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(1) Please explain how the Constitution provides for a system of separation of powers and checks and balances. Provide a fully developed essay of at least 500 words, and cite sources used

(2) Describe how a bill becomes a law at the national level, in a fully developed essay of at least 500 words

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WEEK 1: FEDERALISM » Part 1: Foundations of American Government

 

WEEK 1: FEDERALISM

Part 1: Foundations of American Government

Lesson 1, Part 1:  Foundations of American Government  

"Liberty, when it begins to take root, is a plant of rapid growth."

-George Washington

· The Declaration of Independence

· The U.S. Constitution and its Bill of Rights

· The Enlightenment and Political Philosophy

Expected Outcomes To understand the philosophical principles behind the Declaration of Independence and the Constitution, and how these principles influence the structure and process of government.  

Overview

The United States, as a nation, was born of the American Revolution of 1776. This revolution cut the political ties between England and its American colonies.  Many "Americans" living in the colonies had complained about harsh British rule.  King George of England had ruled over the colonies with a heavy hand, increasing taxes with the Stamp Act and the Sugar Act, for example.  These abuses began to divide the "patriots" in favor of independence and the "loyalists" in favor of the English Crown.  

Tensions between the American colonials and British soldiers boiled over in the Boston Massacre, when a mob harassed British soldiers, who then fired their muskets into the crowd, killing three, mortally wounding two others, and injuring six.  

Another famous incident which helped inspire the American Revolution was the Boston Tea Party of 1773, launched as a protest to the British Tea Act.  This Act gave the British East India Company a tea monopoly, shutting out American traders.  Bostonians disguised themselves as Mohawk Indians, then boarded the British ships and dumped all 342 containers of tea into the harbor.   

Two years later, in 1775, there were more serious conflicts between colonials and British troops: the Battles of Lexington and Concord, the prelude for a full conflict.  The American Revolutionary War was long, bloody and ended with the French-assisted victory of the American Continental Army in Yorktown in 1781.  

An understanding of American government and politics should consider two documents related to this war and its aftermath.  The first is the Declaration of Independence, which launched the American Revolutionary War; and the second is the U.S. Constitution, which replaced the post-war Articles of Confederation and which remains the highest law of the land.  

This lesson analyzes these documents, noting how they were part of a trans-Atlantic Enlightenment movement with emphasis on reason, freethinking, natural law, popular sovereignty, and human equality.  Many of these ideas are visible in the Declaration of Independence, written by Thomas Jefferson.  These ideas provided the ideological and philosophical framework for the American Revolution.  

After the expulsion of the English monarchy, the Articles of Confederation - in effect from 1776 to 1787 - turned the former colonies into largely autonomous states with a weak federal government.  However, many people thought that this decentralized system did not solve the problem of providing for a common defense or for integrating state economies.  Some elites also hoped that a stronger central government could put down local insurrections with more effect, thereby protecting their property rights.  These were just some of the concerns behind the crafting of the U.S. Constitution, inspired by the Federalist Papers and written by James Madison.   

As the Constitution suggests, the United States was not established to be a "pure democracy" in which people rule themselves - some call this "mob rule" – but, rather a representative democracy or a "constitutional republic" characterized, in the United States, by the rule of law, separation of powers, checks and balances, civil liberties and a federalist division of power between national and state governments.  These items will be explained in this lesson.  

The Declaration of Independence The Declaration of Independence provided the ideological framework for the American Revolution of 1776, a war of independence against Britain that was eventually won by the United States.   

The sentiment behind the Declaration of Independence was reflected by a Frenchman who served in George Washington's Continental Army as a general, Marquis de Lafayette.  

"When the government violates the people's rights, insurrection is, for the people and for each portion of the people, the most sacred of the rights and the most indispensable of duties."

-General Marquis La Fayette  

The Declaration of Independence was produced by the Second Continental Congress, on July 4, 1776, which formally declared that the Thirteen Colonies were independent of Great Britain.  The text below is the actual text from the Declaration.  

The Declaration of Independence of the Thirteen Colonies  

In CONGRESS, July 4, 1776  

The unanimous Declaration of the thirteen united States of America,  

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.  

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.  

He has refused his Assent to Laws, the most wholesome and necessary for the public good.  

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.  

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.  

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.  

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.  

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.  

He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.  

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.  

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.  

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.  

He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.  

He has affected to render the Military independent of and superior to the Civil power.  

He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:  

For Quartering large bodies of armed troops among us:  

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:  

For cutting off our Trade with all parts of the world:  

For imposing Taxes on us without our Consent:  

For depriving us, in many cases, of the benefits of Trial by Jury:  

For transporting us beyond Seas to be tried for pretended offences:  

For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:  

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:  

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.  

He has abdicated Government here, by declaring us out of his Protection and waging War against us.  

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.  

He is at this time transporting large Armies of foreign Mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.  

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.  

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.  

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.  

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.  

We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.  

The signers of the Declaration represented the new states as follows:  

New Hampshire

Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts

John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island

Stephen Hopkins, William Ellery

Connecticut

Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York

William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey

Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania

Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware

Caesar Rodney, George Read, Thomas McKean

Maryland

Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia

George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina

William Hooper, Joseph Hewes, John Penn

South Carolina

Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia

Button Gwinnett, Lyman Hall, George Walton

This following phrase, found above, is vital to the Declaration:  

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

 

The identification of unalienable rights is what turns people from "subjects" under governmental control to "citizens" who lend governments their authority.  Thus, the natural law referred to by the Founders includes human equality and popular sovereignty.  

Popular sovereignty means that the authority and justification to rule over a people emerges from the people themselves – rather than being imposed from the top down, which is the case in a monarchy or in an oligarchy.  The central tenet is that legitimacy of rule or of law is based on the consent of the governed, and the thinkers who formalized this concept included Thomas Hobbes and Jean-Jacques Rousseau.   

Popular sovereignty, an Enlightenment idea, is normally reflected by elections.  Modern democracies are based on universal citizenship and enfranchisement for all adults, regardless of race, gender or other classifications.   

By the way, many of these ideas about "natural law," the "consent of the governed" and "limited government" originated in back in England, with John Locke, who wrote the Second Treatise of Civil Government in 1689.  

In the Declaration of Independence, there is a sense that people have an inherent right to overthrow a government – only, however, when the ruling authority became extremely offensive and intolerable.  The Declaration of Independence reflects the belief shared by Thomas Jefferson and a few other Founding Fathers that political authority rested in the people, and that government depended upon the consent of the governed.  

Thomas Jefferson  

Thomas Jefferson was the principal author of the Declaration of Independence, the second Governor of Virginia and the 3rd President of the United States.  

"We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness."

 

"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State."  

"I believe that banking institutions are more dangerous to our liberties than standing armies."

"When the people fear their government, there is tyranny; when the government fears the people, there is liberty."

Interestingly, the Declaration of Independence above also contains language used by modern Christians and secularists to advance their respective points of view.  There is the reference "Nature's God" and to a "Creator," suggestive of Deist, monotheist or Christian beliefs.  It is this Creator who imbued people with unalienable rights.   

However, American revolutionaries also challenged the "Divine Right of Kings," which employed Biblical passages to suggest that monarchs have a higher mandate.   As Romans 13:1-2 states:  

"Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resisteth shall receive to themselves damnation."  

From this perspective, the Declaration of Independence becomes a complex document.  It recognized a Creator, but it also rejected the Biblical mandate and clerical authority.  The American Revolution, therefore, appears to have been inspired both by Deist or Christian principles and, simultaneously, by secular and anti-clerical ones.  This dual legacy is evident today with political controversies over school prayer and other issues.  

The U.S. Constitution

The Constitutional Convention, 1789

There are two remarkable, little-known facts about the U.S. Constitution.  

First, it is the world's oldest working constitution.  Despite being a young society, the United States is the world's oldest continuing republic.  Most of Europe, for example, underwent a complete political transformation after World War II, as did China and Japan and, in fact, the rest of the world.  The U.S. continues to operate with a political system that was born in 1787.  

Second, it is the world's shortest constitution.  The U.S. Constitution has just 4,400 words (excluding amendments).  Most countries have encyclopedic-style constitutions that work against the interests of clarity and accessibility.   

It is essential to view the emergence of the U.S. Constitution as a solution to problems.  The first 13 colonies, once independent, were very loosely bound together in the Articles of Confederation.  The Articles of Confederation, a precursor to the Constitution, gave each state considerable power – even the power to print their own money, as shown below – but national government (or federal government) was too weak, many thought.  A weak federal government would not be able to defend the nation against aggression or stimulate commerce or put down insurrections against the establishment, like Shay's rebellion, when small farmers and merchants revolted against foreclosures.  

Shay's Rebellion, 1786

Shay's Rebellion was an armed uprising in Massachusetts in 1786.  The rebels, led by Daniel Shays, were mostly small farmers angered by crushing debt, taxes and debtor's prisons. A private militia, organized by banks, eventually defeated the rebel force on February 3, 1787.  Many of the men who signed the Constitution were wealthy and had a stake in protecting the established order; thus, they sought to imbue a national government with more power.   

Indeed, it is also important to note that the Constitution would classify African Americans as just 3/5ths of a person, for census purposes, and it maintained the institution of slavery.  In this sense, the Constitution reflects elitist rather than populist interests.  

Paradoxically, this same Constitution – specifically its later amendments (like the 14th Amendment and its "Equal Protection Clause") - would eventually be used by African Americans and other oppressed minorities to secure civil rights and liberties.  They would hold up the provisions of equality and insist that the political system live up to its stated principles.  

In sum, the delegates at the Constitutional Convention in Philadelphia wanted the central government to become as powerful as governments in Paris or London.  So, with this concern in mind, the framers of the Constitution – principally James Madison – set out to create a stronger federal government – but, not too strong.  

James Madison, with other Founding Fathers, such as Alexander Hamilton, elaborated upon several concepts in order to craft the Federalist Papers and, eventually, the Constitution.  However, there were many who wrote in opposition to the Federalist Papers, known as the Anti-Federalist Papers .  

James Madison  

James Madison was one of the three authors of the Federalist Papers (along with Alexander Hamilton and John Jay), which contained many of the ideas inspiring the U.S. Constitution.   He played a leading role in drafting the Constitution and became the fourth President of the United States.

 

"The truth is that all men having power ought to be mistrusted."

 

"Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation."  

"The accumulation of all powers legislative, executive and judicial in the same hands, whether of one, a few or many… may justly be pronounced the very definition of tyranny."

 

Alexander Hamilton  

Alexander Hamilton was one of the three principal authors of the Federalist Papers, and served under President Washington as the nation's first Secretary of the Treasury.  He also founded the Federalist Party.

 

"I have learned to hold popular opinion of no value."  

 

"The voice of the people has been said to be the voice of God; and, however generally this maxim has been quoted and believed, it is not true to fact. The people are turbulent and changing, they seldom judge or determine right."  

 

"In framing a government which is to be administered by men over men the great difficulty lies in this: You must first enable the government to control the governed, and in the next place, oblige it to control itself."  

 

"Those who stand for nothing fall for anything."  

"When the sword is once drawn, the passions of men observe no bounds of moderation."

 

A. Preventing Tyranny of the Majority

The main goal of the U.S. Constitution was to create a federal government that would be advantageous to the States and its people, but one that would not evolve strong central powers and become tyrannical.  

The "paradox of democracy" is that it can produce a "tyranny of the majority" where majority rule threatens individual rights.  Living up to one democratic value – the will of the majority – can actually undermine another value – the rights of the minority or individual.  After all, if two men on a desert island vote to cannibalize the third, that would still be democracy.  

Let's take another example.  Suppose that, for some reason, society suddenly despised people with green eyes; that society marginalized green-eyed people as part of the "out group;" that people believed reports that green-eyed people were more likely to become criminals, etc…  And let's suppose that 51% of the people voted to electronically monitor all green-eyed people with radio frequency bracelets, and to restrict their movement, and to tag them with longer mandatory sentences for minor crimes, etc…  These new laws restricting green-eyed people would be "democratic."  They would indeed reflect the will of the majority.  

If this scenario sounds far fetched, it might be worth considering that Japanese-Americans (U.S. citizens who had never been to Japan) were rounded up and placed into detention centers during World War II.  Most Americans supported the idea at the time, and the U.S. Supreme Court even found the detentions legal under Korematsu v. United States (1944)! In this case, the system of separation of powers and checks and balances on majority rule appeared to have failed, and by the 1990s the U.S. government officially apologized for the detentions and paid monetary reparations to some of the survivors.  

Tyranny of the Majority?  

Internment Camp for Japanese-Americans, WWII

James Madison believed that the Constitution should limit the powers of the majority.  Specifically, he was concerned about the possibility that a majority would oppress a minority.  He called this scenario the "Tyranny of the Majority."  

B. Separation of Powers & Checks and Balances

What was Madison's solution?  It was, in part, a system of "separation of powers."  This meant that the power of government would rather be divided among three separate branches.  That way, if a tyrannical faction wanted to capture government, they would have to seize control of all three branches.  This would be difficult, though not impossible.  The three branches are:

· Legislative (the Congress, described in Article I)

· Executive (the President, the Vice President, 15 Cabinet departments, and numerous boards, agencies, and commissions, described in Article II)

· Judicial (the Supreme Court, 96 District Courts, 12 Appeals Courts, and several special courts, described in Article III)

The powers, duties and responsibilities of each branch are described in Articles I, II and III of the Constitution.   

The Constitution also outlines a system of "checks and balances," meaning that each branch of government can do something to limit the others.  For example, the president can veto a bill emerging from Congress, but Congress can override that veto with 2/3rds majority vote in each of its two chambers (i.e., the House and Senate) within 10 days. This system of checks and balances is what actually helps keep the three branches separate. Congress

The Founding Fathers anticipated that Congress would become the most central and most vital branch.  That's why its responsibilities are found in Article I of the Constitution.   

"But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."

James Madison  

In fact, because Madison foresaw Congress as being a bit more central than the other branches of government, he proposed dividing it into two houses.  This idea, described in The Federalist #51, emerged in the "Connecticut Compromise" at the Constitutional Convention.   

This compromise resolved the tension between the "Virginia Plan," which favored a population-weighted representation in the proposed National Legislature, and the "New Jersey Plan," which proposed a single-chamber legislature in which each state, regardless of size, would have one vote, as under the Articles of Confederation.  

The U.S. Constitution provides for a bicameral legislature.  The upper chamber is the Senate.  Each of the 50 states has two senators who serve renewable terms of 6 years.  The lower chamber is the House of Representatives.  Each of the 50 states has a different number of representatives, depending upon their relative population, and this is determined in the national census conducted every 10 years.  Today, there are 435 representatives who serve renewable terms of 2 years, with California having the most.

 

Arguably, Congress was once the most powerful branch of government, but the Great Depression of the 1930s, World War II, the Cold War and the War on Terror have all served to concentrate power in the Executive Branch.   

Article I, Section 8, lists the powers of Congress, and these are considerable, as they include the ability to pass any laws "necessary and proper" to fulfill its charge.  Congress also has the power to declare war.   

Finally, Congress is also empowered to override a presidential veto (with two-thirds of the vote within each chamber, within 10 days), and to impeach the president for "high crimes and misdemeanors."  Furthermore, the Senate must confirm numerous Executive Branch appointments, including justices to the Supreme Court.  

President

The Executive Branch, described in Article II, consists of the president, his cabinet and numerous agencies. Today, the president is entitled to serve only two full terms of four years each.   

The president is elected, not by the popular vote, but by the electoral vote of the Electoral College, meaning that each state has a certain number of electors.  Today, there are 535 electoral votes in play, and a candidate has to reach 270 to win the election.  California is the most valuable state because it is the most populous; although John Kerry won California in 2004, he still lost the overall election.

 

 

 

The 2000 Presidential Election George W. Bush (Red) and John Kerry (Blue)  

It is still possible for a candidate to lose the popular vote and win the electoral vote, as George W. Bush did in 2000.  This is partly because states with small populations, such as Wyoming, hold 3 electoral votes, which is disproportionately high compared to the voting power of a person in a more populous state, such as California.  These western and plains States have recently voted Republican.  While this electoral system is unpopular with some Americans, it maintains a sense of "sovereignty" for each of the States, and has remained in place despite numerous efforts to remove it.  

The president can veto legislation coming from Congress, and can also, through the Cabinet and bureaucracy, challenge congressional actions.  The president also serves as Commander-in-Chief of the nation’s armed forces.   

The first president of the United States was, of course, George Washington.  

George Washington  

George Washington was the Commander in Chief of American forces in the American Revolutionary War, and first president of the United States.  In 1787, he presided over the Constitutional Convention that drafted the United States Constitution.

 

"Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master."  

"Guard against the impostures of pretended patriotism."  

"Overgrown military establishments are under any form of government inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty."  

"As Mankind becomes more liberal, they will be more apt to allow that all those who conduct themselves as worthy members of the community are equally entitled to the protections of civil government. I hope ever to see America among the foremost nations of justice and liberality."  

"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter."  

"The time is near at hand which must determine whether Americans are to be free men or slaves."  

Supreme Court

Finally, the judicial branch is concerned with settling disputes that reach it from the bottom up, through an appeals process, or with deciding more urgent cases that involved constitutional questions.   

Over time, the Supreme Court has built upon a power inherent to it under the Constitution in Article III – the power of judicial review- to provide the "last word" on the most pressing constitutional questions.  Basically, the responsibility of the Supreme Court is to decide whether or not a law or action is constitutional or unconstitutional.   

The justices who form the majority opinion issue a written explanation, called the "opinion."  Sometimes, a single justice will write this and the others sign their names; other times, the justices write separate concurrent opinions to explain their specific reasons for voting their way.  

The justices who voted in the minority often issue a "dissent," either jointly or separately, explaining why they thought the decision was wrong.   

Supreme Court justices often circulate informal drafts amongst each other to test out how and why the others will vote on a pending case – a case "on the docket."   

Marbury v. Madison (1801), McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) enhanced the Supreme Court's power of judicial review.  These cases are examined in a later unit.  

The Supreme Court is not democratically elected, its justices being nominated by the president and confirmed by the Senate.  The number of justices was not set in the Constitution, but it has evolved into nine, with appointments lasting the term of a natural life or retirement.   

As described above, each of the three branches of government has some power over the others.  This prevents one branch from becoming too powerful and establishing a tyranny or dictatorship based on arbitrary government.  Interestingly, the Supreme Court often has to rule on questions regarding checks and balances.   

Bill of Rights

One of the distinguishing features of the U.S. Constitution is a Bill of Rights that was attached to the final document as a kind of guarantee that government would not acquire too much power over individuals. These amendments came into effect on December 15, 1791, when ratified by three-fourths of the States.  The Bill of Rights plays a central role in American law, but it is also a symbol of the freedoms and culture of the nation, with such freedoms including the freedom of speech and the press, etc.  

The Bill was influenced by George Mason's 1776 Virginia Declaration of Rights, the 1689 English Bill of Rights, works of the Age of Enlightenment pertaining to natural rights, and earlier English political documents such as the Magna Carta (1215). The Bill was largely a response to the Constitution's influential opponents, including prominent Founding Fathers, who argued that it failed to protect the basic principles of human liberty.  

The United States Bill of Rights consists of the first ten amendments to the United States Constitution. Among the enumerated rights these amendments guarantee are the freedom of speech, the freedom of the press, the freedom of assembly, the free exercise of religion, the freedom to petition, the people's right to keep and bear arms, and the rights to be free of unreasonable search and seizure, cruel and unusual punishment, and compelled self-incrimination.  

In addition, the Bill of Rights states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and reserves all powers not granted to the Federal government to the citizenry or States.  

A Supreme Court Justice Robert H. Jackson said it best:  

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

There is one civil liberty the Founders thought was important enough to include in the actual main body of the Constitution: habeas corpus.  

In legal terms, habeas corpus obliges a government to account for a person's detention.  "Habeas corpus" is Latin for "you have the body."  Kings and queens in England enjoyed the power to lock someone up in a dungeon and throw away the key, but not so easily after the Magna Carta of 1215.   

After the American Revolution of 1776, the principle of habeas corpus was found in most State constitutions, and more importantly, it is found in the 1787 United States Constitution.  

U.S. Constitution, Article I Section 9:  

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This course returns to this Bill of Rights frequently in the course, but it is reproduced here below.  Please read/review the following document:  

Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.  

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.  

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.  

Amendment IV

The right of the people to be secure in their persons, hoU.S.es, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.  

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.  

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.  

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.  

Amendment X

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.  

The Enlightenment and Political Philosophy

The Declaration of Independence and the U.S. Constitution were not written in isolation; they were part of a much larger movement – political, philosophical, and intellectual – called the Enlightenment.   

The Enlightenment, as mentioned earlier, emphasized reason, freethinking, natural law, popular sovereignty, and human rights.  It challenged theocratic fundamentalism and hereditary aristocracy.  The Enlightenment was an idealistic movement in that it believed in progress.  

Benjamin Franklin is a good example of an Enlightenment-era Renaissance man.  

Benjamin Franklin  

Benjamin Franklin was an inventor, scientist, Renaissance man, Ambassador to France, and the only Founding Father who signed all three of the major documents of the founding of the United States: The Declaration of Independence, The Treaty of Paris and the United States Constitution.

 

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."  

"A great empire, like a great cake, is most easily diminished at the edges."

 

"All wars are follies, very expensive and very mischievous ones."  

"The Constitution only guarantees the American people the right to pursue happiness. You have to catch it yourself."

The Enlightenment was a trans-Atlantic movement, and many of the Founding Fathers were in communication with English and French reformers and revolutionaries in Europe.   

In France, for example, a revolutionary ideology was taking hold, and "liberty, equality and fraternity" were viewed as natural and inevitable forces propelling humankind forward.  Some of the French idealists crossed the ocean to participate in the American Revolution.  

Thomas Paine  

Thomas Paine was born in England and died in America.  He was an intellectual, scholar, and Atlantic revolutionary.   He wrote Rights of Man and Common Sense.

 

"Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one."  

"That government is best which governs least."  

"Belief in a cruel God makes a cruel man."  

"I believe in the equality of man; and I believe that religious duties consist in doing justice, loving mercy, and endeavoring to make our fellow-creatures happy."  

"Moderation in temper is always a virtue; but moderation in principle is always a vice."  

"My country is the world, and my religion is to do good."  

"Reason obeys itself; and ignorance submits to whatever is dictated to it."                     

   

 

Jean-Jacques Rousseau   

Jean-Jacques Rousseau was an Enlightenment philosopher and his ideas about popular sovereignty and social contracts influenced the French Revolution.   He was friends with Diderot and contributed to the scientific project of the Encyclopedists.  His remains are in the Pantheon, in Paris.  

"Man is born free, and everywhere he is in chains."

 

"To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. For he who renounces everything no indemnity is possible. Such a renunciation is incompatible with man's nature; to remove all liberty from his will is to remove all morality from his acts."  

"The world of reality has its limits; the world of imagination is boundless."

 

 

 

Marquis de Lafayette

Marquis de Lafayette participated in both the French and American Revolutions.   He served as a Major General in the Continental Army, under George Washington, his lifelong friend.  Lafayette's battles included Brandywine, Barron Hill, Monmouth, and Yorktown.

Lafayette drafted the French Declaration of the Rights of Man and of the Citizen.   He argued for habeas corpus rights, religious tolerance, popular representation, jury trials, the emancipation of slaves, and freedom of the press.

 

"Humanity has won its battle. Liberty now has a country."  

"If the liberties of the American people are ever destroyed, they will fall by the hands of the clergy."  

"True republicanism is the sovereignty of the people... There are natural rights which an entire nation has no right to violate."  

"When the government violates the people's rights, insurrection is, for the people and for each portion of the people, the most sacred of the rights and the most indispensable of duties."

 

Conclusion

Virtually all of the Founding Fathers believed in the general principles of Enlightenment.  It is also possible to identify, even at this early stage, the antecedents of what modern Americans consider "conservative" and "liberal" political ideologies or cultures.  Of course, the political parties representing liberal and conservative views have changed names over the centuries and even changed positions.  

Modern American conservatism descends – in part – from the ideas of the Federalist Party, influential from the 1790s to the 1820s. The party was formed by Alexander Hamilton. The Federalists were nationalists who wanted a fiscally and militarily strong nation state; and they believed in the tried and tested over the new and unproven. Federalists also believed in rule by a well-educated elite, and thus appealed to merchants, bankers, lawyers, editors, landowners, and industrialists; one of John Jay's favorite maxims was, "The people who own the country ought to govern it." Its most powerful leader was Hamilton, and its hero was George Washington.  

Modern American liberalism descends – in part – from the ideas of the Democratic-Republican Party, founded in the 1790s by Thomas Jefferson and James Madison.  In fact, this party was first named the "Republican" Party, but it is actually the ancestor of the modern Democratic Party.  The populist-oriented Democratic-Republican Party promoted the primacy of the yeoman farmer over bankers, industrialists and merchants.  It opposed such Federalist policies as high tariffs, a navy, military spending and a national bank.  

Just as the Declaration of Independence contains both Deist and secular principles, so too does the Constitution contain both the conservative emphasis on traditional order, security and continuity and the liberal emphasis on personal freedom, egalitarianism and secularism.   

This dual or complex characteristic of the Constitution allows for that document to be interpreted in competing ways – in terms of "original intent" by conservatives and "active liberty" by liberals. Indeed, there is not final interpretation regarding the Constitution, and rival perspectives compete to this day.

 

Lesson 1, Part 2: Federalism

 

"I hold, that in contemplation of universal law,  

 

And of the Constitution, the Union of these States is perpetual."

-Abraham Lincoln

 

Expected Outcomes: To understand the constitutional distribution of power between federal and state governments, and to appreciate how this tension, built into the Constitution, manifests itself across important case studies.  

Overview

Lesson 1 part one examined the separation of powers into three branches (legislative, executive and judicial).  It also examined the system of "checks and balances" that keeps any one branch from gaining too much power - from becoming tyrannical.  

Lesson 1 part 2, by contrast, examines the division of government between the "federal" government, also known as the national government, with its capital in Washington D.C., and the "state" governments, of which there are 50 today.  

While the Articles of Confederation gave enormous powers to each of the original 13 states, the U.S. Constitution was written in order to distribute power between the federal government and the states.  This system is known as "federalism."  

Federalism

As mentioned above, "federalism" refers to the relative distribution of power between the national or federal government in Washington D.C. and each of the states. 

The U.S. Constitution describes the powers that belong to the federal or national government.  These "delegated powers" include the power to regulate inter-state commerce; the power make treaties with foreign nations; the power to raise armies, declare war, raise taxes, and so on. 

Simultaneously, the Constitution describes the powers that belong to the state governments.  These "reserved powers" are reserved to the states.  It is also possible to speak of "concurrent powers," which are shared between the federal and state governments.  Finally, it is possible to describe "powers denied" to both federal and state governments, like the power to abridge individual rights by restricting the right to vote.  

In many ways, and by design, the Constitution contains a tension between national and state power.  This tension, never fully resolved, has manifested itself in countless national-state controversies.  

The Constitution provides the United States Congress with a great deal of authority in crafting the nation's laws, and this authority is seen, among other places, in the "necessary and proper clause" of Article I.  

Article I, Section 8, "Clause" 18:

"The Congress shall have power …To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Furthermore, the Constitution gives the federal government in Washington D.C. "supremacy" over the states.  As seen below, the "national supremacy clause" in Article VI of the Constitution asserts the supremacy of federal laws over state laws:  

Article VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The federal government has indeed flexed its constitutional muscles over the years.  In fact, one of the major plot lines in the history of American federalism is the steady growth of the national federal government and the relative decline of state power and states' rights.   

Some scholars even go so far as to insist that "federalism" is an antiquated concept and that what the U.S. actually has is a national "unitary" system.  The states, these scholars complain, are left to decide only unimportant and mundane questions, such as whether or not motorcycle riders should wear helmets.   

Clearly, the federal power of national government is increasing; state power is decreasing.  Several historical events and trends contributed to this:

· Supreme Court decisions regarding commerce and taxation that elevated the power of federal government over states.

· The Civil War, which reinforced the primacy of the Union, increased the importance of federal government.

·   The Great Depression, which required a national or federal effort to overcome and launched dozens of large bureaucracies.

The African-American Civil Rights Movement led to the federal government intervening at the state level (in universities and schools).

·  Modern War.  As a result of World War II, the Cold War and now the Global War on Terror, enormous amounts of political power gravitated to the White House and the Pentagon.

Still, the states have specific constitutional rights. States' rights are in fact built into the Constitution, as a kind of "default setting," as seen in the Tenth Amendment:  

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it by the states, are reserved to the states respectively, or to the people.  

Therefore, each of the 50 states has quite a bit of latitude in the American system, especially to address new and unforeseen issues, but none of them can constitutionally restrict an individual's rights and liberties as described by, for example, the Fourteenth Amendments, the latter of which is clear:

 

Amendment XIV:

… No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…

As mentioned, the default setting of the U.S. Constitution is to allow states to address the issues and controversies that are not explicitly mentioned in the Constitution.  This allows for some state-to-state policy innovation before the issue reaches the national stage, if it ever does.  

What has been described above is the architecture of American federalism: The federal government is supreme, but state governments have a defined area of power - including those areas not defined by the constitution.   

The remainder of Lesson 2 examines how this federal-state tension has played out in several important areas of public policy.  

Case Studies

· Interstate Commerce

· Civil Rights

· Euthanasia

· Medical Marijuana 

 

Interstate Commerce Interestingly, odd cases and sudden controversies have a way of setting precedent and changing the nature of the federal-state balance of power.  

Consider, for example, the Supreme Court case of McCulloch v. Maryland (1819).  In 1818, the state of Maryland passed legislation to impose taxes on a bank chartered by Congress, the Second Bank of the United States, partly inspired by Alexander Hamilton.  

McCulloch v. Maryland (1819)

Facts of the Case

In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.  

Question

The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?  

Conclusion

In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme . . .they control the constitution and laws of the respective states, and cannot be controlled by them."  

The OYEZ Project, McCulloch v. Maryland, 17 U.S. 316 (1819)

The decision was a victory for the federal government and a defeat for the states.

 

A similar outcome was achieved in the Supreme Court case Gibbons v. Ogden (1824), when Chief Justice John Marshall said that the federal commerce clause outranked a state law that had granted a monopoly to one group of people to run steamboats.

 

 

Steamboats and the Commerce Clause  

Gibbons v. Ogden (1824)

Facts of the Case A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction. Laws like this one were duplicated elsewhere which led to friction as some states would require foreign (out-of-state) boats to pay substantial fees for navigation privileges. In this case a steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted, which forced him to obtain a special operating permit from the state to navigate on its waters.  

Question

Did the State of New York exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce?  

Conclusion

The Supreme Court found that New York's licensing requirement for out-of-state operators was inconsistent with a congressional act regulating the coasting trade. The New York law was invalid by virtue of the Supremacy Clause. In his opinion, Chief Justice Marshall developed a clear definition of the word commerce, which included navigation on interstate waterways. He also gave meaning to the phrase "among the several states" in the Commerce Clause. Marshall's was one of the earliest and most influential opinions concerning this important clause. He concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress.  

 The OYEZ Project, McCulloch v. Maryland, 17 U.S. 316 (1819)

 

The majority opinion said that the U.S. Constitution had a supremacy clause and a commerce clause that allowed the federal government to regulate interstate commerce (between two states).  The Supreme Court extended this power to regulate commerce within the borders of a single state.

 

Before the decision, it was thought that the federal government had power over only interstate commerce.  But the Court's opinion said that the commerce clause also applied here.  Thus, the Supreme Court extended the definition of interstate commerce and cemented the power of the federal government over the states when laws conflicted.

 

Many of these same issues arose decades later when the Franklin Delano Roosevelt administration attempted to prohibit the use of child workers in the United States. Child Labor in America

Child labor was common at the turn of the century, but it was not without its critics.  The Keating-Owen Child Labor Act of 1916 was an attempt to outlaw child labor for humanitarian reasons.  The Act was vigorously backed by women's groups and progressives; it was opposed by industry and states' rights advocates.  The Keating-Owen Child Labor Act states, in part:

 

 

The Keating-Owen Child Labor Act

"That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce, any article or commodity the product of any mine or quarry situated in the United States, in which within thirty days prior to the time of the removal of such product there from children under the age of sixteen years have been employed or permitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment, situated in the United States…"

The act was struck down as unconstitutional by the Supreme Court just two years later because it overstepped the purpose of the federal government's powers to regulate interstate commerce.  It was up to the states, the argument ran, to prohibit child labor. 

 

The Supreme Court found the Keating-Owen Child Labor Act to be unconstitutional in Hammer v. Dagenhart (1918): 

 

Hammer v. Dagenhart (1918)

"The power of Congress to regulate interstate commerce does not extend to curbing the power of the states to regulate local trade."

 

 

A constitutional amendment was soon proposed to give Congress the power to regulate child labor, but it was stalled in the 1920s by an effective campaign to discredit it.

 

Federal protection of children would not be obtained until passage of the Fair Labor Standards Act in 1938, which was also challenged before the Supreme Court before emerging intact.  In U. S. v. Darby (1941), the Supreme Court upheld the constitutionality of the Fair Labor Standards Act, and it is still in force today.

 

Justice Stone in U. S. v. Darby (1941)

"The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce."

 

After World War II and continuing to present day, the Supreme Court still hears many cases involving inter-state commerce.  While the basic parameters of the law are in place, individuals, corporations, state governments and the federal government often bring suits against one another, on constitutional grounds.

 

Civil Rights

The question of civil rights, particularly for African Americans, lies at the center of the debate over federalism. 

 

After the Civil War, and using the amendment process, the U.S. federal government sought to set national standards for civil rights.  The 13th, 14th, and 15th amendments were instrumental to this process in which the federal government trumped individual states, particularly in the South, which had historically oppressed African Americans.

 

The 13th Amendment is worded as follows:

 

Amendment XIII

Section 1

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.  

Section 2

Congress shall have the power to enforce this article by appropriate legislation.

The 14th Amendment is worded as follows, and its Section 1 contains the famous "Equal Protection Clause."

 

Amendment XIV

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.  

Section 5

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The 15th Amendment is worded as follows:  

Amendment XV

Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.  

Section 2

The Congress shall have the power to enforce this article by appropriate legislation.

After the Civil War, the Supreme Court grappled with civil rights in a new constitutional framework.  The decisions did not always favor African Americans.  

Consider United States v. Cruikshank (1876), a case that arose out of the Colfax Massacre, when a group of white men (including members of the Ku Klux Klan) clashed with members of Louisiana's almost all-black state militia at the local courthouse.  The Fourteenth Amendment was held by the Supreme Court of the United States to apply only to state actions, not private acts of violence.  

United States v. Harris (1883) held that the Equal Protection Clause did not apply to an 1883 prison lynching since the Fourteenth Amendment applied only to states, not to individual criminal matters.  

The Civil Rights Cases of 1883 allowed segregation by striking down the Civil Rights Act of 1875, a statute that prohibited racial discrimination in public accommodations. The Supreme Court held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals; because the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional power under section five of the Fourteenth Amendment.  

Consider, too, the Supreme Court case of Plessy v. Ferguson (1896).  That 1896 case concerned Homer Plessy, a light-skinned African American.  Homer sat down in the "whites only" car of a Louisiana train, refused to move, and was arrested.   

Plessy's defense rested on the unconstitutional infringement of the Equal Protection clauses in the 14th Amendment.  But the Supreme Court, reluctant to go against the prevailing norms of the day, disagreed.  The Court, employing an "original intent" of the Constitution argument, held that state law upholds racial segregation.  The Court further said that separate facilities for races satisfied the 14th Amendment so long as they were equal.  (The actual phrase "separate but equal" was not part of the opinion but it was implied).  

Brown v. Board of Education (1954) broke with the history (or precedent) of the Supreme Court.  This case drove to the central question:  Does segregation in public schools violate the Equal Protection of the 14th Amendment?  

The Supreme Court said that it did.  The Court found that segregation in public education has a detrimental effect on minority children, making them feel inferior.  The Court focused on the psychological impact of segregation.  They also found that the idea of "separate but equal" was inherently wrong because, as Chief Justice Warren wrote: "Separate educational facilities are inherently unequal."  

During the civil rights movement of the 1950s and 1960s, states' rights became strongly associated with Southern racial politics, with proponents of racial segregation and Jim Crow laws (which segregated the races) denouncing federal interference in these state-level policies.  Over time, however, the Supreme Court and lower courts, pursuing what critics call "judicial activism," have forced states to conform to the provisions in the 13th, 14th, and 15th amendments.  

Abraham Lincoln

"That I am not a member of any Christian Church, is true; but I have never denied the truth of the Scriptures; and I have never spoken with intentional disrespect of religion in general, or any denomination of Christians in particular."  

"I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except Negroes." When the Know-Nothings get control, it will read "all men are created equal, except Negroes and foreigners and Catholics.  When it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty - to Russia, for instance, where despotism can be taken pure and without the base alloy of hypocrisy."  

"Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration."

 

Euthanasia

Euthanasia is another issue that raises questions over the balance between national and state power; it has become an issue that speaks to federalism. Euthanasia refers to assisted dying, mercy killing or, in legal terms, to "doctor-assisted suicide."  Usually, euthanasia is relevant to patients with terminal cancer or to those in a persistent vegetative state (PVS).  Euthanasia, then, is illegal in all 50 states.  However, physician-assisted suicide (PAS) is legal in four states....  

Dr. Kevorkian   

In the U.S., the topic of euthanasia was brought to the forefront of politics by Dr. Kevorkian.  He assisted in the deaths of more than 100 people in less than 10 years.  Often, the State of Michigan tried to prosecute him for murder, but he managed to convince juries to let him go.  In 1999, however, Dr. Kevorkian was convicted of administering a lethal injection to Thomas Youk.

 

Case: Washington v. Glucksburg (1997)

In Washington v. Glucksburg (1997), Dr. Harold Glucksberg and a nonprofit organization challenged the State of Washington's ban on physician assisted-suicide.  Washington had criminalized the promotion of suicide attempts by those who knowingly cause or aid another person to attempt suicide.  Glucksberg alleged that Washington's ban was unconstitutional. While the case was decided on the Fourteenth Amendment's Due Process Clause, it has clear implications for personal privacy rights.  

The Court held that the while individuals have a right to refuse artificially-induced life extension, that the right to assisted suicide is not a fundamental liberty.  

Decision of the Court:  9 – 0  

Opinion:  Justice Rehnquist

More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide…

That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. Swift, in his early 19th-century treatise on the laws of Connecticut, stated that "[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal."  

As the court below recognized, Washington's assisted suicide ban implicates a number of state interests…  

First, Washington has an "unqualified interest in the preservation of human life."

Those who attempt suicide--terminally ill or not--often suffer from depression or other mental disorders…  

The State's interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and "societal indifference."…  

Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.

Conclusion Physician-assisted suicide has again reached the Supreme Court in Gonzales v. Oregon (2005).  The case involves Oregon's "Death with Dignity Act" passed by the state legislature.  It allows doctors to prescribe lethal doses of controlled drugs to terminally-ill patients.  Under the law, a capable adult Oregon resident who has been diagnosed with a terminal illness by a physician may request in writing a prescription for a lethal dose of medication. The request must be confirmed by two witnesses, one of whom cannot be related to the patient, be entitled to any portion of the patient's estate, be the patient's physician, or be an employee of a health care facility caring for the patient.   

More specifically, Oregon's Act includes the following:

State of Oregon's description of the Death with Dignity Act:

The law states that, in order to participate, a patient must be: 1) 18 years of age or older, 2) a resident of Oregon, 3) capable of making and communicating health care decisions for him/herself, and 4) diagnosed with a terminal illness that will lead to death within six (6) months. It is up to the attending physician to determine whether these criteria have been met.

Attorney General John Ashcroft (then Alberto Gonzalez) threatened to revoke the licenses of doctors involved.  The State of Oregon then sued Ashcroft (then, Gonzalez).  The Ninth Circuit Court of Appeals ruled for Oregon and against Gonzalez, saying that the Attorney General had no jurisdiction in the case.  So, then the case went to the Supreme Court.  It needs to be noted that the Controlled Substances Act (CSA) is a federal law that regulates the legal and illicit manufacture, distribution, and possession of drugs, a physician may prescribe controlled substances to patients only for a “legitimate medical purpose.”

In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that Congress intended the CSA to prevent doctors only from engaging in illicit drug dealing, not to define general standards of state medical practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to declare a medical practice authorized under state law to be illegitimate.  

In Oregon at least, the Death with Dignity law was upheld.  Oregon appeared to have circumvented the earlier ruling by emphasizing the voluntary and "self-administration" of lethal medications by people, with doctors playing a more minor role.  

Medical Marijuana

Medical marijuana raises fascinating constitutional issues.  But first, it is important to describe the use of marijuana for medical reasons.  The debate below revolves around whether or not marijuana should be a legal remedy, one prescribed by doctors for their patients.  This is to be distinguished from its recreational use, which since the 1960s has been common.   

There is medical and scientific consensus that marijuana stimulates the appetite of AIDS patients; that it relieves pressure in the eyeball for glaucoma patients; and there is even growing consensus that marijuana can lowers a person's blood pressure over time.  

 Of course, it should be said that marijuana use has also been associated with long-term memory loss, confusion, paranoia and respiratory problems.  Defenders of marijuana use claim that these problems have been traditionally exaggerated by alarmist propaganda such as the 1936 film Reefer Madness.  For many patients of AIDS and glaucoma, however, the benefits appear to outweigh the costs – and many doctors agree.  

Because of these reputed effects, 56% of California voters voted in favor of Proposition 215 (the Compassionate Use Act) in 1996, legalizing the use of marijuana.  This is the core of the proposition:

 

Proposition 215: Text of Proposed Law  

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.  

(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

However, Proposition 215, which passed in California, conflicted with the Federal Controlled Substances Act.  

Naturally, court cases soon followed to test the legality of the California law.  After all, the federal government began to arrest doctors who prescribed marijuana.  The California based Ninth Circuit Court, however, ruled in favor of medical marijuana.  This court found that the federal government's commerce clause power was weak, and that Congress lacked the power to enforce federal law in this medical sphere.   

The Ninth Court cited US v. Lopez (1995), a Supreme Court case that restricted the federal government's right to control firearms at the state level.  This same reasoning would prevent the federal government from interfering in medical marijuana laws at the same level.  Medical marijuana activists accused conservatives of hypocrisy in their claim that states should be allowed to set their own laws regarding guns (and civil rights) but not when such state laws legalized marijuana (or same-sex marriage).   

In Gonzalez v. Raich (2005), the Supreme Court ruled against the use of medical marijuana.  Conservative judges who favored states' rights in other circumstances had to stake out a rather delicate position in order to rule against medical marijuana.  After all, the states had traditionally regulated and licensed the practice of medicine, not the federal government.  

The Court overturned California's medical marijuana laws not for moral reasons but because legal marijuana might impact the "interstate commerce" of a substance, some pointed out, that was supposed to have no interstate commerce.  Whatever one's view of the decision, it was unusual that the Supreme Court took into account the commercial effects of an underground activity, that is, of commerce in a contraband substance. 

Justice Stevens delivered the opinion:

The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.  The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.  Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.  Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana, a fact Justice O'Connor's dissent conveniently disregards in arguing that the demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," post, at 14, 16, Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.  

Not all justices agreed.

Justice O'Connor wrote a dissent:

We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite…  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292—293.  

Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But, whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent. John Calvin Jones, J.D., in "The War on Drugs is Still Unconstitutional" found it amusing that medical marijuana was banned on the largely grounds that legalizing it would impact the price of regular marijuana.

 

John Calvin Jones

Note the parallel, as prostitution is banned, consensual sex can be criminalized, because the more often that people have sex for free – especially if they are married, the lower the price that prostitutes will charge.

The Supreme Court has indeed prohibited medical marijuana, but the enforcement of this decision remains problematic, as tens of millions of Americans continue to break the federal law.  And, to make this issue even more controversial, both Washington and Colorado recently passed state initiatives legalizing personal recreational use of marijuana! 

 

 

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So, while Al Sharpton and Jesse Jackson continue in the liberal-progressive current of Martin Luther King, Alan Keyes represents a much smaller but still growing group of conservative African-Americans. Just how small are they? Only about 11% of African-Americans voted for President George W. Bush in the 2004 election. On cultural issues, African-Americans are about as equally divided as other demographic groups. African-American participation in church is high, and these religious affiliations tend to produce what they would describe as pro-life and pro-family opinions. Other African-Americans, more secular and tending to live in larger metropolitan centers, tend to hold more liberal attitudes about culture. Compared to Anglo Americans, African-Americans do reflect a much more liberal or progressive set of ideas regarding the role of the federal government in the economy and in politics. African-Americans are also largely opposed to the Iraq War – a position held long before the war became unpopular among whites as well. The Republican and Democratic Parties The United States has a two-party system with occasional third parties and numerous smaller parties. These third parties will be examined in a subsequent unit. The two-party system is the product of U.S. election law, which has a “winner-take-all” electoral system. For example, a presidential candidate who wins the state of California by one vote carries all its electoral votes for that state; his opponent gets zero. For this reason, political forces tend to congregate around one or the other party. Generally speaking, Republicans and Democrats have represented two rival cultural groups. The Republican Party The modern Republican Party is built upon a coalition of white-collar management, investors, agribusiness, conservative religious groups, Cuban-Americans and established Hispanics. The Republican Party is primarily geared towards protecting the free-market system and preserving traditional family values. This is the party that includes Abraham Lincoln, Teddy Roosevelt, Dwight Eisenhower and Ronald Reagan. The Republican Party also prides itself on its effort to restore the work ethic and eliminate the culture of dependency on a welfare state. President Ronald Reagan was one of the first Republican presidents to attempt to roll back many of the social programs begun in FDR’s “New Deal” or with Johnson’s “Great Society.” The Republican Party is also more popular with people in the military, as Republicans have been traditionally seen as stronger supporters of national defense. The Republican Party has traditionally led challenges to Fidel Castro’s Cuba, the Soviet Union and other communist regimes. Critics of the Republicans would say that in recent years the Republicans have moved away from free market principles to the protection of monopolies. Also, critics of the Republican Party charge that too many of its members launched head first into Iraq without questioning the consequences of having a protracted occupation. Another major criticism of Republicans is that too many place great faith in the federal government and its intelligence services, which might lead to a “Big Brother” government of domestic spying. One vocal critic of the Republican Party is actually a Republican from Texas with libertarian leanings, Ron Paul. In a recent debate with the other Republican candidates, he reminded them that the Republicans used to be truly “conservative” and opposed to military intervention unless absolutely necessary; opposed to nation-building; and opposed to excessively large defense budgets. This echoes President Dwight Eisenhower, also a Republican, who warned Americans of the rapid growth of a “military-industrial complex.” Today, the Republican Party might be better described as “neo-conservative” than “conservative,” as it has put some distance between itself and the ideas of previous Republican administrations. The Democratic Party The modern Democratic Party is built upon the “New Deal” coalition of industrial blue-collar workers, immigrants, minority groups (particularly African-Americans), small farmers, teachers and academics. This New Deal coalition was pieced together by President Franklin Delano Roosevelt in the 1930s, when free-market capitalism collapsed during the Great Depression. As FDR and his backers saw it, there was no choice left to the U.S. government than to expand programs of training and entitlements. This is the Party of FDR, John F Kennedy, Bill Clinton, and Barack Obama. This New Deal coalition has changed somewhat, as unions are no longer powerful. Still, people in large cities and immigrant groups tend to vote Democratic. The Democratic Party tends to attract people who self-identify as progressives, liberals, modernists and secularists. Democrats pride themselves on being the party of JFK, who launched the Apollo program to reach the moon and who started the Peace Corps. Critics of the Democratic Party would say that the Democratic Party has gone too far in the direction of providing “free lunches” with a vast array of social services, and that the party is steadily constructing a cradle-to-grave welfare system. Finally, conservative Republicans do not like the tendency among many Democrats to be in favor of same-sex marriage and the decriminalization of drugs. Also, detractors of the party insist that Democrats are weak on national defense, and that they would not take strong military action against Iran or North Korea if the crisis became extreme. Conclusion It used to be that most people were strongly Democratic or Republican – that their sense of “party ID” was pronounced. Then, beginning in the 1970s, more Americans became “Independent,” voting in one election for a Republican and in another for a Democrat – depending on the candidate. Many voters increasingly split their vote, voting for a Republican national candidate and, on the same ballot, a Democratic local candidate. Today, while there is an increasing degree of polarization in terms of ideology; people are not necessarily turning toward traditional political parties for guidance.

During his 1956 presidential campaign, a woman called out to Adlai E. Stevenson: “Senator, you have the vote of every thinking person!” Stevenson replied: “That's not enough, madam, we need a majority!” Expected Outcomes To understand how political candidates conduct campaigns; to comprehend how the American electoral system works and how the electoral map reveals political turning points; and to analyze the style and substance of leading candidates in the 2008 election. Overview Today, American politics has come a long way since the days of whistle-stop tours and street pamphlets, which, before the age of television, encapsulated political messages. Some Presidential Campaign Slogans from the Past 1860 Abraham Lincoln "Vote Yourself a Farm" 1864 Abraham Lincoln "Don't Swap Horses in the Middle of the Stream" 1888 Benjamin Harrison "Rejuvenated Republicanism" 1896 William McKinley "Patriotism, Protection, and Prosperity" 1900 William McKinley "A Full Dinner Bucket" More sophistication has now entered the process of campaign and elections. Politicians hone their messages with “focus groups” and, often, modify their positions based on opinion polls. As this Lesson travels across time, it reveals that the technology and sophistication of campaigns has changed dramatically. That being said, it is not possible to say that campaigns are more substantive today than in previous decades or centuries. In the age of the whistle-stop tour, not many Americans were exposed to political messages – but those who were often got an earful. Consider, for example, the famous Lincoln-Douglas debates of 1858 (held for a US Senate seat from Illinois), were complex, nuanced, and substantive. Today, television enables candidates to reach out to tens of millions of people, but they often do so with a simplistic mix of soundbites, catchphrases and bumper-sticker slogans. Elections for Congress are held at the state level, and rules vary from state to state. This unit is primarily concerned with campaigns and elections for national office – for the Presidency. The United States Electoral College is the official name of the group of Presidential Electors who are chosen every four years to cast the electoral vote and thereby elect the president and vice president of the United States. It was established by Article Two, Section One of the United States Constitution, which provides for a quadrennial election of Presidential Electors in each state. In each election, there are 538 possible electoral votes to be won (270 are needed to win), with large states such as California worth more than small states such as Rhode Island. There is a rough but not exact correlation between population size and electoral votes. The Electoral College dilutes the votes of population centers that might have different concerns from the rest of the country. The system is supposed to require presidential candidates to appeal to many different types of interests, rather than, say, the urban voter. Thinly-populated states like Wyoming are worth 3 votes, even though they have only about 500,000 people. As a result of these inherent imbalances, it is possible for a candidate to lose the popular vote but still win in the right combination of states, thus putting him over the top. Bush in 2000, for example, lost the popular vote but won the electoral vote as decided by the Supreme Court. This is a “winner take all system.” If a candidate wins California by just one vote, for example, he or she wins all 55 votes and the rivals win zero. John Kerry (D-MA) actually won California in 2004 (as did Al Gore in 2000), but that was not enough to hold back the red tide of Republican states in the heartland, and President George Bush won re-election. Each state is worth between 3 and 55 votes depending on the last census estimate of population. In the system above, small states with few people are actually overvalued because they receive 3 votes. In reality, many states are divided by county, and even many counties are divided, giving rise to the concept of a “Purple America.” Some centrist Republicans and Centrist democrats ran in 2008 not in terms of shoring up existing Red or Blue “bases” but rather by appealing to moderates and centrists in each state, hoping to sway “purple” into either “red” or “blue.”

Since getting an amendment to the Constitution passed is unrealistic in today's political environment, the only realistic way to modify the Electoral College is to change how states select their electors.  Most states allot electors based on who wins the popular vote in the state ("winner take all," as previously mentioned).  However, there are other ways a state could allot these votes.  A state could award electoral votes based on which candidate won each congressional district in the state.  Or, a state could allocate the electoral vote proportionally as a result of the state-wide election results.    Campaigns and Advertising Reaching a position of candidacy for public office requires campaigning. It has often required meeting citizens, and pressing the flesh, in schools, factories and universities. A century ago, candidates simply boarded a train and undertook a “whistle-stop tour” of America, stopping when crowds gathered to give a speech. Television, however, revolutionized political campaigns, especially at the national level. While advertising for commercial products – like soap – normally emphasizes its positive qualities, political ads are distinguished by the fact that many of them are so negative. They not only point out the advantages of the principal candidate but also point out the disadvantages or weaknesses of the rival. The first truly negative ad that made a deep impact on the campaign was that of Lyndon Johnson against Barry Goldwater, an Arizona Republican considered by many to be an extremist and a war-monger. Johnson took out an ad that implied that under a Goldwater presidency there would be an atomic World War III. The ad showed a young girl plucking the leaves of a daisy, and then a male narrator counted down: 3, 2, 1…. BOOM! The DAISY ad is widely considered to be the most effective and powerful political advertisement ever concocted. Check it out: Daisy Girl: Lyndon Johnson 1964 Clearly, in the past several decades there has been a shift in political advertising from positive to negative. Virtually all campaigns for state-wide office, and for the president, contain many negative ads about the opposing candidate – ads that question his or her character, record, motivations, sexuality or any feature that reflects negatively on that person. But the below are not the only incidents to consider. As you can see in the Founding Fathers' Dirty Campaign article, contention has been around since the earliest days. Some advertisements are positive, emphasizing the contributions and characters of the candidate. Now, you will be seeing the most interesting political ads here. Some are positive and others negative. Be sure to analyze the ad from the perspective of marketing. Who is the target audience? What is the strategy? Please explore the following links: Reagan 1984 Ad - "It's Morning in America Again" Commercial: Bush 1988 Election Ad - Willie Horton Clinton/Gore 1996 Campaign Ad--Bob Dole's Record Wrong for Our Future Swiftboat Veterans Ad on John Kerry - Sellout (2004) 1984 The 1960 Election (Kennedy v. Nixon) In 1960, the era of Dwight D. Eisenhower was coming to an end. He had completed two terms as a Republican president and was most famous for leading US forces in Europe during WWII. Eisenhower had been a popular and relatively successful president, but many Americans were eager for a fresh face and a new party. Recalling the experience of 1928 Catholic Democratic presidential nominee Al Smith, many wondered if anti-Catholic prejudice would affect Kennedy's standing among non-Catholics. Kennedy's victory over Humphrey in the largely Protestant state of West Virginia proved decisive. Kennedy, with a youthful image and the aid of his father's Joseph P. Kennedy political skills, carried the nomination at the Democratic convention in Los Angeles. Kennedy selected Johnson, the Senate Majority Leader, as his vice presidential candidate to balance the ticket and secure Southern votes. Many Southern Democrats were opposed to the national Democratic Party's platform on civil and voting rights. A crucial factor in this election was the first televised presidential debate. Nixon refused television makeup and appeared tired, especially in contrast to Kennedy. It is a commonly repeated story that voters who had listened to the debate on radio thought Nixon had won, but the television audience gave the win to Kennedy. The main economic issue during the election was the USSR's high economic growth rate in comparison to the United States'. According to analysis at the time, the Soviet economy was expected to overtake the American economy by 1984. Kennedy also claimed the Republican administration had allowed a missile gap by not matching Soviet defense spending and allowing the military to weaken. The claim was made plausible by Soviet superiority in the space program, evidenced by their successful Sputnik program and numerous United States launch failures. However, there is evidence there never was a gap as far as missiles were concerned. The November 8 election was extremely close-- Kennedy beat Nixon by two tenths of a percentage point (0.2%) in the popular vote. The New York Times, summarizing the discussion late in November, spoke of a “narrow consensus” among the experts that Kennedy had won more than he lost as a result of his Catholicism. Some Republicans alleged that Kennedy benefited from vote fraud especially in Texas and Illinois. There is no certainty that Nixon would have won both Texas and Illinois (which he would have had to do to win the electoral vote). What is certain, however, is that in Illinois, Kennedy won by a bare 9,000 votes, and Mayor Daley, who held back Chicago's vote until late in the evening, provided an extraordinary Cook County margin of victory of 450,000 votes. The Republican party urged Nixon to pursue recounts and challenge the validity of some of the votes for Kennedy, especially in the pivotal states of Illinois, Missouri and New Jersey, where large majorities in Catholic precincts handed Kennedy the election. Nixon publicly refused to call for a recount, saying it would cause a constitutional crisis. The 1968 Election (Nixon v. Johnson) In 1968, President Lyndon Baines Johnson announced that he would not be seeking re-election. The war in Vietnam was draining his presidency of energy and popularity, and LBJ had become a much-hated figure on college campuses. Johnson had won in 1964 shortly after assuming the presidency in the wake of John F. Kennedy’s assassination. The election of 1968 revolved around many issues, particularly around civil rights and the war raging in Vietnam. The campaign also included the assassination of liberal Democratic candidate Robert F. Kennedy, John’s younger brother. Hubert Humphrey, the Democratic candidate, was damaged by the scenes of riots and chaos at the Chicago Convention. Thus, Richard Nixon, who had previously been a presidential candidate, won handily on a law-and-order platform by appealing to America’s “silent majority.” The emergence of the hippie counterculture, the rise of New Left activism, and the emergence of the Black Power movement exacerbated social and cultural cleavages between classes, generations and races. Every summer during Johnson's administration, known thereafter as the "long, hot summers", major US cities erupted in massive race riots that left hundreds dead and destroyed hundreds of millions of dollars in property. The Vietnam War had escalated, with over 500,000 Americans inside the country, suffering thousands of casualties every month. The Tet Offensive of February 1968 made the war front-page news for the first time. The military demanded hundreds of thousands more soldiers--which could only be provided by a draft because Johnson refused to use the Reserves of the National Guard. In the months following Tet, Johnson's approval ratings fell below 35%. The American Independent Party was formed by George Wallace, whose pro-segregation policies had been rejected by the mainstream of the Democratic party. The impact of the Wallace campaign was substantial, winning the electoral votes of several states in the Deep South. Wallace also accomplished a strong showing in several northern states. Nixon campaigned on a "law and order" theme, which appealed to many voters angry at hundreds of violent riots that had taken place across the country, with Army troops called out in Detroit and Washington. He had devised a "southern strategy," which was designed to appeal to the middle class southern voters, who traditionally voted Democratic but who were ignored by Humphrey. Humphrey campaigned on continuing the Great Society programs initiated by President Johnson. Labor unions took a major role attacking Wallace, who was winning half their members according to summer polls. In the end, the war became the central issue of the Democratic campaign, with the party deeply divided and Humphrey hounded by anti-war protesters whenever he made public appearances. Late in the campaign Humphrey, who trailed badly in the polls, began to distance himself from the Johnson administration on the Vietnam War, calling for a bombing halt. He began to gain momentum, especially when President Johnson actually announced a bombing halt, and even a possible peace deal, shortly before the election. During the campaign, Nixon promised a new approach, which was ridiculed by Democrats as a "secret plan" although Nixon never actually claimed to have a 'secret plan.' In the final days of the election, much was riding on the success or failure of the Paris Peace Talks with the North Vietnamese. Nixon clinched the electoral vote easily on November 5, 1968, although the popular vote was closer than expected. The 1972 Election (Nixon v. McGovern) By 1972, the Vietnam War had not calmed down. If anything, the war had become the central issue in American society. The issue of civil rights for African-Americans was also central. The 1972 election was a landslide. George McGovern ran on a platform of ending the Vietnam War and instituting guaranteed minimum incomes for the nation's poor. Nixon ran a harsh campaign with an aggressive policy of keeping tabs on perceived enemies, and his campaign aides committed the Watergate burglary to steal Democratic Party information during the election. Nixon's level of personal involvement with the burglary was never clear, but his tactics during the later coverup would eventually destroy his public support and lead to his resignation. Also, Nixon's so-called "southern strategy" of reducing the pressure for school desegregation and otherwise restricting federal efforts on behalf of blacks had a powerful attraction to northern-blue collar workers as well as southerners. The 1972 campaign witnessed the birth of “gonzo journalism.” This guerrilla-style reporting paid little respect to the old code of conduct, and Hunter S. Thompson loaded up on alcohol and drugs to cover the events. Nixon won the election in a landslide, but the seeds of his eventual ouster were planted as people working for his campaign broke into the Democratic headquarters in the Watergate hotel. The 1980 Election (Reagan v. Carter) Jimmy Carter had won the presidential election in 1976 rather handily. He promised to restore honesty and integrity to the White House after the Republican Party’s scandals concerning the Watergate break-in. Jimmy Carter did in fact live up to his promise never to lie to the American people, and he is widely considered to be an honorable person, but his administration was plagued by economic recession and foreign policy disasters. In many ways, Carter had to suffer the consequences of the 1973 oil embargo. This OPEC-led embargo was originally inspired by the Arab nations’ hostility to the US having helped Israel in the 1973 Yom Kippur War. The embargo was short, but it strengthened the oil cartel. Saudi Arabia and other nations managed to drive up the price of oil slowly but steadily, leading to inflation, recession and “stagflation” (high inflation with high unemployment, two indicators which do not normally accompany one another). Apart from economic difficulties, the Iranian Revolution of 1979 led to the Iranian taking of American diplomats as hostages. This was an ordeal played out day after day. When Carter organized a rescue attempt, two large helicopters crashed in the Iranian desert, and the American hostages remained in Teheran. The Soviet invasion of Afghanistan highlighted America’s weak military position. Ronald Reagan, a former actor and Governor of California, found that the political landscape was fertile for his message: “It’s Morning in America.” Reagan promised a return to the 1950s-style formula of aggressively confronting communism, defending traditional values at home, and bolstering free market principles. This election was a landslide for Ronald Reagan. The 1980 election is considered by some to be a realigning election, meaning that it fundamentally altered the electoral map for the parties. In effect, Reagan attracted many conservative Democrats, called “Reagan Democrats,” especially in the South. Reagan took the South away from the Democrats – and with the exception of Bill Clinton, who made some gains into the South, the Democrats have never been able to make inroads into this region. Reagan ran a campaign of upbeat optimism, together with implications of a more militarily aggressive foreign policy. This contrasted with the "malaise"-ridden attitude of the late Carter administration and its apparent impotence in the face of the Iran hostage crisis. Towards the end of the campaign, as Carter's poll numbers continued to slip and Reagan's rose, Carter responded with more militaristic rhetoric and announced plans to reinstitute the military draft; this succeeded only in alienating some of Carter's supporters. With inflation and interest rates at record highs, and unemployment stubbornly high, Carter had few boasts to make about the economy. He had a pro-feminist record, but the management of many women's groups attacked him for not doing even more. On foreign policy the Soviet invasion of Afghanistan spelled the end of detente and the renewal of the Cold War. Carter moved to the right, but Reagan was already there. Reagan promised a restoration of the nation's military strength. Reagan also promised an end to "'trust me' government" and to restore economic health by implementing a supply-side economic policy. Reagan promised a balanced budget within three years (which he said would be "the beginning of the end of inflation"), accompanied by a 30% reduction in taxes over those same years. With respect to the economy, Reagan famously said, "A recession is when your neighbor loses his job. A depression is when you lose yours. And recovery is when Jimmy Carter loses his." In August, after the Republican National Convention, Ronald Reagan gave a campaign speech at an annual county fair on the outskirts of Philadelphia, Mississippi, which civil rights leaders said was an insensitive reminder of the Mississippi civil rights worker murders of 1964. Reagan announced, "I believe in states' rights." He also said, "I believe we have distorted the balance of our government today by giving powers that were never intended to be given in the Constitution to that federal establishment." He went on to promise to "restore to states and local governments the power that properly belongs to them." [1] Critics claimed that the speech signaled Reagan's opposition to the civil rights reforms of the 1960s. However, Reagan supporters would argue that the speech was simply a statement of Reagan's conservative political ideals. As in most elections fought against an incumbent, the voters already had a clear impression of Carter, which was largely negative by this time, and both sides spent most of their effort trying to define Reagan, the challenger. The campaign was largely negative, with many voters disliking Carter but also perceiving Reagan as an intellectual lightweight, possibly unable to handle the presidency and with various questionable policies. The election of 1980 was a key turning point in American politics. It signaled the new electoral power of the suburbs and the Sun Belt. Reagan's success as a conservative would initiate a realigning of the parties, as liberal Republicans and conservative Democrats would either leave politics or change party affiliations through the 1980s and 1990s to leave the parties much more ideologically polarized. Although Reagan's candidacy was burdened by Representative John B. Anderson of Illinois, a liberal Republican who ran as an independent, the three major issues of the campaign were far greater threats to Carter's prospects for reelection: the economy, national security, and the Iranian hostage crisis. Carter seemed unable to control inflation and had not succeeded in obtaining the release of US hostages in Tehran before the election, losing eight soldiers in a failed attempt to mount a rescue. The election was held on November 4, 1980. Reagan won by 10% of the popular vote. Republicans also gained control of the Senate for the first time in twenty-five years on Reagan's coattails. The electoral college vote was a landslide, with 489 votes (representing 44 states) for Reagan and 49 for Carter (representing 6 states and the District of Columbia). The 1992 Election (Clinton v. Bush Sr.) The 1992 election witnessed the emergence of sex scandals on the national political scene. True, Senator Gary Hart had to drop out of the Democratic primaries in 1988 because of a photograph showing he and a lover on the ship the “Monkey Business,” but 1992 was the first time such issues became truly national. Unfortunately for Bill Clinton, who would win this election, it was not the last time, and he would be periodically hindered by what his critics called “the bimbo factor.”  

Gennifer Flowers - The 12-Year Affair So, let's go to the videotape, shall we? On January 26, 1992, Bill and Hillary Clinton appeared on CBS's "60 Minutes" to confront Gennifer Flowers's lurid account of a 12- year love affair with the candidate in the supermarket tabloid the Star. According to the Wall Street Journal, Flowers was paid upwards of $140,000 for her story. On CBS' "60 Minutes," Steve Croft asked Bill Clinton about Flowers' accusation of a 12-year affair. "That allegation," he replied firmly "is false." In response to a backup question, Clinton added that both he and Flowers herself had previously denied the affair. He went on famously to acknowledge having "caused pain in my marriage," added that he trusted voters to understand what he meant by that, and indicated that he and Hillary would have nothing more to say about it. In effect, Clinton had admitted adultery. Croft never asked the conclusive "have you ever" question, and Clinton certainly never answered it. Long before the CBS interview, Clinton was firmly on record as saying that he thought it out of bounds and would never under any circumstances answer it. It's been reported that he made that understanding an explicit condition of the "60 Minutes" interview. In a contemporaneous ABC News poll, 73 percent of respondents said they agreed with Clinton that whether or not he'd ever had an extramarital affair was between him and his wife. On the following day, Flowers herself held a press conference in a New York hotel ballroom. Dressed in a scarlet dress with matching lipstick, she played excerpts from tape-recordings of several telephone conversations with Clinton.  

The U.S. presidential election of 1992 featured a three-way battle between Republican George Bush, the incumbent President; Democrat Bill Clinton, the governor of Arkansas; and independent candidate Ross Perot, a Texas businessman. Bush had alienated much of his conservative base by breaking his 1988 campaign pledge against raising taxes, the economy had sunk into recession, and his perceived best strength, foreign policy, was regarded as much less important following the collapse of the Soviet Union and the relatively peaceful climate in the Middle East following the defeat of Iraq in the Gulf War. Clinton successfully capitalized on these weaknesses by running as a centrist New Democrat and won the presidency. The Bush reelection effort was built around a set of ideas traditionally used by incumbents: experience and trust. It was in some ways a battle of generations. George H. W. Bush, 68, probably the last president to have served in World War II, faced a young challenger in Bill Clinton who, at age 46, had never served in the military and had participated in protests against the Vietnam War. In emphasizing his experience as president and commander-in-chief, Bush also drew attention to what he characterized as Clinton's lack of judgment and character. For his part, Bill Clinton organized his campaign around another of the oldest and most powerful themes in electoral politics: change. As a youth, Clinton had once met President John F. Kennedy, and in his own campaign 30 years later, much of his rhetoric challenging Americans to accept change consciously echoed that of Kennedy in his 1960 campaign. As Governor of Arkansas for 12 years, then Governor Clinton could point to his experience in wrestling with the very issues of economic growth, education and health care that were, according to public opinion polls, among President Bush's chief vulnerabilities. Where President Bush offered an economic program based on lower taxes and cuts in government spending, Governor Clinton proposed higher taxes on the wealthy and increased spending on investments in education, transportation and communications that, he believed, would boost the nation's productivity and growth and thereby lower the deficit. Similarly, Governor Clinton's health care proposals to control costs called for much heavier involvement by the federal government than President Bush's. During the campaign, Governor Clinton hardened a soft public image when he controversially traveled back to Arkansas to oversee the execution of functionally retarded inmate Ricky Ray Rector. The slogan “It's the economy, stupid” (coined by Democratic strategist James Carville) was used internally in the Clinton campaign to remind staffers to keep their focus on Bush's economic performance and not get distracted by other issues. Governor Clinton successfully hammered home the theme of change throughout the campaign, as well as in a round of three televised debates with President Bush and Ross Perot in October. On November 3, Bill Clinton won election as the 42nd President of the United States by a wide margin in the U.S. Electoral College, despite receiving only 43 percent of the popular vote. It was the first time since 1968 that a candidate won the White House with under 50 percent of the popular vote. The state of Arkansas was the only state in the entire country that gave the majority of its vote to a single candidate; the rest were won by pluralities of the vote. The 2000 Election (Bush Jr. v. Gore) The 2000 election was held between Democrat Al Gore, Bill Clinton’s former Vice President, and Republican George W. Bush, former Governor of Texas. The period of economic growth under Bill Clinton did not translate into support for Al Gore. Some analysts even wonder if Gore’s distancing himself from Clinton’s sex scandal hurt his reputation among voters, who value personal loyalty to a president. Other analysts think that George Bush won largely because of Karl Rove’s “smear machine,” which elevated the tactics of negative campaigning to new heights (or depths). Certainly, the 2000 election was one of the first in which national economic issues and military issues largely took a back seat to the “culture wars.” Evangelical voters, who had felt sidelined by the Clinton administration, turned out to vote for Bush and his policies of “family values.” The 2000 election was settled in the Supreme Court, and the outcome angered many liberals and centrists, largely because the justices appeared to vote along partisan lines – that is, in favor of the party under whose previous presidents had nominated them to office. Furthermore, the conservative justices distanced themselves from the states’ rights argument, which is often invoked on the conservative side, and they cited the 14th Amendment, generally their least favorite amendment. Critics charged that the conservative justices were rejecting their basic principles in order to decide the election in favor of Bush. Infuriating democrats and liberals even further, the Court then claimed that their opinion - which can be certainly be considered “activist” for overturning a state decision - should be restricted to this case and should not set precedent: “Our consideration is limited to the present circumstances…” The 2000 Supreme Court Per Curiam: The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities…

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the president to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront. The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Justice Stevens wrote a dissent: Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. After the Court’s 5-4 decision, George Bush emerged as the winner of the 2000 election because he reached, with Florida, the sufficient number of electoral votes. He did lose the total number of popular votes, however. George Bush is the only president to be reelected after having lost the popular vote in his first election. Previous presidents who did not win the majority of the popular vote (John Quincy Adams, Rutherford B. Hayes, and Benjamin Harrison) were not reelected. The 2004 Election (Bush Jr. v. Kerry) The election campaign was widely seen as a referendum on Bush's job performance to date, in particular his leadership in the prosecution of the "War on Terror." Bush defended the actions of his administration, while Kerry contended that the war had been incompetently executed, and that the Iraq War was a distraction from the "War on Terror," not a part of it. President Bush focused his campaign on national security, presenting himself as a decisive leader and contrasted Kerry as a "flip-flopper." Bush's point was that Americans could trust him to be tough on terrorism while Kerry would be "uncertain in the face of danger." One of Kerry's slogans was, "Stronger at home, respected in the world." This advanced the suggestion that Kerry would pay more attention to domestic concerns; it also encapsulated Kerry's contention that Bush had alienated American allies by his foreign policy. Americans who based their vote on the issues of terrorism or moral values tended to support President Bush. Those who focused on the war in Iraq or economic issues like jobs and health care more often backed Kerry. Over the course of Bush's first term in office, his extremely high approval ratings immediately following the September 11, 2001 terrorist attacks steadily dwindled, peaking only during combat operations in Iraq in the Spring of 2003, and again following the capture of Saddam Hussein in December the same year. Kerry supporters attempted to capitalize on the dwindling popularity to rally anti-war sentiment, symbolized by the box-office success of Fahrenheit 9/11 in the summer of 2004. However, there was also a surprising focus on events that occurred in the late 1960s and early 1970s. This scrutiny was most intense in August and September of 2004. Bush was accused in the Killian documents of failing to fulfill his required service in the Texas Air National Guard. Meanwhile, Kerry was accused by the Swift Vets and POWs for Truth, who averred that "phony war crimes charges, his exaggerated claims about his own service in Vietnam, and his deliberate misrepresentation of the nature and effectiveness of Swift boat operations compels us to step forward." The group challenged the legitimacy of each of the combat medals awarded to Kerry by the U.S. Navy, and the disposition of his discharge.   None of these accusations proved truthful. The election took place on Election Day, November 2, but it was not until the next day that the winner was determined. The election hinged on Ohio, a controversial battleground state which operated black box voting machines, except in some southern counties, such as Hamilton which used a paper punch card ballot.  But, at midday the day after the election, Kerry conceded he had lost the Buckeye State, and the election along with it. The final certified count showed 286 votes for Bush, 251 for Kerry, and 1 for Edwards (due to a faithless elector pledged to Kerry voting for Edwards). According to Republicans (and some Democrats), President Bush won the 2004 vote in terms of both popular and electoral votes (it’s the latter that matters). Bush supporters insist that the president won re-election because of his strong stance on the war on terror and the overall economy, which had been growing. According to some Democrats, however, the decisive factor in the Ohio election was setting up too few voting booths in African American neighborhoods (which lean heavily democratic), leading to excessively long lines compared to white Republican voting places. The Conyers Report was an attempt to document the “voter suppression” that allegedly put George W. Bush into the lead. Not all Democrats – and certainly few if any Republicans – agree with the Conyers Report, but it contributes to the perception among international election monitors that there are deep problems in the current voting process. The 2008 Election (McCain v. Obama)  

The 2008 Presidential Election was a very hard fought battle as there was no incumbent President or Vice President running, and there was no clear favorite. The Democrats made the ongoing conflict in Iraq a central issue of the campaign, while the Republicans tried to maintain their historic advantage in foreign policy. On the domestic front, Republicans argued that the economy expanded rapidly since 2003, while the Democrats tried to make the point that only the wealthiest citizens were benefitting from the economic expansion.

On the Democratic side, New York Senator Hillary Clinton had name recognition, but she was a very divisive figure in the opinion polls. Illinois Senator Barack Obama was the party's golden child, but it was questionable if voters thought  he would be ready for the presidency.  Obama managed to win the Democratic Party nomination over Clinton, Biden, and many others.

Arizona Senator John McCain led the pack for the Republican Party and leaned to the right politically to secure his party’s nomination for president over many other candidates.

The 2008 Presidential Election was dominated by the following issues:

· Iraq War - Candidates were running for cover if they voted for the war, and saying "I told you so" if they didn't.

· Abortion Debate - For decades, pro life and pro choice groups have used every Presidential election to sound off. 

· Illegal Immigration - Candidates walked on eggshells when discussing illegal immigration because nobody had an easy solution.

· Pay as You Go Budgeting - The economy was soaring, but so was the budget deficit.

· Universal Healthcare System - Every election cycle, we hear about the forty million uninsured citizens. There is no shortage of proposed solutions, but none are guaranteed to work.

In the three most recent presidential administrations in which the president could not run for a third term due to term limits (those of Eisenhower, Reagan, and Clinton), the incumbent vice president ran for president (Richard Nixon lost the 1960 election, George H. W. Bush won the 1988 election, and Al Gore lost the 2000 election).

However, Vice President Dick Cheney, announced in 2001 that he would never run for president, a statement he reiterated in 2004. While appearing on Fox News Sunday, Cheney stated: "I will say just as hard as I possibly know how to say... If nominated, I will not run; if elected, I will not serve."

The 2008 race was a non-incumbent or "open seat" election in which a sitting president wais not a candidate. It was the first time since 1928 that neither the sitting president nor the sitting vice president ran for president, though the 1952 general election between Dwight D. Eisenhower and Adlai Stevenson did not include a sitting president or vice president since neither President Harry Truman (who dropped out after losing the New Hampshire Primary) nor Vice President Alben Barkley won the Democratic nomination.

Senator Obama defeated Senator McCain mainly by positioning himself as the candidate for change, from the war in Iraq to the domestic economy. He campaigned hard across the country and across the Internet, targeting minority voters. This approach worked as he handily defeated McCain.

The 2012 Election (Obama v. Romney)

With an incumbent president running for re-election against token opposition, the race for the Democratic nomination was largely uneventful.

For the first time in modern Republican Party history, three different candidates won the first three primary contests in January.  Although Mitt Romney had been expected to win in at least Iowa and New Hampshire, Rick Santorum won Iowa by 34 votes, Newt Gingrich won South Carolina by a surprisingly large margin, and Romney won only in New Hampshire.

Santorum, who had previously run an essentially one-state campaign in Iowa, was able to organize a national campaign after his surprising victory in Iowa. He unexpectedly carried three states in a row on February 7, and overtook Romney in nationwide opinion polls, becoming the only candidate in the race to effectively challenge the notion that Romney was the inevitable nominee. However, Romney won all of the other contests and regained his first-place status in nationwide opinion polls by the end of February.

The 2012 election marked the first time since FDR’s last two re-elections in 1940 and 1944 that a Democratic presidential candidate won an absolute majority of the popular vote in two consecutive elections.  Obama was also the first president of either party to secure at least 51% of the popular vote in two elections since Dwight Eisenhower in 1952 and 1956.

Romney lost his home state of Massachusetts by more than 23%, the first time this has happened for a major-party candidate since John Fremont in 1856!  In addition, since Obama carried Ryan's home state of Wisconsin, the Romney-Ryan ticket was the first major-party ticket since 1972 to have both of its nominees lose their home states.  

Combined with the re-elections of Bill Clinton and George W Bush, Obama's victory in the 2012 election marked only the second time in American history that three consecutive presidents achieved re-election (the first time being the consecutive two-term presidencies of Jefferson, Madison, and Monroe). Conclusion Presidential elections are more than determining who is going to occupy to Oval Office. The direction of the nation itself is largely determined by the presidents it chooses, and for this reason, every four years the United States witnesses the spectacle of a presidential election. Alexis de Tocqueville, a Frenchman who wrote Democracy in America, commented on this phenomenon. Alexis de Tocqueville, Democracy in America : “Long before the appointed day arrives, the election becomes the greatest, and one might say the only, affair occupying men's minds.... The President, for his part, is absorbed in the task of defending himself before the majority.... As the election draws near, intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.... The whole nation gets into a feverish state…”Bottom of Form

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WEEK 3: CONGRESS » Congress

 

WEEK 3: CONGRESS

Congress

Lesson 3:  Congress

Expected Outcomes To understand the structure and process of the Legislative Branch, and to be familiar with both sides of the debate surrounding electronic voting and other controversies.

Overview The US Constitution provides for "separation of powers" and "checks and balances," but it is still fair to claim that the Founding Fathers anticipated that Congress would be the branch that gave clearest voice to the diverse opinions and aspirations of voters. 

That's partly why its duties and responsibilities are included in Article I of the Constitution.  The principal architect of the US Constitution, James Madison, made this clear in The Federalist Papers #51:

 "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." 

James Madison also feared excessive power in the Congress, which is why he and others settled on the proposal for a "bicameral" legislative branch: a House of Representatives and a Senate.  For a bill to become a law, it would have to pass both houses of Congress, which is difficult.

As James Madison continued:

"The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions."

While Madison and others were acutely aware of the potential tyranny of a single despot, king or even president, they were also cautious about the concept of "direct democracy," suspecting that Congress might become a vehicle for "tyranny of the majority."  In such a tyranny, a majority would begin to restrict the rights of individuals and minorities. 

A Joint Session of Congress

As James Madison wrote in The Federalist #10:

“A pure democracy can admit no cure for the mischief of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”

He saw direct democracy as a danger to individual rights and advocated a representative democracy (also called a republic), in order to protect what he viewed as individual liberty from majority rule, or from the effects of such inequality within society.

"The tyranny of the Legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period."

-Thomas Jefferson

Alexis de Tocqueville, in Democracy in America , also raised the problem of an overly-strong legislature in the 1840s:

"The legislature is, of all political institutions, the one which is most easily swayed by the wishes of the majority. The Americans determined that the members of the legislature should be elected by the people immediately, and for a very brief term, in order to subject them, not only to the general convictions, but even to the daily passion, of their constituents. The members of both houses are taken from the same class in society, and are nominated in the same manner; so that the modifications of the legislative bodies are almost as rapid and quite as irresistible as those of a single assembly. It is to a legislature thus constituted that almost all the authority of the government has been entrusted.

But whilst the law increased the strength of those authorities which of themselves were strong, it enfeebled more and more those which were naturally weak. It deprived the representatives of the executive of all stability and independence, and by subjecting them completely to the caprices of the legislature; it robbed them of the slender influence which the nature of a democratic government might have allowed them to retain. In several States the judicial power was also submitted to the elective discretion of the majority, and in all of them its existence was made to depend on the pleasure of the legislative authority, since the representatives were empowered annually to regulate the stipend of the judges."

The US Congress is "bicameral," as mentioned above, meaning it has two chambers.  The upper chamber is the Senate, and it is more powerful because it has the final authority on the budget, foreign treaties and other matters.  Today, each of the 50 states has two senators who serve renewable terms of 6 years.  In a sense, this arrangement gives the smaller states extraordinary and disproportionate power in the Senate.  Wyoming, with fewer than one million people, has the same number of senators as California, with over 38 million people.

The lower chamber is the House of Representatives.  Each of the 50 states has a different number of representatives, depending upon their relative population, and this is determined in the national census conducted every 10 years.  There are 435 representatives who serve renewable terms of 2 years, with California having the most, while small states like Vermont or Wyoming have just one.

Congress is especially relevant today because of the polarization of the American public – of its apparent division into conservative and liberal voting blocs.  While some scholars downplay this division, partisan politics and the culture wars have figured prominently in the campaigns and elections from 1994 onward.  The presidential election of 2000 was the closest ever, and issues of transparency and fairness arose in that election.

For these reasons, issues of electronic voting and redistricting have become more important in Congress.  A small difference in the shape or size of a legislative district at the state level can change the outcome of national politics – as can, for some critics, whether or not a district employs electronic voting machines.  Some of these controversies are addressed below.  It is important to point out that Congress is normally held in low regard by American popular opinion and today many if not most people hold negative opinions about Congress. 

"Reader, suppose you were an idiot and suppose you were a member of Congress. But I repeat myself."

-Mark Twain

Scope and Limits of Legislative Power

What Congress is supposed to do – and what it is not supposed to do – is spelled out in Article I of the US Constitution. Article I, section 8, provides a clear enumeration of the duties and responsibilities of Congress.

Article I. Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The "necessary and proper clause" mentioned at the end of end of Section 8 keeps Congress occupied; passing new legislation that is theoretically both "necessary" and "proper" to fulfill its duties.  How is all this "work" accomplished?   

How a Bill Becomes Law

Introduction of Bills. Bills can begin in either the House or the Senate. Different versions of a bill can begin in both chambers concurrently.

· Bills can only be introduced by members of Congress.

· Many bills originate in the Executive Branch and are introduced by a congressional sponsor.

· New bills are numbered and sent to the appropriate committee.

Committee Action. The bill comes under its most intense scrutiny while in committee, and most bills die in committee.

·  The bill is considered either by the full committee or a subcommittee

·  The committee may order a "clean bill," with a new number, to be introduced.

Floor Action. Next, the bill appears before the entire House or Senate. The two chambers have different procedures for floor debate.

House :

· The House Rules Committee regulates debate for each bill, issuing the "rule" for the bill.

· Members can speak on a bill for a set period of time, as specified in the "rule."

· To speed debate on some bills, the House meets as the Committee of the Whole, which has different rules for floor debate. The Committee of the Whole can amend a bill, but cannot pass it.

Senate :

· Senate debate is unlimited. However, today, only the indication that a senator is willing to hold an unlimited debate is enough to prevent a bill from receiving an up-or-down vote (no actual time on the Senate floor). This is known as a filibuster. 

· A filibuster may be closed by unanimous consent (which is very unlikely), or by invoking "cloture," which requires a three-fifths vote of Senators present.  If all 100 Senators are present, then 60 votes are required to invoke cloture.

· Successful filibusters effectively kills a bill.  Today, almost every bill in the Senate requires 60 votes to end a filibuster so the bill can receive an up-or-down floor vote.

Second Chamber. Once one chamber has voted to pass a bill, the other chamber may:

· Pass it with the language intact.

· Refer it to a committee for scrutiny or alteration.

· Reject the entire bill, informing the other chamber of its actions, or

· Ignore the bill, while working on its own version of the legislation.

Conference. When the two chambers pass differing versions of similar legislation, the bill goes to a conference committee to reconcile the differences.  A conference committee is convened as necessary.  Its members consist of equal members from both political parties.  Once the conference committee has crafted a compromise bill, both the House and Senate need to pass it again as it is (with no further changes) before it is sent to the president for signature. The President. The Speaker of the House and the President of the Senate both sign the approved bill and send it to the president, who then has four options.

·  If the president signs and dates the bill, it becomes law.

·  If Congress is in session, and the president does not sign the bill within 10 days, the bill becomes law without his signature.

·  The president may "veto" the bill. The bill then goes back to Congress for a veto override vote.  In order to override the president's veto, there must be a 2/3 vote in the House and a 2/3 vote in the Senate.  (A 2/3 vote by Congress, overall, is not sufficient.

· If Congress adjourns within 10 days of giving the bill to the president, and he does not sign it, the bill dies. This is called a "pocket veto."

Due to the high volume and complexity of legislation, Congress divides its tasks among approximately 250 committees and sub-committees. The House and Senate each have their own committee system, which are similar.  The list below offers a sense of how Congress divides its responsibilities into various spheres of activity.  

SENATE:

HOUSE:

Standing Committees Agriculture, Nutrition, and Forestry Appropriations Armed Services Banking, Housing, and Urban Affairs Budget Commerce, Science, and Transportation Energy and Natural Resources Environment and Public Works Finance Foreign Relations Health, Education, Labor, and Pensions Homeland Security and Governmental Affairs Judiciary Rules and Administration Small Business and Entrepreneurship Veterans Affairs

Special, Select, and Other Committees Indian Affairs Select Committee on Ethics Select Committee on Intelligence Special Committee on Aging Joint Committees Joint Committee on Printing Joint Committee on Taxation Joint Committee on the Library Joint Economic Committee

Standing Committees Agriculture Appropriations Armed Services Budget Economic Education Energy and Commerce Government Reform Homeland Security House Administration International Relations Judiciary Resources Rules Science Small Business Standards of Official Conduct Transportation and Infrastructure Veterans' Affairs Ways and Means

Special, Select, and Other Committees House Permanent Select Committee on Intelligence Committee to Investigate the Preparation for and Response to Hurricane Katrina Joint Committees Joint Committee on Printing Joint Committee on Taxation

 As with many organizations Congress has developed its own terminology over the years, some of it similar to legislative bodies around the world.

Congressional Glossary of Terms

Amendment - A proposal to change the language of a bill, can be offered in Committee or on the Floor.   Bill - A legislative proposal introduced by a member of Congress. Bills are designated as HR (House of Representatives) or S (Senate) according to the body in which they are introduced, and assigned numbers according to the order in which they are introduced. Most bills are public bills, dealing with general issues. Private bills deal with individual claims against the government, such as immigration cases and land disputes.   Budget Committees - A committee in each chamber that coordinates spending legislation and formulates the overall congressional budget. Cloture - The procedure by which a filibuster can be ended in the Senate. Cloture requires the signatures of 16 Senators and the votes of three- fifths of the Senate (60 Senators). Concurrent Resolution - A statement of opinion approved by a simple majority in the House and Senate but is not sent to the President for approval. Conference Committee - A special committee formed to reconcile differences between differing versions of a bill passed by the Senate and House. Conference committee members, or conferees, are appointed from the bill's sponsoring committees in each chamber.   Filibuster - A time-delaying tactic associated only with the Senate and used by a minority in an effort to delay, modify or defeat a bill or amendment that probably would pass if voted on directly. The most common method is to take advantage of the Senate's rules permitting unlimited debate. Hearing - House and Senate Committee session in which testimony regarding legislation is taken from interested parties. Joint Committee - A committee composed of both House and Senate members. Joint Resolution - A statement of opinion approved by a simple majority in the House and Senate and sent to the President for approval to have the force of law. Line Item Veto Act - Gave the President authority to cancel discretionary spending, items of new direct spending, and limited tax benefits, which may only be overridden by a two-thirds vote in Congress. Ruled unconstitutional in 1996. Majority Leader - The leading spokesperson and legislative strategist for the party in control of either the House or the Senate. Majority Whip - The assistant majority leader in the House or Senate. Minority Leader - The leading spokesperson and legislative strategist for the minority party in either the House or Senate. Minority Whip - The assistant minority leader in either House or Senate. Omnibus Bill - A bill containing several separate but related items.  Usually used for must-pass issues such as the federal budget.  The key for this type of bill is reconciliation, meaning it must receive a floor vote in both chambers of Congress (ie, no Senate filibuster).   Override a Veto - A procedure that Congress may enact when the president refuses to sign a bill into law. Requires a two-thirds vote in each chamber. If this vote occurs, the bill then becomes law over the president's objections.   Quorum - The required minimum number of members present for the House or Senate to conduct official business (51 in the Senate, 218 in the House). Both chambers usually assume a quorum is present even if it is not. Reconciliation - A rule applied by the leaders of Congress to a bill that must be passed, such as the federal budget.  This rule limits debate in both chambers.  This is important in that the Senate filibuster cannot be implemented for this bill (usually applied to an omnibus bill).  Rider - An amendment, usually not germane, which its sponsor hopes to get through more easily by including it in other legislation. Rule - The instructions on the time and substance of debate on a House bill, which are attached to the bill when reported out to the floor by the House Rules Committee

To learn more about Congress and the US Government, please reference Thomas (ie, Library of Congress). Of all the procedures mentioned above, the "filibuster" is one of the most dramatic.  Strom Thurmond (D-SC) set a record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes, although the bill ultimately passed. Thurmond broke the previous record of 22 hours and 26 minutes set by Wayne Morse (I-OR) in 1953. 

Controversies Regarding the Legislative Branch In the past several decades, several interesting controversies have surfaced which address Congress.  Some of these controversies ebb and flow; that is, they appear to recede only to resurface a few years later.  This section examines several debates relevant to Congress: term limits, electronic voting and pork-barrel spending.

Term Limits In the 1980s and 1990s, an increasing number of Americans began to question their system of legislative representation.  Under the US Constitution, representatives both at the state and federal level reserved the right to keep running (usually winning). 

Why is this bad?  Many citizens felt that long-term politicians, or incumbents, enjoy too much of an advantage over challengers, who are often younger and hold fresher ideas.  Would not the legislative process be enhanced, they asked, with a more rapid turnover of representatives?

Many critics of the present system also argued that established politicians tend to develop political machines that become corrupt.  They learn all the tricks of the trade, and indeed the largest "pork-barrel" projects tend to be sponsored by seasoned politicians. 

Simultaneously, social spending and entitlements continue to rise.  Many advocates of term limits hold their views for fiscal reasons, thinking that entrenched politicians are simply too eager to spend.  Alexis de Tocqueville, a Frenchman who traveled widely in the US in the 1840s, and who wrote Democracy in America, said something interesting. 

"The American Republic will endure until the day Congress discovers that it can bribe the public with the public's money"

-Alexis de Tocqueville

For reasons of fiscal restraint and concern over corruption, residents of several states attempted to restrict the time that their representatives can serve in Congress.  The concept is called "term limits." 

Some states, like Arkansas, even passed legislation for term limits.  After much debate in the media and in the courtroom of public opinion, the entire issue went to the US Supreme Court in U.S. Term Limits, Inc. v. Thornton (1995).  The Court ruled against term limits, at least for state-elected representatives at the federal level in Washington, D.C. 

Justice Stevens delivered the opinion:

U.S. Term Limits, Inc. v. Thornton (1995)

… Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate.

We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather--as have other important changes in the electoral process [n.50] --through the Amendment procedures set forth in Article V…

In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a "more perfect Union."

The dissent was written by Justice Clarence Thomas:

Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

Because the majority fundamentally misunderstands the notion of "reserved" powers, I start with some first principles. Contrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress or to authorize their elected state legislators to do so.

Our system of government rests on one overriding principle: all power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of "reserved" powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole…

 

For now, the issue of term limits in Washington DC has been more or less settled, but the motivations and interests advancing term limits remain.

Electronic Voting Technology often improves out lives, but does it improve our electoral system?  Electronic voting is increasingly being used in all kinds of elections, including those for Congress.  Moreover, if national standards or restrictions emerge surrounding this issue, it will more likely than not emerge within Congress. Electronic voting is a hotly-debated question.  There are two articles below.  The first supports the concept of electronic voting, claiming that it is fair, efficient and economical.   The second article is radically opposed to e-voting, claiming that it gives corporations and dominant political parties a "backup option" to steal an election.

 

The Case for Electronic Voting Excerpt from Wired News, the Case for Electronic Voting

Farhad Manjoo

Townsend, who is the registrar of voters in Riverside County, decided to spend $14 million earlier this year to make Riverside an all-electronic voting county.

At the time, she said, not everyone was thrilled about the idea. Some of her colleagues thought the touch-screen voting machines might be too complicated for voters, and that the whole upgrade might be too expensive. Nobody is questioning Townsend's decision anymore.

The deployment of electronic voting equipment in Riverside was a long-time in coming. "The idea came two years ago, after California's 1998 gubernatorial primary," Townsend said.

That year, Riverside spent $1.4 million to print a ballot for each of the county's registered voters -- about 600,000. Only about half of the voters showed up at the polls, and "we had to throw out the rest of the ballots," Townsend said.

A more significant problem than the cost, though, was the error-rate of the county's punch-card system. "In Florida now, they're talking about the problems with 'overvoting'" -- people voting for more than one candidate -- "but this isn't a new thing. I'd see voters all the time making that mistake," she said.  Townsend thought there had to be a better way. And she found it, she said, in Sequoia Pacific Voting Equipment's AVC Edge touch-screen system.

The new voting machines were first tested in a few small city races, and Townsend said the touch system had two things going for it: It was easy to use, and it eliminated errors.

The public liked it too, Townsend said. "For the city races, we had a 99 percent approval rating of the new systems. The comments were mostly, 'We've finally stepped into the 21st century,' and 'Why has it taken so long for this?'"

"The election business is slow-moving," said Paul Terwilliger, an engineer at Sequoia Pacific Voting Equipment. But now, after Florida, "electronic voting is certainly going to explode," he said.

And a lot of firms, both traditional and startup, are jockeying into position for a possible financial windfall.

One such traditional company that has started producing electronic systems is Hart InterCivic, which this year tested its eSlate voting system in a few counties across the country.

 

The eSlate resembles an "an oversized palm-pilot, about the size of a legal-sized sheet of paper," said Michelle Shafer, a spokeswoman for Hart. Unlike the Riverside County systems, the eSlates don't use a touch-screen. "You vote by turning a wheel on the bottom, and you make a selection by pressing a button," she said…

Everyone who tried the system in Arizona liked it, and more than 80 percent said they would prefer to vote using such electronic terminals...

 

Many conservative libertarians and progressive populists, however, take issue with electronic voting, seeing a sinister aspect in the new technology.  

Electronic Voting is Fraudulent. V Citizens, excerpts.

Secrecy in government has taken a new turn.  Elections are now secret from voters.  Black-box voting employs touch-screen machines that often produce no printed receipt.  Without a paper trail, a legitimate recount is impossible.  It's a virtual vote.  And that's the point, actually.

Electronic voting is "secret" because citizens curious about how, exactly, electronic votes are counted are barred from analyzing protected software.  It's private property.  And when states and counties demand access to the software codes the e-voting companies simply pull up stakes and move to other markets.  The companies involved in black-box voting include Diebold, Election Systems & Software, and Sequoia, and the large investors in these companies include defense contractors Northrup-Grumman and Lockheed-Martin.

Many Americans, particularly in Ohio, remain suspicious that Ohio forced 800,000 voters to cast "virtual votes," giving them no other option.  (Bush won that deciding state by just 150,000 votes.)

Controversy has always surrounded e-voting because it is widely viewed as vulnerable to fraud, hackers, malfunctions and power outages.  Perhaps its most unique feature, however, is that e-voting is "virtual" in the full sense of the word: votes hover in cyberspace, not as matter but as energy, quarks akimbo.  Then, sometime later, a private company decides to retrieve the votes from a private server - all of the votes, some of the votes, or none of the votes.  You will never know. 

A question arises:  Why can't Halliburton get a no-bid contract to run paperless elections on secret software, off of private servers, and then be in charge of actually counting the votes?  Because another Party-backed company, Diebold, already got it.

Elections in America are increasingly privatized, paperless and virtual.  Instead of marching, citizen-turned-consumers will register their political will, like drones, on a touch-screen pad. 

Eventually, the issue of electronic voting will probably reach either the US Supreme Court, and the issue will be settled one way or another.  Clearly, the debate over electronic voting is just beginning.

Citizen complaints about the lack of personal and professional ethics in Congress date to the 18th century – and these complaints cut across party lines - but the 21st century witnessed new kinds of grievances.  For example, the Congress of 2000 – 2006 was commonly criticized for its frequent use of "doublethink" to describe the distortion of language for the purpose of political propaganda.  Six examples stand out.

·  "The National Uniformity for Food Act" actually prohibited states like California from maintaining strict health standards, and it replaced these strong state standards with weaker federal standards. This was a favor to the food industry.

·  "Thee Clear Skies Act" actually allowed for more pollution and contamination than the legislation it was designed to replace.

·  "The Healthy Forests Initiative" was actually written by the timber industry and allowed for more logging on public lands. It weakened environmental regulations and limited the judicial review of abuses in the industry.

·  "The Data Quality Act" prevented the federal government from disseminating warnings about products if industries could produce, with its own self-generated "science," countervailing data.

·  "Project Bioshield Act" prevents victims of toxic vaccinations from suing pharmaceutical companies, even if the vaccine maker engaged in fraud at the outset. This was a favor to the pharmaceutical industries.

· "Middle Class Tax Cuts" actually provided very modest tax reductions for the middle class.  It was principally designed to substantially reduce the taxes of the wealthy, which is a strategy favored by many economists as a method to stimulate the economy.  (The problem is the name of the legislation).

Not too much changed in 2006, however.  The new Congress did not eliminate pork-barrel spending or corporate welfare.  In 2007, Congress loaded up an "emergency" budget with more than $20 billion in pork for members' districts.  This included money for peanut storage in Georgia; spinach growers in California; and office space for the lawmakers themselves. 

Campaign Finance Reform For some Americans, Congress has unfortunately become "the best Congress money can buy."  Numerous citizen-action groups, with a handful of congressmen, are advancing a new proposition, namely that a candidate for office be prohibited from accepting private money and that campaigns be financed from public money.  Other similar proposals include more accountability, more transparency and a restriction on lobbyists. 

One moderate proposal actually became law: the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act).  This regulates the financing of political campaigns, and it was designed to address the increased role of in campaign financing of "soft money" (donations made directly to political parties by corporations, unions, or well-healed individuals).

Campaign-finance reform would theoretically restore accountability, honesty and civic-mindedness to Congress.  Representatives and Senators would no longer be "bought and paid for."  However, there are constitutional issues involved.  Does campaign-finance reform restrict an individual's First Amendment right of freedom of association and freedom of political expression?  After all, donating to a campaign has long been recognized as a form of political expression, and any ban on this has constitutional implications.

Actually, this debate reached the US Supreme Court, and it was brought by the California State Democratic Party and the National Rifle Association, who argued that the legislation was an unconstitutional infringement on their First Amendment rights.  The US Supreme Court ruled in favor of almost all of the McCain-Feingold Act in McConnell v. Federal Election Commission (2003).  

McConnell v. Federal Election Commission (2003)

Question

1. Does the "soft money" ban of the Campaign Finance Reform Act of 2002 exceed Congress's authority to regulate elections under Article 1, Section 4 of the United States Constitution and/or violate the First Amendment's protection of the freedom to speak?

2. Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech clause?

Conclusion With a few exceptions, the Court answered "no" to both questions in a 5-to-4 decision written by Justices Sandra Day O'Connor and John Paul Stevens. Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government's legitimate interest in preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption" that might result from those contributions.

In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits.

The Court also rejected the argument that Congress had exceeded its authority to regulate elections under Article I, Section 4 of the Constitution. The Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections.

http://www.oyez.org/cases/2000-2009/2003/2003_02_1674/

In summary, a very limited and modest version of campaign-finance reform has been found to be constitutional, but it remains to be seen if further restrictions on political donations would pass the same test.  In fact, it did not.  In 2010, the US Supreme Court ruled in Citizens United v FEC that campaign contributions were protected under the 1st Amendment right to free speech.

Pork Barrel Spending and Corruption "Pork" is used to describe Congressional spending that represents thinly-disguised favors and kickbacks for friends and supporters.  Each year, Congress must approve a new budget to finance the workings of the U.S. government, and each year many congressmen add items to that budget which are of questionable merit.  Consider, for example, the famous "Bridge to Nowhere."  The bridge in Alaska would connect the town of Ketchikan (population 8,900) with its airport on the Island of Gravina (population 50) at a cost to federal taxpayers of $320 million, by way of three separate earmarks in a highway bill. At present, a ferry service runs to the island, but some in the town complain about its wait (15 to 30 minutes) and fee ($6 per car). Congressional Staff Each member of Congress is authorized to have a staff of professioinals working for them paid for by taxpayers.  These staffers are usually young people or old-timiers with lots of experience.  Each has a specific area of expertise that they keep abeast of for their member of Congress.  As such, it is not likely that any bill, omnibus or otherwise, would come up for a vote, and the member of Congress not have a staffer who knows everything that is in it.  So, where members of Congress come and go, some staffers persist for the long term ensuring corporate memery for Congress.  Many famous people were once congressional staffers, to include Lawrence O'Donnell, George Tenet, and Chris Matthews. Conclusion Congress is the branch of government closest to the people. With eery Representative facing an election in two-year intervals, it is the first branch of government to feel the impact of popular will.

Paradoxically, Americans often hold Congress in low regard but then, in times of crisis, turn to Congress as a solution to solve pressing problems.

 

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WEEK 3: CONGRESS » In Wartime, Who Has the Power?

 

WEEK 3: CONGRESS

In Wartime, Who Has the Power?

THE NATION In Wartime, Who Has the Power? By JEFFREY ROSEN Published: March 4, 2007 WASHINGTON The Constitution seems relatively clear. The president is the commander in chief, and he has the power to deploy troops and to direct military strategy. Congress has the power to declare war and can use its control over the purse to end a war. But it has no say over how the war is actually prosecuted. That poses a problem for Congress, as it debates the course of the Iraq war. Democratic proposals to check President Bush’s increasing unpopular war range from Senator Barack Obama’s “phased redeployment” of all combat troops out of Iraq by March 3, 2008, to Representative John Murtha’s attempts to impose specific standards for the training and equipping of troops. Regardless of how these proposals fare politically, they raise serious constitutional questions that could affect not only the conduct of the Iraq war, but also the balance of power between Congress and the president in wartime. Legal scholars — both critics and supporters of the Iraq war — say that if Congress tries to manage the deployment and withdrawal of troops without cutting funds, the president’s powers as commander in chief would be encroached, perhaps leading to a constitutional confrontation of historic proportions. “If there were to be a binding resolution that said troops had to go from 120,000 to 80,000 by April 15, Congress would be, in my view, transgressing on the conduct of a military campaign,” says Samuel Issacharoff, a law professor at New York University. “Congress can’t tell the president to charge up the east side of the hill rather than the west, which is the definition of the president’s military authority.” So how, exactly, can Congress assert power over the war, beyond its ability simply to pull the plug on its financing? History suggests that Congress has found ways of checking the president in the past without encroaching on his power as commander in chief. And, history suggests, as well, that neither side is that eager for a constitutional showdown. There is little dispute that Congress could, if it had the political will, end the war in Iraq tomorrow by using its power over appropriations to cut off funds to the troops. “Congress could easily check the president,” says W. Taylor Reveley III, the dean of William and Mary School of Law and author of “War Powers of the President and Congress.” “If Iraq continues to go badly or if it looks like the president might actually use force in Iran, I can easily see Congress passing something like the Cambodian or Vietnam spending cutoffs, which would force the setting of a timetable for withdrawal that was pretty brisk,” he said. If Congress used its appropriations power in this way, even the most vigorous defenders of executive power agree, President Bush would have to acquiesce. “He would have to comply, and he would comply,” says John Yoo, the University of California at Berkeley law professor who, as a Bush administration official, defended the president’s authority to act unilaterally. According to Professor Yoo, Congress could immediately cut funds, or could order a phased withdrawal by authorizing a fixed amount of money each month for specified numbers of troops. “The idea that the funding tool is too blunt is a view held by people who have never worked in Congress,” he says. “It can be a scalpel as well as a baseball bat.” The problem is not that Congress lacks the constitutional power to cut off funds, but that it may lack the political will to do so. “I think it’s inconceivable that Congress will cut off appropriations, because no one wants to leave people on the field without support,” says Michael Gerhardt of the University of North Carolina Law School. Congress, however, has other cudgels. During the War of 1812, Federalist critics of President James Madison forced the resignation of his secretary of war, and, decades later, the House passed a resolution censuring President James Polk for unconstitutionally beginning a war with Mexico. During the Civil War, Congressional Republicans wanted Lincoln to fire Gen. George B. McClellan and prosecute the war more aggressively. But they never tried to control actual troop movements. Instead, Congress tried to shame the Union generals into fighting by hauling them repeatedly before Congressional committees. “It bordered on harassment, and Lincoln resisted some of the excesses, but even then, Congress never tried to issue orders about the deployment of troops,” says Professor Issacharoff. Congress, of course, could assert itself in similar ways today, according to Professor Gerhardt. “Congress is entitled to have oversight hearings to see how well things are going, and to figure out where we should go from here,” he says. Changes in technology also make it easier for Congress to micromanage military decisions if it chooses to do so. “In the 19th century, simply to send a command and find out what happened in the battle took weeks,” says Professor Issacharoff. “So neither Congress nor the president could micromanage. Now you can have battlefield commanders in a speakerphone in the well of Congress — you could have 535 generals shouting instructions.” Congress would also be perfectly competent to examine civil liberties questions, like the restoration of habeas corpus for detainees held at Guantánamo Bay. It could pass resolutions opposing the war effort over Republican opposition, as Democrats have proposed to do. It could demand compliance with international norms about how the war is conducted. But let’s say Congress passed a binding resolution that reduced troop levels without actually cutting off funds. What then? “What’s likely to happen is that Congress will assert its power, and the executive will resist through delay, redeployment of troops elsewhere or simply disregarding Congress,” Professor Issacharoff says. “It will never be presented to a court, because when both branches are involved in disputes about war and claim overlapping powers, the courts tend to back down.” Dean Reveley agrees. “These disputes about the powers of the president and Congress in wartime are waged with almost theological passion and conviction and the Supreme Court rarely intervenes, which is why war powers are still so murky,” he says. “Every time we’ve gotten involved in an unpopular war, which has been all our wars except the two World Wars, there has been an enormous amount of bickering between the president and Congress when it didn’t come out the way we wanted. Sometimes presidents have acted, Congress said ‘Don’t do that,’ and the president acceded, as in Vietnam. But mostly Congress has stood on the sidelines and complained.” In other words, a constitutional crisis may not be the inevitable outcome. “I think this will be resolved politically, as it has been in the past, and either the president or Congress will back down,” Professor Issacharoff says. “My sense is that it’s more likely to be Congress, because nobody wants to assume responsibility for managing a disaster.” Even if President Bush wins a constitutional confrontation, Congress may react by asserting its powers against future presidents. “Congress will be much more careful in the future about authorizing force without restrictions on presidential power,” says Jack Goldsmith of Harvard Law School. “Every action on each side tends to provoke a counterreaction, which is probably what James Madison wanted.”

 

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