CONSTITUTIONAL UNDERPINNINGS AND FEDERALISM REVIEW TOPICS #1 AND #2 CONSTITUTIONAL UNDERPINNINGS AND FEDERALISM

ARTICLES OF CONFEDERATION Writers trying to avoid strong central government First constitution Established a National Congress (no executive, no courts) Most power given to state legislatures

Shay’s Rebellion Series of attacks on Mass. Courthouses by small band of farmers to block foreclosures National leaders afraid protestors would take law into their own hands Demonstrated weakness of national government

PROBLEMS/WEAKNESSES OF ARTICLES No power to tax (money had to be requested from states) No power to regulate commerce (inhibited trade and made Nat. economy difficult) No restriction on currency No judiciary to rule on disputes

Weaknesses and problems led to the need for a new constitution

ASSUMPTIONS OF THE FOUNDING FATHERS People are greedy and self-interested (government should play a key role in containing self-interest) Chief source of political conflict is unequal distribution of wealth-land in those days Factions arise from conflict (factions have to be checked)

Object of Government: preservation of property and property rights The Founders created a republic—a government run by elected representatives.

Is this kind of creepy?

Powers of Congress Congressional (Article 1) 1. Pass legislation 2. Override vetoes 3. Appropriate money 4. Impeachment 5. Confirmation of Presidential Appointments (Senate)

Powers of Congress 6. Ratify treaties (Senate) 7. Declare war 8. Levy taxes 9. Coin money 10. Regulate interstate and foreign commerce

Powers of the Executive Executive (Article 2) 1. Commander-in-chief 2. Recognize ambassadors(give diplomatic recognition) 3. Make treaties (Senate confirms) 4. Nominate judges, cabinet secretaries (Senate Confirms

Powers of the President Veto bills Pardon

Powers of the Judiciary Judicial, Article 3 1. Judicial Review (only implied) 2. Original jurisdiction on matters between states

Inherent Powers Powers that are derived from simply holding a position, such as Thomas Jefferson’s power as president to purchase the Louisiana Territory

Expressed Powers Powers that are given to an institution of government directly in the Constitution, such as Congress’s power to tax

ECONOMIC PROVISIONS IN THE CONSTITUTION 1. Congress levies taxes and regulates interstate and foreign commerce 2. Coin money and forbid states from currency 3. Congress can borrow money 4. Congress can build an infrastructure (roads, post offices, weights and measurements)

INDIVIDUAL RIGHTS IN THE CONSTITUTION 1. Writ of habeas corpus (must be told of charges and evidence) 2. No bills of attainder (punishment without trials) 3. No ex post facto (laws to criminalize behavior that was legal when it took place) 4. Strict definition of treason

Individual Rights 5. Trial by jury Notes: Individual rights were a major issue in the ratification process. The Founding Fathers believed that states were doing sufficient job of protecting rights.

CHECKS AND BALANCES Features of Constitution which limit power and require power to be balanced among branches Three branches remain relatively independent from one another

EXECUTIVE Veto legislation (Congress) Nominate judges (Judicial)

LEGISLATIVE Impeachment (Executive and Judicial) Confirm Nominations (Executive) Override vetoes with a 2/3 vote (Executive) Confirm Judicial Nominees (Judicial)

JUDICIAL Declare laws unconstitutional (Legislative) Declare presidential acts unconstitutional (Executive)

AMENDMENT PROCESS Proposal: 2/3 of Congress or 2/3 of states at National Convention Ratification: 3/4 of state legislatures or 3/4 of states at state conventions All amendments except 21st have been through Congress and state legislatures

FEDERALIST PAPERS/FEDERALIST 10 85 articles by Hamilton, Jay, and Madison that defended the Constitution in detail The Constitution sets faction against faction Fed 10 is considered best defense of checks and balances

Federalist Paper 10 Madison argues that political factions are undesirable but inevitable and must be controlled Factions are more easily controlled in large republics.

2002 QUESTION In Federalist No. 10, James Madison argued that factions in a republic are A more serious threat if the republic is large Natural but controllable by institutions Not likely to occur if people are honest Prevented by majority rule Prevented by free elections Answer: B

BILL OF RIGHTS NY agrees to ratify if a Bill of Rights will be added First 10 amendments added in 1791 First 8 deal with individual rights Last 2 deal with state powers

INFORMAL CHANGES Ways Constitution has evolved without formal changes 2 party system Winner-take-all in Electoral College Judicial Interpretation (Plessy and Brown) Growth/Expectations of government (Great Depression, Cold War)

FEDERALISM AND THE CONSTITUTION

DEFINING FEDERALISM Sharing power at two or more levels At least some powers of the states must be independent and protected

10TH AMENDMENT Powers not delegated to Federal Government or prohibited to states are reserved for the states and the people.

RESERVED and CONCURRENT POWERS 1. Conduct elections 2. Establish local governments. Concurrent Powers are shared Taxation

McCulloch v. Maryland (1819) and elastic clause Establishing a national bank is an implied power. States can’t interfere or tax the national government Supremacy over states through implied powers of elastic clause (“necessary and proper”) Has allowed federal power to expand.

Gibbons v. Ogden (1824) and Commerce Clause Congress can regulate all interstate commerce, including every form of commercial activity

2002 QUESTION Of the following, which has been used most to expand the power of the national government? The commerce clause of the Const The habeas corpus clause of the Const The bill of attainder clause of the Const The 1st amendment The 5th amendment Answer: A

DUAL FEDERALISM States and the federal government stay supreme within their own sphere (layer cake metaphor) Not applicable after 1930s

COOPERATIVE FEDERALISM Powers and policy shared between state and Federal Government (marble cake metaphor) Since the New Deal

FISCAL FEDERALISM Pattern of spending, taxing, and providing grants within the federal system.

2002 QUESTION The terms “fiscal federalism” and “cooperative federalism” refer to situations in which A. The federal government completely dominates state and local governments. B. States are forbidden any activity that has not been specifically approved by the Supreme Court C. The fed. Judiciary uses its power of judicial review to ensure congressional dominance over state legislatures D. State, municipal and local income taxes are pooled by special agreement and redistributed in accordance with individual need Federal, state, and local govts work together to complete a project, with federal govt providing much of the project funding Answer: E

CATEGORICAL GRANTS Federal grants that can be used only for specific purposes (800 or 900 categories) 2 types: A. Project: awarded on merit for specific program B. Formula: distributed according to a formula

BLOCK GRANTS Grants given more or less automatically to states or communities as long as conditions are met (ex. Following civil rights legislation)

2002 QUESTION States and localities have the most discretion in establishing policy when federal funding is derived from Categorical grants Matching grants Block grants Project grants Grants-in-aid Answer: C

REVENUE SHARING Federal aide with no strings attached Helpful to poor states Usually happens when there is a federal budget surplus

UNFUNDED MANDATES When Congress passes a law creating financial obligations but provides no funds to meet those obligations ADA in 1990

2002 QUESTION Which of the following actions by the federal government best illustrates the concept of unfunded mandates? A. Requiring that polling booths remain open beyond the hours of the workday B. Requiring states and municipalities to provide certain services for their citizens without providing resources to pay for those services C. Requiring state governments to guarantee short-term bonds issued by large municipalities in their states D. Requiring all municipalities to impose a minimum property tax on all residential and business properties Requiring states and municipalities to privatize many previously publicly funded services. Answer: B

EFFECTS OF FEDERALISM Inequality in government services among states Opportunities for experimentation at state level Multiple points of access for interest groups Decentralization of political conflict

2005 FREE RESPONSE The power of the federal government relative to the power of the states has increased since the ratification of the Constitution a. Describe two of the following provisions of the Constitution and explain how each has been used over time to expand fed power: Power to tax and spend, “Necessary and proper” or “elastic” clause, commerce clause b. Explain how one of the following has increased the power of the federal government relative to the power of state governments Americans with Disabilities Act Civil Rights Act of 1964 Clean Air Act