U n i t 1 – F o u n d a t i o n s o f A m er i c a n D em o c r a c y

Chapter 1 – American Government and Politics (pp. 4-17)

Chapter 2 – The Constitution (pp. 24-57)
Chapter 3 – Federalism (pp. 63-97)

UNIT AT A GLANCE
Section Topic Textbook Pages Other Resources

Chapter 1.2 Heimler’s History video

1.1 Ideals of Democracy
pp. 8-12 DOI in a Nutshell

Chapter 1.3 Khan Academy video and article

1.2 Types of Democracy
pp. 13-15 Heimler’s History video

Chapter 1.3
Government Power and pp. 15-17 Would you have been a Federalist or Anti-
1.3
Individual Rights Chapter 2.4 Federalist?
pp. 46-50
Why the AoC Failed
Challenges of the Articles of Chapter 2.1
1.4 Heimler’s History video
Confederation pp. 26-33
Gilder Lehrman article
Chapter 2.2
Ratification of the U.S. pp. 33-40 Federalist Papers article
1.5
Constitution Chapter 2.4 Federalist 10 / Brutus I Comparison
pp. 46-56
Lecture Notes
Principles of American Chapter 2.3
1.6 Judicial Review
Government pp. 41-45
Amending the Constitution

Relationship Between the

Chapter 3.2
1.7 States and Federal
pp. 66-70
Government
Chapter 3.3
Constitutional Interpretations pp. 71-78 Federalism Lecture Notes
1.8
of Federalism Chapter 3.5 Grants-in-Aid Chart
pp.84-90

Chapter 3.4
1.9 Federalism in Action
pp. 78-83

FOUNDATIONAL DOCUMENTS SUPREME COURT CASES

Declaration of Independence (DOI) Marbury v. Madison (1803)
Articles of Confederation (AoC) McCulloch v. Maryland (1819)
U.S. Constitution (CON) United States v. Lopez (1995)
Federalist No. 10 (Fed 10)
Federalist No. 51 (Fed 51)
Brutus I
Lecture 1.1 – Ideals of Democracy

1. Roots of Democracy in The U.S.

a. Democracy: Rule by the people.
Two types:
i. Direct: Rule by the people
themselves, i.e. people
come together to make law
ii. Indirect (representative):
Rule by elected
representatives
b. Founders' and democracy:
Federalist #10 – Democracies are
short lived; violent in death
i. Impracticalities – not
suited for large republic
ii. Fleeting passions of the people
1. Founders concerned that the people would be swayed by demagogues.
Demagogues; “gin up” emotions and prejudices of the “less informed’ under the
guise of espousing the causes of the people.
c. Republic (Republicanism)
i. Same as indirect democracy.
ii. Solves problems of direct democracy because it secures the advantages of direct democracy
while curing its “weaknesses.” (Federalist 10)
d. Popular sovereignty (consent) – Government derives power from the people.
e. Natural Rights and “The Social Contract”
i. State serves individual, not vice versa. (DOI)
ii. Liberty – Personal opportunity to realize goals

2. Philosophical Roots of Government

a. Thomas Hobbes – social contract
b. John Locke – natural rights, social contract
c. Montesquieu – separation of powers
d. Rousseau – social contract

3. Limited Government
a. The U.S. government based on the ideas of limited government.
i. Dilemma of wanting a more effective government, but also a limited government that did
not become tyrannical.
ii. There are many ways to express the concept of limited government, several in terms of a
constitution, or plan of government. Example(s):
1. Constitutionalism: a term applied to “arrangements” – checks and balances,
federalism, separation of powers, rule of law, due process and a bill of rights.
Leaders must think and compromise before making laws.
2. Constitutional democracy: refers to a government that enforces recognized limits
on those who govern and allows for free, fair, and relatively frequent elections.
3. Constitutional government: government has only those powers listed in
Constitution.
4. Bill of Rights: A safeguard in the U.S. Constitution against possible tyranny from a
new, strong, distant government. Little fear of state governments but great fear of
national govt. Amendment 10 reflects view that states would have substantial
powers: central govt. could exercise only those powers delegated to it by the Const.
States would have all else.
Lecture 1.2 – Types of Democracy

The Distribution of Power: Two Models of Democratic Government

1. Participatory (Majoritarian) politics model: Emphasizes broad participation in politics and civil society.
Features:
a. “Government by the people”: government by the majority.
b. Leaders are heavily influenced by the will of the people. Example: Federalist 10 and Brutus 1.
Features:
i. This type of model must balance the people’s role in direct democracy with the limitations
of a representative government.
c. To force the government to respond to “public opinion”, i.e. the majority, uses two important
mechanisms.
i. Elections. Theory that citizens can control representatives’ behavior through use of vote.
This is the primary mechanism because it fulfills the principles of procedural democracy:
participation, political equality (one vote, per person) and majority rule.
ii. Referenda: A policy question legislatures place on a ballot for citizens to vote on.
1. Used at the state and local level only. Two major are referendums and initiatives
(propositions)
2. Referendum: citizens must vote on a legislative action, e.g. increase in taxes
3. Initiative: Citizens circulate petitions, signed by registered voters, to place a
“proposition” (issue) on the ballot. Usually sponsored by interest groups.
4. Example(s): Proposition 8: Same sex marriage; Proposition 64 (2016): Adult use of
marijuana
d. Criticisms of the participatory model of democracy: critics argue American not knowledgeable
enough for participatory democracy to work.
e. Defense of participatory model of democracy:
i. While many Americans may have limited knowledge or interest in government, they have
stable and coherent opinions on major policy questions, and that opinion does not fluctuate
sharply or erratically. Instead, opinions change over generations and reflect different
experiences and backgrounds.
2. Creates an “undemocratic model”: Elite politics - When a small group (minority) makes most government
decision.
a. The Elite theory argues a few individual wield power in key financial, communication, industrial, or
government institutions. Examples.
i. Corporations, Wall Street, wealthy political donors.
ii. Wright Mills: 1916-1962 influence of power elite, with the military as superior in nation
permanent war mode: corporate, military, political (Eisenhower’s “military industrial
complex.”)
iii. Max Weber, 1864-1920): influence of bureaucracy. Efficient, rational use of authority
3. Pluralist Model: Government operating though many (plural) competing interest groups. An interest group
is an organization that seeks to influence public policy. Features:
a. Not “Government by the people”, but “government by SOME of the people”
b. The result of lack of participation by citizens. Majority of Americans eligible to vote, do not vote.
c. Shifts the focus of democratic government from the electorate to organized groups.
d. Robert Dahl: fundamental principle of pluralist democracy: instead of a single center of sovereign
power, there are many. Political resources are so scattered, that no single elite could possibly
 control all of them. Policy is the outcome of political haggling, compromises, and ever-shifting
alliances among groups.
e. Pluralist democracy results in:
i. Divided government: White House controlled by one party, Congress another.
ii. Decentralized power: No strong leadership in the House and Senate.
iii. Hyperpluralism; "Pluralism gone sour." Numerous groups - all strong. Creates government
“gridlock”.
4. American Democracy (pp. 8-12)
a. Equality: Of opportunity more than result. Role of FDR’s Second Bill of Rights: economic security.
The key is opportunity
b. Fundamental Democratic Structures
i. Federalism.
ii. Separation of powers.
iii. Checks and balances.
iv. Constitutionalism: the arrangement of checks and balances; federalism; Bill or Rights
v. Popular Consent – Government derives power from the people it governs
c. Conditions Conducive to Constitutional Democracy
i. Education.
ii. Prosperous, stable economy
iii. Ideological conditions:
1. Social “capital”: General acceptance of the ideals of democracy or that government
created by the people works and is effective. Democracy works when there is a “buy
in”, i.e. acceptance of the ideals.
a. People can become disillusioned about democracy when govt. fails to live up
the people’s expectations
2. Democratic consensus: Willingness of the people to accept the democratic process –
one person, one vote; majority rule, freedom of speech, assembly, press, religion.
iv. Basic beliefs about power: government must have legitimate authority to carry out policies
5. Democracy as a System of Interacting Values
a. Personal liberty: freedom
i. Single most important value in America history. (“Freedom from”)
ii. Self-determination: (“Freedom to”)
b. Respect for the Individual: every person has the potential for common sense, rationality and
fairness, versus “statism”.
i. Statism: political systems that do not put the individual first. Instead, government is based
on centralized authority and control.
c. Equality of opportunity, not results.
d. Popular consent
6. Democracy as a System of Interrelated Political Processes
a. Democratic government need to incorporate and follow democratic values. Example(s):
i. Free and fair elections: includes political competition and choice
ii. Majority and Plurality rule.
1. Majority rule: Governance according to the expressed preference of the majority
(50% plus 1)
2. Plurality: Candidate or party with the most votes cast in an election. Not always the
majority.
iii. Freedom of expression. Examples Right to Assemble and Protest
Lecture 1.3 – Government Power and Individual Rights

1. The U.S. Constitution was designed to prevent anarchy by creating a union of states. To understand the
values the U.S. Constitution represents, it is important to understand its historical roots.
2. Freedom in Colonial America
a. Colonists were British subjects, but by 18th century, they were becoming uniquely “American” in
the sense that they enjoyed freedom denied other British subjects, and even citizens of other
nations. Example(s):
i. No restrictions on private property, access to trade, or professions. Women, however, were
subject to all these.
ii. Were not compelled to follow a specific religion and no compulsory payments to support an
established church.
iii. No ceiling on wages set by guilds (exclusive professional associations).
iv. Most colonist enjoyed freedom of speech, press, assembly.
v. By 1763, Britain and the colonies reached a compromise that made the relationship more
federal in nature, meaning distinct powers for the national government and state
governments. For example, foreign trade and affairs controlled by the King and Parliament.
Everything else - colonial self-government.
3. The Road to Revolution
As the cost of administering the colonies rose, the British turned to taxing the colonies. The colonists did
not want to be taxed, especially by a distant government in which they had no representation. The result a
series of British taxes and laws, and opposition by the colonists.
a. Stamp Act, 1765: The first of many direct taxes. A tax on most documents or printed materials.
(Legal documents – deeds and wills, newspapers, playing cards)
i. https://www.history.com/topics/american-revolution/stamp-act Stamp Act repealed, but
replaced with other taxes.
b. Tea tax, 1773: led to the Boston Tea Party, December 17, 1773.
c. The “Intolerable” Acts, 1774. This was British response to the “Tea Party”, imposed a blockade on
Boston, gave royal governors power to “quarter troops” on private property.
4. First Continental Congress, Philadelphia September 1774:
All colonies (except GA) sent representatives.
Objective: restore harmony between British and colonies. However, two things continued the road to
revolution.
a. The congress also created the seeds of “government”. Each colony given one vote (essentially a
congress), and a leader (essentially a president) was chosen.
b. Before adjourning, with plans to reconvene in May 1775, the delegates adopted a statement of
rights and principles that would be the seeds of the Declaration of Independence and the U.S.
Constitution. Example(s):
i. Claimed right “to life, liberty, and property”.
ii. Claimed right “peaceably to assemble, consider of their grievances, and petition the king.”
5. Revolutionary Action
a. Second Continental Congress, May 1775. The Second Continental Congress becomes the first
national government of the United States. Faced with fighting between British soldiers and
colonists at Lexington and Concord, the Congress prepared for war.
b. A resolution for Independence, June 7, 1776: Though not immediately adopted, the VA delegation
calls for a resolution that the colonies ought to be free and independent. No further allegiance to
the Crown. All political connection between Great Britain and be dissolved.
6. The Declaration of Independence
a. Thomas Jefferson writes the Declaration of Independence, with editing by a committee of charged
with preparing a proclamation expressing the colonies reasons for declaring independence, and the
Second Continental Congress.
i. Jul 2, 1776, Second Continental Congress voted on the Declaration of Independence. All
voted in favor, except RI.
ii. With minor changes to Jefferson’s wording, on July 4, 1776, approved. The delegates (55)
pledged their lives, fortunes, and honor in support of the revolution.
iii. This was an act of rebellion and treason, and the punishment, if the colonies lost the
Revolutionary War, was death (hang, draw and quarter).
7. The War: the Price of Freedom
The term “revolution” belies a fundamental feature of this conflict: it was a civil war “polarizing
communities, destroying friendships, [and] dividing families. (Jasanoff Liberty’s Exiles, 2011)
a. Colonial Catholics: could either join revolutionaries who were opposed to Catholicism, or remain
loyal to England and risk hostility and persecution. However, Catholics were few in number
(25,000). Nevertheless, there were two strategic reasons Anti-Catholic revolutionaries needed
Catholics.
i. Anti-Catholic revolutionaries recognized that if they opposed independence in two largely
Catholic sates (MD, PA) it would jeopardize the war’s victory.
ii. Supporting Catholics would also garner support from Catholic France.
b. The Human and Financial Costs: What began in 1775 did not end until British surrender in 1781. An
official peace treaty was not signed until 1783. Examples:
i. A greater percentage of the population died or was wounded during the Revolution than in
any other U.S. conflict except the Civil War.
ii. After the war, many farmers who fought would return to find their farms in danger of
foreclosure.
iii. The new nation would deal with economic and political instability as it still attempted to
trade with Great Britain.
c. The Loyalists: One in five remained loyal to the Crown.
i. After the war, any of the signers of their own “declaration of dependence” were stripped of
rights, property, and dignity.
ii. Some 80,000 other loyalists fled to Canada, including approximately 3,000 black former
slaves who were given freedom by fighting for the British. Another 1,200 black slaves went
to Sierra Leone.
Lecture 1.4 – Challenges of the Articles of Confederation

1. The Articles of Confederation

a. Even before the Articles, the colonists were operating without an effective government. Raising
money for troops and supplies was beyond the scope of the default, but unofficial government,
under the Second Continental Congress. Thus, fairly, a week after the Declaration of
Independence was signed, the Second Continental Congress received a committee report entitled,
“Articles of Confederation and Perpetual Union.”
b. Confederation – loose association of independent state that agree to cooperate on specific
matters.
c. Articles of Confederation – a compact among the 13 original states that established the first
government of the United States.
i. Adopted by the Second Continental Congress November 1777.
ii. Took effect on March 1, 1781 following the required approval by all 13 states. U.S.
2. Features of the Articles
a. The states created a compact that jealously guarded their state’s sovereignty. Clearly showed their
fear of another strong, central government like Britain.
i. Article II, for example, said each state would keep its sovereignty, freedom, independence,
and power, and jurisdiction of authority.
ii. Each state has one vote in the congress, regardless of size.
iii. Votes on financing the war and other important issues required approval of 9 out 13
states.
iv. An amendment to the Articles (changing the compact) required approval by all 13 states.
3. The Articles failed for three important reasons
a. No national government authority to tax: a government that cannot tax, can provide public goods,
pay for the war (and subsequent debts), carry out affairs of a government
b. No provision for an independent leadership position: No chief executive such as president.
c. No governmental power to regulate interstate or foreign commerce. When John Adams proposed
that the confederation enter into a commercial treaty with Britain after the war, he was asked,
“Would you like one treaty or thirteen, Mr. Adams?” (Keenan, The Constitution of the United
States, 1975)
4. Disorder Under the Confederation
a. Annapolis Convention, September 11 -14, 1786: While not much was accomplished due to poor
attendance (only VA, NJ, NY, PA sent delegates), it was called to strengthen the Articles. This body
drafted a report for approval in Congress and that in turn led to the Constitutional Convention in
Philadelphia, May 1787.
b. Shays' Rebellion, 1786: illustrated the need for a strong central government
i. War debts
ii. Unfair head tax to pay war debts
iii. Request made to Congress of the Confederation by MA Governor Bowdoin for troops, but
there was no provision in the Articles for a standing army in peacetime let alone money for
a militia
BACKGROUND
The First and Second Continental Congresses helped organize the colonists to fight the British, but they were
not legal governments. They were only temporary and created to deal with the “emergency” of independence.
When Richard Henry Lee called for independence on July 2, 1776, he also asked the Second Continental
Congress to propose a plan of confederation to the states. These Articles of Confederation were approved on
November 15, 1777 and established a “firm league of friendship” among the States. Under the Articles, each
state kept its sovereignty, freedom, and independence. The Articles went into effect on March 1, 1781 after all
13 states had ratified (approved) it.
Go through the chart below and highlight which of the following are weaknesses of the Articles.
Governmental Structure Powers of Congress State Obligations under the Articles
• The Congress was unicameral. • Make war and peace. By agreeing to the Articles, the States
• The States chose delegates • Send and receive ambassadors promised to:
(representatives) each year. (representatives from other • Provide money for troops
• Each State’s delegation had just nations). • Give “Full Faith and Credit” to
one vote, regardless of population • Make treaties (agreements with each other’s records,
or wealth. other nations) documents, and court
• No executive (president) • Set up a system of money and a judgments. For example, a
• No judicial (national court system). post office person married in one State
• All work of the Congress handled by • Build a navy and raise an army by is married in other States if
committees. asking States for troops. Could not they move.
• Each year, the Congress chose one draft soldiers for a war. • Surrender and return fugitives
member to be the presiding officer. • Create a standard of weights and (those who break the law and
This person was not the president measures. escape to another State)
of the country. • Settle arguments among the States • Let Congress handle all disputes
• Need all 13 states to amend • 9 of 13 states needed to pass a law. (disagreements)
(change) Articles. • Allow open trade and travel
• No enforcement of laws, as the among the States.
Articles gave no mechanism to
make states obey with laws created
by the Congress.

Weaknesses of the Articles

Pick your top five weaknesses. Describe why you believe these to be a weakness to the Articles.
Weakness Why was it a weakness?

1.

ass .
2.
in cl
ill do
w e w
3.
do –
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Do
4.

5.
Lecture 1.5 – Ratification of the U.S. Constitution

1. Sources of the Constitution

a. British customs and traditions
i. Magna Carta (1215) – Barons forced King John to sign. Included fundamental rights like jury
trials and due process.
ii. English Bill of Rights (1689) – signed by William and Mary. Features were free elections,
petition, fair and speedy trials.
b. European philosophers
i. Hobbes, Locke, Montesquieu, Rousseau
c. Colonial experiences
i. Power of elected assembly. State constitutions written after the Declaration of
Independence: Preamble closely resembles the introduction to the Mass. (oldest, 1780)
Constitution.
2. The Convention
a. Philadelphia: Convened May 1787
b. All but one state sent delegates: Rhode Island (“Rogue Island)
c. Fifty-five delegates showed, but no more than 30 were actually present at any one time. One
reason: the weather.
3. Characteristics of the Delegates
a. The elite - "well-read, well-bred, well-fed, and well-wed." Classically trained men of the
Enlightenment and classical liberalism.
i. Notable Participants:
1. Madison: "Father of Const." because of leadership and detailed notes of
proceedings
2. Washington: presiding officer
3. Franklin: "elder statesman”
4. Gouverneur Morris (PA): largely responsible for final wording of Const.; Preamble at
the convention
5. Hamilton: most forceful advocate for strong central government
ii. Charles Beard's Economic Interpretation of the United States (1913).
1. Argument
a. Constitution was written by propertied class ---> naturally reflected those
interests (although no conspiracy per se).
2. Rebuttals
a. Most people owned property.
b. Even the poor, in hopes of someday owning property, wanted to protect
property
c. Establishing a democratic government involved risks and dangers --> need to
build in safeguards and protections.
4. Areas of Agreement
a. Scrap the Articles of Confederation.
b. Establish a republican govt.
c. Establish a constitutional govt.
d. Suffrage for property owners only.
e. Stronger central govt. than under the Articles.
f. Protection of property rights: the main purpose of govt.
g. Keep the proceedings secret.
5. Areas of Disagreement and the Compromises
a. Representation among the states in the legislature
i. The Virginia Plan: Large states favored representation based upon population.
ii. The New Jersey Plan: Small states favored equal representation.
iii. The Compromise: Connecticut (Great) Compromise
1. A bicameral legislature
a. House of Representatives based upon population, and elected by eligible
voters
b. Senate equal representation, and elected by state legislatures
b. The Presidency
i. Term of office – Life term or annual election:
1. The Compromise: A 4-year term, no limit on number of terms
ii. Method of Election
1. Election by Congress
2. Election by state legislatures.
3. Direct election.
a. The Compromise: Electoral College system
c. Representation and Taxation of Slaves
i. Northern states: Slaves to count for taxation, but not representation.
ii. Southern states: The opposite
1. The Compromise: A ratio that would yield equal representation among northern and
southern states called the “Three-fifths Compromise”: 3/5 of the slaves would
count for both
purposes.
d. The Commerce and Slave Trade
i. Interstate Commerce:
Regulated by national
government. – favored
Northern States
ii. No tax on exports, however,
newly imported slaves could
be taxed – favored Southern
States
iii. Slave trade would continue
another 20 years (actually
until 1808 instead of 1800) –
favored Southern States
iv. Fugitive slaves: No provision
to return escaped slaves to
owners in the Articles of
Confederation. Such a clause
was added to the
Constitution (Art. 4, Sect. 2,
Cl. 3) – favored Southern
States
6. Ratification Politics
a. Federalists: Those in favor of the Constitution.
i. Leaders – Hamilton, Madison, Washington, Jay.
ii. Supporters – Property owners, creditors, merchants.
iii. Views
1. Elites most fit to govern.
2. Feared "excesses" of democracy.
3. Favored strong central government.
iv. Federalists’ advantages
1. Better represented in state legislatures.
2. Began ratification procedures quickly before Antifederalists could organize
3. Agreed to a Bill of Rights after ratification of the Const.
4. Controlled the press.
a. Example: publication of The Federalist Papers: (Madison, Hamilton, Jay) to
rally support for ratification of the Constitution.
b. Antifederalists – Those against the Constitution
i. Leaders – Patrick Henry, George Mason, Elbridge Gerry.
ii. Supporters – small farmers, frontiersmen, debtors, shopkeepers.
iii. Views
1. Feared concentration of power in hands of elites.
2. Believed that govt. should be closer to the people.
3. Feared strong central government. Favored stronger state governments
4. Feared the lack of Bill of Rights -- their strongest argument.
Lecture 1.6 – Principles of American Government

The Living Constitution

1. Views of the U.S. Constitution. Features:
a. World’s oldest written constitutions
b. One of the shortest, AND with a straightforward structure:
i. Articles I – III: branches of government
ii. Article IV – Relations among States
iii. Article V – the Amendment Process
iv. Article VI – Supremacy of the Constitution (and laws made under it)
v. Article VII – Ratification by the States
vi. Amendments – subsequent “Articles” created by formal use of Article V
2. Checking Power with Power
a. The Constitution is the supreme and binding law that BOTH grants power and limits power
b. Separation of Powers
i. Tyranny was government that controlled all three branches of government. ---> Need for
Division of power among the legislative, executive, and judicial branches.
ii. Colonial experience showed the excessive power in state legislature and weak executive
iii. Separation of power diffuses power instead of concentrating power.
iv. Danger of one branch combining forces with another branch led to checks and balances.
c. Checks and balances
i. Background:
1. 18th century view of government – Something to be restrained and
2. Modern view of govt. – Something to be used for the common good.
3. Founders’ view of government – Fear of tyranny among Founders ---> their distrust
of government led to---> checks and balances as means of intentionally building
inefficiency in order to prevent government abuse of power.
ii. System of restraints: Reflects fear of tyranny. Example(s): veto, veto override, appointment
and confirmation, treaties and ratification, defense funding and Commander-In-Chief.
iii. Political independence within each branch: no branch is dependent upon the other two for
election (exception: judges are appointed by President) and continuance in office (life
terms for judges ameliorate presidential influence).
iv. Elected Terms: Staggered within each branch -> a majority of voters can gain control over
one part of govt. at one time, e.g., midterm cong. elections can serve as a check on the
exec.
v. Modifications of checks and balances:
1. Political parties
a. In theory: Should weaken checks and balances -- a way of bringing the
branches of govt. together. Constitution divides govt., but parties bring
people in government together.
b. In reality: Parties are weak because of the dominance of only two viable
parties ---> each party has wide range of interests ---> much disagreement
within each party itself ---> difficult to assert such strong control
c. Result: Divided government - President of one party and a Congress of the
other.
 2. Changes in voting methods
a. In theory: Should weaken checks and balances. Senators (17th Amendment)
and House chosen by people. President chosen by voters who select the
Electoral College. Members of two branches essentially chosen by same
electorate ---> weakening of checks and balances.
b. Result: Split ticket voting and divided government would.
3. Growth of federal bureaucracy
a. Weakens checks and balances
b. Development of numerous agencies w/ legislative, executive, and judicial
functions. Congress often grants broad authority to agencies and lets them
carry out the general will of Congress. Example: Congress writes tax laws, and
then grants the IRS authority to help write the tax code, enforce the tax
code, and finally, settle disputes over the tax code.
4. Changes in communication technology: Internet, satellite communications, social
media.
a. Two views weakens and strengthens checks and balances
b. President, Congress, interest groups, media have all been able to take
advantage of the new communications ---> strengthening of checks and
balances
c. President still has the advantage of the "electronic throne" e.g. “staged
events”, “photo opps.”, “sound bites”, first access to media – national press
conference or address. This weakens checks and balances.
5. Emergence of U.S. as world power after WWII.
a. Weakens the checks and balances in favor of the President.
b. As the leader of the free world, U.S. areas of "national interest" extend
around the world. Any crisis that involves the U.S. places heavy
responsibilities on the nation as a whole. These responsibilities (military
force, humanitarian aid, alliances) require a strong and efficient response.
That task overwhelmingly concentrates power in the executive branch.
c. Leads to charges of an “imperial presidency”.
3. Direct Democracy versus Indirect Democracy
Direct democracy is evident at the state and local level.
a. 17th Amendment: Direct election of Senators.
b. Electoral College: Electors chosen by popular vote in each state
c. Initiative (Propositions): Use of a petition to propose laws
d. Referendum: Popular vote on measures passed by a legislature
e. Recall: Remove an elected official from office by a vote of the electorate. The president of the
United States cannot be “recalled”

Judicial Review
1. Origins of Judicial Review: dilemma of wanting a more effective government, but also a limited
government that did not become tyrannical.
a. Constitutional government: government has only those powers listed in Const.
b. Bill of Rights: A safeguard against possible tyranny from a new, strong, distant government. Little
fear of state governments, but great fear of national govt.
c. Amendment 10 reflects view that states would have substantial powers: central government could
exercise only those powers delegated to it by the Constitution. States would have all else.
d. Elections: One of Madison’s "auxiliary precautions," (Federalist 51) but there is still the potential of
majority faction.
2. Judicial review
a. Definition – Power of courts to strike down laws or governmental actions.
b. Constitutional Basis – Not explicitly provided for in Constitution. The Constitution is written in
broad terms and open to interpretation. This most logically falls to the courts.
3. The Federalists and Opponents
a. The Federalists: Dominated the Convention and controlled national government until 1801. In favor
of strong federal courts and judicial review that would strengthen role of national government.
b. Jeffersonian-Republicans (by 1832 the “Democrats”): in favor of allowing state legislatures, not the
Supreme Court interpret the Constitution.
c. Judicial review, though logically a power of the Supreme Court, would not become an established
power until 1803.
4. Marbury v. Madison, 1803: Established concept of judicial review
a. Facts of case: The end of Federalist control of government. Adams makes appointments of the
"midnight judges," including Marbury. Jefferson, newly elected president, orders Madison to not
deliver commissions to these judges. Marbury requests a writ of mandamus (under Sect. 13 of Jud.
Act of 1789) from the Supreme Court to order the delivery of his commission. (a “writ” commands
an official to perform a duty)
b. Decision: Chief Justice John Marshall and the Court: Section 13 of Judiciary Act of 1789 enabling
the Court to issue a writ of mandamus through original jurisdiction in this type of case was
unconstitutional.
c. Analysis:
i. While Marshall (a Federalist) ruled that the Court did not have the authority to issue the
writ, he paradoxically increased its power by establishing judicial review.
ii. Jefferson could not complain because the midnight judges did not receive their
appointments, but he fumed because his enemy, Federalist John Marshall, increased the
power of the Court
iii. Effects: citizens can challenge constitutionality of laws in court by initiating lawsuits
(example: Gideon v. Wainwright, 1963) à litigation has become an important way of
making public policy

Amending the Constitution

1. The Unwritten Constitution
a. Jefferson’s View: “Constitution belongs to the living, not the dead”. He believed each generation
might need new Const. This has not occurred because of the informal changes that have allowed
the Constitution to adapt to changing times.
2. Changing the Constitution Informally: Without adding Amendments. Due to difficulties of formally
changing Constitution informal ways developed, and the impact on checks and balances and separation of
powers:
a. Acts of Congress: Judiciary Act of 1789
b. Judicial rulings: Plessy v. Ferguson, Brown v. Board, Texas v. Johnson, Lawrence v. Texas).
c. Presidential actions (e.g., police actions since WWII, executive privilege, impoundment, executive
orders). The framers could not have foreseen a nation of 323 million people, with territory that is
over 3,000 miles, and reaches into areas out to the Pacific, or sending men and women into space.
They could not envision the Internet, and nuclear proliferation and its effect on the debate about
which branch could make war, a Cold War, or global terrorism.
d. Customs and traditions: Cabinet, parties, committee system in Congress, senatorial courtesy,
legislative veto, presidential nominating conventions.
3. Changing the Constitution Formally: Adding Amendments.
a. Legacy of Articles: Unanimous vote to amend ----> impractical ---> desire to make process easier,
but not too easy.
b. Reasons for recent popularity of proposing Amendments (balanced budget, D.C. statehood, ERA).
i. Dissatisfaction by interest groups with court decisions, e.g., flag burning decision
ii. Gridlock in Congress.
4. Amendment Process: Article V - A reflection of a federalism
a. Proposal: Two Methods.
i. Method 1: A 2/3 vote from both houses of Congress. All 27 this method. No presidential
veto possible.
ii. Method 2: Constitutional Convention called by Congress at request of 2/3 of states. This is
serious.
1. Use: Never used before. There has been an estimated 400 requests to Congress, 150
in last 20 years.
2. Cons: Fear of "runaway" convention that might get out of hand and implement
wholesale changes in the Constitution
3. Analysis: Will convention stick to only the matter at hand? Will it take on other
issues? Who gets to be delegates? How are they selected? How is representation
among the states to be determined?
b. Ratification. Two methods. Congress decides which shall be used.
i. Method 1: Ratified by 3/4 of state legislatures.
1. Use: All but one (21st) done this way.
2. Cons: Most state legislatures ratify w/simple majority.
3. Analysis: Some states may require a "supermajority” (e.g., 3/5, 2/3, 3/4), while
others a simple majority
ii. Method 2: Ratifying conventions in 3/4 of states.
1. Use: Amendment 21 done this way.
2. Cons: A more directly democratic way: people elect delegates who state their
positions on the proposed amendment. Citizens are in essence casting their votes
on the amendment by voting for the appropriate delegates.
c. Controversy:
i. Time limits for ratification: Since 1919, generally 7 years (Dillon v Gloss, 1921).
1. Exception was the Equal Rights Amendment (ERA). It expired in 1982 after its initial
ratification began in 1972. By 1975, 35 states ratified.
a. VA ratified January 2020 – goes to House of Reps in February to determine if
restrictions will be rescinded
5. Ratification Politics
a. With the exception of the Bill of Rights, the power of constitutional amendment has served a
number of purposes:
i. To increase or decrease the power of the National Government: (11, 13, 16, 18, 21, 27)
ii. To expand the electorate and its power: (15, 17, 19, 23, 24, and 26)
iii. To reduce the electorate’s power: (22)
iv. To limit State government power: (13, 14 – come to be interpreted as imposing limits on
state govt. power)
v. To make structural changes in government: (12, 20, and 25)
Lecture 1.7 – Relationship between the States and the Federal Government

1. National Powers.
a. National government has three DELEGATED categories of powers:
i. Expressed (Enumerated): Actually stated in the Const.
ii. Implied: not stated explicitly, but suggested implicitly. Importance of elastic clause.
iii. Inherent: not stated explicitly, but held by the national govt. by virtue of its being a
national government. Any government is entitled to certain foreign policy powers such as
diplomatic recognition, acquiring territory, or defending itself.
2. State Powers: Reserved
a. Amendment 10 states that any powers not granted to the national government are reserved for
the states.
i. Examples: Establishing voting requirements, running elections, licensing professionals,
protecting community health, establishing a vehicle code.
b. Concurrent Powers: Granted to Congress, but not denied by Const. or courts to the states ---> held
by both national and state governments.
i. Examples: taxing, borrowing, establishing court system, establishing law enforcement
agencies.
ii. Questions of federal-state authority are decided by courts.
3. National Supremacy (Article VI): The Constitution and the laws of the U.S. (including treaties) shall be the
supreme law of the land. States, in essence, may not override national policies. National government
supreme in case of conflict.
4. Obligations of National Government to the States
a. Guarantee each state a republican form of govt.
b. Protect each state against invasion or domestic violence.
c. Grant new states the same rights as other states.
5. Obligations of State Governments to Each Other
a. Full faith and credit clause. (Article IV, Sect. 1): Each state must honor the public acts, records and
legal proceedings of other states. Example(s):
i. Birth certificates, Marriages Debts.
ii. Exceptions: Applies to civil not criminal matters.
b. Privileges and Immunities clause. (Article IV, sect. 2): States must extend to citizens of other states
the privileges and immunities they grant to their own citizens. Examples:
i. States cannot “unreasonably” discriminate, thus must allow use of courts, freedom from
discriminatory taxes, certain occupations, unreasonable residency requirements.
ii. Exceptions: states can “reasonably discriminate” in certain areas like:
1. charging out-of-state tuition
2. requiring a fishing or hunting license
3. residency requirement to vote or run for public office
4. requiring compliance with state law on vehicles.
6. Extradition clause. (Article IV, Sect. 2): Legal process whereby an alleged criminal offender is surrendered
by of one state, to the authorities in the state where crime is alleged to have been committed.
7. Constitutional Pillars
a. National Supremacy
b. War powers
c. Power to tax and spend
d. Commerce – Article 1, sect. 8, clause 3 covers foreign and interstate trade
Lecture 1.8 – Constitutional Interpretations of
Federalism

1. Defining Federalism
a. Federalism is dynamic. While the definition is static, the constitutional and philosophical BALANCE
OF POWER between national and state governments has gone through several phases.
b. Federalism: Constitutional division of power between the national govt. and state governments.
Both get their powers from a Constitution, not each other.
2. Reasons for American Federalism
a. Avoided pitfalls of past governments:
i. Unitary system: Central government rather than a constitution delegates power
1. Was undesirable – too reminiscent of British rule. Fear of strong, distant
government
ii. Confederate system: Undesirable -- too reminiscent of Articles.
b. Offered a solution to the challenge of creating a new nation made up of diverse interests.
Example(s):
i. States’ Rights: Allows unity, but not uniformity -- allows for differences among states.
ii. Geography: More suitable for geographically large nation -- allows for differences among
states.
iii. Demographics: Federal better suited for heterogeneous people -- allows for differences
c. More likely to check tyranny:
i. If tyranny occurred in a few states, federal government could prevent its spread to others,
e.g., Shays' Rebellion.
ii. National govt. has only those powers granted to it -- all others belong to states through
Amendment 10. -- Cost of checking tyranny is at times inefficiency, but Founders more
interested in checking tyranny than in having a strong and effective govt. that could run
roughshod over the people's liberties.
d. Defined national government obligations: Federalism frees national government to concentrate
on truly national matters.
e. Defined State and local government obligations: Federalism frees states from excessive intrusion
on strictly state/local matters. Exception – unfunded mandates.
f. Encourages experimentation: States act as "laboratories" (e.g. legalized gambling in Nevada has
spread to other states, CA legalization of medical marijuana has been adopted by a few other
states)
g. Access to the Populate: Federalism provides multiple points of access for citizens to government
(i.e. both state and national)
3. Balance of Power between States and National Government: Matter of Debate.
a. The debate over the balance of power between state and national government rooted in three
broad principles:
i. Constitution is silent on the dynamics of federalism opening the door for politicians, interest
groups and citizens to advance their priorities
ii. Elected officials often make -pragmatic (realistic) policy, not policy based on theories of
what American federalism should be. The policy will reflect input from citizens and interest
groups
iii. Growing recognition among public officials that public problems regarding order, freedom,
and equality, cut across governmental boundaries.
4. Theories and Metaphors: Theories of federalism used to describe the American system of government.
a. The view of most scholars is that the American federal system is subject to constant
reinterpretation.
b. Two competing representations of federalism: dual federalism and cooperative federalism.
5. Dual federalism: Prevalent through late 1930s.
a. View that the constitutional powers between national and state governments are clearly
differentiated, thus giving limited power to the national government.
b. Metaphor: “Layer-Cake” Federalism
i. Citizens cutting into a “political system cake” will find clear differences between state and
national powers, functions, and responsibilities.
ii. Essential theories:
1. Interpretation of power: National government has only enumerated powers – those
found listed in the Constitution (make war, coin money, etc.) Any interpretation of
national government power should be narrowly interpreted.
2. Powers and policy assignments: National government has limited set of
constitutional purposes - protect and defend; guarantee a republican form of
government.
3. State and national supremacy: Each government unit (state and national) are
sovereign in their own sphere.
4. Relationship between national and states: Designed to be characterized by tension,
rather than cooperation.
5. Supported by States’ Rights proponents: the idea that right not specifically conferred
on the national government, are reserved for the States.
6. Proponents believe that the powers of the national government should be narrowly
interpreted.
7. Support a broad interpretation of Amendment 10.
8. Favor a narrow interpretation of the national government’s use of the “elastic
clause”, but a broad use of Amendment 10.
iii. Argument Against Dual Federalism: Dual federalism a barrier to national government’s
ability to respond effectively to national issues. Example(s)
1. The economy: Measures to prevent or fix recessions, depression, inflation
2. Business: use of interstate commerce clause to, control monopolistic behavior
(Sherman Antitrust Act), labor disputes, safe work conditions (federal law against
interstate shipment of goods produced by child labor. Invalidated by Court in
Hammer v. Dagenhart, 1918)
3. Treatment of African-Americans post-Civil War: federal intervention over Jim Crow
laws that violated suffrage or 14th Amendment EPC, or response to a SCOTUS
opinion (Plessy v. Ferguson, 1894)
6. Cooperative Federalism:
a. Phrase coined in the 1930s. Stresses federalism as system of intergovernmental relations. The
Constitution is an agreement among the people, not states, who are citizens of both state and
nation
b. The Metaphor: “Marble-Cake” Federalism
i. Citizens cutting into the “political system cake” at any point will find national and state
powers, functions, and responsibilities mingle.
ii. Essential Theories:
1. Interpretation of power: Acknowledges the increasing overlap between state and
national functions when delivering government goods and services. Suggests the
national government’s powers should be “broadly interpreted”.
 2. Perception by states: Use of categorical grants are restrictive, weakening state
control of federal funds for certain programs.
3. Powers and policy assignment: Shared between states and national government.
a. Pros:
i. There is a need for uniformity in programs and policies among 50
states.
ii. The cooperation does not render states powerless and dependent on
national government. States may have more influence in policy areas
if the program is carried out by state employees.
b. Cons:
i. May open the door for federal programs to dominate, i.e. Medicaid.
4. Proponents favor broad interpretation when national government uses the “elastic
clause”, while narrow function of Amendment 10
7. Other Theories on Federalism
a. Creative Federalism (“Picket Fence”): Creative Federalism is the expansion of national
government’s role in society under LBJ.
i. The term “picket fence” describes the creative federalism. Certain policy goals involve all
levels of government. The fence represents the federal system, i.e. the relationship
between national and state government. The vertical “pickets” represent the various
policies the levels share – education, health, highways. The horizontal “slats” on the fence
represent the connection between each level of government – national, state, local that
bind the agency bureaucrats to each other in a policy area.
ii. Era: 1960s-1980. Examples: “Great Society”
1. 1965 Highway Beautification Act: control of outdoor ads; signs, junk along federal
highways- https://www.fhwa.dot.gov/infrastructure/beauty.cfm
2. 1965 Water Quality Act: regulates discharges of pollutants in water. -
https://www.epa.gov/laws-regulations/summary-clean-water-act
3. Grants funded categorically and targeted social and economic problems to advance
Civil Rights movement of the 1960s. Grants could bypass States and be given directly
to local entities
iii. Backlash:
1. Growing conflict over authority
2. Vietnam war and recession – how to pay for programs
3. Perception of growing reliance on government to solve societal problems
b. New Federalism (“Devolution” or “On Your Own” Federalism).
i. Era: as early as Nixon, 1972, 1980s under Reagan, and the 104th and 105th Congress. This
was an attempt to redirect New Deal programs when, post WWII, the federal govt. saw an
increase in its resources.
ii. Policy Goals and assignment: Shifting of some authority from national govt. by moving from
categorical funds, back to more discretion by state and local government. This was
considered politically appealing because it weakened the power of Washington centered
liberal lobbyists who now had to scurry to all 50 States to exert influence on how funds
would be spent.
1. Example: General revenue sharing, 1972 allowed distribution of funds state and
local govt. with few strings attached. Use of block grants, in which federal govt. is
midway between tight control (categorical) and minimal control (revenue sharing),
i.e. welfare reform bill of 1996.
iii. Backlash: Rise of unfunded mandates, tying grants to certain social conditions (highway
funds to seatbelt laws). The 104th and 105th Congress however, did attempt to stem the
 perceived tide of “more government” by passing: HIPAA, Unfunded Mandates Reform Act,
and Welfare Reform Act.
c. Permissive Federalism: States are permitted to exercise certain powers if the national government
allows it.
8. Changes in the Relationship between the National and State Governments Over Time
a. National Crises and Demands. The elastic clause combined with its enumerated powers, has
allowed Congress to increase the scope of the national government. Greatest changes occurred
during time of crisis or emergencies.
i. Civil War: expanded power of president and congress – suspension of habeas corpus;
income tax; emancipation proclamation
ii. The Great Depression: ended dual federalism
iii. September 11, 2001: USA-PATRIOT Act, 2001 - , expanded electronic surveillance and
investigative powers of Justice Dept.Uniting (and) Strengthening America (by) Providing
Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2000
iv. Recession of 2008: passage of the 2009 $787 billion economic stimulus package (American
Recovery and Reinvestment Act). Include new spending, tax cuts direct aid to states,
extended unemployment benefits. No House Republican voted for it. Only three
Republicans in Senate voted. Eventually, all governors signed on to get funds.
b. Judicial Interpretations/Rulings: Early nineteenth century: Courts federalism decisions favored the
national government.
i. Marshall Court expanded role of national government: Example(s):
1. McCulloch v. Maryland: Marshall adopted a broad interpretation of Congress’ use of
the elastic clause to include formation of a national bank. In short, he called for a
more flexible interpretation of the Constitution so that it would endure. The Court
found that the Bank was "necessary and proper" under Congress’ implied powers.
Second, while MD argued taxation was one its reserved powers, Marshall insisted
that a state could not tax the national government. Such a tax interferes with the
power of Congress. Marshall’s definition of commerce as “intercourse among states”
would provide later expand the range of economic activities to sale of lottery tickets
and TV/radio broadcast regulations.
2. Gibbons v. Ogden (1824): https://www.oyez.org/cases/1789-1850/22us1
a. The Bill of Rights Institute:
https://www.youtube.com/watch?v=XvyqfJ1nhNM
b. Through both Commerce and Supremacy clauses, the Marshall Court takes
broad interpretation of the commerce clause to include virtually every form
of commercial activity.
ii. Mid-nineteenth century: Court’s federalism decisions - favor the states. Taney Court:
Imposed firm limits on powers of national government. Example(s):
1. Dred Scott v. Sandford (1857): https://www.oyez.org/cases/1850-1900/60us393
a. Slaves were property, not American citizens, and had no standing in a federal
court. The Court invalidated the Missouri Compromise, shifting the balance
of power to States.
2. Post Taney: Plessy v. Ferguson (1896): https://www.oyez.org/cases/1850-
1900/163us537
a. “Separate, but equal” doctrine constitutional because there was no
difference in the railway cars Plessy, or others, used.
3. The 1930s: FDR and the New Deal – Court decisions that favor the national
government.
 a. Example(s): Congress eventually agrees with FDR that the Depression was a
national problem open to national action. Court upheld several New Deal
measures with its interpretation of the Commerce Clause.
i. Wickard v. Filburn (1942): https://www.oyez.org/cases/1940-
1955/317us111
1. Roscoe Filburn attempted to grow wheat for his own personal
consumption, in quantities that violated Department of
Agriculture rules. Court held that even if an economic activity
is primarily local, the Constitution allowed Congress to
regulate it if it one could show it had an indirect effect on
interstate commerce. This is called the “aggregation
principle”. When one looks as overall (aggregate) economic
activity, there can be a substantial effect on interstate
commerce.
iii. The 1990s: The Commerce Clause
1. Court decisions that favored the States, but with some exceptions. Exceptions:
a. United States v. Lopez (1995): https://www.oyez.org/cases/1994/93-1260
i. Alfonzo Lopez, a 12th grade high school student, carried a concealed
weapon into his San Antonio, Texas high school. He was charged
under Texas law with firearm possession on school premises. The
next day, the state charges were dismissed after federal agents
charged Lopez with violating a federal criminal statute, the Gun-Free
School Zones Act of 1990 (GFSZA, 1990).
ii. The act forbids "any individual knowingly to possess a firearm at a
place that [he] knows...is a school zone." Lopez was found guilty
following a bench trial and sentenced to six months' imprisonment
and two years' supervised release.
iii. Rehnquist Court held 5-4 that Congress overextended its use of the
Commerce Clause to when it enacted a 1990 ban on the possession of
a gun near a school.
b. Bush v. Gore (2000): https://www.oyez.org/cases/2000/00-949
i. Florida State Supreme Court, interpreting Florida election laws,
ordered ballot recounts after Democratic Presidential candidate Al
Gore challenged the Florida election results. The Rehnquist Court in a
5-4 decision halted the recount, allowing the Florida Secretary of
State to determine the winner of the election (Bush 43) thus
awarding the electoral votes of that state to him.
c. 2015: Glossip v. Gross (2015): https://www.oyez.org/cases/2014/14-7955
i. The Controversy: some argued, the protocol “cocktail” that it could
render subject unconscious and paralyzed before death, was cruel
and unusual punishment.
ii. In a 5-4 decision, Roberts Court held that the Constitution did not
prohibit states from using the drug Midazolam as part of their
protocols for executing inmates on death row through lethal
injection.
Lecture 1.9 – Federalism in Action

Decentralist Approach Centralist Approach

States’ Rights Nationalist

• Constitution is a compact created by the states • Constitution created by people (We the people…) and
implies strong state authority not the states
• Constitution carefully limits national authority to • Elastic, commerce, and taxing/spending clauses give
delegated powers great power to the national government
• 10th Amendment gives broad powers to the states • Powers go to states only if national government has
• When in doubt as to which holds power, matter surrendered them
should be resolved in favor of states • When in doubt, matter should be resolved in favor of
• Implies strict constructionist approach to Constitution national government
• National government has gotten too big and • Implies loose constructionist approach to
impersonal Constitution
• State governments are closer to the people • Size of federal bureaucracy has remained relatively
• Followers: Calhoun, Goldwater, Reagan, southern constant for last 4-5 decades
conservatives, western conservatives, Christian • While state government may be closer to the people,
fundamentalists, Newt Gingrich, Bush 43, Trump some of the state governments violated people’s
basic rights (e.g., South during first 70 years of the
20th century). The national government has been the
key protector of rights
• Followers: Hamilton, Marshall, Webster, TR, FDR, JFK,
LBJ, Clinton, Obama

1. Sources of National Strength.

a. Supremacy Clause: Article VI of the Constitution.
i. Preemption of state laws by federal courts if laws in conflict with Constitution or federal
laws.
ii. Current issues: state marijuana laws; “sanctuary laws”
b. Elastic clause (implied powers): Congress can pass laws “necessary and proper” to carry out
expressed powers.
c. War powers. The declaration of war, the president’s use of his or her power as Commander in
chief, broadens the power of the national government.
d. Interstate Commerce Clause: Virtually anything is interstate or foreign commerce à Congress can
regulate virtually anything.
e. Power to tax and spend for the “common defense and the general welfare.”
i. While Congress cannot technically legislate on everything, it can spend funds on virtually
everything.
ii. States do not have to accept federal money, but if they do, they must follow federal
guidelines. Funds to states, therefore, have “strings” attached. Example(s):
1. Federal highway funds can be denied if a state’s alcohol purchasing age is under 21
years.
2. Federal education funds could be denied if states do not comply with “NCLB”
f. Imposition of federal mandates (some unfunded) on states
2. Developments.
a. Evolution towards greater federal control throughout most of 20th century.
b. Nixon's "New Federalism:" returning some power back to states. Also favored by Reagan, both
Bushes, and Republican Party in general.
c. Republican victory in congressional election of 1994 ushered in “Contract with America” and the
“Devolution of power back to states:
i. Unfunded Mandates Reform Act of 1995 restricted future unfunded mandates.
ii. Use of block grants to replace categorical grants.
iii. 1996 welfare reform bill that ended welfare as federal entitlement.
iv. 1995 Repeal of the National Maximum Speed Limit Act (55 M.P.H. speed limit). It went into
effect under Nixon in 1974 in response to the gas crisis. US supported Israel in the Yom
Kippur War, so OPEC cut off its supply of oil to the US. States that did not comply with the
speed limit risked losing funds from the Dept. of Transportation.
d. Supreme Court Actions Consistent With Devolution:
i. Struck down Gun Free School Zones Act: US v. Lopez (1995): Congress overextended itself
when it linked gun control laws to the interstate commerce clause of the Constitution.
ii. Struck down part of the Violence against Women Act: US v. Morrison (2000): rape victims
could not sue their attackers in federal court because it was up to the states – not Congress
– to give such help to women victimized by violence. Again, the Court said that the
Congress overextended itself with the use of the interstate commerce clause in passing the
Act.
iii. Struck down Religious Freedom Restoration Act (RFRA) in 1993: City of Boerne v. Flores
(1993): Under the RFRA, the government is prohibited from "substantially burden[ing]"
religion's free exercise unless it must do so to further a compelling government interest,
and, even then, it may only impose the least restrictive burden. This act had overly
restricted the states' freedom to enforce RFRA in a manner that they deem most
appropriate. There was no evidence to suggest that Boerne's historic preservation
ordinance favored one religion over another, or that it was based on animus or hostility for
free religious exercise. This ruling gave states greater authority to regulate religion.
iv. Struck down Brady Act in 1997: Printz v US (19917): The Brady Act required chief local law
enforcement officers (CLEOs) to do background checks on gun buyers. Congress passed the
law under authority arising from the necessary and proper clause of Article 1. Two states’
CLEOs – AZ and MT challenged the act, citing a violation of the Tenth Amendment. The
Court ruled that the NPC does not compel a state’s CLEO to comply with distributing and
collecting handgun-application forms; notifying certain applicants of the reasons for their
refusal in writing, etc., until the federal government could set up a system do so.
v. Upheld an Indiana law that required photo ID for voting: (Crawford v. Marion County
Election Board and Indiana Democratic Party v. Rokita, 2008)
vi. Government failed to prove it used the least restrictive means to further its objective of
providing contraceptives under ACA (Obamacare), thus violating RFRA. Burwell v. Hobby
Lobby (2014)
Federalism and Federal Grants
As the national government has grown more powerful, it has used state and local governments to administer
programs that are federally funded leading to the development of federal grants to state and local
governments. Dollar amounts of these have consistently risen in last several decades, though there has been
variation in grants as a percentage of federal expenditures.

1. Purposes of Federal Grants

a. Reduces growth of federal bureaucracy -- federal government simply provides money to states and
has states run the programs (under federal guidelines).
b. Supplies state and local governments with needed revenue.
c. Establishes minimum fed. standards in important areas (air quality, water quality)
d. Equalizes resources among rich and poor states
e. Often analyzed through Centralist v. Decentralist positions
2. Types of Funding
a. Most grants to states are in the form of direct cash grants. Most important of type of federal aid.
Two types of direct cash grants:
i. Categorical: For specific programs.
1. Examples: roads, airports, housing, bilingual education, Head Start.
2. Features:
a. States do not have to accept these, but if they do, they must comply with
federal standards.
b. Most dominate until 1970s.
ii. Block: Grant-in-aid distributed to support a collection of general programs or policy.
1. Examples: Urban development, transportation, education, welfare. All are “general”
in nature, compared to categorical grants.
2. Features: More state flexibility and leeway in spending of the money.
3. Associated with:
a. 104th and 105th Republican Congress
b. New Federalism and the “devolution” of power back to states.
iii. Funding for Categorical and Block Grants
1. Formula: grants distributed according to a particular set of rules (formula) that
specific who is eligible, and how much applicant receives.
a. Common feature: a payment formula (80-20, 90-10 etc. split) is established
in congressional legislation. National government agrees to pay a portion of
the costs for these, and states pick up the balance. As long states meet
criteria, funds are distributed. Example(s):
i. The Title I program under the Elementary and Secondary School Act
(ESSA): designed to help education student from disadvantage
backgrounds. Eligible schools receive that meet guidelines receive
federal funds.
2. Competitive grants (Project): state and/or local governments submit applications
(competitive grant) in order to compete for the federal funds. Has led to
development of the fine art of “grant writing”. Example(s):
a. Race to the Top: Obama’s education grant
b. Community Development Block Grant: uses formula to allocate funds to
states and then has the States administer competitions to distribute funds
locally. Example(s):
 i. Payments to regional commissions. These are grants awarded to
states to help with tasks like preventing crime or reducing drug
trafficking.
1. USA Today “Texas scandal throws doubt on anti-drug task
forces.”2004.
http://www.usatoday.com/news/nation/2004-03-30-drug-
program_x.htm
iv. Cross-Cutting Requirements: Requirements states must meet in order to receive federal
money. States can lose funds in an area unrelated to the requirement with which they are
to comply. (Type of mandate). Example(s):
1. Non-discrimination based on gender, race, religion, ethnicity, etc.
v. Other Types of Federal Aid to States
1. Revenue Sharing
a. Congress gives money to states and cities
b. Referred to a “revenue sharing” because federal revenue from the sale of
certain fed. Property, goods, or services is shared with state and local
governments. Problems occur when there is a budget deficit and no revenue
to share. Phased out with Reagan as Congress moved to block grants
2. Payments for grants-in-kind. Any “in kind” benefit is usually a specific good or
service
a. federal government buys goods and distributes to state and local govt.
Example: specific food for use in federally subsidized school lunches
3. Payments to state and local governments for research and development.
3. Politics of Federal Grants: Which grants Do Democrats and Republicans Prefer?
a. Democrats: Generally favored greater funding, but with more “strings” (categorical grants.)
b. Republicans: Generally favored less funding, but with fewer “strings” (block grants.) Example:
Welfare
4. Welfare Reform:
a. End to entitlement status of AFDC and federal guarantee of welfare checks with passage in 1996 of
Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Reform Act of 1996)
b. Welfare block grants therefore replaced the welfare categorical grants.
c. Even as a block grant, the Welfare Reform act involved federal “strings:”
i. No federal funds go to recipients who have not worked within 2 yrs.
ii. No federal funds go to recipients who have received federal money for more than 5 yrs.
iii. States must spend at least 75% of what they had previously spent on welfare – this to avoid
the “race to the bottom.”
5. Exception to the “fewer strings” approach by the Republicans: No Child Left Behind Act (NCLB) 2002.
a. In order to receive federal funds for education, states must:
i. Adopt subject matter standards
ii. Test all students in grades 3-8 on those standard
iii. Identify low-performing schools based upon that testing
iv. Require low-performing schools to develop improvement plans
v. Allow parents of students in such schools that do not improve to transfer to other public
schools

Obamacare replacement by GOP under Trump: Block grant

https://www.pbs.org/newshour/nation/block-grants-republican-medicaid
Federal Mandates

1. Mandate: a federal order imposed upon states.

a. Examples:
i. Americans with Disabilities Act (ADA)
ii. Various environmental acts, e.g., Clean Air Act, Clean Water Act
iii. Individuals with Disabilities Education Act (IDEA)
b. Purpose: to meet a goal of the federal government
2. Impact upon the states:
a. Financial burdens, especially with unfunded mandates, e.g., ADA has imposed large costs upon
states as they make “reasonable accommodations” for the disabled.
b. State complaints about federal heavy-handedness, e.g., if a state does not devise a plan and pay
for the requirements of the Clean Air Act of 1990, the federal government will impose its own plan
upon the state.
c. State complaints about federal blackmail, e.g., if a state does not comply with the Clean Air Act
standards, federal funds can be withheld in other programs.
3. Republican response to mandates:
a. Unfunded Mandates Reform Act of 1995: (“Contract w/America”) restricted future unfunded
mandates
i. Required (Congressional Budget Office (CBO) to analyze impact of unfunded mandates on
states.
ii. Requires separate congressional vote on bills that impose unfunded mandates.
1. This is an example of the “Devolution Revolution” associated with the 104th
Congress.
4. Other Ways Federal Government Mandate State compliance
a. Direct order: states must comply or face civil or criminal sanctions. Example – EEOC Act, 1992 bars
state or local government discrimination based on race, color, religion.
b. Cross-cutting requirements: grants may establish certain conditions that affect all activities
supported by federal funds, regardless of the source. Example: Title VI of the CRA 1964 which state
that in the use of federal funds, no person may be discriminated on the basis of race, color, etc.
Other cross cutting requirement concern protection of animals and humans in experiments or
studies; access to govt. information, the environment, contract wage rates.
c. Crossover sanction: permit use of federal money in on program to influence state/local policy in
another area. Example: 1984 act that cuts state highway funds by 155 if they do not have a
minimum drinking age of 21 years.
d. Total preemption: national govt.’s power under the supremacy and commerce clauses to
“preempt” conflicting state and local activities.
e. Partial preemption: national govt. establishes based polices but requires states to administer
them. If states opt out, the national govt. runs the program.
f. Mandatory partial preemption: requires states to act or lose other funds, and provides no funds to
help
i. Example: Clean Air Act, 1990 – feds. set national standards, and states must comply by
devising plans and paying the cost. Homeland security- expects local police to be “first
responders”.
Politics of American Federalism

1. Non-Constitutional Reasons for Triumph of Nationalist Approach.

a. Growth of U.S. in Size and Population ---> large problems only national govt. could handle.
b. Increase in national (and even international) problems: Pollution, crime, global economy.
c. Improved communication and Transportation – Washington, D.C. not so far away.
d. Historical Developments (New Deal, WWII, and Great Society) created huge bureaucracies and
constituencies to support a strong fed. govt. Once federal programs are started, they are difficult to
end because of the political support that has developed for them.
i. *business want lower tariffs; farmers want aid; labor want subsidies for railroads
2. Reactions against “Big Government”
a. Shift in Attitude toward Role of Government: Late 1970s: Consensus that power of government
had gone too far.
b. “Outsider Presidents: Six of last seven Presidents have been "outsiders" (Carter, Reagan, Clinton,
Bush 43, Trump).
c. Questionable effectiveness of some federal programs, e.g., Great Society programs
d. Tax revolt (Prop 13, Mondale's "pledge" to raise taxes, Reagan tax cuts, Bush 41’s "read my lips,"
tax cuts even under Clinton, Bush 43 tax cuts).
e. Reduction of Great Society-style federal aid to cities, and restoration of principle that states
should take on more responsibilities:
i. Reduction of categorical grants.
ii. Increased use of block grants.
iii. Reduction of federal regulations, e.g. granting of waivers to states that want to experiment
with welfare reform.
iv. 1996 welfare reform bill.
v. Restrictions on future unfunded mandates as part of Contract with America.
3. Effects of New Federalism and Devolution Revolution: a mixed bag. Americans are pragmatists who want
whatever level of government to get the job done.
a. In 1996, Clinton declared: “The era of big government is over.” Supporting evidence of this:
i. Welfare Reform Act
ii. Repeal of 55 M.P.H. limit (National Maximum Speed Law, 1974) in 1995
iii. Restrictions on future unfunded mandates
iv. More block grants/less categorical grants
v. Tax cuts under three presidents Clinton (D), Bush 43 and Trump (R)
b. Republican Congresses increased national power:
i. 9-11 and an increase in big government to deal with terrorism.
ii. Wars in Afghanistan and Iraq led to huge military spending increases.
iii. Massive budget deficits (>$500 billion) under Bush 43
iv. USA Patriot Act of 2002 gave strong powers to national government to deal w/terrorism
v. NCLB Act imposed significant burdens upon states.
vi. Addition of prescription drug benefit for Medicare, a program that was/is already under
tremendous financial pressure.
vii. Growth in congressional “earmarks:” Pet projects that members of Congress set aside for
their districts/states.