
Issues raised at the Constitutional Convention resulting in the many compromises that stitched the Constitution together have reemerged today. For example, the aftereffect of the September 11, 2001 attacks resulted in the passage of the USA Patriot Act in October and the creation of the Director of Homeland Security, a new cabinet-level official. Public concerns over privacy rights and wiretapping were raised by many citizens and lawmakers. The Patriot Act allows federal officials greater authority in tracking and intercepting communications, both for purposes of law enforcement and foreign intelligence gathering. It gives the Secretary of the Treasury regulatory powers to combat corruption of U.S. financial institutions for foreign money-laundering purposes; it more actively works to close our borders to foreign terrorists and to detain and remove those within our borders; it establishes new crimes, new penalties, and new procedural techniques for use against domestic and international terrorists. The Office of Homeland Security was the latest addition to the cabinet and is responsible for protecting the United States against future terrorist attacks. Each federal agency is directly responsible to the president and makes policy recommendations appropriate to its area. In the summer of 2004, the 9/11 presidential commission held hearings and issued a report that recommended the creation of a new National Counterterrorism Center headed by the Director of National Intelligence. After much political in-fighting in the Republican-controlled House of Representatives, the bill, which was supported by a majority of Democrats, passed both houses in a lame-duck session of Congress. The law, signed by President George W. Bush, created a new counterterrorism center with a director appointed by the president and confirmed by the Senate. This director was given broad powers and coordinates intelligence among the many existing agencies. This new director and the agency also have the major responsibility of working with the Department of Homeland Security and becoming a link between federal and state agencies. The law expanded a security system for airlines, expanded security technology to other areas not previously covered such as transportation threats, ports, and illegal immigrants. The law also set up a Privacy and Civil Liberties Board, consisting of private citizens appointed by the president, ensuring that the security policies of the federal government do not breach the civil liberties of Americans.
Another example of an issue that was central at the 1789 Constitutional Convention, the conflict between the federal government and states, was the debate over how much control the federal government should have in education. Between the operations of the federal government and local governments, our lives are deeply affected by a federal form of government. The sheer number of governments that exist nationwide illustrate the complexity of the federal system. If you are concerned with the education of your child, you must be aware of the local requirements set up by your town’s school board, and you have to support the school district through some kind of tax system. The state government may set up minimum graduation requirements and laws affecting the certification of teachers. When George W. Bush was elected president in 2000, he initially had to work with a divided Congress. After the 2002 midterm election, the Republicans controlled both houses of Congress, and Bush was able to push his legislative agenda through, passing the No Child Left Behind legislation that helped reform the nation’s schools. According to the Department of Education, “The NCLB Act incorporates increased accountability for states, school districts, and schools; greater choice for parents and students, particularly those attending low-performing schools; more flexibility for states and local educational agencies in the use of federal education dollars; and a stronger emphasis on reading, especially for our youngest children.” Specifically, the provisions of the No Child Left Behind legislation direct the U.S. Department of Education to “hold schools accountable for academic achievement by setting academic standards in each content area for what students should know and be able to do; gather specific, objective data through tests aligned with those standards; use test data to identify strengths and weaknesses in the system; report school conditions and progress to parents and communities; empower parents to take action based on school information; celebrate schools that make real progress; and direct changes in schools that need help.” In 2009, the Department of Education implemented as part of the American Recovery Act the “race to the top” program that encouraged states through grants to satisfy certain educational policies such as performance-based standards for teachers and principals, complying with nationwide standards, promoting charter schools and privatization of education, and computerization. Part of the standards included a “Common Core” curriculum. By 2015, states began to opt out of the grant program because of the Common Core demands. After Donald Trump was elected president in 2016 on a platform to eliminate Common Core, his new Education Secretary turned away from it and began implementing the Every Student Succeeds Act, which Congress passed in 2015. That act gave the states more flexibility and decision making in developing educational policy.
The Preamble Sets Forth the Goals of the Constitution
■ The establishment of justice
■ The assurance of domestic tranquility
■ The promotion of the general welfare
■ The security of individual liberty
Once you consider these principles, you will see how people can differ on the meaning, interpretation, and implementation of these functions of the national government. When you look at specific examples of these functions and how they affect us, you will see the scope of government. Such policy areas as health care, the nature and size of our armed forces, the welfare system, Social Security and Medicare, and the extent to which government should regulate our lives illustrate the expanding role of government and the impact it has on our lives.
THE IMPORTANCE OF GOALS AND PUBLIC POLICY
In evaluating the success or failure of government, always analyze whether the national government is achieving the Preamble’s goals, which translate into public policy. Another way of putting it is whether officials are meeting the needs of the public they serve. To make a final judgment, you should ask the following questions about government and politics as you continue reading this text:
■ What is the public interest?
■ Who determines the parameters of what the public wants?
■ How much influence should government have on the lives of its citizens?
■ How big should government be?
■ How much money should government spend?
■ What is the best way to raise money for government spending?
■ How should government and its elected officials deal with serious ethical issues such as abortion, euthanasia, and birth control?
■ How should government and politicians restore the public’s confidence in their elected officials and government?
THE ROLE OF GOVERNMENT HAS DIFFERENT PERSPECTIVES
Government itself must become responsive. It must respect minority rights even though its elected officials were chosen by majority rule. Individual freedom must be respected and is guaranteed through the Bill of Rights. Court decisions such as Tinker v Des Moines have reinforced the concept that the First Amendment is applicable even to high school students. Finally, government itself must operate on the basis of consensus and compromise. Otherwise public policy, the measure of whether government succeeds or fails, will not be implemented. During the Obama administration, the cry of “gridlock” was heard because a Democratic president had difficulty achieving his legislative agenda in the face of a divided Congress and then a Republican Congress.
After the Republicans assumed control of Congress in 1994, a divided government again dominated American politics. In 1995, the Republicans tested a weakened president Bill Clinton by forcing a government shutdown caused by a budget stalemate. This backfired when public opinion turned against the GOP. A complete turnaround occurred at the conclusion of the 104th Congress prior to the 1996 election when both the president and Congress reached compromises regarding healthcare portability, the minimum wage, and welfare reform. At the start of the 105th Congress a bipartisan agreement on a balanced budget was reached.
After the contested 2000 election, newly elected President George W. Bush had to face a divided Congress in 2001 when one of his fellow Republicans became an independent and voted with the Democrats, giving the Democrats a single-vote majority in the Senate. This lasted until the 2002 midterm election, when the Republicans again regained control of Congress. In 2006, the Democrats won back Congress as a result of voter discontent with the Iraq War. The Democrats expanded their majorities in both houses in the 2008 election, thus ending divided government.
In 2010, the Republicans regained control of the House of Representatives by winning more than sixty seats. The Republicans also gained six seats in the Senate but failed to win a majority. In 2014, the Republicans took complete control of Congress. Thus, a new era of divided government began with the 114th Congress.
After the 2016 presidential election, the Republicans took control of both houses of Congress. The party promised to overturn many of the initiatives signed into law by President Obama, such as the Affordable Care Act. They failed but did pass a massive tax cuts bill. After the 2018 midterm elections, the Democrats regained control of the House of Representatives, signaling the return of divided government.
SEPARATION OF POWERS AND CHECKS AND BALANCES
The first three articles of the Constitution provide the basis of the organization of the government. Article I broadly defines the legislative powers of Congress. It divides the Congress’s governing responsibilities between a bicameral (two-house) legislature. The House of Representatives is defined as the body most directly responsible to the people. The Senate, with its makeup based on equal representation, joins in a partnership with the House in passing laws. The rules for impeachment of government officials are also outlined in Article I. It is interesting to note that there are subtle differences (to be discussed later in this unit) between the two bodies. The House of Representatives is considered more representative than the Senate because of its size, shorter terms, and qualifications for office. The term of office for a representative is two years compared to six years for a senator. A person serving in the House has to be at least 25 years old, an American citizen for seven years, and an inhabitant of the state the congressperson represents. A senator, on the other hand, must be at least 30 years old, nine years a citizen of the United States, and a resident of the state the senator represents.
The two houses of Congress created as a result of the 1787 Connecticut Compromise resulted in the establishment of a House of Representatives and a Senate. The House of Representatives is made up of 435 members based on the census taken every 10 years. According to the 2010 census, there is one House seat for every 710,767 people in each state. It also includes “shadow” representatives from the District of Columbia, Guam, Puerto Rico, the Virgin Islands, and American Samoa. Each state has a minimum of two senators and one representative. As a result of the Supreme Court decision, Baker v Carr (1962), the principle of “one man, one vote” was established. This decision created guidelines for drawing up congressional districts and guaranteed a more equitable system of representation to the citizens of each state. The Supreme Court has been asked to review some districts in the South to ensure fair racial representation. In another highly controversial decision, the court ruled in 1995 that a racially apportioned district in Georgia set up to comply with the Voting Rights Act of 1965 was unconstitutional based on the equal protection clause of the Fourteenth Amendment. The 2014 Supreme Court voting rights decision left the door open for these kinds of districts to be created. In other situations, some state legislatures created districts that favored the political party in power. This became known as gerrymandering.
When you look at the specific power of each house, you can also see how the House is “closer to the people.” Besides the fact that senators were originally appointed by state legislatures, the House of Representatives is given the responsibility of starting all revenue bills. The Senate must also approve revenue bills and can vote for a different version, but it must wait for the House to pass the first version of the bill. The House has the authority for initiating the process of impeachment. The House Judiciary Committee passed articles of impeachment against Richard Nixon and Bill Clinton. Nixon resigned before the Senate could try him, whereas Clinton was tried and acquitted by the Senate. The Senate tries impeachment cases and, in the only two trials involving a president, failed by one vote to convict Andrew Johnson and acquitted Bill Clinton. The other major difference between the two bodies in the allocation of power is that the Senate has the responsibility of approving presidential appointments and treaties.
Illustrative Example
The Mueller Report Investigation into Russian Interference in the 2016 Presidential Election
During the 2016 presidential campaign, U.S. security agencies reported to President Obama that Russia was interfering in the election through social media and attempts to hack into Hillary Clinton’s campaign in order to aid Donald Trump’s campaign. After the election, there were unanswered questions on the extent of Russian interference and whether President Trump or his campaign conspired with Russia. The FBI initiated an investigation of Trump’s connections in July 2016. In May 2017, President Trump fired the director of the FBI, claiming that James Comey was “not able to effectively lead the bureau.” Because of public and private statements alleging that Trump fired Comey to impede the Russian probe, the deputy attorney general appointed a special counsel, Robert Mueller, to investigate Russian interference in the United States’ 2016 presidential election.
Mueller’s report, released in April 2019, was the culmination of the special counsel’s nearly two-year investigation of Russia’s election meddling and possible obstruction of justice by President Trump. Robert Mueller’s team indicted, convicted, or obtained guilty pleas from 34 individuals and three Russian companies. Among the individuals were six former Trump advisers, including his national security advisor and his former campaign manager, and 26 Russian nationals. Other potential investigations were passed along to several U.S. attorneys. One of these probes resulted in a guilty plea from Trump’s personal lawyer and named President Trump as a party involved in making hush-money payments during the 2016 campaign to silence women alleging affairs with him.
President Trump was highly critical of the investigation, calling it a “witch hunt,” and he questioned the bias of Mueller and the FBI. At times after the Mueller Report was released, President Trump proclaimed, “No collusion. No obstruction. A complete exoneration.” He wanted to investigate the origins of the investigation because he claimed that he was unfairly treated.
The Mueller Report made two principle conclusions: the first on Russian interference with the 2016 presidential election and the Trump campaign’s possible connections, and the second on President Trump’s conduct and possible obstruction of justice related to the investigation. The following are excerpts from Mueller’s report.
“The Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against… the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
The Mueller Report, and related investigations by House and Senate committees, show that constitutional mechanisms and principles, such as checks and balances and congressional oversight, are efforts to determine the extent of Russian interference in U.S. presidential campaigns, whether there was a conspiracy on the part of Donald Trump or his campaign to work with Russia in the 2016 elections, and whether President Trump obstructed justice prior to and during the investigations. In July 2020 the House Judiciary Committee opened up a preliminary impeachment investigation of President Trump after Director Mueller appeared before the committee.
Congressional Powers
The common powers of the Congress are listed in Article I Section 8. These are the enumerated or delegated powers of Congress. They include the power to
■ collect taxes, pay debts, and provide for the common defense and general welfare;
■ borrow money;
■ regulate commerce among the states (interstate commerce) and with foreign countries;
■ establish uniform laws dealing with immigration and naturalization and bankruptcies;
■ coin money;
■ make laws regarding the punishment for counterfeiting;
■ establish post offices;
■ make copyright laws;
■ establish federal courts in addition to the Supreme Court;
■ define and punish piracy;
■ declare war;
■ raise and support armies and a navy; and
■ create a national guard.
In this same section, implied powers are defined in the “necessary and proper” clause, which states that Congress has the power to “make all laws necessary and proper for carrying into execution the foregoing powers.” This “elastic clause” is a major and significant power of Congress, granting the legislature the ability to interpret its lawmaking ability in a broad manner. Even though strict interpreters of the Constitution reject the extent of its elasticity, Congress has demonstrated an ability to change with the times. From the creation of the National Bank in 1791 to the passage of the Brady Bill (establishing a waiting period for handgun purchase), congressional legislation more often than not reflects the tenor of the times.
Powers denied to Congress are the denial of the writ of habeas corpus, giving appeal protection to the accused; the passage of bill of attainder laws, which proscribe penalties without due process; and the passage of ex post facto laws, which take effect after the act has taken place. In addition, Congress cannot pass export taxes or grant titles of nobility to citizens.
In 1995, after states passed term limitations restricting the number of consecutive terms a representative can serve, the Supreme Court ruled that these laws were unconstitutional.
Another related issue dealing with the organization of Congress is term limitations. In 1995 the Supreme Court, in the case of Thorton v Arkansas, ruled that state-imposed term limits were unconstitutional, indicating that the only way the terms of members of Congress could be altered was through an amendment.
Powers of the Chief Executive
Article II determines the role of the chief executive, giving responsibility to a president and vice president. Even though the executive’s powers are not as specifically defined as in the legislative branch, the president’s major responsibility is to administer and execute the public policies of the United States. The inherent power of the president, which includes those powers the president exercises that grow out of the existence of the national government, expands the power of the presidency. By signing congressional legislation into law, the president assumes the responsibility of enforcing the laws of the land. Reference is also made to the president’s authority in the area of foreign policy. This article also outlines the mechanics of the Electoral College and determines its procedures in the case where a candidate does not receive a majority of the electoral votes. The article refers to executive departments, though it does not specifically mention the president’s cabinet or the federal bureaucracy.
Executive Powers
Because of the unique qualities of the presidency, the qualifications for office are the strictest among the three branches. The president must be a natural-born citizen (unlike senators and representatives, who can be naturalized citizens), at least 35 years old, and a resident of the United States for at least 14 years. The source of power of the president comes from the language in Article II Section 1, “The executive power shall be vested in a president of the United States of America.” The term of office is four years, limited by constitutional amendment to no more than two terms.
The president becomes a central and unique player in government as a result of the manner in which the definition of chief executive is stated. The only specific powers and duties listed in Article II Sections 2 and 3 include:
■ the power to act as commander in chief of the armed forces;
■ the ability to obtain information from members of the executive branch;
■ the power to grant pardons;
■ the power to make treaties with the consent of the Senate;
■ the power to appoint ambassadors, justices, and other officials with the advice and consent of the Senate;
■ the power to sign legislation or veto legislation;
■ the duty to give Congress a State of the Union report;
■ the power to call special sessions of the Congress; and
■ the inherent power of the president.
Even though there are far fewer powers and responsibilities listed for the president than for the Congress, because the president can interpret the role of the executive in a broad manner, the power of the president in modern times has increased more than the other branches. From Franklin Roosevelt’s passage of the New Deal and Lyndon Johnson’s Great Society programs, to Presidents Obama’s and Trump’s increase of executive orders, the power of the president has been on the rise. As head of state, the visibility of the president in ceremonial areas far exceeds that of a Congressman. The president is also considered the titular head of the political party in power and thus wields a great deal of power in relation to party appointments. President Trump had a 90 percent approval rating among Republican voters during the first two years of his presidency, which gave him a great deal of influence over Republican lawmakers.
The Vice President
The vice president’s responsibility is also listed in Article II. The only stated responsibility of the vice president is to preside over the Senate and be the deciding vote if there is a tie vote. This occurred in President Clinton’s first administration when Vice President Al Gore cast the decisive vote to pass the president’s budget proposal. It was a key piece of legislation for the new president and set the course of his economic program. The vice president is also next in line to succeed the president in case of death and, as a result of the Twenty-fifth Amendment, can take over the presidency if the president is disabled.
After John F. Kennedy was assassinated, the presidential succession amendment was ratified. Little did the country realize that it would be used, not as a result of an assassination, but rather because Spiro Agnew, Nixon’s vice president, resigned and, not much later, so did President Nixon.
Presidential disability and succession are defined in the Twenty-fifth Amendment, which allows the vice president to become acting president after the president’s cabinet confirms that the president is disabled. This happened for a short period when Ronald Reagan was undergoing surgery after an assassination attempt.
The amendment also outlines the procedures for selecting a new vice president when that office becomes vacant. When a vacancy occurs, the president nominates a new vice president. Unlike other presidential appointments, both the Senate and House must approve the appointment by a majority vote in each house. This occurred after Spiro Agnew resigned in 1973. Nixon appointed Congressman Gerald Ford as vice president, and both houses of Congress approved his selection. When Nixon resigned in 1974, Ford appointed former governor of New York Nelson Rockefeller as vice president, and both houses of Congress approved Rockefeller. By law, after the vice president, the Speaker of the House and then the Senate president pro-tempore are next in line.
Nine presidents have not completed their term of office. Eight presidents have died, and one, Nixon, resigned. After Franklin Roosevelt died in 1945, a constitutional amendment was passed limiting the term of office to two terms or a maximum of ten years. There has been a growing movement to further limit presidential terms to one six-year term to reduce the amount of time and energy devoted to raising campaign funds and campaigning for office.
Executive actions by the president are defined as policy directives that are ordered by the president without any Congressional authorization. They differ from executive orders, which are policy directives aimed at federal agencies. Executive orders are legally binding and can be reversed by the Congress and the courts. Executive actions change existing federal policies that are under the jurisdiction of the federal government. Presidents Obama and Trump issued a number of highly controversial executive orders during their presidencies. The most controversial actions related to gun control and immigration.
Immigrant groups such as Hispanics and Asians have grown in numbers as problems facing their home countries have increased. The 2010 Census reported that Hispanics were the fastest-growing minority. Cuban and Haitian immigrants have settled in Miami. Puerto Ricans and Jamaicans have made New York City a second home. Mexicans have fled poor economic conditions and have settled in Texas, Arizona, and California. Asians have fled war in Southeast Asia and have left Korea and Japan. Many have become citizens; others have obtained legal status. Unlike natural-born Americans, they are having an extremely difficult time obtaining civil rights. There is a tremendous resentment on the part of the American people to those groups placing an additional burden on America’s welfare system. Even though these groups are increasing in numbers, they have yet to achieve complete political equality. There are an increasing number of Hispanic and Asian representatives in Congress. A Congressional Hispanic Caucus formed. Governor Bill Richardson became the first Hispanic-American to run for president in 2008. The courts have recognized the problems facing these groups. In the case of Lau v Nichols, in 1974, the Supreme Court ruled that Title VI of the Civil Rights Act of 1964 mandates schools to offer English as a second language to non-English-speaking students. A corollary language problem facing these groups arises when cities pass legislation making English the official language of the municipality. States like California have passed referenda abolishing bilingual education programs.
Just as nativist groups turned against immigrants after the first great influx (1800s–1920), Americans during the 1990s and 2000s reacted in a strong way against immigrants and illegal aliens. From the efforts of California voters, who passed Proposition 187 in 1994, which attempted to deny illegal aliens social services and education, to the attempts of Republicans to deny welfare for legal immigrants, Americans continued to express concerns about the impact of immigration on the country. In 2006, a debate emerged on what to do about the approximately 12 million illegal immigrants in this country. President George W. Bush proposed a comprehensive immigration bill that would have secured the nation’s border while giving illegal immigrants a path to citizenship through a guest worker program. Congress rejected this proposal and voted to build a 700-mile fence to prevent illegal immigrants from coming into the country. The debate over illegal immigration intensified after the 2008 election. In 2010, Arizona passed a very controversial immigration law that gave state authorities the right to stop and check the immigration status of people they felt were illegal immigrants. There was an outcry of opposition from immigration groups, and the Obama administration, through the Department of Justice, challenged the law because the administration claimed that the enforcement of immigration policy is a federal prerogative. The Supreme Court ruled that parts of the law were legal, including the controversial requirement that allows the police to stop and check an immigrant’s status.
Illustrative Example
Immigration policy leading to DACA
Optional Reading
Obama Executive Order on Immigration DACA
In 2012, President Obama signed an executive order that gave legal status to undocumented children who were brought to the United States before they turned 16 years old, are no older than 30, have been in the United States for at least 5 years, have been convicted of no serious crime, and have a high school diploma, a GED, or a stint in the U.S. military. In the 2012 election, 70 percent of Hispanics voted for President Obama. When Congress was not able to pass comprehensive immigration reform, President Obama then issued a highly controversial executive action in 2014. According to the U.S. Citizenship and Immigration agency the actions:
■ “Cracked down on illegal immigration at the border, prioritized deporting felons not families, and required certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.”
These initiatives include:
■ expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years.
■ allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents program, provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.
■ expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens.
■ modernizing, improving, and clarifying immigrant and nonimmigrant visa programs to grow our economy and create jobs.
■ Promoting citizenship education and public awareness for lawful permanent residents, and providing an option for naturalization applicants to use credit cards to pay the application fee.”
The program was highly controversial and was criticized by the Republican leadership in Congress and was challenged by the Republican Congress, the governor of Texas, and other states attorneys general. In 2017, the Supreme Court was deadlocked 4-4 and these regulations remained in effect. As a result of the 2016 election, after the Republicans took control of all branches of government, President Trump reversed the executive order and gave Congress six months to come up with a legislative solution. After a U.S. Appeals Court upheld Obama’s executive order, President Trump announced that he would wait until the Supreme Court ruled before taking action.
One of President Trump’s first executive orders was a travel ban aimed at immigrants from seven Muslim countries in the Middle East. The ban was halted as a result of a ruling by the Ninth Circuit Appeals Court. The Trump administration issued a revised order as a result of that ruling which the Supreme Court was scheduled to hear arguments in the 2017 term. Many of Trump’s first hundred-day accomplishments were the repeal of Obama administration executive orders. Trump also signed over 90 executive actions covering domestic and foreign policy issues such as:
■ A memorandum directing the Secretary of Defense to draw up a plan within 30 days to defeat ISIS.
■ A memo ordering an investigation into whether aluminum imports are hurting national security.
■ An order meant to improve accountability and whistleblower protections for Veterans Affairs employees.
■ An order directing a review of national monument designations under prior administrations.
■ An order meant to affirm local control of school policies, and examine certain Department of Education regulations and guidance to determine their compliance with federal law.
■ An order directing a task force to review regulations affecting the agriculture industry memorandum to restructure the National Security Council and the Homeland Security Council.
■ One of the most controversial actions by President Trump was to declare a national emergency over funding to build a border wall. Congress passed a resolution to block it, which resulted in Trump issuing his first veto.
Article III outlines the nature of the judicial branch. It is interesting to note that, unlike the first two articles, this article is the most vague regarding the qualifications of its members. It refers to one Supreme Court and how cases get there. But it does not give the Supreme Court the broad authority it has assumed. This authority of judicial review was given to the court in the landmark case of Marbury v Madison (1803). The scope of the court system is set in Article III, and the jurisdiction of the system is defined. This article also defines treason and provides for a range of penalties, including death, if a person is convicted of this crime. The only time this penalty has been carried out was when Ethel and Julius Rosenberg were convicted of giving the Soviet Union information concerning U.S. development of the atom bomb. They were tried and convicted of treason and executed after the Supreme Court denied their appeal.
It becomes apparent that by separating the three branches of government, the framers of the Constitution were concerned with the delicate balance of power among the branches. The Constitution neatly lays out the various powers of each branch of government without any reference as to which of the branches should be the lead player.
Judicial Powers
Unlike the legislative and executive departments, the judiciary has no specific qualifications for office. The Constitution in Article III states that judges shall “hold their offices during good behavior.” The Supreme Court is the only court established by the Constitution. Lower federal courts are established by the Congress. Even the size of the Supreme Court is not defined. It has remained at nine sitting justices in modern times, although the number has been as low as five. Franklin Roosevelt attempted to “pack” the court in 1937 after the court ruled a number of his New Deal acts unconstitutional. Congress rejected his attempt. The appointment of Supreme Court justices, by extension of the description of service, is their lifetimes. Typically, Supreme Court justices come from other federal judgeships. The appointment process has become more and more difficult as a result of close questioning by the Senate Judiciary Committee.
Appointments by Richard Nixon were turned down. One of the most publicized confirmation hearings took place when George H. W. Bush sent Clarence Thomas’s name to the Senate, and he was accused by Oklahoma law professor Anita Hill of sexual harassment. Thomas was appointed to the court. After Justice Anthony Kennedy retired, President Trump nominated U.S. Court of Appeals Judge Brett Kavanaugh to the Supreme Court. Allegations of sexual abuse against Kavanaugh were raised during the contentious confirmation hearings. The Senate, by party-line vote, approved his nomination. In addition, nominees are also questioned on their attitudes regarding potential issues the court may have to rule on, such as abortion. Nominees must tread a very thin line during this process and not be too specific. They must avoid creating a conflict that would arise if they rule on a case they have already spoken about.
The major power given to the judicial branch is defined as “the judicial power (which) shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made.” The real power, that of judicial review, has grown in importance throughout the history of the court. The Constitution describes cases through original jurisdiction that the court can hear directly. The vast majority of cases heard in the Supreme Court are brought on appeal from state and federal courts. This is called appellate jurisdiction.
Congressional law as well as presidential actions have also been taken up by the Supreme Court. It is interesting to note that of the three branches of government, the Supreme Court has no direct responsibility or accountability to the voters. Sitting justices, once confirmed, decide on cases based on their interpretation of the Constitution. The impact of the Supreme Court on policy making has increased in modern times. Many court experts point to the landmark decision of Brown v Board of Education (1954) as a turning point in the history of the court.
The Unwritten Constitution Makes It a Living Document
The unwritten constitution, as well as the Constitution’s elasticity, adds to its viability. Political parties, the president’s cabinet, special-interest groups, political action committees, and the federal bureaucracy are important examples of tradition, precedent, and practice incorporated into our form of government.
The elastic clause and powers given to the Congress in the Constitution are perhaps the greatest instruments of change that Congress has at its disposal. From the passage of the Judiciary Act of 1789 to the creation of the many executive branch departments, Congress has used its power to expand the size of government. Congress has used the elastic clause to pass civil rights legislation, has broadly interpreted the meaning of interstate commerce, and has passed a war-powers act under its power to declare war.
Neither the Constitution nor any law provides for the establishment of political parties, nominating conventions, primaries, or most of the political system we are used to. Even though the Federalist Papers warned of the danger of political factions, and George Washington echoed that point of view, the influence of political parties has become a dominant feature of government. When the Republican Party can unite and not provide a single vote for the president’s budget proposal, one can see the importance of party politics. When a party decides to start a filibuster (continuous debate) in the Senate to block the passage of legislation, this becomes an additional check.
The Supreme Court has also gone beyond the constitutional parameters in establishing precedent. From the Marbury v Madison (1803) decision establishing judicial review to Roe v Wade (1973), which found a way to constitutionally protect the right of a woman to have an abortion, the court is plowing new ground based on its interpretation of the Constitution.
Custom and tradition are an integral part of government. After executive departments were established by Congress, Washington announced the formation of cabinet positions. Congress then codified this concept as they approved additional cabinet positions. A two-term president was the accepted tradition until Franklin Roosevelt broke it. After he died, an amendment limiting presidential terms was passed, making the tradition a written component of the Constitution.
A Balance of Power Is Achieved Through Checks and Balances
Based upon the writings of Montesquieu in The Spirit of Natural Laws, and James Madison’s Federalist No. 47, the concept of checks and balances became a central feature to our government. As Madison stated, “It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.”
Some specific examples of how each branch of government has used its power to check another branch may be useful to illustrate the importance of this feature.
■ President Barack Obama used his veto power when the Republican Congress voted to repeal the Affordable Care Act.
■ The Senate changed its rules to increase the number of presidential appointments that required Senate confirmation.
■ In 2013, Congress did not approve a federal budget, resulting in a government shutdown.
■ In 2015, the Supreme Court ruled that same-sex marriage was constitutional, opening the door for marriage equality.
As of 2017, there had been more than 2,500 presidential vetoes of congressional bills. Congress overrode more than a hundred of those vetoes. The Supreme Court has found more than 100 acts of Congress unconstitutional. The Senate has refused to confirm 27 nominees to the Supreme Court and nine cabinet members. Other appointees have withdrawn as a result of expected Senate opposition. There have been several cases of congressional impeachment of federal judges. One way the president can get around Senate opposition to an appointment is through a “recess appointment,” a temporary appointment of the president’s choice made during a congressional recess. This temporary appointment can serve for only one year, at the end of which the president must resubmit the nominee for Senate confirmation. The Supreme Court ruled that many of the appointments were unconstitutional.
The critics of checks and balances point to the potential for a constitutional crisis developing if one branch attempts to challenge the authority of another. For instance, if the president as commander in chief deploys troops in a country for an extended period of time and ignores the provisions of the War Powers Act—an act of Congress that limits presidential authority to send armed forces to another country—there is a good possibility that an unresolvable conflict could occur between the executive and legislative branches. Typically, the Supreme Court does not get involved in adjudicating those kinds of conflicts. In fact, Congress challenged presidential authority in such unapproved conflicts in Somalia and the former Yugoslavia, but stopped short of placing restrictions on his authority.
Probably the most significant feature of checks and balances is that it consistently proves that our republic is one of limited government.
Illustrative Example
The Impeachment of Bill Clinton
In one of the most bitter and partisan political clashes in American history, the House of Representatives voted in 1998 for two articles of impeachment against President Clinton. This was the first impeachment of an elected American president—Andrew Johnson, impeached in 1868, had succeeded the assassinated Lincoln. The events leading to Clinton’s impeachment read like a sordid novel. Special Prosecutor Kenneth Starr had been investigating Clinton’s role in the Whitewater land acquisition and other alleged White House abuses, including the dismissal of travel office personnel and illegally obtained FBI tapes. Clinton had also been fighting other legal battles. Paula Jones, an Arkansas government official, accused the president of sexual misconduct when Clinton was governor of Arkansas. Clinton denied the charges, and Jones sued the president. The Supreme Court ruled unanimously that Jones’s civil suit could proceed while Clinton was still in office. Clinton testified and denied the charges as well as charges that he had been involved sexually with White House intern Monica Lewinsky. When this relationship with Lewinsky was reported over the Internet in January 1998, Starr began investigating to determine whether Clinton had lied during his testimony in the Jones suit. Clinton publicly denied any sexual misconduct with Lewinsky; Starr’s inquiry took seven months to complete.
The investigation culminated with the unprecedented testimony of the president appearing before a grand jury on video. Clinton again denied any legal wrongdoing, but admitted publicly that he had misled the American people and, indeed, had a relationship with the young intern. Starr completed his report in August 1998 and concluded there was “credible” evidence that Clinton may have committed impeachable offenses. The House Judiciary committee voted on four articles of impeachment. The House rejected two of the articles and submitted to the Senate the final articles accusing the president of high crimes and misdemeanors as a result of grand jury perjury and obstruction of justice. With the Senate unable to muster the two-thirds vote required to find Clinton guilty, the president was acquitted on all charges.
CONTEMPORARY CONNECTION
In 2009, the Department of Education announced the “Race to the Top” grant program that states could apply for if they adopted specific testing and teacher-evaluation procedures and a “common core” curriculum. At first a majority of states took part in the program, but by 2015 some decided to opt out because they believed the federal government was becoming too intrusive in what was supposed to be a state-run function—education.
Federalism Is Defined as a Vigorous Relationship Between the Federal and State Governments
Besides establishing a balance of power among the three branches of government, the U.S. Constitution maps out the relationship between the federal government and the states in two articles and one amendment.
In Article IV, the term “full faith and credit” is used to describe the mutual respect and legality of laws, public records, and judicial decisions made by states. In effect, if Nevada has laws establishing rules for marriage and divorce, New York must recognize those laws as valid. Congress passed the Defense of Marriage Act (DOMA), and President Clinton signed it into law in 1996. This law gave states the authority not to recognize same-sex marriages performed in other states, and it also denied gays who were legally married all the federal benefits given to other married couples. This law was challenged, and the Supreme Court ruled in the case of Windsor v United States that the section of the Defense of Marriage Act that denied federal benefits to legally married same-sex couples was unconstitutional, thus enabling legally married same-sex couples to be potentially eligible for some of over a thousand federal benefits. However, states that did not recognize same-sex marriages were still able to do so, although if a legally married same-sex couple moved to that state the couple would still receive federal benefits.
Ultimately, the Supreme Court ruled 5–4 in 2015 in Obergefell v Hodges that the equal protection clause of the Fourteenth Amendment required that states issue marriage licenses to same-sex couples. This meant that same-sex marriage was legal in the United States. In the case that state laws do conflict with each other, the law within each state is recognized as legal for that state. By extension, Section 2 recognizes that “the citizens of each state shall be entitled to all the privileges and immunities” of citizens in all the states. This provision is significant because it guarantees that the rights of a citizen in one state will be respected by other states. The phrase “privileges and immunities” becomes a significant phrase in the Fourteenth Amendment, which tells states they cannot abridge the privileges and immunities of its citizens. States also recognize the legitimate claim to fugitives through extradition. Finally, in Article IV Section 4, the United States guarantees every state a “republican form of government.” The use of the word republican is important. It suggests that every state must establish a limited representative government. It also guarantees that the United States will protect every state from outside attacks or internal strife.
Perhaps the most significant statement that defines the relationship of the federal government to the states is found in Article VI. The supremacy clause asserts that “the Constitution, and the laws of the United States … shall be the supreme law of the land.” In effect, this clause tells the states that they cannot pass laws or pursue actions that come into conflict with federal actions. It also refers to all state officials pledging their allegiance to the Constitution. The court case McCulloch v Maryland in 1819 established this precedent when Maryland was told it could not tax the National Bank.
The concept of federalism, the overall relationship between the federal government and state governments, is defined in the Tenth Amendment of the Constitution. This amendment specifically tells the states that they have reserved powers: Powers not delegated to the federal government by the Constitution belong to the states.
Advocates of a strong federal system believe state and local governments do not have the sophistication to deal with the major problems facing the country. These advocates often believe local politicians are provincial in their point of view and would favor sectional issues that do not take into account the interests of the entire nation. Those who favor a strong federal system also point to the inability of state and local governments to support the vast programs financially because of an inadequate tax base. They also feel an elitist group would gain control of the smaller governments and ignore the needs of the minority.
Critics of a strong federal system point out that local leaders are most sensitive to the needs of their constituents. They also believe the states can better develop public policy that can be supported by a broad tax base. And critics point to the many demands made upon local governments by the federal government in order to receive financial aid from the federal government.
Through this debate it can be seen how important the relationships among levels of government is. This relationship can affect the kind of political participation that exists. It can determine the kind of public policy that is developed and implemented. Such issues as a national drinking age, a national speed limit, and consistent emission standards in every state have emerged in the debates over which level of government is best suited to solve the problems facing the country. Additionally, after the Republicans won back control of Congress in 1994, the issue of devolution of federal power, returning the balance of federal–state responsibilities back to the states, emerged in the name of unfunded mandates: regulations passed by Congress or issued by regulatory agencies to the states without the federal funds to support them.
Local Governments Also Have a Unique Relationship with the Federal Government
Compared to other means of dividing power, federalism establishes a unique working relationship with the other levels of government and its people. Neither component can abolish or alter the other single-handedly. Conversely, a unitary system of government centralizes all power, while a confederation decentralizes all power. Most parliamentary governments such as Great Britain and France are unitary. Power can be taken away from the local unit by the central authority. The former Soviet Union, after its breakup, formed the Russian Confederation. The United States at first had a confederation, the Articles of Confederation, which failed after a few short years in existence. The loosest confederation that exists on the international scene is the United Nations.
The advantage of the federal system over a unitary system and confederations is that a distinct line is drawn between what is in the purview of the central government versus what local governments are concerned with. The central government is concerned with the broader issues affecting the entire country, such as foreign policy, interstate matters, and immigration. Local governments are concerned with matters that have a direct impact on the daily lives of their citizens, such as motor vehicle laws, garbage, education, and public health and welfare. Shared interests involve methods of raising revenue and creating a criminal justice system as well as common spending programs. Public policy is developed by both state and federal legislation. Yet, at times, the distinction between which policies are federal and which should be developed by the states becomes cloudy.
Illustrative Example
Federalist No. 9
Tracing the Evolution of Federalism
Even before the Constitution was ratified, strong arguments were made in the Federalist Papers by Alexander Hamilton, John Jay, and James Madison, urging the inclusion of a federal form of government to replace the failed confederation. In Federalist No. 9 Hamilton states, “This form of government is a convention by which several smaller states agree to become members of a larger one, which they intend to form. It is a kind of assemblage of societies that constitutes a new one, capable of increasing, by means of new associations, until they arrive to such a degree of power as to be able to provide for the security of the united body.” Those who feared that the federal government would become too strong were assured by Madison in Federalist No. 14 that “in the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws …. The subordinate governments, which can extend their care to all those other objects which can be separately provided for, will retain their due authority and activity.” These excerpts illustrate the fact that a federal form of government was central to the success of the new Constitution.
Court Cases
After the Constitution was ratified and the federal government was formed, the new government established lines of authority defining its power structure. By 1819 the first real challenge to the authority of the United States by individual states took place in the case of McCulloch v Maryland. The issue revolved around the right of Maryland to tax paper currency needed by a branch of the U.S. National Bank located in that state. (The bank had been established by Congress using the elastic clause of the Constitution.) In one of a series of landmark decisions, the Supreme Court, under the leadership of John Marshall, ruled unanimously that the “power to tax involves the power to destroy.” It reasoned that because the United States had the right to coin and regulate money it also had the right to set up a National Bank to do this under the “necessary and proper” clause. After the bank was created, the laws protecting it were supreme; therefore, Maryland could not tax the federal institution.
Dual Federalism
The Constitution provides for the rules of the federal system by giving delegated powers to the federal government and reserved powers to the states. This dual federalism became the first type of relationship for the United States. If you picture two intersecting circles, you will be able to get a clear picture of what dual federalism represents.
Dual federalism existed historically to 1930. From the outset, when Congress made the determination to admit new states, it offered them a partnership. From the Louisiana Purchase to the pursuit of Manifest Destiny, as our country’s borders expanded to the West Coast, every state admitted knew the conditions. However, one key event brought up the issue of what kind of federal government we would have—the Civil War, which was fought to preserve our federal system of government. Its background was sectionalism, a battle over states’ rights, especially dealing with the issues of slavery and tariffs.
Layer-Cake Federalism
An extension of dual federalism developed after the Civil War. It became known, according to political scientist Morton Grodzins, as layer-cake federalism. It was a federalism characterized by a national government exercising its powers independently from state governments. Following a more traditional approach, layer-cake federalism was constitutionally based, and each level of government tried to exercise its own control over its own sphere of influence.
Marble-Cake Federalism
With the onset of the New Deal, federalism could be classified as a marble cake. Think of the two circles pictured here with bits and pieces of marble. The federal government becomes more intrusive in what had been typically the domain of state governments.
During the New Deal, President Roosevelt needed drastic action to solve the problems brought on by the Great Depression. Establishing federal relief and recovery programs such as the Agricultural Adjustment Act (AAA) and the National Recovery Act (NRA), and reforming such localized institutions as banks with the Federal Deposit Insurance Corporation (FDIC)—these acts resulted in the federal government’s much greater involvement on the local level. Public-works programs such as the Civilian Conservation Corps brought the federal government further into cities. Public policy became more of a sharing between the federal and state levels of government. The national government provided the money, and state governments administered the programs. There were critics of these efforts. New Deal programs such as the AAA were declared unconstitutional by the Supreme Court.
Fiscal Federalism (also known as Creative and Competitive Federalism)
The development of federalism since the New Deal has been fiscal in nature—that is how much funding is appropriated by the federal government to the states, under what conditions, and what the states can do with these funds.
When Richard Nixon proposed a series of measures aimed at decentralizing many of the Great Society programs of Lyndon Johnson, he dubbed his program “the new federalism.” This theme was later picked up by Ronald Reagan in 1980 and became the hallmark of his administration.
The aim of competitive federalism was to offer states pieces of the marble cake but to have them accept it with conditions and with a promise to develop programs on their own. Federal orders in the Equal Opportunity Act of 1982 mandated compliance by the states under the threat of criminal or civil penalty. A second example was the placement of restrictions on other federal programs if a state did not meet the criteria of a specific program. Over sixty federal programs ranging from civil rights to the environment have this requirement. Crossover requirements constitute a third example. If a state is to receive federal money, it must agree to do something in return. For instance, under the Emergency Highway Energy Conservation Act of 1974, states had to agree to limit highway speed limits to 55 mph if they wanted to receive funding for highway repair. Additionally, under this competitive new federalism, states were forced to create their own standards of compliance based on federal legislation. The Clean Air Act of 1970 set national standards for air quality but directed the states to implement the law and enforce it.
After his election in 1992, deficit reduction became a primary goal of President Clinton. After his budget proposal was approved by Congress, it became apparent that fiscal federalism and grant programs would be greatly affected by cutbacks in the federal budget. Even so, the trend seemed to support grants based on specific federal requirements. The move toward national educational standards was supported by a number of federal grants to school districts willing to accept the concept.
Fiscal Federalism Leads to Grants
GRANTS
Contemporary fiscal federalism can be classified in three major program areas: categorical grants (that include project and formula grants), block grants, and revenue sharing. They are usually aimed at assisting the states in areas of health, income security, education, employment, and transportation. A categorical grant is defined as federal aid that meets the criteria of a specific category and has specific criteria attached to them. These criteria can range from nondiscriminatory practices to minimum wages.
The two types of categorical grants are project grants, which are based on competitive applications by states and individuals, and formula grants, which are based on specific formulas developed by Congress. These grants have an impact on such areas as families with dependent children and nutrition programs. Block grants are a form of federal aid with far fewer strings attached. They go to local communities for specific purposes, and the states decide where and how to spend the money. Along with revenue sharing, which gives money directly to the states with no strings attached, these two forms of fiscal federalism were vastly reduced under Ronald Reagan and George H. W. Bush.
An example of the block grant concept implemented during the Clinton administration was welfare reform. After vetoing the Republican-sponsored welfare-reform proposal, President Clinton ultimately signed into law a far-reaching welfare reform bill in 1996. This law transferred the responsibility of welfare to the states. The federal government eliminated the entitlement and gave block grants to the states. The states then developed their own programs to move people from welfare to work within a five-year period.
In answering the questions regarding the use of federal grants, you should have a broad understanding of the overall purposes of the grant and mandate programs. The overall objective is to provide the states and localities with funding they normally would not get. This would have the effect of reducing the fiscal burden on the states. In return, the federal government was able to achieve national goals set in specific areas such as education or helping minorities. Through these kinds of grants the federal government can direct where this money goes and earmark it to those states with poorer populations. The money could also be used by a target audience with experts controlling the allocation of monies received. The end result would be the development of many programs by state and local agencies without creating massive government bureaucracy.
Devolution
After the midterm election of 1994, the Republican “Contract with America” signaled the party’s intention to return to a more traditional approach now called “devolution.” This trend had the explicit purpose of downsizing government and returning power to the states. It continued as the Republicans maintained their majority in both houses in the 1996 election. Such measures as welfare reform, a balanced budget amendment to the Constitution, and regulatory reform were introduced. Congress passed an Unfunded Mandates Law that placed major restrictions on Congress and the executive branch regarding passing legislation and regulations that had a price tag for the states. In fact, states challenged the Motor Voter Act of 1993 as an unfunded mandate placing an unfair fiscal burden on the states. California refused to appropriate the funds necessary to implement it, and the Justice Department brought the state to court. The courts, however, ruled that California must abide by the provisions of the law. Other parts of the contract were passed by one or both of the houses but not signed into law by the president. But the message of the election was clear—federalism was again undergoing a major transformation, one that will last well into the twenty-first century, and with the election of George W. Bush in 2000, the trend of devolution was high on the Republican agenda.
As it turned out, George W. Bush had a mixed record. Even though he was a proponent of devolution, the federal government grew during his two terms. A Medicare Prescription Drug Act was passed, and the federal budget increased every year, resulting in record deficits and one of the worst recessions in the nation’s history. After Barack Obama was elected president, many of his proposals to end the recession came into conflict with devolution. Obama favored massive government spending and a return to increased regulation of the banking and housing industries. After the 2010 midterm elections, the new Republican House majority and the supporters of the Tea Party urged President Obama to reduce federal government spending and the role that the federal government plays in imposing regulations on the states. A new era of increased devolution would be a consequence of these policies. Yet, Congress still passed a bill that President Obama signed—the Dodd-Frank Wall Street Reform and Consumer Protection Act. Republicans promised to weaken these measures after their midterm victories in 2010 and 2014.
With the election of Donald Trump in 2016, a move back to devolution became a priority of the president and the Republican majority in Congress. President Trump rolled back many environmental regulations and reduced the number of regulations found in the Federal Register by more than a third.
The Tenth and Fourteenth Amendments and Federalism
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property/without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Tenth Amendment extends to the states the right to create laws for the best interests of their people. It is the basis of federalism, and when this amendment comes into conflict with the Bill of Rights and the Fourteenth Amendment, the outcome of the dispute further defines the changing nature of federalism. The more the Supreme Court nationalized the Bill of Rights through the application of the Fourteenth Amendment, the more judicial federalism made the Bill of Rights apply directly to the states.
Among the questions raised by these amendments:
■ Does an individual have the right to die?
■ How do the courts resolve the conflict between state and federal laws and issues raised by the Bill of Rights?
Related Court Cases
Printz, Sheriff/Coroner, Ravalli County, Montana v United States (1997)
Challenging the provision of the Brady Law that mandated local officials to perform background checks on those purchasing handguns, the Supreme Court ruled that specific part of the law was unconstitutional.
The discussion involving the relationship of the Bill of Rights to the state’s right to develop its own laws and procedures goes to the heart of what the future of federalism will be.
National Federation of Independent Business v Sebelius (2012)
The Supreme Court ruled that the Affordable Care Act (also known as “Obamacare”) was constitutional. In a split decision, the court ruled that even though the Congress violated the Tenth Amendment’s interstate commerce clause by imposing a penalty on those individuals who did not pay for health insurance, Congress under its power to tax did have the authority to collect a fee if health insurance was not purchased.
Optional Reading
Opening the Third Century of American Federalism: Issues and Prospects, by Daniel Elizar (1990)
Key Quote:
“Nevertheless, within this deteriorating constitutional and political framework the states have become stronger and more vigorous than ever, have reasserted themselves as polities, and have become the principal source of governmental innovation in the United States as well as the principal custodians of most domestic programs. In this extraordinary turnaround they have been helped by the catastrophes that have befallen previous presidents and the positive efforts of the Reagan Administration to have the federal government turn over certain functions to the states, free certain revenue sources to accompany them, and reduce federal regulatory interventions into state affairs and the processes of state governance.”
NATIONAL POLICY MAKING AND FEDERALISM
Policy-Making Institutions
Even though each branch of government has separate powers, a significant policy-making function is defined by the Constitution. In addition, the development and growth of bureaucracies becomes a fourth branch of government, because it has independent regulatory power and is connected directly and indirectly to the federal government itself.
The president, as chief executive, proposes to Congress a legislative agenda. Along with this agenda is a budget proposal that defines the extent of government involvement in supporting legislation as well as the size of government. The decision to sign or veto legislation determines the fate of legislation and the resulting public policy. Congress, through its committee system and ultimately its votes, determines the fate of the president’s legislative agenda and the proposed budget. Over the past thirty years, the issue of the nation’s deficit has been paramount in determining the nature of legislation passed. This changed in 1996 after President Clinton signed a balanced budget. By 2000 the debate shifted away from deficit spending to what the budget surplus should be used for. After September 11, 2001, tax cuts, a recession, and an expanded war on terrorism resulted in the return of large deficits.
President Obama, facing the worst economic crisis since the Great Depression, signed the American Recovery and Reinvestment Act of 2009. This law cost close to $1 trillion and included tax cuts for 95 percent of Americans as well as job stimulus provisions. Obama also announced measures that dealt with the ailing banks, auto industry, and the housing market. These acts, along with the 2010 federal budget, resulted in the largest deficits in American history, totaling more than $1 trillion.
The new Republican majority in the House of Representatives threatened not to authorize an increase to the national debt in 2011 unless President Obama agreed to spending cuts. As a result, Congress reached an agreement with the president to postpone the elimination of the so-called Bush tax cuts until 2012, along with major cuts in defense and discretionary spending, called the sequester. Ultimately, the country avoided going over the “fiscal cliff” in January 2013, when the Bush tax cuts were kept for everyone earning under $400,000. The sequester cuts, known as sequestration, took effect in March 2013. The reductions in spending authority were approximately $85.4 billion, split between spending cuts in defense and spending cuts in discretionary funds. These cuts were achieved by program cuts as well as federal employee furloughs. As a result of public pressure some agencies, such as the Federal Aviation Authority (FAA), were able to shift some of the cuts to avoid air-traffic-controller furloughs. An effort to come up with a grand budget deal between the president and Congress failed. In 2013, the Bipartisan Budget Act of 2013 was passed that raised budgeting caps but also lowered the projected deficit.
A budget dispute in December 2018 between President Trump and the newly elected Democratic House of Representatives failed to reach an agreement. The government was partially shut down for 35 days over the issue of how much funding should be allocated for a border wall between the United States and Mexico. It was the longest government shutdown in U.S. history. President Trump ultimately signed a budget bill that did not provide the funding he wanted.
REVIEW MULTIPLE-CHOICE QUESTIONS
Question Type: Qualitative Analysis Question with a Primary Document
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. The second expedient is as impracticable as the first would be unwise”
—Federalist No. 10
James Madison
1. Which of the following best illustrates an action that a faction has taken that resulted in damaging the rights of other citizens?
(A) The Democratic minority in the Senate blocking legislation using a filibuster
(B) The National Rifle Association asking its members to lobby Congress to oppose gun control legislation
(C) White supremacists marching in Charlottesville, Virginia, to protest the removal of Confederate statues
(D) Tea Party members recruiting a candidate to oppose an incumbent in Congress
2. Which of the following statements would Madison agree with?
(A) Factions can be dealt with by giving in to their demands.
(B) The methods and means of eliminating factions are impractical.
(C) Factions are formed to protect liberty.
(D) Factions can be controlled by controlling its causes and removing its effects.
3. Which of the following groups best represents a contemporary faction?
(A) The chair of the Democratic Party
(B) Members of the Senate Judiciary Committee
(C) Congressional Black Caucus
(D) National Organization for Women
Question Type: Visual Analysis with a Cartoon
Source: Pennsylvania Gazette (1754)
4. Which of the following represents the point of view of the cartoon?
(A) Colonists should unite against the British decision to raise taxes.
(B) The colonists should join together to declare their independence from Great Britain.
(C) The colonies should ratify the United States Constitution.
(D) Just like a snake, the colonists should use venom against its enemies.
5. Which of the following groups could adopt the message depicted by the cartoon?
(A) Supporters of an immigrant travel ban
(B) Tea Party activists who want to take the government back
(C) Anti-abortion activists
(D) Gun-control advocates
Question Type: Visual Analysis Using a Graph
Source: ArcViewMarket Research
6. Which of the following trends is illustrated in the graph?
(A) Sales and growth of marijuana have increased between 2012 and 2016.
(B) Growth of marijuana has decreased between 2014 and 2016, while sales have increased.
(C) Sales of marijuana decreased in the years that growth decreased.
(D) Sales of marijuana increased at the same rate growth increased between 2012 and 2014.
7. Which of the following statements reflects the trend of sales of marijuana?
(A) There was an increase in illegal use of marijuana in the United States.
(B) Medical use of marijuana was made illegal by the federal government.
(C) States did not tax the use of marijuana.
(D) As more states legalized marijuana, sales increased.
Question Type: Comparison Question That Asks for a Similarity or Difference
8. Which is an accurate similarity of a power reserved to the states and a power given to the federal government?
|
Power Reserved to the State |
Delegated Powers of Congress |
(A) |
Driving laws |
Declare war |
(B) |
Regulate voting |
Regulate zoning |
(C) |
Deport illegal immigrants |
Establish uniform immigration laws |
(D) |
Regulate interstate commerce |
Establish post offices |
Question Type: Concept Application and Knowledge Questions That Have a Concept, Process, Policy, or Scenario
9. Which of the following groups believe bargaining and compromise are essential to a democracy?
(A) Elitists
(B) Pluralists
(C) Liberals
(D) Conservatives
10. The delegates at the Constitutional Convention carefully drafted a document that would create
(A) strong states and a weak central government.
(B) the ability to adapt to changing times.
(C) a dominant national government with little active participation from the states.
(D) an equal distribution of power between the states and the national government.
Answers
1. (C) Choice (C) is correct because, according to Madison’s definition, factions are “united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens.” White supremacists fit this definition. They marched in Charlottesville protesting the removal of a Confederate statue. Even though they had a permit, their actions resulted in adversely affecting the rights of other citizens. Choice (A) is incorrect because the Democratic minority, though a faction in the Senate, is operating under the Senate rules. Choice (B) is incorrect because The National Rifle Association (NRA) is a special-interest group representing millions of people. Their lobbying efforts are legal and often are opposed by other special-interest groups. Choice (D) is incorrect because The Tea Party’s recruitment of candidates is a legitimate aspect of what they do, and voters can either support or defeat them.
2. (B) Choice (B) is the correct answer because Madison states that “the second expedient is as impracticable as the first would be unwise.” Choice (A) is incorrect because it is the nature of factions to create division. Choice (C) is incorrect because multiple competing factions destroy liberty, and choice (D) is wrong because Madison clearly states that factions cannot be controlled.
3. (D) Choice (D) is the correct answer because special-interest groups like the National Organization for Women are good examples of contemporary factions. Choices (A), (B), and (C) are incorrect because the chair of the Democratic Party is an individual representing the Democrats, members of the Senate Judiciary Committee have defined functions, and the Congressional Black Caucus is a group that meets to represent black interests in Congress and does not recruit outside its membership.
4. (A) Choice (A) is the correct answer because the cartoon, drawn by Benjamin Franklin, was used to protest the Stamp Act. Choices (B), (C), and (D) are incorrect because they do not accurately reflect what the cartoon’s goal was.
5. (B) Choice (B) is correct because the Tea Party is the only group reacting against government injustices, especially tax issues. Choices (A), (C), and (D) are all groups concerned with the consequences of what they are advocating, but their causes do not fit the message of the cartoon.
6. (B) This question asks students to interpret the findings of the graph. The graph is comparing the growth of cannabis with the sales of marijuana. Choice (B) is the only choice that accurately reflects the relationship between the sales and growth. Choice (A) is incorrect because while sales increased, growth decreased between 2014 and 2016. Choice (C) is wrong because the sales of marijuana increased in the years that growth decreased. Choice (D) is incorrect because the growth rates were higher by a greater percentage than sales between 2012 and 2014.
7. (D) Choice (D) is the correct answer because there was an increase in the number of states legalizing marijuana between 2014–2016, and that was also when sales increased the most. Choices (A), (B), and (C) are incorrect because there was no evidence of an increase in the illegal use of marijuana (choice (A)), Medical use of marijuana was a state issue and is legal (choice (B)), and states did tax the use of marijuana (choice (C)).
8. (A) The comparison question asks students to compare and analyze similarities or differences. In this question students are asked to find a power reserved to the state and a power granted to Congress by the Constitution. The Tenth Amendment has a “reserved powers clause,” granting those powers not delegated to the federal government to the states. Choice (A) is the only answer that accurately has a power reserved to the states and a power delegated to Congress. Regulating voting is a state power, but laws regulating zoning do not constitute a congressional power. The federal government deports illegal immigrants and establishes uniform immigration laws. Congress regulates interstate commerce and establishes post offices.
9. (B) Even though Democrats and Republicans may state that they believe in bargaining and compromise, in reality they do not always practice what they preach. Choice (B), pluralists, fits the definition the question raises.
10. (B) Choice (B) is correct because the Constitution has been an evolving document because of the amending process. Choice (A) is incorrect because that is the characteristic of the Articles of Confederation. Choice (C) is incorrect because of the principle of federalism. Choice (D) is incorrect because there is a supremacy clause in the Constitution.
Quantitative Analysis Question
You should answer this question in 20 minutes.
2016 Presidential Election
Nominee |
Donald Trump |
Hillary Clinton |
Party |
Republican |
Democratic |
Home state |
New York |
New York |
Running mate |
Mike Pence |
Tim Kaine |
Electoral vote |
304 |
227 |
States carried |
30 + ME - 02 |
20 + DC |
Popular vote |
62,984,828 |
65,853,514 |
Percentage |
46.1% |
48.2% |
Presidential election results map. Grey denotes states won by Trump/Pence. Striped states denotes those won by Clinton/Kaine. Numbers indicate electoral votes allotted to the winner of each state. Highlighted numbers in Washington, Texas, and Hawaii are faithless electors: Colin Powell 3 (WA), John Kasich 1 (TX), Ron Paul 1 (TX), Bernie Sanders 1 (HI), Faith Spotted Eagle 1 (WA)
2000 Presidential Election
Nominee |
George W. Bush |
Al Gore |
Party |
Republican |
Democratic |
Home state |
Texas |
Tennessee |
Running mate |
Dick Cheney |
Joe Lieberman |
Electoral vote |
271 |
266 |
States carried |
30 |
20 + DC |
Popular vote |
50,456,002 |
50,999,897 |
Percentage |
47.9% |
48.4% |
Presidential election results map. Grey denotes states won by Bush/Cheney. Striped states denotes those won by Gore/Lieberman. One of D.C.’s three electors abstained. Numbers indicate electoral votes allotted to the winner of each state.
Use the maps above to answer A, B, and C.
A. Identify one common result of the 2000 and 2016 presidential elections.
B. Describe a similarity or a difference between the 2000 and 2016 electoral maps in the states won by the Democratic and the Republican presidential candidates, and draw a conclusion about that similarity or difference.
C. Explain how the Electoral College maps shown either impede or advance democracy.
Explanation and Discussion of the Free-Response Stimulus Question
This question presents electoral maps of the 2000 and 2016 presidential elections.
Part A asks you to identify one common result of the 2000 and 2016 presidential elections. A common feature of these two elections was that both of the Republican candidates (Bush in 2000 and Trump in 2016) won the electoral vote but lost the popular vote, and that the Democratic candidates (Gore in 2000 and Clinton in 2016) won the popular vote but lost the Electoral College vote.
Part B asks you to describe a similarity or difference between the 2000 and 2016 electoral maps and to draw a conclusion about that similarity or difference. Both Democrats and Republicans had a base of states that they won in each election, and swing states determined who won the electoral vote. A conclusion of this similarity is that the base of the Democratic coalition is found in northeastern and western states, and the base of the Republican Party is found in southern states. A difference between the 2000 and 2016 presidential elections is that there were faithless electors in the 2016 election that did not cast their vote for either Donald Trump or Hillary Clinton. Another difference between these two maps is that the electoral vote margin that George W. Bush received in 2000 was ultimately contingent on only one state, Florida. Trump’s electoral margin was much larger. A conclusion drawn from this difference is that the Electoral College system can create inequities in which only a few states can determine the winner of the presidential election.
Part C asks you to analyze whether the Electoral College impedes or advances democracy. It impedes democracy because in the two elections, the winning candidate lost the popular vote. In a democracy, every vote should count. In other federal elections, the candidate who receives the majority of the votes is the winner. The Electoral College system advances democracy because the founding fathers felt that electors best reflect the votes in a presidential election.
Scoring Rubric
This question is 4 points.
Part A |
||
Scoring Criteria |
Applicable Units |
Scoring Guidelines and Examples of Correct Answers |
Identify one common result of the 2000 and 2016 presidential elections. |
Constitutional Foundations; Political Participation (voting) |
A common feature of the 2000 and 2016 presidential elections is that the Republican candidates won the electoral vote but lost the popular vote, and the Democratic candidates lost the electoral vote but won the popular vote. (1 pt.) |
Part B |
||
Scoring Criteria |
Applicable Units |
Scoring Guidelines and Examples of Correct Answers |
Describe a similarity or difference between the 2000 and 2016 electoral maps in the states won by the Democratic and the Republican candidates for president, and draw a conclusion about that similarity or difference. |
Constitutional Foundations; Political Participation (voting) |
Similarities: Democrats and Republicans each had a base of states that they won in both elections. Swing states determined who won the electoral vote. The conclusion is that the base of the Democratic coalition is found in northeastern and western states, and the base of the Republican party is found in southern states. |
Part C |
||
Scoring Criteria |
Applicable Units |
Scoring Guidelines and Examples of Correct Answers |
Analyze whether the Electoral College impedes or advances democracy. |
Constitutional Foundations; Political Participation (voting) |
The Electoral College impedes democracy because the winner can lose the popular vote. A characteristic of a democracy is the candidate who gets the majority of votes, wins the election. The Electoral College advances democracy by giving smaller states an important voice in determining who wins. It is in the candidates’ best interests to campaign in these states. (1 pt.) |