3/29/20 The Origins of the American Constitution • How did the political, social, demographic, economic and cultural experience of early America shape the design of the Articles of Confederation and the Constitution? • What led to the creation of the Articles of Confederation? • Who were the winner and losers under the Articles of Confederation? Why • How did the experience of self governance under the Articles of Confederation shape the design of the Constitution of the United States? A Profile of the Pre-Revolutionary Colonies • Diversity in Language, Religion and Country of Origin • Diverse Economies • Constant Presence of Military Threat Tradition of Self Governance • Home rule (taxes and domestic affairs to the colonies) • Elected Assemblies • Asserted right to levy and collect taxes • Tradition of written constitutions 1 3/29/20 Limitations of this self governance • England retained control over military and trade. • Little negotiation or incentives for action between colonies. Impetus for Revolution • After 7 Years War, England needs to raise revenue. • Challenges home rule by establishing taxes, famously with the Stamp Tax of 1765, and later the Tea Tax in 1773. 2 3/29/20 British Response Galvanized Americans • Britain responds with the Restraining Acts and Coercive acts • Closed all MA ports • Dissolved MA assembly • Decreed British troops be quarterd in American homes • Americans and British soldiers charged with crimes be sent to England. Declaration of Independence • 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. Factors shaping the Articles of Confederation • Experience with Monarchy created deep distrust of centralized authority • Value domestic independence. • Little experience with interstate cooperation, especially in defense or trade. 3 3/29/20 Provisions of the Articles of Confederation • Created a permanent Congress where each state received one vote • Major laws—taxes and constitutional change require unanimous agreement of all states. • Military: States raise revenue, taxes, and outfit troops for battle. National military command answers to congress. • No national executive or judiciary. • States retain authority to negotiate trade overseas. • States print and coin there own money. Speaking of Collective Action… • What are the strengths and weaknesses of this system? • What drawbacks are built into the articles of confederation? • Do the decision rules create high or low transaction costs? • Do the decision rules create high or low conformity costs? 4 UCI - PS21A - SPRING 2020 T H E FA I L U R E O F T H E A R T I C L E S O F C O N F E D E R AT I O N & T H E C O N S T I T U T I O N A L COMPROMISE D E C L A R AT I O N O F I N D E P E N D E N C E = 1 7 7 6 T H E C O N S T I T U T I O N W E K N O W T O D AY I S R AT I F I E D I N 1 7 8 8 . S O W H AT H A P P E N E D F R O M 1 7 7 7 - 1 7 8 8 ? T H E A R T I C L E S O F C O N F E D E R AT I O N • Independent states, very weak central government • Legislature dominates: 1 vote for each state • Need 9/13 for “major” laws, 13 for amendments • No power to tax or collect revenue • Wars cost money - Rhode Island (2% of population) vetoes a tax to fund it • No clear military or foreign policy leadership • No national court system The Revolutionary War (1775-1783) “But the confederation itself is defective and requires to be altered. It is neither fit for war nor peace.” – A L E X A N D E R H A M I LT O N ( 1 7 8 0 ) Shays’ Rebellion (1786-1787) “Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government with the inviolable attention due to liberty and to the republican form.” –JAMES MADISON, FEDERALIST #37 THE PROBLEMS WERE NUMEROUS: B R I E F R E C A P S O FA R : MONARCHY = BAD A R T I C L E S O F C O N F E D E R AT I O N = B A D 2ND CONSTITUTIONAL CONVENTION (1787) • So what to do? • Virginia Plan (Madison) • New Jersey Plan (Paterson) • Connecticut Compromise (The Constitution) V I R G I N I A P L A N ( M A D I S O N O F VA ) • Strengthens national government, gives popular sovereignty with House • Bicameral legislature, Council of Revision can veto states N E W J E R S E Y P L A N ( PAT E R S O N O F N J ) • Still a somewhat stronger national government, but not as strong as Virginia plan • Unicameral, representatives selected by state legislatures • That is, no popular sovereignty • Every state gets one vote • Plural executive appointed by legislature, courts appointed by executive T H E C O N S T I T U T I O N I S B U I LT F R O M BOTH THESE PLANS. AS SUCH, IT HAS SOME C O M P L I C AT I O N S . COMPROMISES • Congressional vs. State power • No veto over states (but supremacy clause) • Enumerated powers, not broad grant • Fragmentation of power • Largely separated powers between branches • Checks and balances • Slavery • Logroll = slavery + interstate commerce power • 3/5 compromise, no ban on slave import till 1808, fugitive slave clause CONSTITUTIONAL BASICS: A MIX OF BOTH PLANS • Bicameral legislature • House (apportioned by population), Senate (2 per state, selected by state legislatures) • Singular executive • The President • Courts • Supreme court, Congress can make more T H E C O N S T I T U T I O N A L C O M P R O M I S E ( R AT I F I E D 1 7 8 8 ) • Article I: Congress • Article II: The Executive • Article III: The Courts • Article IV: Adding States PLEASE READ IT. We’ll be talking about its role throughout the quarter. • Article V: How to Amend • Article VI: Debts, Treaties, etc. • Article VII: Ratification A R T I C L E I : T H E L E G I S L AT I V E B R A N C H • Section 2 describes the House, apportionment (including the 3/5 clause), and eligibility for election • Section 3 describes the Senate & eligibility for election • Section 5 basically says each chamber can determine its own rules • Section 7 describes the process by which legislation becomes law A R T I C L E I : T H E L E G I S L AT I V E B R A N C H • Section 8 has the enumerated powers: • “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” • “borrow Money” • “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (aka the Commerce Clause) • “constitute Tribunals inferior to the supreme Court” • “declare War; raise and support Armies” (and provide and maintain a Navy) • “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers vested by this Constitution in the Government of the United States” (aka the Necessary and Proper Clause) A R T I C L E I : T H E L E G I S L AT I V E B R A N C H • Section 9 has what they can’t do: • “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” • …and more (including the emoluments clause): • “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” ARTICLE II: THE EXECUTIVE • Hamilton: Elect for life? • Constitution: Electoral College • # electors = # representatives + # senators • State legislatures decide how electors get picked • Why electoral college? • It’s largely a compromise they’ve already brokered in Article I • hard to count ballots at national level • Requires broad geographic support • insulates from passions (electors have free choice) “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.” – H A M I LT O N , F E D E R A L I S T # 6 8 ARTICLE II: THE EXECUTIVE • Article II, Section 1: “The executive Power shall be vested in a President of the United States of America.” + Electoral college rules. • Article II, Section 2: Commander in chief; pardons; treaties (with Advice and Consent); appointment power. • Article II, Section 3: State of the union (real power?); receive ambassadors; Take Care clause. • Why is Article II so short? How did the Framers envision the President? ARTICLE III: THE COURTS • Article III, Section 1: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.” • Article III, Section 2: Court’s original and appellate jurisdiction. • How did the Framers envision the Courts? Where is Judicial Review? A R T I C L E I V : N E W S TAT E S • Remember, there are 13 states at the start. • We now have 50. So we needed these rules 37 times, last used in 1959 for AK & HI. Before that, AZ & NM in 1912. • We’ll talk more about this later with respect to federalism, slavery, and civil rights. • Used as a bargaining chip for most of 19th century A R T I C L E V : S O W H AT I F W E W A N T T O C H A N G E THIS THING? • There have been 27 Amendments • 1-10 = Bill of Rights (1791) • Most recent re: congressional pay in 1992 THE REST • Article VI: Debts, Oath, etc. • Article VII: Ratification • “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” • “The Word, "the," being interlined between the seventh and eighth Lines of the first Page, The Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page.” S O T H AT ’ S T H E C O N S T I T U T I O N . THERE IS A LOT THERE, BUT ALSO A LOT OF RULES NOT THERE 4/6/20 The Constitutional Framework: Federalism Constitutional Origins and the Transformation of Federalism in the United States. Themes of the Class n Why and how has the national government grown so powerful since the founding q The Vision of Dual Federalism q The Growth of National Power q The Return of “States Rights?” n n n Clear division of policy authority between levels of government. Cooperative Federalism, Regulated Federalism New Federalism and the Devolution of Powers. American Federalism: Nationalization of Authority Madison proposed a limited national government and strong sovereign states: “The powers delegated by the proposed constitution are few and well defined. Those which are to remain to the State governments are numerous and indefinite.” James Madison, Federalist 45. If this was the initial vision…. Then why has the Federal government achieved so much power? 1 4/6/20 Early American Federalism: Dual Federalism n Federal and state power is limited to separate and distinct spheres of authority. n Referred to as layer cake federalism, where each layer represents a different level of government and the powers, responsibilities, and resources of each layer remain separate and distinct from the others. Dual Federalism and Nationalization of Policy q State governments periodically resist efforts of the federal government impose national policy over state governments. q Periodic tensions as state governments push for powers of nullification– the power to overturn federal laws that they view as violating the Constitution of the federal or state government. Dual Federalism and Nationalization of Policy n Dual federalism is challenged by industrial revolution and growing power of firms. q n n State governments provide inadequate protection for workers and struggle to protect fair and free markets against monopolization. Federal government asserts power to centralize the regulation of industry. q Enact the Sherman Antitrust Act (1890), q and the Interstate Commerce Commission Act (1887) Example of Congress expanding power to resolve problems of collective action between the states. 2 4/6/20 Towards Cooperative Federalism n Although decentralized power was clearly intended by the framers, national government gradually exerted control over national policy Reasons: q Solve problems of collective action and coordination over national policy concerns n q q n Cooperate with states in the development and delivery of social programs Standardize policy in response to Congressional consensus Constitutional Tools of Federal Government q q q Power of the Purse Supremacy Clause Expressed and Implied Powers Nationalization of American Federalism: Cooperative Federalism: Supportive relationship/partnership between the federal and state governments. q Marble Cake Federalism: Levels of government blended together as the federal government subsidizes state and local governments and collaborates in the funding, delivery and administration of policy. Example: The New Deal Social Security Act, q q Establish permanent government aid to the blind, to dependent children, and to the elderly. q Dictated to states how federal money could be used and which state agencies were able to distribute it. Provides terms for federal/state collaboration in finding programs q Nationalization of American Federalism: Cooperative Federalism: n Cooperative federalism provides new tools for the federal government nationalize policy. n Allows federal government to use incentives to encourage states to enact new policy programs. Inducements (Carrots). q n Grants in Aid/Categorical Grants in Aid n Formula Grants/Project Grants Examples q n Head Start n Medicaid 3 4/6/20 The Growth of National Government Cooperative Federalism and the Growth of Government Popularity of Federal/State programs. 4 4/6/20 Nationalization of American Federalism Regulated Federalism n Federal Government seeks uniformity in policy through grants and mandates. q Imposes legislation and requires local governments to meet national standards. q Compels Policy Conformity Through Control of Courts, Funding, and Legislation. q Example: The Clean Air Act (CAA) of 1970 n n Authorizes the U.S. Environmental Protection Agency (EPA) to establish National Quality Standards to protect public health and the environment. Requires state governments develop implementation plans outlining emission reduction strategies. Regulated Federalism and the Centralization of Authority Regulated federalism provides more coercive tools for the federal government nationalize policy. n Allows federal government to impose mandates and threaten sanctions unless states to enact new policy programs. q n Sanctions (Sticks) to Ensure Compliance n n n n Unfunded Mandates Crossover Sanctions Direct Orders Examples: q q Drinking ages and DUI laws Towards Decentralization? New Federalism and Devolution. New Federalism seeks devolution, or the transfer of certain powers from federal government back to the states. n q q Provide state governments more autonomy and local control over policy. Allow for more policy variability and experimentation giving states greater discretion in implementing state/federal partnerships. 5 4/6/20 Towards Decentralization? New Federalism and Devolution. New federalism provides tools to allow state governments more flexibility and discretion in implementing federal policy. n Tools of New Federalism n q q Revenue Sharing Block Grants Example: Welfare Reform Act of 1996 n q q q Returned to the states primary responsibility for establishing rules under which impoverished households could receive cash assistance. Provided a block grant to the states called Temporary Assistance for Needy Families (TANF). In exchange for receiving this grant of fixed funding, states were afforded a great deal of flexibility to design their own welfare reform strategies. TANF Block Grants & State Welfare TANF Block Grants & State Welfare 6 4/6/20 Limits/Concerns over New Federalism. n States may divert funds to fill gap in other budgetary areas n States may use flexibility to reduce benefits for families in need. n State policy experimentation may not improve welfare for the poor. n Reduce efficacy of overall safety net in American federalism. Take Away Points: Federalism Has Evolved n American history has seen the Federal government assert a large role in centralizing authority. n Federalism Continues to permit a degree of local autonomy while solving for collective action problems at the national level. Federal Philosophy of Government has Shifted n q q Policy harmony can be encouraged by centralization Innovation and Independence by decentralization Looking forward: n The theoretical strengths and weaknesses of federalism q q q Market preserving/fiscal federalism Nation preserving federalism Federalism as a Marketplace of Ideas. 7 4/6/20 The Constitutional Framework: Federalism Constitutional Origins and the Transformation of Federalism in the United States. Organizing Questions for the Class n How does the framework of Federalism in the Constitution create a stronger national government while simultaneously preserving the sovereignty of the states and the freedoms of the people? q National Powers (Express Powers/Implied Powers) q State Powers (Reserved powers to states and individuals) Shared National/State Powers (Concurrent Powers) q The Constitutional Principle of Federalism n How to create a stronger national government that doesn't overawe local concerns? n Federalists at constitutional convention insisted that the Constitution invest powers that q Strengthen national government. q ….but offset federal power by reserving significant powers to the states. 1 4/6/20 What is Federalism? A system of government in which sovereignty is divided between central governments and states. Practiced widely in the modern era (USA, Australia, Brazil, Argentina, Canada, India, Germany, the European Union, Switzerland, etc.) n Federalism: q Grants states independent governments and a degree of policy autonomy. q Provides for proportional and geographic representation in national government. Constitution: National (Federal) Government Powers n Empowered National Government q q q q Establishes Express or Enumerated Powers of the US Congress (Article 1, Section 8 of the Constitution). Elastic or the “Necessary and Proper Clause” Invests Congress with Implied Powers to Enact Legislation Necessary for Duty The Supremacy Clause promotes national unity by declaring that “National laws and treaties are the “supreme laws of the land.” Supreme Court Vested with duty to review conflicts between the states, the states and the Federal Government, or between agencies within government Exclusive Powers Reserved for National Government n Coin Money n Regulate Interstate and Foreign Commerce n Tax Imports and Exports n n Make Treaties Make all laws to fulfill national responsibility n Make War n Regulate Postal System 2 4/6/20 Powers Denied to National Government n Tax State Exports Change State Boundaries Impose Religious Tests Pass Legislation or Act in Conflict with Bill of Rights n The 10 th Amendment: n n n q 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. Powers Denied to National Government The 10th Amendment: q 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. Powers Denied to National Government The 10th Amendment: q Example: Murphy v. National Collegiate Athletic Association n In 1992 Congress passed the Professional and Amateur Sports Protection Act. q q Allowed NV, OR, DE, and MT to maintain Sports Gambling Required all other states to ban it. n 2018 decision decided this violated the commandeering clause 10th Amendment of the U.S. Constitution n “PASPA’s provision prohibiting state ‘licens[ing]’ of sports gambling schemes violates the anticommandeering rule. It issues a direct order to the state legislature . . . [and] unequivocally dictates what a state legislature may and may not do.” 3 4/6/20 State Government Powers Reserved Powers and the Tenth Amendment q Reserved Powers preserves powers not explicitly granted to federal government to the states q States Control Authority and Power of Coercion to define and Enforce Criminal, Moral and Social Values q q q q Police Powers to regulate health, safety and welfare of citizens Powers to regulate family Powers to regulate individual livelihoods Powers to define and enforce property laws State Obligations n Full Faith and Credit Clause q n States must honor the “Public Acts, Records and Judicial Proceedings of Other States” Privileges and Immunities or Comity Clause q q Reciprocity between States must be honored. Special benefits or costs cannot be conferred on residents of the States Examples of State Powers n Run Elections n Regulate Intrastate Commerce n Establish Republican Governments and Home Rule n Protect Public Safety and Morals All powers not expressly delegated to national government n 4 4/6/20 Shared or Concurrent Powers Powers given jointly to National and State governments n Taxation n n Licensing Chartering n Borrow Money n Take Property (Eminent Domain) n Enforce Laws and Administer a Judiciary Looking forward n Given the efforts to limit the enumerated powers of the Federal Government and reserve power to the states in the constitution…. q Why and how did the national government of the United States assert so much power? q How did the Constitutional guarantees of individual rights and freedoms lead to conflict between the Federal government and the states? What are the ways the federal can attempt to influence state policymaking? q 5
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