GOVT 2301: United States Govenrment

Review for Second Examination

 

The second examination in this course will cover some of the issues relating to the Constitution and to the idea of Federalism. It will also concern a few of the concepts related to the development of the Constitution and the Articles of Confederation.

The idea of a confederation can often be difficult for today’s Americans to grasp, since many of us have grown accustomed to thinking about the United States as a large political unit which has secondary levels of political units. Yet what exists today in the United States is vastly different from the original plan for a government based upon popular sovereignty and the security of natural rights articulated in the Declaration of Independence. In addition, while confederations may have the idea of a league of mutual friendship and defense as the core of their establishment, they may also be arranged differently. Under the Articles of Confederation, for example, a supermajority (In this case, nine out of thirteen) of states must give their express consent before the confederate congress may act. With their neighbors to the west under the Gayanashagowa, each member nation had an absolute veto against the confederate council in limited and specific policy areas. In both confederations, each member unit retained most of the power while the central government had a very limited role in the governing process. Under the Articles of Confederation especially, the loyalty most citizens had was to their state first and formost.

Accomplishments of the Articles.

Th primary reason for the establishment of the Articles was to organize the states so they could defeat British forces and secure their independence from Great Britain. Once independence was secured, however, there was less pressure on the states to organize for their mutual good. The Articles also managed to provide a structure that would settle land disputes among the states, and formulated a structure for of government for new territories through the Northwest Ordinance.

Weaknesses.

However, the lack of a strong central authority to resolve other disputes between the states, and to organize the states for their mutual advantage, including the organization of a militia, was crucial to the development of the Constitutional Convention. The primary aim of the Confederation was to provide for the common defense and to promote the general welfare of the states, while securing the natural rights of the citizens by preserving their sovereignty in the form of independent states. However, since the confederate government did not have power to impose taxation, nor the power to regulate a defense force for the United States except at the highest ranks, it was unable to respond to domestic upheavals such as Shays’ Rebellion and the Whiskey Rebellion. Consequently, the ability of the Confederation even to secure its express aims was called into question.

The Constitutional Convention.

Establishing the new constitution was no easy task. A major obstacle was found in those who opposed any centralization of government power, as well as in the dispute over how to centralize power without threatening popular sovereignty.

One proposal, labeled the Virginia Plan, called for a bicameral (two-house) representative legislature, in which a lower house would be determined by the population of each state, while the upper house would be chosen by the lower house from nominees selected by the respective state legislatures. An executive would be chosen by this same assembly. This plan would allow for an internal check against the power of the legislative arm of government, but clearly favored those states with large populations. Suffice it to say, it did not sit well with delegates from smaller states.

An alternative proposal, the New Jersey Plan, called for a preservation of the equal representation of the states found under the Articles of Confederation, but insisted on a single house and a body of delegates representing each state to serve on an executive committee. This plan would emphasize the nature of the Union as a Union of States, rather than people, and would ensure state participation in the execution of law.

The two sides debated representation for weeks before the Connecticut delegation proposed a compromise which would incorporate the advantages of a bicameral legislature with the principles of state equality and proportional representation.

The framers of the Constitution produced a document that did have considerably more power for a central authority. However, it is also clear that these men were distrustful of those who would hold this power as well as of the people who would select government officials.

Thus power was divided among three major branches of government, and each power when exercised would seek to gain power from the other branches, but would be counteracted by those other powers. "Ambition," says Publius, "must be made to counteract ambition." Since each branch would try to gain power they would also check the power of the other two branches.

The Bill of Rights.

Soon after the Constitution was written, a controversy erupted over whether or not the document should include an enumeration of rights, in order to clarify limitations against the Congress. James Madison proposed twelve amendments to the Constitution which sought to define specific limitations against the Congress, especially in matters of political and religious speech, congressional pay, and criminal cases.

While these amendments were intended to place express restrictions against Congress, others, including Alexander Hamilton, objected, on the grounds that not only would an enumeration of rights be unnecessary, as the Constitution itself implied certain rights, but that it would be dangerous, for an enumeration of rights may subvert the principle of popular sovereignty. If a bill of rights were enumerated, he argued, citizens would begin to suspect that these rights were given by government, and not inherent in themselves. Furthermore, such an enumeration would give cause to ask whether the rights expressly enumerated were the only rights citizens had.

Madison’s response to Hamilton’s objections could be found in the very text of what would be the Ninth and Tenth Amendments, where qualifications are placed on the enumeration of rights and powers generally, as not to indicate that others do not exist (Am. IX), nor that they originate with government (Am. X).

 

 

Federalism.

Pursuant to the previous review, a federal systems divide power between national and state level governments. Each government has distinct powers which the other governments are not to override. Very few countries (Australia, Brazil, Canada, Germany, India, Mexico, and the United States) actually have a federal form of government.

In the United States, the reasons for a federal government include

a preservation of the idea of popular sovereignty as expressed in states which already existed at the time of the framing of the Constitution,

an ability to handle common problems shared by each state

large geographic areas of many states with limited population combined with the isolation of large segments of the nation’s citizens

sectionalism and political subcultures which led many to advocate a pluralist government.

Consequently there are now over 87,000 distinct governments existing in the United States, including the Federal government, state governments, municipal governments, tribal governments, school districts, utility districts, hospital districts, conservation districts, and others. For the most part, however, when we consider the principle of federalism, we are primarily concerned with the relationship between the federal government and the states, or else among the states themselves.

Arguments against federalism historically have tended to rely heavily on states-rights issues and the limits of federal power, as was seen in the Civil War. However, federalism was seen as a compromise between the incommodities of a confederation and the abuses of a unitary government.

 

The Constitutional basis for federalism

Powers delegated to the national government (enumerated powers) include both express and implied powers. Most of the express powers are bestowed on Congress (Art. I.8). Implied powers allow the national government to make decisions which are not expressly found in the text of the Constitution, but which are seen as "necessary and proper" for carrying into execution the powers which are found there. Other powers, such as making law, enforcing law, and settling disputes, are considered inherent, and recognized by all sovereign nations.

In addition to the conduct of elections in the Constitution of 1787, reserved powers of the states include, according to the Tenth Amendment, potentially all powers which were not delegated to the national government (others may be reserved to the people themselves). Interpretation of the Constitution has significantly altered the meaning of this amendment. In 1791 when this amendment was ratified the federal government did not have the same reach that it does today. In theory states retain all powers not delegated to the national government. However, the national government has radically expanded the scope of its action, perhaps at the expense of the states.

Concurrent powers are those which are shares by both the national and state governments. Examples include the power to tax, to make and enforce laws, and to establish courts.

Prohibited powers apply to both the national and state governments. For example, the national government is prohibited from taxing exports. The state governments are prohibited from conducting foreign policy and from having a regular army.

Article VI of the Constitution (the supremacy clause) mandates that actions by the national government are "the supreme law of the land." Any conflict between a legitimate action of the national government and a state are to be resolved in favor of the national government. Today states have accepted the concept of national supremacy, but if a state does not like an action of the national government, the state may question the legitimacy of the action in federal court. Once the federal court has ruled on the legitimacy of the action, theoretically the state accepts the answer.

Yet this was not always the case. How we view the relationship between national and state governments today is not how the relationship began. There were specific major events which dramatically changed the relationship between the national government and the states.

McCulloch v. Maryland (1819)- this court case settled the constitutional question concerning the meaning of the powers of Congress. Chief Justice Marshall’s decision enhanced the power of the national government, with particular regard to whether or not a state had the power to tax an arm of the federal government (The Bank of the United States) The power of Congress is not strictly limited to those expressed in the Constitution itself. Marshall held that Congress has implied powers to carry out the express powers, through Art. I.8 clause 18. This decision allowed the national government to expand the use of power greatly in relationship to state governments.

Gibbons v. Ogden (1824)- this court case set the precedent for the national government to regulate a wide range of economic activities. Although the case only dealt with trade on a river the definition of what could be considered interstate commerce was greatly expanded. In time this definition would allow Congress the power to regulate a wide range of economic activities.

The Civil War (1861-1865) this was the ultimate dispute over power between the states and the national government. Southern states advocated more power for the states and a less active national government. Concepts like nullification and secession were considered by many southern states to be legitimate actions by state governments. Advocates of this position considered citizenship to the state far more important than citizenship within the national government.

The defeat of the South in the Civil War meant a defeat of states being more powerful than the national government. Another major impact of the Civil War was the actual growth of the national government. In order to fight the war, the national government became very active in building an extensive infrastructure and military, whose cost led the national government to develop new ways of generating revenue (such as the income tax). As time progressed there would be further disputes between the national government and the states over power. However, after the war there was no longer a legitimate question as to which government was supreme.

 

Competing views of federalism.

Dual federalism (1829-1937) emphasized economic regulation into two distinct spheres: intrastate commerce (commerce which does not cross state boundaries) and interstate commerce (trade that does cross a state boundary) In this system, state governments exercised considerable control over products produced in the state. During the majority of this time, most goods used by the people came from the same state. As time progressed, this became less the case and the US economy became dependent on other countries as well as on goods produced in each state.

Under this system, the two levels of government were understood to have specific spheres of influence, and boundaries with the other’s spheres that could not be legitimately crossed.

Cooperative federalism (1937-1968) emphasized an expanded role for the national government and paved the way for cooperation between the national government and the states. In response to the Great Depression Franklin Roosevelt’s administration implemented social welfare programs designed to alleviate economic hardship (the New Deal). These programs were typically funded by the federal government by administered by states and local governments, thus creating a cooperative framework for federalist relations. Over time this relationship developed into a relationship which some likened to a picket fence, whereby the levels government served as the spans, working together at each level to support public policies, which were metaphorically the pickets of the fence. Under cooperative federalism, the definition of interstate commerce was expanded to include a consideration of the impact trade had on the overall economy.

Federal grants became a popular was to help construct the national infrastructure. States also saw federal grants as a way to provide services to the public. However, as states began to rely on these grants, categorical grants-in-aid became more strictly defined and regulated, and a period of centralized federal regulation ensued.

This phenomenon, called Creative Federalism by O'Connor and Sabato, describes the rise of an administrative state, with a diminished role for state governments except as the administrators of federal policy. The extreme form of this relationship is embodied in the form of mandates, some funded, others not, whereby the federal government outlines specific policy aims and procedures to which state and local governments are bound.

New Federalism (1969-present) has attempted to shift some power back to state and local governments by allowing states to determine how to spend revenue provided by the national government. One tool of the new federalism has been the block grant. These grants allow state or local governments more leeway in deciding how to spend funds for a specific type of government service, such as health care. Policies like welfare reform have enabled states to act as policy laboratories trying different policy solutions to see what works best.

Federal mandates, which are requirements in federal legislation or regulation that force states and municipalities to comply with certain rules, present an obstacle to those who would like for some power to be returned to the states, especially when in order to comply with federal regulations, states must often dedicate money to pay for compliance.

Competitive federalism is a theory that maintains that governments should compete to provide services to citizens, and that citizens should act like consumers when "choosing" a government. Under this theory citizens "vote with their feet" by deciding in which state or locality they should live, based upon the government and services the area offers. This idea requires a great amount of mobility on the part of citizens, as well as a well-informed citizenry in order to make tacit decisions based upon residence.