THE PRESIDENTIAL ELECTION OF 2016

We the People AN INTRODUCTION TO AMERICAN POLITICS

E L E V E N T H E S S E N T I A L S E D I T I O N

Hillary Clinton (Democrat) margin of victory

Total electoral votes: 232

Donald Trump (Republican) margin of victory

Total electoral votes: 306

<5% 5–10% >10% <5% 5–10% >10%

Alaska (3)

Hawaii (4)

Washington (12)

Oregon (7)

California (55)

Nevada (6)

Utah (6)

New Mexico (5)

Texas (38)

Kansas (6)

Nebraska (5)

Wyoming (3)

Colorado (9)

Arizona (11)

Mississippi (6)

Alabama (9)

South Dakota (3)

Iowa (6)

Wisconsin (10)

Minnesota (10)

Illinois (20)

North Dakota (3)

Montana (3)

Idaho (4)

Kentucky (8)

Indiana (11)

Michigan (16)

Tennessee (11)

Virginia (13)

Florida (29)

Maine (3 votes to Clinton, 1 vote to Trump)

New York (29)

West Virginia

(5)

Louisiana (8)

Arkansas (6)

Missouri (10)

South Carolina

(9)

Georgia (16)

North Carolina

(15)

Pennsylvania (20)

Ohio (18)

Oklahoma (7)

Maryland (10)

District of Columbia (3)

Delaware (3)

New Jersey (14)

Vermont (3)

Rhode Island (4)

Connecticut (7)

Massachusetts (11)

New Hampshire (4)

NOTE: As of December 1, 2016, the Democrats were pursuing recounts in Michigan, Pennsylvania, and Wisconsin. NOTE: As of December 1, 2016, the Democrats were pursuing recounts in Michigan, Pennsylvania, and Wisconsin.

THE PRESIDENTIAL ELECTION OF 2016

Hillary Clinton (Democrat) margin of victory

Total electoral votes: 232

Donald Trump (Republican) margin of victory

Total electoral votes: 306

<5% 5–10% >10% <5% 5–10% >10%

Alaska (3)

Hawaii (4)

Washington (12)

Oregon (7)

California (55)

Nevada (6)

Utah (6)

New Mexico (5)

Texas (38)

Kansas (6)

Nebraska (5)

Wyoming (3)

Colorado (9)

Arizona (11)

Mississippi (6)

Alabama (9)

South Dakota (3)

Iowa (6)

Wisconsin (10)

Minnesota (10)

Illinois (20)

North Dakota (3)

Montana (3)

Idaho (4)

Kentucky (8)

Indiana (11)

Michigan (16)

Tennessee (11)

Virginia (13)

Florida (29)

Maine (3 votes to Clinton, 1 vote to Trump)

New York (29)

West Virginia

(5)

Louisiana (8)

Arkansas (6)

Missouri (10)

South Carolina

(9)

Georgia (16)

North Carolina

(15)

Pennsylvania (20)

Ohio (18)

Oklahoma (7)

Maryland (10)

District of Columbia (3)

Delaware (3)

New Jersey (14)

Vermont (3)

Rhode Island (4)

Connecticut (7)

Massachusetts (11)

New Hampshire (4)

NOTE: As of December 1, 2016, the Democrats were pursuing recounts in Michigan, Pennsylvania, and Wisconsin.

CONTENTS V

We the People AN INTRODUCTION TO AMERICAN POLITICS

B W. W. NORTON & COMPANY

NEW YORK LONDON

Benjamin Ginsberg THE JOHNS HOPKINS UNIVERSITY

Theodore J. Lowi CORNELL UNIVERSITY

Margaret Weir BROWN UNIVERSITY

Caroline J. Tolbert UNIVERSITY OF LOWA

Robert J. Spitzer SUNY CORTLAND

E L E V E N T H E S S E N T I A L S E D I T I O N

01_WTP_28364_fm_i-1.indd 5 06/12/16 11:42 am

W. W. Norton & Company has been independent since its founding in 1923, when William Warder Norton and Mary D. Herter Norton first published lectures delivered at the People’s Institute, the adult education division of New York City’s Cooper Union. The firm soon expanded its program beyond the Institute, publishing books by celebrated academics from America and abroad. By mid- century, the two major pillars of Norton’s publishing program—trade books and college texts— were firmly established. In the 1950s, the Norton family transferred control of the company to its employees, and today—with a staff of four hundred and a comparable number of trade, college, and professional titles published each year—W. W. Norton & Company stands as the largest and oldest publishing house owned wholly by its employees.

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The Library of Congress has cataloged the full edition as follows:

Library of Congress Cataloging-in-Publication Data

Ginsberg, Benjamin, author. | Lowi, Theodore J., author. | Weir, Margaret, 1952- author. | Tolbert, Caroline J., author. We the people : an introduction to American politics / Benjamin Ginsberg, the Johns Hopkins University, Theodore J. Lowi, Cornell University, Margaret Weir, Brown University, Caroline J. Tolbert, University of Iowa. Eleventh Edition. | New York : W.W. Norton & Company, [2017] Tenth edition: 2015. Includes bibliographical references and index. LCCN 2016050517 | ISBN 9780393283624 (hardcover) LCSH: United States—Politics and government—Textbooks. LCC JK276.G55 2017 | DDC 320.473—dc23 LC record available at https://lccn.loc .gov/2016050517

This edition: ISBN: 978-0-393-28364-8 (pbk.)

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W. W. Norton & Company Ltd., Castle House, 15 Carlisle Street, London W1D 3BS

1 2 3 4 5 6 7 8 9 0

https://lccn.loc.gov/2016050517

http://www.wwnorton.com

To Teresa Spitzer

Sandy, Cindy, and Alex Ginsberg

Angele, Anna, and Jason Lowi

Nicholas Ziegler

David, Jackie, Eveline, and Ed Dowling

Preface xxi

Acknowledgments xxiii

PART I Foundations

1 l Introduction: The Citizen and Government 2

Government Affects Our Lives Every Day 5 Trust in Government Has Declined 7 Political Efficacy Means People Can Make

a Difference 7

Citizenship Is Based on Political Knowledge and Participation 8 “Digital Citizenship” Is the Newest Way to

Participate 9

Government Is Made Up of the Institutions and Procedures by Which People Are Ruled 9 Different Forms of Government Are Defined by Power and Freedom 9 Limits on Governments Encouraged Freedom 10 Expansion of Participation in America Changed the Political Balance 11 The Goal of Politics Is Having a Say in What Happens 11

The Identity of Americans Has Changed over Time 12 Immigration and Increasing Ethnic Diversity Have Long Caused

Intense Debate 13 Today the Country Still Confronts the Question “Who Are

Americans?” 14

l AMERICA SIDE BY SIDE Global Diversity 17

America Is Built on the Ideas of Liberty, Equality, and Democracy 19 Liberty Means Freedom 19 Equality Means Treating People Fairly 20 Democracy Means That What the People Want Matters 21

American Political Values and Your Future 21

contents

i x

l WHO PARTICIPATES? Who Participated in the 2012 Presidential Election? 23

Key Terms 26

For Further Reading 27

2 l The Founding and the Constitution 28

The First Founding: Ideals, Interests, and Conflicts 31 Narrow Interests and Political Conflicts Shaped the

First Founding 31 British Taxes Hurt Colonial Economic Interests 32 Political Strife Radicalized the Colonists 33 The Declaration of Independence Explained Why the

Colonists Wanted to Break with Great Britain 34 The Articles of Confederation Created America’s First

National Government 35

The Failure of the Articles of Confederation Made the “Second Founding” Necessary 36

The Annapolis Convention Was Key to Calling a National Convention 37

Shays’s Rebellion Showed How Weak the Government Was 37 The Constitutional Convention Didn’t Start Out to Write

a New Constitution 38

The Constitution Created Both Bold Powers and Sharp Limits on Power 41 The Legislative Branch Was Designed to Be the Most Powerful 43 The Executive Branch Created a Brand New Office 44 The Judicial Branch Was a Check on Too Much Democracy 45 National Unity and Power Set the New Constitution Apart from

the Old Articles 45 The Constitution Establishes the Process for Amendment 46 The Constitution Sets Forth Rules for Its Own Ratification 46 The Constitution Limits the National Government’s Power 46

Ratification of the Constitution Was Difficult 49 Federalists and Antifederalists Fought Bitterly over the Wisdom of the

New Constitution 50 Both Federalists and Antifederalists Contributed to the Success of the

New System 52

l AMERICA SIDE BY SIDE Comparing Systems of Government 53

Constitutional Amendments Dramatically Changed the Relationship between Citizens and the Government 54 Amendments: Many Are Called; Few Are Chosen 54 The Amendment Process Reflects “Higher Law” 55

The Constitution and Your Future 58 l WHO PARTICIPATES? Who Gained the Right to Vote through

Amendments? 59

x CONTENTS

Key Terms 62

For Further Reading 63

3 l Federalism 64

Federalism Shapes American Politics 67 Federalism Comes from the Constitution 67

The Definition of Federalism Has Changed Radically over Time 71 Federalism under the “Traditional System” Gave Most

Powers to the States 71 The Supreme Court Paved the Way for the End of the

“Traditional System” 73 FDR’s New Deal Remade the Government 75 Changing Court Interpretations of Federalism Helped

the New Deal While Preserving States’ Rights 76 Cooperative Federalism Pushes States to Achieve

National Goals 78 National Standards Have Been Advanced through Federal Programs 79

l AMERICA SIDE BY SIDE Government Spending in Federal and Unitary Systems 81

New Federalism Means More State Control 83 There Is No Simple Answer to Finding the Right National–State

Balance 84

Federalism and Your Future 88 l WHO PARTICIPATES? Who Participates in State and Local Politics? 89

Key Terms 91

For Further Reading 93

4 l Civil Liberties and Civil Rights 94

The Origin of the Bill of Rights Lies in Those Who Opposed the Constitution 97 The Fourteenth Amendment Nationalized

the Bill of Rights through Incorporation 98

The First Amendment Guarantees Freedom of Religion 101 Separation between Church and State Comes from the

First Amendment 101 Free Exercise of Religion Means You Have a Right to

Your Beliefs 102

The First Amendment and Freedom of Speech and of the Press Ensure the Free Exchange of Ideas 103 Political Speech Is Consistently Protected 103 Symbolic Speech, Speech Plus, Assembly, and Petition Are

Highly Protected 104

CONTENTS x i

Freedom of the Press Is Broad 106 Some Speech Has Only Limited Protection 106

The Second Amendment Now Protects an Individual’s Right to Own a Gun 109

Rights of the Criminally Accused Are Based on Due Process of Law 111 The Fourth Amendment Protects against Unlawful Searches

and Seizures 111 The Fifth Amendment Covers Court-Related Rights 113 The Sixth Amendment’s Right to Counsel Is Crucial for a Fair Trial 115 The Eighth Amendment Bars Cruel and Unusual Punishment 115

The Right to Privacy Means the Right to Be Left Alone 116

Civil Rights Are Protections by the Government 118 Plessy v. Ferguson Established “Separate but Equal” 118 Lawsuits to Fight for Equality Came after World War II 119 The Civil Rights Struggle Escalated after Brown v. Board

of Education 121 The Civil Rights Acts Made Equal Protection a Reality 122

The Civil Rights Struggle Was Extended to Other Disadvantaged Groups 126 Americans Have Fought Gender Discrimination 126 Latinos and Asian Americans Fight for Rights 129 Native Americans Have Sovereignty but Still Lack Rights 130 Disabled Americans Won a Great Victory in 1990 131 Gay Men and Lesbians Have Gained Significant Legal Ground 131

l AMERICA SIDE BY SIDE Same-Sex Marriage around the World 133

Affirmative Action Attempts to Right Past Wrongs 134 The Supreme Court Shifts the Burden of Proof in Affirmative Action 134

Civil Liberties, Civil Rights, and Your Future 135 l WHO PARTICIPATES? Religious Affiliation and Freedom

of Religion 137

Key Terms 140

For Further Reading 141

x i i CONTENTS

PART II Politics

5 l Public Opinion 142

Public Opinion Represents Attitudes about Politics 145 Americans Share Common Political Values 146 America’s Dominant Political Ideologies Are Liberalism

and Conservatism 148 Americans Exhibit Low Trust in Government 149

Political Socialization Shapes Public Opinion 150

Political Knowledge Is Important in Shaping Public Opinion 156

The Media and Government Mold Opinion 158 The Government Leads Public Opinion 159 Private Groups Also Shape Public Opinion 159 The News Media’s Message Affects Public Opinion 159 Government Policies Also Respond to Public Opinion 160

Measuring Public Opinion Is Crucial to Understanding What It Is 161 Public-Opinion Surveys Are Accurate If Done Properly 161

l AMERICA SIDE BY SIDE Public Opinion on Climate Change 162 Why Are Some Polls Wrong? 165

Public Opinion, Democracy, and Your Future 168 l WHO PARTICIPATES? Who Expresses Their Political Opinions? 169

Key Terms 172

For Further Reading 173

6 l The Media 174

Traditional Media Have Always Mattered in a Democracy 177 Print Media 177 Broadcast Media 179 More Media Outlets Are Owned by Fewer

Companies 180

The Rise of New Media Has Strongly Influenced How Americans Get Their News 182 Online News Takes Many Forms 183 New Media Have Many Benefits 187 But New Media Raise Several Concerns 188

CONTENTS x i i i

x i v CONTENTS

The Media Affect Power Relations in American Politics 189 The Media Influence Public Opinion through Agenda-Setting, Framing,

and Priming 189 Leaked Information Can Come from Government Officials or Independent

Sources 191 Adversarial Journalism Has Risen in Recent Years 192 Broadcast Media Are Regulated but Not Print Media 193

l AMERICA SIDE BY SIDE Press Freedom around the world 195

The Media, Democracy, and Your Future 196 l WHO PARTICIPATES? Who Participates via Social Media? 197

Key Terms 200

For Further Reading 201

7 l Political Parties, Participation, and Elections 202

Parties and Elections Have Been Vital to American Politics and Government 205

Political Parties Arose from the Electoral Process 205 Parties Recruit Candidates 206 Parties Organize Nominations 206 Parties Help Get Out the Vote 206 Parties Organize Power in Congress 208 Presidents Need Political Parties 208

America Is One of the Few Nations with a Two-Party System 209

Electoral Realignments Define Party Systems in American History 215 American Third Parties Sometimes Change the Major Parties and

Election Outcomes 216 Group Affiliations Are Based on Voters’ Psychological Ties to One

of the Parties 218

Political Participation Takes Both Traditional and Digital Forms 218 Voting Is the Most Important Form of Traditional Participation 218 Digital Political Participation Is Surging 219 Voter Turnout in America Is Low 221 Why Do People Vote? 222

l AMERICA SIDE BY SIDE Voter Turnout in Comparison 224

Voters Decide Based on Party, Issues, and Candidate 225 Party Loyalty Is Important 225 Issues Can Shape an Election 226 Candidate Characteristics Are More Important in the Media Age 226

The Electoral Process Has Many Levels and Rules 227 The Electoral College Still Organizes Presidential Elections 228

The 2016 Election 229 The 2016 Primaries Reflected Divisions within Both Parties 230 The General Election Was Bitterly Fought 230 White Working-Class Voters Were Key to Trump’s Victory 232 The 2016 Election Raised Important Questions About the Future 233

Money Is the Mother’s Milk of Politics 235 Campaign Funds Come from Direct Appeals, the Rich, PACs,

and Parties 235

Political Parties, Elections, and Your Future 238 l WHO PARTICIPATES? Who Voted in 2012? 239 Key Terms 242

For Further Reading 243

8 l Interest Groups 244

Interest Groups Form to Advocate for Different Interests 247 What Interests Are Represented? 248

l AMERICA SIDE BY SIDE Labor Union Membership in Global Decline 249 Some Interests Are Not Represented 250 Group Membership Has an Upper-Class Bias 250

The Organizational Components of Groups Include Money, Offices, and Members 251 The Internet Has Changed the Way Interest Groups

Foster Participation 254

The Number of Groups Has Increased in Recent Decades 255 The Expansion of Government Has Spurred the Growth of Groups 255 Public Interest Groups Grew in the 1960s and ’70s 256

Interest Groups Use Different Strategies to Gain Influence 256 Direct Lobbying Combines Education, Persuasion, and Pressure 257 Cultivating Access Means Getting the Attention of Decision Makers 258 Using the Courts (Litigation) Can Be Highly Effective 260 Mobilizing Public Opinion Brings Wider Attention to an Issue 261 Groups Often Use Electoral Politics 263

Groups, Interests, and Your Future 265 l WHO PARTICIPATES? How Much Do Major Groups Spend? 267

Key Terms 270

For Further Reading 271

CONTENTS x v

x v i CONTENTS

PART III Institutions

9 l Congress 272

Congress Represents the American People 275 The House and Senate Offer Differences in

Representation 275 Representation Can Be Sociological or Agency 276 The Electoral Connection Hinges on Incumbency 279 Direct Patronage Means Bringing Home the

Bacon 284

The Organization of Congress Is Shaped by Party 286

Party Leadership in the House and the Senate Organizes Power 286 The Committee System Is the Core of Congress 287 The Staff System Is the Power behind the Power 289

l AMERICA SIDE BY SIDE Legislatures in Comparison 290

Rules of Lawmaking Explain How a Bill Becomes a Law 291 The First Step Is Committee Deliberation 291 Debate Is Less Restricted in the Senate Than in the House 291 Conference Committees Reconcile House and Senate Versions

of Legislation 294 The President’s Veto Controls the Flow of Legislation 294

Several Factors Influence How Congress Decides 295 Constituents Matter 295 Interest Groups Influence Constituents and Congress 295 Party Leaders Rely on Party Discipline 296 Partisanship Has Thwarted the Ability of Congress to Decide 300

Much Congressional Energy Goes to Tasks Other Than Lawmaking 301 Congress Oversees How Legislation Is Implemented 302 Special Senate Powers Include Advice and Consent 302 Impeachment Is the Power to Remove Top Officials 303

Congress and Your Future 303 l WHO PARTICIPATES? Who Elects Congress? 305 Key Terms 308

For Further Reading 311

10 l The Presidency 312

Presidential Power Is Rooted in the Constitution 315 Expressed Powers Come Directly from the Words

of the Constitution 316 Delegated Powers Come from Congress 321 Modern Presidents Have Claimed Inherent Powers 322

l AMERICA SIDE BY SIDE Executive Branches in Comparison 323

Institutional Resources of Presidential Power Are Numerous 324 The Cabinet Is Often Distant from the President 325 The White House Staff Constitutes the President’s Eyes

and Ears 326 The Executive Office of the President Is a Visible Sign of the Modern

Strong Presidency 326 The Vice Presidency Has Become More Important since the 1970s 327 The First Spouse Has Become Important to Policy 327

Party, Popular Mobilization, and Administration Make Presidents Stronger 328 Going Public Means Trying to Whip Up the People 329 The Administrative Strategy Increases Presidential Control 331 Presidential Power Has Limits 334

The Presidency and Your Future 336 l WHO PARTICIPATES? Who Voted for Donald Trump in 2016? 337

Key Terms 340

For Further Reading 341

11 l Bureaucracy 342

Bureaucracy Exists to Improve Efficiency 345 Bureaucrats Fulfill Important Roles 346 The Size of the Federal Service Has Actually

Declined 348 The Executive Branch Is Organized Hierarchically 350

Federal Bureaucracies Promote Welfare and Security 351 Federal Bureaucracies Promote the Public Welfare 351

l AMERICA SIDE BY SIDE Bureaucracy in Comparison 353 Federal Agencies Provide for National Security 355 Federal Bureaucracies Help to Maintain a Strong National

Economy 357

Several Forces Control Bureaucracy 359 The President as Chief Executive Can Direct Agencies 359

CONTENTS x v i i

x v i i i CONTENTS

Congress Promotes Responsible Bureaucracy 361 Can the Bureaucracy Be Reformed? 363

Bureaucracy, Democracy, and Your Future 364 l WHO PARTICIPATES? Getting Information from the Bureaucracy 365

Key Terms 368

For Further Reading 369

12 l The Federal Courts 370

The Legal System Settles Disputes 373 Court Cases Proceed under Criminal and

Civil Law 373 Types of Courts Include Trial, Appellate,

and Supreme 374

The Federal Courts Hear a Small Percentage of All Cases 377

The Lower Federal Courts Handle Most Cases 377 The Appellate Courts Hear 20 Percent of Lower-Court

Cases 378 The Supreme Court Is the Court of Final Appeal 379 Judges Are Appointed by the President and Approved

by the Senate 380

The Power of the Supreme Court Is Judicial Review 382 Judicial Review Covers Acts of Congress 382

l AMERICA SIDE BY SIDE Judicial Review across the Globe 383 Judicial Review Applies to Presidential Actions 384 Judicial Review Also Applies to State Actions 385

Most Cases Reach the Supreme Court by Appeal 386 The Solicitor General, Law Clerks, and Interest Groups Also Influence the

Flow of Cases 387 The Supreme Court’s Procedures Mean Cases May Take Months

or Years 389

Supreme Court Decisions Are Influenced by Activism and Ideology 392

The Federal Judiciary and Your Future 395 l WHO PARTICIPATES? Influencing the Supreme Court? 397

Key Terms 400

For Further Reading 401

PART IV Policy

13 l Domestic Policy 402

The Tools for Making Policy Are Techniques of Control 405 Promotional Policies Get People to Do Things by

Giving Them Rewards 405 Regulatory Policies Are Rules Backed by Penalties 407 Redistributive Policies Affect Broad Classes

of People 409 Should the Government Intervene in the Economy? 411

Social Policy and the Welfare System Buttress Equality 412 The History of the Government Welfare System Dates

Only to the 1930s 412 The Social Security Act of 1935 Was the Foundation of the

Welfare System 413 Welfare Reform Has Dominated the Welfare Agenda

in Recent Years 416

The Cycle of Poverty Can Be Broken by Education, Health, and Housing Policies 418 Education Policies Provide Life Tools 418 Health Policies Mean Fewer Sick Days 420

l AMERICA SIDE BY SIDE U.S. Education Policy: Lagging or Leading? 421 Housing Policies Provide Residential Stability 425

Social Policy Spending Benefits the Middle Class More Than the Poor 426 Senior Citizens Receive over a Third of All Federal Dollars 426 The Middle and Upper Classes Benefit from Social Policies 428 The Working Poor Receive Fewer Benefits 428 Spending for the Nonworking Poor Is Declining 429 Minorities, Women, and Children Are Most Likely to Face Poverty 430

Domestic Policy and Your Future 431 l WHO PARTICIPATES? Who Pays Taxes? 433

Key Terms 436

For Further Reading 437

CONTENTS x i x

14 l Foreign Policy 438

Foreign Policy Goals Are Related 441 Security Is Based on Military Strength 441 Economic Prosperity Helps All Nations 445 America Seeks a More Humane World 445

l AMERICA SIDE BY SIDE Trade in Comparison 446

American Foreign Policy Is Shaped by Government and Nongovernment Actors 448

The President Leads Foreign Policy 449 The Bureaucracy Implements and Informs Policy

Decisions 450 Congress’s Legal Authority Can Be Decisive 450

Interest Groups Pressure Foreign Policy Decision Makers 452 Putting It Together 453

Tools of American Foreign Policy Include Diplomacy, Force, and Money 453 Diplomacy Is the Master Policy Tool 454 The United Nations Is the World’s Congress 454 The International Monetary Structure Helps Provide Economic

Stability 455 Economic Aid Has Two Sides 455 Collective Security Is Designed to Deter War 456 Military Force Is “Politics by Other Means” 457 Arbitration Resolves Disputes 458

Foreign Policy, Democracy, and Your Future 458 l WHO PARTICIPATES? Public Opinion on Security Issues 459

Key Terms 462

For Further Reading 463

l Appendix

The Declaration of Independence A1

The Articles of Confederation A5

The Constitution of the United States of America A11

Amendments to the Constitution A22

The Federalist Papers A31

The Anti-Federalist Papers A40

Presidents and Vice Presidents A48

Glossary A51

Endnotes A65

Answer Key A95

Credits A97

Index A99

x x CONTENTS

x x i

T his book has been and continues to be dedicated to developing a satisfactory response to the question more and more Americans are asking: Why should we be engaged with government and politics? Through the first ten editions, we sought to answer this question by making the text directly relevant to the lives of the students who would be reading it. As a result, we tried to make politics interesting by demonstrating that students’ interests are at stake and that they therefore need to take a personal, even selfish, interest in the outcomes of government. At the same time, we realized that students needed guidance in how to become politically engaged. Beyond providing students with a core of political knowledge, we needed to show them how they could apply that knowledge as par- ticipants in the political process. The “Who Participates?” sections in each chapter help achieve that goal.

As events from the last several years have reminded us, “what government does” inevitably raises questions about political participation and political equality. The size and composition of the electorate, for example, affect who is elected to public office and what policy directions the government will pursue. Hence, the issue of voter ID laws became important in the 2016 election, with some arguing that these laws reduce voter fraud and others contending that they decrease participation by poor and minority voters. Other recent events have underscored how Americans from different backgrounds experience politics. Arguments about immigration be- came contentious during the 2016 election as the nation once again debated the question of who is entitled to be an American and have a voice in determining what the government does. And charges that the police often use excessive vio- lence against members of minority groups have raised questions about whether the government treats all Americans equally. Reflecting all of these trends, this new Eleventh Edition shows more than any other book on the market (1) how students are connected to government, (2) why students should think critically about gov- ernment and politics, and (3) how Americans from different backgrounds experi- ence and shape politics. These themes are incorporated in the following ways:

• Chapter introductions focus on “What Government Does and Why It Matters.” In recent decades, cynicism about “big government” has domi- nated the political zeitgeist. But critics of government often forget that governments do a great deal for citizens. Every year, Americans are the beneficiaries of billions of dollars of goods and services from government programs. Government “does” a lot, and what it does matters a great deal to everyone, including college students. At the start of each chapter, this

preface

x x i i PREFACE

theme is introduced and applied to the chapter’s topic. The goal is to show students that government and politics mean something to their daily lives.

• A twenty-first-century perspective on demographic change moves beyond the book’s strong coverage of traditional civil rights content with expanded coverage of contemporary group politics.

• New “Who Participates?” infographics at the end of every chapter show students how different groups of Americans participate in key aspects of politics and government. Each concludes with a “What You Can Do” section that provides students with specific, realistic steps they can take to act on what they’ve learned and get involved in politics.

• “America Side by Side” boxes in every chapter use data figures and tables to provide a comparative perspective. By comparing political institutions and behavior across countries, students gain a better understanding of how specific features of the American system shape politics.

• Up-to-date coverage, with more than 10 pages and numerous graphics on the 2016 elections, including a five-page section devoted to analysis of the 2016 elections in Chapter 8, as well as updated data, examples, and other information throughout the book.

• Built-in study guides at the end of each chapter offer valuable learning tools. A practice quiz and glossary definitions help students review the chapter material. Each chapter also includes a list of recommended readings to help students get started on research projects.

• “Politics and Your Future” chapter conclusions give students direct, personal reasons to care about politics. These sections focus on the political oppor- tunities and challenges that students will face in their lives as a result of emerging social, political, demographic, and technological change. The con- clusions reprise the important point made in the chapter introductions that government matters and prompt students to consider how political change will impact their futures.

• This Eleventh Edition is accompanied by InQuizitive, Norton’s award-winning formative, adaptive online quizzing program. The InQuizitive course for We the People, Essentials Edition, guides students through questions orga- nized around the text’s chapter learning objectives to ensure mastery of the core information and to help with assessment. More information and a demonstration are available at digital.wwnorton.com/wethepeople11ess.

We continue to hope that our book will itself be accepted as a form of enlight- ened political action. This Eleventh Edition is another chance. It is an advancement toward our goal. We promise to keep trying.

http://digital.wwnorton.com/wethepeople11ess

x x i i i

We are especially pleased to acknowledge the many colleagues who had a direct and active role in criticism and preparation of the manuscript. Our thanks go to:

acknowledgments

First Edition Reviewers

Sarah Binder, Brookings Institution Kathleen Gille, Office of Representative

David Bonior Rodney Hero, University of Colorado

at Boulder Robert Katzmann, Brookings Institution Kathleen Knight, University of Houston Robin Kolodny, Temple University Nancy Kral, Tomball College Robert C. Lieberman, Columbia University David A. Marcum, University of Wyoming Laura R. Winsky Mattei, State University

of New York at Buffalo Marilyn S. Mertens, Midwestern State

University Barbara Suhay, Henry Ford Community

College Carolyn Wong, Stanford University Julian Zelizer, State University of New

York at Albany

Second Edition Reviewers

Lydia Andrade, University of North Texas John Coleman, University of Wisconsin

at Madison Daphne Eastman, Odessa College Otto Feinstein, Wayne State University Elizabeth Flores, Delmar College James Gimpel, University of Maryland

at College Park

Jill Glaathar, Southwest Missouri State University

Shaun Herness, University of Florida William Lyons, University of Tennessee

at Knoxville Andrew Polsky, Hunter College, City

University of New York Grant Reeher, Syracuse University Richard Rich, Virginia Polytechnic Bartholomew Sparrow, University

of Texas at Austin

Third Edition Reviewers

Bruce R. Drury, Lamar University Andrew I. E. Ewoh, Prairie View A&M

University Amy Jasperson, University of Texas

at San Antonio Loch Johnson, University of Georgia Mark Kann, University of Southern

California Robert L. Perry, University of Texas

of the Permian Basin Wayne Pryor, Brazosport College Elizabeth A. Rexford, Wharton County

Junior College Andrea Simpson, University of

Washington Brian Smentkowski, Southeast Missouri

State University Nelson Wikstrom, Virginia Common-

wealth University

x x i v ACKNOWLEDGMENTS

Fourth Edition Reviewers

M. E. Banks, Virginia Commonwealth University

Lynn Brink, North Lake College Mark Cichock, University of Texas

at Arlington Del Fields, St. Petersburg College Nancy Kinney, Washtenaw Community

College William Klein, St. Petersburg College Dana Morales, Montgomery College Christopher Muste, Louisiana State

University Larry Norris, South Plains College David Rankin, State University of New

York at Fredonia Paul Roesler, St. Charles Community

College J. Philip Rogers, San Antonio College Greg Shaw, Illinois Wesleyan University Tracy Skopek, Stephen F. Austin State

University Don Smith, University of North Texas Terri Wright, Cal State, Fullerton

Fifth Edition Reviewers

Annie Benifield, Tomball College Denise Dutton, Southwest Missouri State

University Rick Kurtz, Central Michigan University Kelly McDaniel, Three Rivers Community

College Eric Plutzer, Pennsylvania State University Daniel Smith, Northwest Missouri State

University Dara Strolovitch, University of Minnesota Dennis Toombs, San Jacinto College–

North Stacy Ulbig, Southwest Missouri State

University

Sixth Edition Reviewers

Janet Adamski, University of Mary Hardin–Baylor

Greg Andrews, St. Petersburg College Louis Bolce, Baruch College Darin Combs, Tulsa Community College

Sean Conroy, University of New Orleans Paul Cooke, Cy Fair College Vida Davoudi, Kingwood College Robert DiClerico, West Virginia University Corey Ditslear, University of North Texas Kathy Dolan, University of Wisconsin,

Milwaukee Randy Glean, Midwestern State University Nancy Kral, Tomball College Mark Logas, Valencia Community College Scott MacDougall, Diablo Valley College David Mann, College of Charleston Christopher Muste, University of Montana Richard Pacelle, Georgia Southern

University Sarah Poggione, Florida International

University Richard Rich, Virginia Tech Thomas Schmeling, Rhode Island College Scott Spitzer, California State

University–Fullerton Robert Wood, University of North Dakota

Seventh Edition Reviewers

Molly Andolina, DePaul University Nancy Bednar, Antelope Valley College Paul Blakelock, Kingwood College Amy Brandon, San Jacinto College Jim Cauthen, John Jay College Kevin Davis, North Central Texas College Louis DeSipio, University of California–

Irvine Brandon Franke, Blinn College Steve Garrison, Midwestern State

University Joseph Howard, University of Central

Arkansas Aaron Knight, Houston Community

College Paul Labedz, Valencia Community College Elise Langan, John Jay College Mark Logas, Valencia Community College Eric Miller, Blinn College Anthony O’Regan, Los Angeles Valley

College David Putz, Kingwood College Chis Soper, Pepperdine University Kevin Wagner, Florida Atlantic University Laura Wood, Tarrant County College

ACKNOWLEDGMENTS x x v

Eighth Edition Reviewers

Brian Arbour, John Jay College, CUNY Ellen Baik, University of Texas–Pan

American David Birch, Lone Star College–Tomball Bill Carroll, Sam Houston State University Ed Chervenak, University of New Orleans Gary Church, Mountain View College Adrian Stefan Clark, Del Mar College Annie Cole, Los Angeles City College Greg Combs, University of Texas at Dallas Cassandra Cookson, Lee College Brian Cravens, Blinn College John Crosby, California State

University–Chico Scott Crosby, Valencia Community College Courtenay Daum, Colorado State

University, Fort Collins Peter Doas, University of Texas–Pan

American John Domino, Sam Houston State University Doug Dow, University of Texas–Dallas Jeremy Duff, Midwestern State University Heather Evans, Sam Houston State University Hyacinth Ezeamii, Albany State University Bob Fitrakis, Columbus State Community

College Brian Fletcher, Truckee Meadows

Community College Paul Foote, Eastern Kentucky University Frank Garrahan, Austin Community College Jimmy Gleason, Purdue University Steven Greene, North Carolina State

University Jeannie Grussendorf, Georgia State University M. Ahad Hayaud-Din, Brookhaven College Alexander Hogan, Lone Star College–

CyFair Glen Hunt, Austin Community College Mark Jendrysik, University of North Dakota Krista Jenkins, Fairleigh Dickinson

University Carlos Juárez, Hawaii Pacific University Melinda Kovács, Sam Houston State

University Boyd Lanier, Lamar University Jeff Lazarus, Georgia State University Jeffrey Lee, Blinn College Alan Lehmann, Blinn College Julie Lester, Macon State College

Steven Lichtman, Shippensburg University Fred Lokken, Truckee Meadows

Community College Shari MacLachlan, Palm Beach

Community College Guy Martin, Winston-Salem State University Fred Monardi, College of Southern Nevada Vincent Moscardelli, University of

Connecticut Jason Mycoff, University of Delaware Sugumaran Narayanan, Midwestern State

University Anthony Nownes, University of Tennessee,

Knoxville Elizabeth Oldmixon, University of North

Texas John Osterman, San Jacinto College–Central Mark Peplowski, College of Southern

Nevada Maria Victoria Perez-Rios, John Jay

College, CUNY Sara Rinfret, University of Wisconsin,

Green Bay Andre Robinson, Pulaski Technical College Susan Roomberg, University of Texas at

San Antonio Ryan Rynbrandt, Collin County

Community College Mario Salas, Northwest Vista College Michael Sanchez, San Antonio College Mary Schander, Pasadena City College Laura Schneider, Grand Valley State

University Subash Shah, Winston-Salem

State University Mark Shomaker, Blinn College Roy Slater, St. Petersburg College Debra St. John, Collin College Eric Whitaker, Western Washington

University Clay Wiegand, Cisco College Walter Wilson, University of Texas at

San Antonio Kevan Yenerall, Clarion University Rogerio Zapata, South Texas College

Ninth Edition Reviewers Amy Acord, Lone Star College–CyFair Milan Andrejevich, Ivy Tech Community

College

Steve Anthony, Georgia State University Phillip Ardoin, Appalachian State

University Gregory Arey, Cape Fear Community

College Joan Babcock, Northwest Vista College Evelyn Ballard, Houston Community

College Robert Ballinger, South Texas College Mary Barnes-Tilley, Blinn College Robert Bartels, Evangel University Nancy Bednar, Antelope Valley College Annie Benifield, Lone Star College–Tomball Donna Bennett, Trinity Valley Community

College Amy Brandon, El Paso Community College Mark Brewer, The University of Maine Gary Brown, Lone Star College–Montgomery Joe Campbell, Johnson County

Community College Dewey Clayton, University of Louisville Jeff Colbert, Elon University Amanda Cook-Fesperman, Illinois Valley

Community College Kevin Corder, Western Michigan

University Kevin Davis, North Central Texas College Paul Davis, Truckee Meadows Community

College Terri Davis, Lamar University Jennifer De Maio, California State

University, Northridge Christopher Durso, Valencia College Ryan Emenaker, College of the Redwoods Leslie Feldman, Hofstra University Glen Findley, Odessa College Michael Gattis, Gulf Coast State College Donna Godwin, Trinity Valley Community

College Precious Hall, Truckee Meadows

Community College Sally Hansen, Daytona State College Tiffany Harper, Collin College Todd Hartman, Appalachian State University Virginia Haysley, Lone Star College–

Tomball David Head, John Tyler Community

College Rick Henderson, Texas State University–

San Marcos Richard Herrera, Arizona State University

Thaddaus Hill, Blinn College Steven Holmes, Bakersfield College Kevin Holton, South Texas College Robin Jacobson, University of Puget Sound Joseph Jozwiak, Texas A & M–Corpus

Christi Casey Klofstad, University of Miami Samuel Lingrosso, Los Angeles Valley

College Mark Logas, Valencia College Christopher Marshall, South Texas College Larry McElvain, South Texas College Elizabeth McLane, Wharton County Junior

College Eddie Meaders, University of North Texas Rob Mellen, Mississippi State University Jalal Nejad, Northwest Vista College Adam Newmark, Appalachian State

University Stephen Nicholson, University of

California, Merced Cissie Owen, Lamar University Suzanne Preston, St. Petersburg College David Putz, Lone Star College–Kingwood Auksuole Rubavichute, Mountain View

College Ronnee Schreiber, San Diego State University Ronald Schurin, University of Connecticut Jason Seitz, Georgia Perimeter College Jennifer Seitz, Georgia Perimeter College Shannon Sinegal,The University of New

Orleans John Sides, George Washington University Thomas Sowers, Lamar University Jim Startin, University of Texas at San

Antonio Robert Sterken, University of Texas at Tyler Bobby Summers, Harper College John Theis, Lone Star College–Kingwood John Todd, University of North Texas Delaina Toothman, The University of Maine David Trussell, Cisco College Ronald Vardy, University of Houston Linda Veazey, Midwestern State University John Vento, Antelope Valley Community

College Clif Wilkinson, Georgia College John Wood, Rose State College Michael Young, Trinity Valley Community

College Tyler Young, Collin College

x x v i ACKNOWLEDGMENTS

Tenth Edition Reviewers

Stephen P. Amberg, University of Texas at San Antonio

Juan F. Arzola, College of the Sequoias Thomas J. Baldino, Wilkes University Christina Bejarano, University of Kansas Paul T. Bellinger, Jr., University of Missouri Melanie J. Blumberg, California University

of Pennsylvania Matthew T. Bradley, Indiana University

Kokomo Jeffrey W. Christiansen, Seminole State

College McKinzie Craig, Marietta College Christopher Cronin, Methodist University Jenna Duke, Lehigh Carbon Community

College Francisco Durand, University of Texas at

San Antonio Carrie Eaves, Elon University Paul M. Flor, El Camino College Compton

Center Adam Fuller, Youngstown State University Christi Gramling, Charleston Southern

University Sally Hansen, Daytona State College Mary Jane Hatton, Hawai’i Pacific University David Helpap, University of

Wisconsin–Green Bay Theresa L. Hutchins, Georgia Highlands

College Cryshanna A. Jackson Leftwich,

Youngstown State University Ashlyn Kuersten, Western Michigan

University Kara Lindaman, Winona State University Timothy Lynch, University of Wisconsin–

Milwaukee Larry McElvain, South Texas College Corinna R. McKoy, Ventura College Eddie L. Meaders, University of North Texas Don D. Mirjanian, College of Southern

Nevada R. Shea Mize, Georgia Highlands College Nicholas Morgan, Collin College Matthew Murray, Dutchess Community

College Harold “Trey” Orndorff III, Daytona State

College Randall Parish, University of North Georgia

Michelle Pautz, University of Dayton Michael Pickering, University of New

Orleans Donald Ranish, Antelope Valley College Glenn W. Richardson, Jr., Kutztown

University of Pennsylvania Jason Robles, Colorado State University Ionas Aurelian Rus, University of

Cincinnati–Blue Ash Robert Sahr, Oregon State University Kelly B. Shaw, Iowa State University Captain Michael Slattery, Campbell

University Michael Smith, Sam Houston State

University Maryam T. Stevenson, University of

Indianapolis Elizabeth Trentanelli, Gulf Coast State

College Ronald W. Vardy, University of Houston Timothy Weaver, University of Louisville Christina Wolbrecht, University of Notre

Dame

Eleventh Edition Reviewers

Maria J. Albo, University of North Georgia Andrea Aleman, University of Texas at San

Antonio Juan Arzola, College of the Sequoias Ross K. Baker, Rutgers University Lauren Balasco, Pittsburg State University Daniel Birdsong, University of Dayton Phil Branyon, University of North Georgia Camille D. Burge, Villanova University Matthew DeSantis, Guilford Technical

Community College Sheryl Edwards, University of

Michigan–Dearborn Lauren Elliott-Dorans, University of Toledo Heather Evans, Sam Houston State

University William Feagin, Jr., Wharton County

Junior College Glen Findley, Odessa College Heather Frederick, Slipper Rock University Jason Ghibesi, Ocean County College Patrick Gilbert, Lone Star–Tomball Rebecca Herzog, American River College Steven Horn, Everett Community College

ACKNOWLEDGMENTS x x v i i

Demetra Kasimis, California State University, Long Beach

Eric T. Kasper, University of Wisconsin– Eau Claire

Jill Kirkham, Brigham Young University– Idaho

Mary Linder, Grayson County College Johnson Louie, California State University,

Stanislaus Phil McCall, Portland State University Patrick Novotny, Georgia Southern

University Carolyn Myers, Southwestern Illinois

College–Belleville Gerhard Peters, Citrus College

Michael A. Powell, Frederick Community College

Robert Proctor, Santa Rosa Junior College

Allen K. Settle, California Polytechnic State University

Laurie Sprankle, Community College of Allegheny County

Ryan Lee Teten, University of Louisiana at Lafayette

Justin Vaughn, Boise State University John Vento, Antelope Valley College Aaron Weinschenk, University of

Wisconsin–Green Bay Tyler Young, Collin College

x x v i i i ACKNOWLEDGMENTS

We are also grateful to Melissa Michelson, of Menlo College, who contrib- uted to the “Who Participates?” infographics for this edition; Holley Hansen, of Oklahoma State University, who contributed to the “America Side by Side” boxes; and Gabrielle Ellul for research assistance.

Perhaps above all, we thank those at W. W. Norton. For its first five editions, editor Steve Dunn helped us shape the book in countless ways. Lisa McKay contrib- uted smart ideas and a keen editorial eye to the Tenth Edition. Ann Shin carried on the Norton tradition of splendid editorial work on the Sixth through Ninth Editions and on the current Eleventh Edition. As associate editor, Emily Stuart brought intel- ligence and dedication to the development of this Eleventh Edition. For our InQuizi- tive course, Coursepack, and other instructor resources, Spencer Richardson-Jones has been an energetic and visionary editor. Ashley Horna, Michael Jaoui, Shannon Jilek, and Ariel Eaton also kept the production of the Eleventh Edition and its ac- companying resources coherent and in focus. Andrew Pachuta copyedited the manu- script, and our superb project editor Christine D’Antonio devoted countless hours to keeping on top of myriad details. We thank Elyse Rieder for finding new photos and our photo editor Catherine Abelman for managing the image program. Finally, we thank Roby Harrington, the head of Norton’s college department.

Benjamin Ginsberg Theodore J. Lowi Margaret Weir Caroline J. Tolbert

October 2016

We the People AN INTRODUCTION TO AMERICAN POLITICS

E L E V E N T H E S S E N T I A L S E D I T I O N

Most Americans share the core political values of liberty, equality, and democracy and want their government and its policies to re- flect these values. However, people often disagree on the meaning of these values and what government should do to protect them.

Introduction: The Citizen and Government

WHAT GOVERNMENT DOES AND WHY IT MATTERS Americans some- times appear to believe that the government is an institution that does things

to them and from which they need protection. Students may wonder why they

have to fill in long, often complicated forms to apply for financial assistance.

They may frown when they see the payroll tax deducted from their small pay-

check. Like Americans of all ages, they may resent municipal “red-light” cam-

eras designed to photograph traffic violators—and send them tickets.

Although most people complain about something that government does

to them, most everyone wants the government to do a great deal for them.

Some of the services that people expect from government are big-ticket items,

such as providing national security and keeping the nation safe from terrorist

attacks. We all know that government pays for and directs the military. Stu-

dents attending a state university know that state and federal public dollars

help support their education.

Yet many of the other services that government provides are far less visible,

and often it is not even clear that government plays a role at all. For example,

students grabbing a quick bite to eat between classes take it for granted that

their hamburger will not contain bacteria that might make them sick. With-

out federal inspection of meat, however, chances of contracting food-borne

4 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

illnesses would be much higher and the everyday task of eating would be much

riskier. Driving to school would not be possible if not for the tens of billions of dol-

lars spent each year on road construction and maintenance by federal, state, and

municipal governments. Like most Americans, young people expect to get reliable

information about the weather for the week ahead and warnings about danger-

ous events such as hurricanes. The National Weather Service and the National

Hurricane Center both provide reliable forecasts for such simple calculations as

whether to bring an umbrella to more significant calculations made by airlines

and air traffic control to get travelers safely where they need to go. These daily

decisions don’t seem to involve government, but in fact they do. Indeed, most

Americans would not be here at all if it were not for federal immigration policies,

which set the terms for entry into the United States and for obtaining citizenship.

Government is the term generally used to describe the formal institutions

through which a land and its people are ruled. As the government seeks to pro-

tect its citizens, it faces the challenge of doing so in ways that are true to the

key American political values of liberty, equality, and democracy. Liberty means

personal freedom and a government whose powers are limited by law. Equality is

the idea that all individuals should have the right to participate in political life and

society on equivalent terms. Democracy means placing considerable political

power in the hands of ordinary people. Most Americans find it easy to affirm all

three values in principle. In practice, however, matters are not always so clear.

Policies and practices that seem to affirm one of these values may contradict

another. Americans, moreover, are sometimes willing to subordinate liberty to

security and have frequently tolerated significant departures from the principles

of equality and democracy.

chaptergoals ● Explore Americans’ attitudes toward government (pp. 5–8)

● Describe the role of the citizen in politics (pp. 8–9)

● Define government and forms of government (pp. 9–12)

● Show how the social composition of the American population has changed over time (pp. 12–19)

● Analyze whether the U.S. system of government upholds American political values (pp. 19–21)

GOVERNMENT AFFECTS OUR L I VES EVERY DAY 5

● Government Affects Our Lives Every Day

Explore Americans’ attitudes toward government

Since the United States was established as a nation, Americans have been reluctant to grant government too much power, and they have often been suspicious of politicians. But over the course of the nation’s history,

Americans have also turned to government for assistance in times of need and have strongly supported the government in periods of war. In 1933 the power of the gov- ernment began to expand to meet the crises created by the stock market crash of 1929, the Great Depression, and the run on banks. Congress passed legislation that brought the government into the businesses of home mortgages, farm mortgages, credit, and relief of personal distress. More recently, when the economy fell into a recession in 2008 and 2009, the federal government took action to shore up the finan- cial system, oversee the restructuring of the ailing auto companies, and inject hundreds of billions of dollars into the faltering economy. Today, the national government is an enormous institution with programs and policies reaching into every corner of American life. It oversees the nation’s economy, it is the nation’s largest employer, it provides citizens with a host of services, it controls the world’s most formidable mili- tary establishment, and it regulates a wide range of social and commercial activities.

Much of what citizens have come to depend on and take for granted—as, some- how, part of the natural environment—is in fact created by government. Take the example of a typical college student’s day, throughout which that student relies on a host of services and activities organized by national, state, and local government agencies. The extent of this dependence on government is illustrated by Table 1.1.

The federal government maintains a large number of websites that provide useful information to citizens on such topics as loans for education, civil service job applications, the inflation rate, and how the weather will affect farming. These sites are just one way in which the government serves its citizens.

6 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

TIME OF DAY SCHEDULE

7:00 a.m. Wake up. Standard time set by the national government.

7:10 a.m. Shower. Water courtesy of local government, either a public entity or a regulated private company. Brush your teeth with toothpaste whose cavity-fighting claims have been verified by a federal agency.

7:30 a.m. Have a bowl of cereal with milk for breakfast. “Nutrition Facts” on food labels are a federal requirement, pasteurization of milk required by state law, recycling the empty cereal box and milk carton enabled by state or local laws.

8:30 a.m. Drive or take public transportation to campus. Air bags and seat belts required by federal and state laws. Roads and bridges paid for by state and local governments, speed and traffic laws set by state and local governments, public transportation subsidized by all levels of government.

8:45 a.m. Arrive on campus of large public university. Buildings are 70 percent financed by state taxpayers.

9:00 a.m. First class: Chemistry 101. Tuition partially paid by a federal loan (more than half the cost of university instruction is paid for by taxpayers), chemistry lab paid for with grants from the National Science Foundation (a federal agency).

Noon Eat lunch. College cafeteria financed by state dormitory authority on land grant from federal Department of Agriculture.

2:00 p.m. Second class: American Government 101 (your favorite class!). You may be taking this class because it is required by the state legislature or because it fulfills a university requirement.

4:00 p.m. Third class: Computer Lab. Free computers, software, and Internet access courtesy of state subsidies plus grants and discounts from IBM and Microsoft, the costs of which are deducted from their corporate income taxes; Internet built in part by federal government.

6:00 p.m. Eat hamburger for dinner. Meat inspected by federal agencies.

7:00 p.m. Work at part-time job at the campus library. Minimum wage set by federal, state, or local government; books and journals in library paid for by state taxpayers.

8:15 p.m. Check the status of your application for a federal student loan (FAFSA) on the Department of Education’s website at studentaid.ed.gov.

10:00 p.m. Go home. Street lighting paid for by county and city governments, police patrols by city government.

10:15 p.m. Watch TV. Networks regulated by federal government, cable public- access channels required by city law. Weather forecast provided to broadcasters by a federal agency.

TABLE 1.1

The Presence of Government in the Daily Life of a Student at “State University”

http://studentaid.ed.gov

GOVERNMENT AFFECTS OUR L I VES EVERY DAY 7

Trust in Government Has Declined Ironically, even as popular dependence on government has grown, the American public’s view of government has turned more sour. Public trust in government has declined, and Americans are now more likely to feel that they can do little to influence the government’s actions. Different groups vary somewhat in their levels of trust: African Americans and Latinos express more confidence in the federal government than do whites. But even among the most supportive groups, more than half do not trust the government.1 These developments are important be- cause politically engaged citizens and public confidence in government are vital for the health of a democracy.

By 2015, only 19 percent of Americans reported trusting the government in Washington “to do what is right” all or most of the time, down from 75 percent in the early 1960s.2 Several factors contributed to the decline in trust. Revela- tions about the faulty information that led up to the war in Iraq and ongoing con- cern about the war had increased Americans’ mistrust of government. In March 2007, 54 percent of those surveyed believed that the Bush administration had deliberately misled the American public about whether Iraq had weapons of mass destruction. By 2012, the government’s inability to get the economy moving had further undermined trust in government. When political differences over the Affordable Care Act, President Obama’s program to reform the American health care system, led to a two-week partial government shutdown in 2013 and the sec- ond dramatic showdown over raising the national debt limit in two years (usually a routine matter), public trust once again dipped to historically low levels.3 Distrust of government greatly influenced the presidential primary elections in 2015 and 2016, when a number of “outsider” candidates—most notably Donald Trump and Bernie Sanders—who were critical of government and eager to depart from busi- ness as usual in Washington, attracted wide support.

Does it matter if Americans trust their government? For the most part, the answer is yes. As we have seen, most Americans rely on government for a wide range of services and laws that they simply take for granted. But long-term distrust in government can result in public refusal to pay the taxes necessary to support such widely approved public activities. Low levels of confidence may also make it difficult for government to attract talented and effective workers to public ser- vice.4 The weakening of government as a result of prolonged levels of distrust may ultimately harm the capacity of the United States to defend its national interest in the world economy and may jeopardize its national security. Likewise, a weak government can do little to assist citizens who need help in weathering periods of sharp economic or technological change.

Political Efficacy Means People Can Make a Difference Another important trend in American views about government has been a declining sense of political efficacy, the belief that ordinary citizens can affect what govern- ment does, that they can take action to make government listen to them. In 2015, 74 percent of Americans said that elected officials do not care what people like them think; in 1960, only 25 percent felt so shut out of government.5 Accom- panying this sense that ordinary people cannot be heard is a growing belief that

8 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

government is not run for the benefit of all the people. In 2015, 76 percent of the public disagreed with the idea that the “government is really run for the benefit of all the people.”6 These views are widely shared across the age spectrum.

This widely felt loss of political efficacy is bad news for American democ- racy. The feeling that you can’t affect government decisions can lead to a self- perpetuating cycle of apathy, declining political participation, and withdrawal from political life. Why bother to participate if you believe it makes no difference? Yet the belief that you can be effective is the first step needed to influence govern- ment. Not every effort of ordinary citizens to influence government will succeed, but without any such efforts, government decisions will be made by a smaller and smaller circle of powerful people. Such loss of broad popular influence over gov- ernment actions undermines the key feature of American democracy: government by the people.

● Citizenship Is Based on Political Knowledge and Participation

Describe the role of the citizen in politics

Beginning with the ancient Greeks, citizen- ship has meant membership in one’s com- munity. In fact, the Greeks did not even conceive of the individual as a complete person. The complete person was the public

person, the citizen; a noncitizen or a private person was referred to as an idio-te-s. Participation in public affairs was virtually the definition of citizenship.

Today, voting is considered the building block of citizenship—informed and active membership in a political community—as it is the method by which Americans choose their elected leaders. Citizens can influence their government in many ways, including serving on a jury, lobbying, writing a letter to the editor of a local newspaper, and engaging in a public rally or protest. The point of these activities is to influence the government.

Citizens need political knowledge to figure out how best to act in their own interests. To take a simple exam- ple, if the garbage is not collected from in front of people’s homes, people need to know that this job is the responsi- bility of their local government, not the national government. Americans often complain that government does not respond to their needs, but some- times the failure of government to act may simply result from citizens lacking the information necessary to present their problems to the cor- rect government office or agency. To put the matter more simply, effective

When the federal government partially shut down in October 2013, millions of citizens were affected, including visitors who were turned away from the Statue of Liberty.

GOVERNMENT IS MADE UP OF INST I TUT IONS AND PROCEDURES 9

participation requires knowledge. (It should come as no surprise, then, that people who have less knowledge of politics vote at lower rates than those with more knowledge.) Knowledge is the first prerequisite for achieving an increased sense of political efficacy.

“Digital Citizenship” Is the Newest Way to Participate As more and more of our social, workplace, and educational activities have migrated online, so too have opportunities for political knowledge and participa- tion, creating a new concept of “digital citizenship.” Digital citizenship is the ability to participate in society online, and it is increasingly important in politics. A 2015 Pew survey found that over the previous year, 65 percent of Americans had used the Internet to find data or information about government. These include visiting a local, state, or federal government website.7 Digital citizenship benefits individu- als, but it also provides advantages to society as a whole. Digital citizens are more likely to be interested in politics and to discuss politics with friends, family, and coworkers than individuals who do not use online political information. They are also more likely to vote and participate in other ways in elections. Individuals with- out Internet access or the skills to participate in politics and the economy online are being left further behind. Exclusion from participation online is referred to as the “digital divide.” Lower-income and less educated Americans, racial and ethnic minorities, those living in rural areas, and the elderly are all less likely to have Internet access.

Greater political knowledge increases the ability of people to influence their government. It is to the nature of government that we now turn.

● Government Is Made Up of the Institutions and Procedures by Which People Are Ruled

Define government and forms of government

Government refers to the formal institutions and procedures through which a territory and its people are ruled. To govern is to rule. A government may be as simple as a tribal council that meets occasionally to advise the

chief or as complex as the vast establishments—with their forms, rules, and bureaucracies—found in the United States and the countries of Europe. A more complex government is sometimes referred to as “the state.” In the history of civili- zation, governments have not been difficult to establish. There have been thousands of them. The hard part is establishing a government that lasts. Even more difficult is developing a stable government that promotes liberty, equality, and democracy.

Different Forms of Government Are Defined by Power and Freedom Governments vary in their structure, in their size, and in the way they operate. Two questions are of special importance in determining how governments differ: Who governs? And how much government control is permitted?

10 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

In some nations, government power is held by a single individual, such as a king or dictator, or by a small group of powerful individuals, such as military leaders or wealthy landowners. Such a system of government normally pays little attention to popular preferences; it tends to hold power by violence or the threat of violence and is referred to as an authoritarian system, meaning that the government recog- nizes no formal limit but may nevertheless be restrained by the power of other social institutions. A system of government in which the degree of control is even greater is a totalitarian system, where the government recognizes no formal limits on its power and seeks to absorb or eliminate other social institutions that might challenge it. Nazi Germany under Adolf Hitler and the Soviet Union under Joseph Stalin are classic examples of totalitarian rule.

In contrast, a democracy is a political system that permits citizens to play a sig- nificant part in the governmental process, where they are vested with the power to rule themselves, usually through the election of key public officials. Under such a system, constitutional government is the norm, in that formal and effective limits are placed on the powers of the government. At times, an authoritarian government might bend to popular wishes, and democratic governments do not automatically follow the wishes of the majority. The point, however, is that these contrasting systems of government are based on very different assumptions and practices.

Americans have the good fortune to live in a nation in which limits are placed on what governments can do and how they can do it. By one measure, just 40 percent of the global population (those living in 86 countries) enjoy sufficient levels of political and personal freedom to be classified as living in a constitutional democ- racy.8 And constitutional democracies were unheard of before the modern era. Prior to the eighteenth and nineteenth centuries, governments seldom sought (and rarely received) the support of their ordinary subjects.9

Beginning in the seventeenth century, in a handful of Western nations, two important changes began to take place in the character and conduct of govern- ment. First, governments began to acknowledge formal limits on their power. Second, a small number of governments began to provide the ordinary citizen with a formal voice in public affairs—through the vote. Obviously, the desirability of limits on government and the expansion of popular influence were at the heart of the American Revolution in 1776. “No taxation without representation” was hotly debated from the beginning of the Revolution through the adoption of the modern Constitution in 1789. But even before the Revolution, a tradition of limiting gov- ernment and expanding citizen participation in the political process had developed throughout western Europe. Thus, to understand how the relationship between rulers and the ruled was transformed, we must broaden our focus to take into account events in Europe as well as in America. We will divide the transforma- tion into its two separate parts. The first is the effort to put limits on government. The second is the effort to expand the influence of the people through access to government and politics.

Limits on Governments Encouraged Freedom The key force behind the imposition of limits on government power was a new social class, the bourgeoisie. Bourgeoisie is a French word for “freeman of the city,”

GOVERNMENT IS MADE UP OF INST I TUT IONS AND PROCEDURES 11

or bourg. Being part of the bourgeoisie later became associated with being “middle class” and with involvement in commerce or industry. In order to gain a share of control of government, joining or even displacing the kings, aristocrats, and gentry who had dominated government for centuries, the bourgeoisie sought to change existing institutions—especially parliaments—into instruments of real political participation. Parliaments had existed for centuries but were generally controlled by the aristocrats. The bourgeoisie embraced parliaments as means by which they could exert the weight of their superior numbers and growing economic advantage against their aristocratic rivals. At the same time, the bourgeoisie sought to restrain the capacity of governments to threaten these economic and political interests by placing formal or constitutional limits on governmental power.

Although motivated primarily by the need to protect and defend their own interests, the bourgeoisie advanced many of the principles that became the central underpinnings of individual liberty for all citizens—freedom of speech, freedom of assembly, freedom of conscience, and freedom from arbitrary search and seizure. It is important to note here that the bourgeoisie generally did not favor democracy as we know it. They were advocates of electoral and representative institutions, but they favored property requirements and other restrictions so as to limit political participation to the middle and upper classes. Yet once these institutions of politics and the protection of the right to engage in politics were established, it was dif- ficult to limit them to the bourgeoisie.

Expansion of Participation in America Changed the Political Balance In America, the expansion of participation to ever-larger segments of society, seen mostly in the expansion of voting rights, occurred because competing segments of the bourgeoisie sought to gain political advantage by reaching out and mobilizing the support of working- and lower-class groups that craved the opportunity to take part in politics—“lining up the unwashed,” as one American historian put it.10 To be sure, excluded groups often agitated for greater participation. But seldom was such agitation, by itself, enough to secure the right to participate. Usually, expan- sion of voting rights resulted from a combination of pressure from below and help from above.

This pattern of suffrage expansion by groups hoping to derive some politi- cal advantage has been typical in American history. After the Civil War, one of the chief reasons that the Republican Party moved to enfranchise newly freed slaves was to use the support of the former slaves to maintain Republican control over the defeated southern states. Similarly, in the early twentieth century, upper- middle-class Progressives advocated women’s suffrage because they believed that women were likely to support the reforms espoused by the Progressive movement.

The Goal of Politics Is Having a Say in What Happens Expansion of participation means that more and more people have a legal right to take part in politics. Politics is an important term. In its broadest sense, it refers to conflicts over the character, membership, and policies of any organization to which people belong. As Harold Lasswell, a famous political scientist, once put

12 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

it, politics is the struggle over “who gets what, when, how.”11 Although politics is a phenomenon that can be found in any organization, our concern in this book is narrower. Here, politics will be used to refer only to conflicts and struggles over the leadership, structure, and policies of governments. The goal of politics, as we define it, is to have a share or a say in the composition of the government’s leader- ship, how the government is organized, or what its policies are going to be. Having a share is called power (influence over a government’s leadership, organization, or policies) or influence.

Politics can take many forms, including blogging and posting opinion pieces online, voting, sending emails to government officials, lobbying legislators on behalf of particular programs, and participating in protest marches and even violent dem- onstrations. A system of government in which the populace selects representa- tives, who play a significant role in governmental decision making, is usually called a representative democracy, or republic. A system that permits citizens to vote directly on laws and policies is often called a direct democracy. At the national level, America is a representative democracy in which citizens select govern- ment officials but do not vote on legislation. Some states and cities, however, have provisions for direct legislation through ballot initiative and popular referendum. In 2016, 165 initiatives appeared on state ballots.

● The Identity of Americans Has Changed over Time

Show how the social composition of the American population has changed over time

While American democracy aims to give the people a voice in government, the meaning of “we the people” has changed over time. Who are Americans? Over the course of American history, politicians, religious lead- ers, prominent scholars, and ordinary Americans have puzzled over and fought

about the answer to this fundamental question. It is not surprising that such a simple question could provoke so much conflict: the American population has increased over eighty-fold, from 3.9 million in 1790, the year of the first official census, to 323 million in 2016. As the American population has grown, it has become more diverse in nearly every dimension imaginable.12

At the time of the Founding, when the United States consisted of 13 states arrayed along the Eastern Seaboard, 81 percent of Americans counted by the census traced their roots to Europe, mostly England and northern Europe; nearly one in five were of African origin, the vast majority of whom were slaves.13 There was also an unknown number of Native Americans, not counted by the census because the government did not consider them Americans.14

Fast-forward to 1900. The country, now stretched out across the continent, had a sharply altered racial and ethnic composition. Waves of immigrants, mainly from Europe, had boosted the population to 76 million. The black population stood at 12 percent. Residents who traced their origins to Latin America or Asia

THE IDENT I TY OF AMER ICANS HAS CHANGED OVER T IME 13

each accounted for less than 1 percent of the entire population.15 Although principally of European origin, the American population had become much more ethnically diverse as immigrants, first from Germany, then from Ireland, and finally from southern and eastern Europe, made their way to the United States. The foreign-born population of the United States reached its height at 14.7 percent in 1910.16

Immigration and Increasing Ethnic Diversity Have Long Caused Intense Debate As the population grew more diverse, anxiety about Americans’ ethnic identity mounted, and much as today, politicians and scholars argued about whether the country could absorb such large numbers of immigrants. The debate encompassed such issues as whether immigrants’ political and social values were compatible with American democracy, whether they would learn English, and what diseases they might bring into the United States.

Immigrants’ religious affiliations also aroused concern. The first immigrants to the United States were overwhelmingly Protestant, many of them fleeing religious persecution. The arrival of Germans and Irish in the mid-1800s meant increasing numbers of Catholics, and the large-scale immigration of the early twentieth century threatened to reduce the percentage of Protestants signifi- cantly: many eastern European immigrants pouring into the country were Jewish, while the southern Europeans were mostly Catholic. A more religiously diverse country challenged the implicit Protestantism embedded in many aspects of American public life.

After World War I, Congress responded to the fears swirling around immigra- tion with new laws that sharply limited the number of immigrants who could enter the country each year. Congress also established a new National Origins Quota System based on the nation’s population in 1890 before the wave of immigrants from eastern and southern Europe arrived.17 The new system set up a hierarchy of admissions: northern European countries received gen- erous quotas for new immigrants, whereas eastern and southern European countries were granted very small quotas. These re- strictions ratcheted down the numbers of immigrants so that by 1970 the foreign-born population in the United States reached an all-time low of 5 percent.

Official efforts to use racial and ethnic criteria to restrict the American population were not new. The very first census, as we have seen, did not count Native Americans; in fact, Native Americans were not granted

In the 1900s, many immigrants entered the United States through New York’s Ellis Island, where they were checked for disease before being admitted.

14 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

the right to vote until 1924. Most people of African descent were not officially citi- zens until 1868, when the Fourteenth Amendment to the Constitution conferred citizenship on the freed slaves.

In 1790 the federal government had sought to limit the nonwhite population with a law stipulating that only free whites could become naturalized citizens. Not until 1870 did Congress lift the ban on the naturalization of nonwhites. Restrictions applied to Asians as well. The Chinese Exclusion Act of 1882 out- lawed the entry of Chinese laborers to the United States, and additional barriers enacted after World War I meant that virtually no Asians entered the country as immigrants until 1943, when China became our ally in World War II and these provisions were lifted. People of Hispanic origin do not fit simply into the American system of racial classification. In 1930, for example, the census counted people of Mexican origin as nonwhite, but it reversed this decision a decade later. Not until 1970 did the census officially begin counting persons of Hispanic origin, noting that they could be any race.18 As this history suggests, American citizenship has always been tied to “whiteness” even as the meaning of “white” shifted over time.

Today the Country Still Confronts the Question “Who Are Americans?” Race and Ethnicity By 2000, immigration had profoundly transformed the nation’s racial and ethnic profile once again. The primary cause was Congress’s decision in 1965 to lift the tight immigration restrictions of the 1920s, a deci- sion that resulted, among other things, in the growth of the Latino population (see Figure 1.1). Census figures for 2014 show that the total Hispanic proportion of the population is now 17.4 percent, while the black, or African American, population is 13.2 percent of the total population. Asians make up 5.4 percent of the population. European Americans account for less than two-thirds of the population—their lowest share ever. Moreover, about 2.5 percent of the popu- lation now identifies itself as of “two or more races,” a new category added to the census in 2000.19 Although it is only a small percentage of the population, the multiracial category points toward a future in which the lines separating the tradi- tional labels of racial identification may be blurring.

In 2014, 13.3 percent of the population was born outside the United States, a figure comparable to the rates of foreign-born at the turn of the previous century. Over half of the foreign-born population came from Latin America, with nearly 4 in 10 from Central America (including Mexico). Those born in Asia consti- tuted the next largest group, making up over one-quarter of foreign-born resi- dents. By 2014, just 11.2 percent of those born outside the United States came from Europe.20 These figures represent only legally authorized immigrants, while estimates put the number of undocumented immigrants at almost 12 million, the majority of whom are from Mexico and Central America.21

Religion The new patterns of immigration combined with a number of other factors to alter the religious affiliations of Americans. In 1900, 80 percent of the population was Protestant; by 2014, only 46.6 percent of Americans identified

THE IDENT I TY OF AMER ICANS HAS CHANGED OVER T IME 15

PERCENTAGE OF IMMIGRANTS*

0 1900s 1910s 1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s 2000s

100 Europe Asia Americas Africa Oceania Not speci�ed

FIGURE 1.1 Immigration by Continent of Origin Where did most immigrants come from at the start of the twentieth century? How does that compare with immigration in the twenty-first century?

*Less than 1 percent not shown. SOURCE: Department of Homeland Security, 2013 Yearbook of Immigration Statistics, August 2014, www.dhs.gov/sites/ default/files/publications/ois_yb_2013_0.pdf (accessed 4/10/16).

themselves as Protestants.22 Catholics made up 20.8 percent of the population, and Jews accounted for 1.9 percent. A small Muslim population had also grown, to nearly 1 percent of the population. One of the most important changes in religious affiliation during the latter half of the twentieth century was the percentage of people who professed no organized religion. In 2014, 28.8 percent of the popula- tion was not affiliated with an organized church. These changes suggest an impor- tant shift in American religious identity: although the United States thinks of itself as a “Judeo-Christian” nation—and indeed was 95 percent Protestant, Catholic, or Jewish from 1900 to 1968—by 2014 the numbers had fallen to 72.5 percent of the adult population.23

Age As America grew and its population expanded and diversified, the country’s age profile shifted with it. In 1900 only 4 percent of the population was over 65.

http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf

16 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

As life expectancy increased, the number of older Americans grew with it: by 2014, nearly 14.5 percent of the population was over 65. The number of children under the age of 18 also changed; in 1900 this group comprised 43 percent of the American population; by 2014, children 18 and under had fallen to about 25 percent of the popula- tion.24 An aging population poses challenges to the United States. As the elderly popula- tion grows and the working-age population shrinks, questions arise about how we will fund programs for the elderly such as Social Security.

Geography Over the nation’s history, Americans have changed in other ways as well, moving from mostly rural settings and small towns to large urban areas. Be- fore 1920, less than half the population lived in urban areas; today 80.7 percent of Americans do.25 Critics charge that the American political system, created when America was a largely rural society, under- represents urban areas. The constitutional provision allocating each state two sena- tors, for example, overrepresents sparsely populated rural states and underrepresents urban states, where the population is far more concentrated. The American popula- tion has also shifted regionally. In the past 50 years, especially, many Americans have left the Northeast and Midwest and moved

to the South and Southwest. As congressional seats have been reapportioned to reflect the population shift, many problems that particularly plague the Midwest and Northeast, such as the decline of manufacturing jobs, receive less attention in national politics.

Socioeconomic Status Americans have fallen into diverse economic groups throughout American history. For much of American history most people were relatively poor working people, many of them farmers. A small wealthy elite, how- ever, grew larger in the 1890s, in a period called “the gilded age.” By 1928, nearly 25 percent of the total annual income went to the top 1 percent of earners; the top 10 percent took home 46 percent of total annual income. After the New Deal in the 1930s, a large middle class took shape, and the share going to those at the top dropped sharply. By 1976, the top 1 percent took home only 9 percent of the national annual income. Since then, however, economic inequality has once again

Immigration remains a controversial issue in the United States. While many believe we should do more to protect our borders, others call for comprehen- sive immigration reform, including an easier pathway to citizenship.

In this chapter, we learned that the United States has become an increasingly diverse country over time. One way that the American population is diverse is in its racial and ethnic make-up. How does the racial and ethnic diversity of the United States compare to that of other countries around the world?

Racial and ethnic diversity is related not only to immigration rates but also to geography, historical legacies, and whether the government has favored certain groups over others. Many western European and Asian countries have histories of past con- flict and strong state-building efforts, result- ing in less diversity. For example, Japan’s geographic isolation has created a racially homogeneous society, which was reinforced by the government’s use of isolationism as a means to consolidate power.a Mod- ern policies limiting immigration continue these historic trends. To take another ex- ample, France has historically pursued both

political and cultural assimilation, using its schools as tools to socialize its citi- zens into a common “republican” identity. More recent waves of immigrants, however, have highlighted potential problems with this policy.b

As a “nation of immigrants,” the United States is more diverse than many Western countries, but some former colonies are even more diverse than the United States. Many countries in sub-Saharan Africa were colonized by multiple empires, whose govern- ments often drew borders that encompassed multiple ethnic groups in the region. State- building and nationalism are also very new to these regions, meaning that local identities remain stronger than national ones.

How might the degree of diversity shape political values in specific countries? What types of values and policies would we ex- pect to see in countries with a high degree of diversity versus those with less diversity?

Global Diversity

AMERICA Side by Side

aBenedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 2006), 94–99. b John R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (Princeton, NJ: Princeton University Press, 2007).

Most diverse

No data available

RACIAL AND ETHNIC DIVERSITY

Most homogeneous

WWN86-01 Diversity 4th proof

SOURCE: Alberto Alesina, Arnaud Devleeschauwer, William Easterly, Sergio Kurlat, and Romain Wacziarg, “Fractionalization,” Journal of Economic Growth, 8 (2003): 155–94.

18 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

widened as a tiny group of super-rich has emerged. By 2014, the top 1 percent earned 21.2 percent of annual income, and the top 10 percent took home almost 50 percent of the total national income, the highest ever recorded, except for 2012.26 At the same time, the incomes of the broad middle class have largely stagnated (see Figure 1.2).27 And 14.8 percent of the population remains below the official poverty line. As the middle class has frayed around the edges, the numbers of poor and near poor have swelled to nearly one-third of the population.28

FIGURE 1.2 Income in the United States The graph shows that while the income of most Americans has risen only slightly since 1950, the income of the richest Americans (the top 5 percent) has increased dramatically. What are some of the ways that this shift might matter for American politics? Does the growing economic gap between the richest groups and most other Americans conflict with the political value of equality?

*Dollar values are given in constant 2014 dollars, which are adjusted for inflation so that we can compare a person’s income in 1950 with a person’s income today. SOURCE: U.S. Census Bureau, Current Population Survey, www.census.gov/hhes/www/income/data/historical/ inequality/index.html (accessed 1/18/16).

FA M

IL Y

IN C

O M

E (I

N D

O LL

A R

S )*

1950 1960 1970 1980 1990 2000 2010

225,000

250,000

275,000

300,000

325,000

350,000

25,000

50,000

75,000

100,000

125,000

150,000

175,000

200,000

Lowest fifth Fourth fifth

Second fifth Highest fifth

Third fifth Top 5 percent

http://www.census.gov/hhes/www/income/data/historical/inequality/index.html

AMER ICA IS BU I LT ON THE IDEAS OF L IBERTY, EQUAL I TY, AND DEMOCRACY 19

Population and Representation The shifting contours of the American peo- ple have regularly raised challenging questions about our politics and governing arrangements. Population growth has spurred politically charged debates about how the population should be apportioned among congressional districts and has also transformed the close democratic relationship between congressional representatives and their constituents envisioned by the framers. For example, the framers stipulated that the number of representatives in the House “shall not exceed one for every thirty Thousand” constituents; today the average member of Congress represents 721,641 constituents.29 Immigration and the cultural and religious changes it entails provoked heated debates 100 years ago and still do today. The different languages and customs that immigrants bring to the United States trigger fears among some that the country is changing in ways that may undermine American values and alter fundamental identities. Yet a changing popu- lation has been one of the constants of American history.

● America Is Built on the Ideas of Liberty, Equality, and Democracy

Analyze whether the U.S. system of government upholds American political values

A few fundamental values underlie the American system. These values are reflected in such Founding documents as the Declara- tion of Independence, the Constitution, and the Bill of Rights. The three values on which the American system of government is based are liberty, equality, and democracy.

Liberty Means Freedom No ideal is more central to American values than liberty. The Declaration of In- dependence defined three inalienable rights: “Life, Liberty and the pursuit of Happiness.” The preamble to the Constitution likewise identified the need to secure “the Blessings of Liberty” as one of the key reasons for which the Constitu- tion was drawn up. For Americans, liberty means freedom from government control as well as economic freedom. Both are closely linked to the idea of limited govern- ment, meaning that powers are defined and limited by a constitution.

The Constitution’s first 10 amendments, known collectively as the Bill of Rights, above all preserve individual personal liberties and rights. In fact, liberty has come to mean many of the freedoms guaranteed in the Bill of Rights: freedom of speech and writing, the right to assemble freely, and the right to practice religious beliefs without interference from the government. Over the course of American history, the scope of personal liberties has expanded as laws have become more tolerant and as individuals have successfully used the courts to challenge restrictions on their individual freedoms. Far fewer restrictions exist today on the press, political speech, and individual moral behavior than in the early years of the nation. Even so, conflicts persist over how personal liberties should be extended and when personal liberties violate community norms.

20 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

In addition to personal freedom, the American concept of liberty means eco- nomic freedom. Since the Founding, economic freedom has been linked to capi- talism, free markets, and the protection of private property. Free competition, the unfettered movement of goods, and the right to enjoy the fruits of one’s labor are all essential aspects of economic freedom and American capitalism.30 In the first century of the Republic, support for capitalism often meant support for the doc- trine of laissez-faire (literally, “let do” in French), an economic system in which the means of production and distribution are privately owned and operated for profit with minimal or no government interference. Laissez-faire capitalism allowed very little room for the national government to regulate trade or restrict the use of private property, even in the public interest. Americans still strongly support capi- talism and economic liberty, but they now also endorse some restrictions on eco- nomic freedoms to protect the public. Federal and state governments now deploy a wide array of regulations in the name of public protection. These include health and safety laws, environmental rules, and workplace regulations. Not surprisingly, fierce disagreements often erupt over what the proper scope of government regula- tion should be. What some people regard as protecting the public, others see as an infringement of their own freedom to run their businesses and use their property as they see fit.

Equality Means Treating People Fairly The Declaration of Independence declares as its first “self-evident” truth that “all men are created equal.” As central as it is to the American political creed, however, equality has been a less well-defined ideal than liberty because people interpret “equality” in different ways. Most Americans share the ideal of equality of oppor- tunity wherein all people should have the freedom to use whatever talents and wealth they have to reach their fullest potential. Yet it is hard for Americans to reach an agreement on what constitutes equality of opportunity. Must a group’s past inequalities be remedied in order to ensure equal opportunity in the present? Should inequalities in the legal, political, and economic spheres be given the same weight? In contrast to liberty, which requires limits on the role of government, equality implies an obligation of the government to the people.31

Americans do make clear distinctions between political equality and social or economic equality. Political equality refers to the right to participate in politics equally, based on the principle of “one person, one vote.” Beginning from a very restricted definition of political community, which originally included only prop- ertied white men, the United States has moved much closer to an ideal of political equality. Broad support for this ideal has helped expand the American political community and extend the right to participate to all. Although considerable conflict remains over whether the political system makes it harder for some people to participate and easier for others and about whether the role of money in politics has drowned out the public voice, Americans agree that all citizens should have an equal opportunity to participate and that government should enforce that right.

In part because Americans believe that individuals are free to work as hard as they choose, they have always been less concerned about social or economic inequality. Many Americans regard economic differences as the consequence of

AMER ICAN POL I T ICAL VALUES AND YOUR FUTURE 21

individual choices, virtues, or failures. Because of this, Americans tend to be less supportive than most Europeans of government action to ensure economic equality.

Democracy Means That What the People Want Matters The essence of democracy is the participation of the people in choosing their rulers and the people’s ability to influence what those rulers do. In a democracy, political power ultimately comes from the people. The principle of democracy in which political authority rests ultimately in the hands of the people is known as popular sovereignty. In the United States, popular sovereignty and political equality make politicians accountable to the people. Ideally, democracy envisions an engaged citi- zenry prepared to exercise its power over rulers. As we noted earlier, the United States is a representative democracy, meaning that the people do not rule directly but instead exercise power through elected representatives. Forms of participa- tion in a democracy vary greatly, but voting is a key element of the representative democracy that the American Founders established.

American democracy rests on the principle of majority rule with minority rights, the democratic principle that a government follows the preferences of the majority of voters but protects the interests of the minority. Majority rule means that the wishes of the majority determine what government does. The House of Representatives—a large body elected directly by the people—was designed in par- ticular to ensure majority rule. But the Founders feared that popular majorities could turn government into a “tyranny of the majority” in which individual liberties would be violated. Concern for individual rights has thus been a part of American democracy from the beginning. The rights enumerated in the Bill of Rights and en- forced through the courts provide an important check on the power of the majority.

American Political Values

and Your Future Americans express mixed views about government. Almost everyone complains about government, and general trust in government has declined significantly. Despite mounting distrust, when asked about particular government activities or programs, a majority of Americans generally support the activities that govern- ment undertakes. These conflicting views reflect the tensions in American political culture: there is no perfect balance between liberty, equality, and democracy. In recent years, finding the right mix of government actions to achieve these different goals has become especially troublesome. Some charge that government initiatives designed to promote equality infringe on individual liberty, while others point to the need for government to take action in the face of growing inequality. Sharp political debate over competing goals alienates many citizens, who react by withdrawing from politics. Yet, in contrast to totalitarian and authoritarian forms of government, democracy rests on the principle of popular sovereignty. No true democracy can function properly without knowledgeable and engaged citizens.

22 CHAPTER 1 I NTRODUCT ION : THE C I T I zEN AND GOVERNMENT

The “Who Participates?” feature on the following page shows various ways Americans were engaged with and participated in the 2012 presidential election.

The remarkable diversity of the American people represents a great strength for American democracy as well as a formidable challenge. The shifting religious, racial and ethnic, and immigration status of Americans throughout history has always provoked fears about whether American values could withstand such dramatic shifts. The changing face of America also sparks hopes for an America that embod- ies its fundamental values more fully.

Demographic changes will continue to raise tough new questions. For example, as the American population grows older, programs for the elderly will take up an increasing share of the federal budget. Yet to be successful, a nation must invest in its young people. And, as any college student knows, the cost of college has risen in recent years. Many students drop out as they discover that the cost of college is too high. Or they graduate and find themselves saddled with loans that will take decades to pay back. Yet, in a world of ever-sharper economic competition, higher education has become increasingly important for individuals seeking economic security. Moreover, an educated population is critical to the future prosperity of the country as a whole. Are there ways to support the elderly and the young at the same time? Is it fair to cut back assistance to the elderly, who have worked a lifetime for their benefits? If we decrease assistance to the elderly, will they stay in the labor market and make the job hunt for young people even more difficult? As these trade-offs suggest, there are no easy answers to these demographic changes.

While levels of participation in politics are relatively low for young Americans, the presidential primary campaigns of 2008 and 2016 saw the highest levels of youth turnout—to volunteer and to vote—in decades. What factors might have energized young people to become involved in these particular campaigns?

W H O P A R T I C I P A T E S ?

Percentage of Each Age Group Who…

13.5% 16.6% 20.5%12.5% Displayed a campaign button, lawn sign, or bumper sticker

17–24 25–44 45–65 65+

74.6% 83.3% 89.9%

58.3%

Voted

34.6% 44.4% 50.4%

32.0%Talked about voting for or against a candi- date or party

13.1% 23.6% 35.0%

9.9%Gave money to a candidate, party, or other group

4.3% 6.4% 8.8%6.8%Went to political meetings, rallies, or speeches

SOURCE: American National Election Study 2012 Time Series, The American National Election Studies, www.electionstudies.org (accessed 9/25/15).

Who Participated in the 2012 Presidential Election?

W H A T Y O U C A N D O

chapterstudyguide

1. Americans’ trust in their government (p. 7) a) has risen steadily since the 1960s. b) has declined significantly since the

1960s. c) has remained the same over the

last 50 years. d) has never been studied. e) is unimportant because Americans

do not rely on government for many services.

2. Political efficacy is the belief that (pp. 7–8) a) government operates efficiently. b) government has grown too large. c) government cannot be trusted.

d) ordinary citizens can influence what government does.

e) government is wasteful and corrupt.

3. What is digital citizenship? (p. 9) a) a new government initiative to

expand online voter registration b) the ability to vote online c) an online certification program

that allows immigrants to become American citizens

d) the ability to participate in society online

e) a new government initiative to provide daily legislative updates online

Practice Quiz

24 CHAPTER STUDY GU IDE

In most states you can register to vote using the National Mail Voter Registration Form found at www.eac.gov. The Election Assistance Commission website also includes various tips about registering and voting.

Find out when you need to register in order to vote in the next election. Visit www.usa.gov/register-to-vote for a list of registration deadlines.

Many states allow online registration. Go to www.ncsl.org and search “online voter registration” to �nd a list of these states with links to their websites.

If you’ve moved to attend college or for another reason, you can register with your new address.

WHAT YOU CAN DO

CHAPTER STUDY GU IDE 25

4. What is the difference between a totali- tarian government and an authoritarian government? (p. 10) a) Authoritarian governments require

popular participation while totalitar- ian governments do not.

b) Totalitarian governments are generally based on religion, while authoritarian governments are not.

c) Authoritarian governments are often restrained by the power of social institutions, while totalitarian governments are not.

d) Totalitarian governments acknowl- edge strict limits on their power, while authoritarian governments do not.

e) There is no difference between these two kinds of government.

5. In a constitutional government (p. 10) a) the government recognizes no

formal limits on its power. b) presidential elections are held

every four years. c) governmental power is held by a

single individual. d) formal and effective limits

are placed on the powers of government.

e) the government follows the wishes of the majority.

6. Although not present at the national level, a number of states and cities permit citizens to vote directly on laws and policies. What is this form of rule called? (p. 12) a) representative democracy b) direct democracy c) pluralism d) laissez-faire capitalism e) a republic

7. The percentage of foreign-born individu- als living in the United States (p. 13) a) has increased significantly since

reaching its low point in 1970. b) has decreased significantly since

reaching its high point in 1970. c) has remained the same since

1970. d) has never been less than the per-

centage of native-born individuals living in the United States.

e) has not been studied since 1970.

8. Which of the following statements best describes the history of income inequality in the United States? (pp. 16–18) a) The top 1 percent has never earned

more than 10 percent of the nation’s annual income.

b) The top 1 percent has never earned less than 10 percent of the nation’s annual income.

c) Income inequality has remained fairly constant since the late 1970s.

d) Income inequality has increased considerably since the late 1970s.

e) Income inequality has decreased considerably since the late 1970s.

9. Latinos now make up (p. 14) a) more than 65 percent of the

American public. b) more than 50 percent of the

American public. c) more than 33 percent of the

American public. d) more than 25 percent of the

American public. e) more than 15 percent of the

American public.

10. Which of the following statements best describes the changes in America’s age profile since 1900? (pp. 15–16) a) The percentage of adults over

the age of 65 has declined dramatically.

b) The percentage of adults over the age of 65 has increased dramatically.

c) The percentage of adults over the age of 65 has remained constant.

d) The percentage of children under the age of 18 has increased dramatically.

e) The percentage of children under the age of 18 has remained constant.

11. What percent of Americans live in urban areas today? (p. 16) a) less than 10 percent b) about 20 percent c) about 40 percent d) about 60 percent e) about 80 percent

26 CHAPTER STUDY GU IDE

12. Which of the following is not related to the American conception of liberty? (pp. 18–19) a) freedom of speech b) economic liberty c) freedom of religion d) freedom of assembly e) All of the above are related to the

American conception of liberty.

13. Which of the following is not part of the core values that underlie the American political system? (pp. 19–20) a) belief in economic equality b) belief in political equality

c) belief in personal freedom d) belief in economic freedom e) belief in democracy

14. The principle of political equality can be best summed up as (pp. 19–20) a) “equality of results.” b) “equality of opportunity.” c) “one person, one vote.” d) “equality between the sexes.” e) “leave everyone alone.”

authoritarian government (p. 10) a system of rule in which the government recognizes no formal limit but may nevertheless be restrained by the power of other social institutions

citizenship (p. 8) informed and active membership in a political community

constitutional government (p. 10) a system of rule in which formal and effective limits are placed on the powers of the government

democracy (p. 10) a system of rule that permits citizens to play a significant part in the governmental process, usually through the election of key public officials

direct democracy (p. 12) a system of rule that permits citizens to vote directly on laws and policies

equality of opportunity (p. 20) a widely shared American ideal that all people should have the freedom to use whatever talents and wealth they have to reach their fullest potential

government (p. 4) institutions and procedures through which a territory and its people are ruled

laissez-faire capitalism (p. 20) an economic system in which the means of production and distribution are privately owned and operated for profit with minimal or no government interference

liberty (p. 19) freedom from government control

limited government (p. 19) a principle of constitutional government; a government whose powers are defined and limited by a constitution

majority rule/minority rights (p. 21) the democratic principle that a government follows the preferences of the majority of voters but protects the interests of the minority

political efficacy (p. 7) the ability to influence government and politics

political equality (p. 20) the right to participate in politics equally, based on the principle of “one person, one vote”

politics (p. 12) conflict over the leadership, structure, and policies of governments

popular sovereignty (p. 21) a principle of democracy in which political authority rests ultimately in the hands of the people

power (p. 12) influence over a government’s leadership, organization, or policies

representative democracy (republic) (p. 12) a system of government in which the populace selects representatives, who play a significant role in governmental decision making

totalitarian government (p. 10) a system of rule in which the government recognizes no formal limits on its power and seeks to absorb or eliminate other social institutions that might challenge it

Key Terms

CHAPTER STUDY GU IDE 27

For Further Reading

Dahl, Robert. How Democratic Is the American Constitution? New Haven, CT: Yale University Press, 2002.

Dalton, Russell. The Good Citizen: How a Younger Generation Is Reshaping American Politics. 2nd ed. Washington, DC: CQ Press, 2015.

Delli Carpini, Michael X., and Scott Keeter. What Americans Know about Politics and Why It Matters. New Haven, CT: Yale University Press, 1996.

Hochschild, Jennifer L. Facing Up to the American Dream: Race, Class, and the Soul of the Nation. Princeton, NJ: Princeton University Press, 1995.

Lasswell, Harold. Politics: Who Gets What, When, How. New York: Meridian Books, 1958.

McCarty, Nolan, Keith T. Poole, and Howard Rosenthal. Polarized America: The Dance of Ideology and Unequal Riches. Cambridge, MA: MIT Press, 2008.

Mettler, Suzanne. The Submerged State: How Invisible Government Policies Undermine American Democracy. Chicago: University of Chicago Press, 2011.

Nye, Joseph S., Jr., Philip D. zelikow, and David C. King, eds. Why People Don’t Trust Government. Cambridge, MA: Harvard University Press, 1997.

Page, Benjamin I., and Lawrence R. Jacobs. Class War? What Americans Really Think about Economic Inequality. Chicago: University of Chicago Press, 2009.

Tocqueville, Alexis de. Democracy in America. Translated by Phillips Bradley. New York: Knopf, Vintage Books, 1945. First published 1835.

When the framers of the Constitution met in 1787, they set out to estab- lish a political system that would protect liberty and place limits on government. They also believed a powerful government required a broad popular base. However, they debated how best to protect liberty and how to balance democracy with other concerns.

The Founding and the Constitution

WHAT GOVERNMENT DOES AND WHY IT MATTERS The framers of the U.S. Constitution knew why government mattered. In the Constitution’s preamble,

the framers tell us that the purposes of government are to promote justice, to

maintain peace at home, to defend the nation from foreign foes, to provide for

the welfare of the citizenry, and, above all, to secure the “Blessings of Liberty”

for Americans. The remainder of the Constitution spells out a plan for achieving

these great objectives. This plan includes provisions for the exercise of legislative,

executive, and judicial powers and a recipe for the division of powers among the

federal government’s branches and between the national and state governments.

Americans often become impatient with the Constitution as the constitution-

al separation of powers seems to be a recipe for inaction and “gridlock” when

America’s major institutions of government are controlled by opposing political

forces. This has led to bitter fights that sometimes prevent government from

delivering important services. In October 2013, for instance, the federal gov-

ernment partially shut down for 16 days when the House and Senate could not

reach agreement on a budget. As a result, permit offices across the country

no longer took in fees, contractors stopped receiving checks, research projects

stalled, and 800,000 federal employees were sent home on unpaid leave—at

a cost to the economy of 2–6 billion.1

30 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

The framers, however, believed that a good constitution not only created a

government with the capacity to act forcefully but also promoted compromise

and deliberation, sometimes delaying action until tempers cooled and a variety of

viewpoints could be heard. The cost of compromise and deliberation encouraged

by such constitutional arrangements as the separation of powers might some-

times be gridlock, but the benefit may be a government compelled to take many

interests and viewpoints into account when it formulates policies.

America’s long-standing values of liberty, equality, and democracy were all

major themes of the Founding period and are all elements of the U.S. Con-

stitution. However, the Constitution was a product of political bargaining and

compromise, formed in very much the same way political decisions are made

today. As this chapter will show, the Constitution reflects high principle as

well as political self-interest. It also defines the relationship between American

citizens and their government.

chaptergoals ● Describe the events that led to the Declaration of Independence

and the Articles of Confederation (pp. 31–36)

● Analyze the reasons many Americans thought a new Constitution was needed, and assess the obstacles to a new Constitution (pp. 36–41)

● Explain how the Constitution attempted to improve America’s governance, and outline the major institutions established by the Constitution (pp. 41–49)

● Present the controversies involved in the struggle for ratification (pp. 49–52)

● Trace how the Constitution has changed over time through the amendment process (pp. 54–57)

THE F IRST FOUND ING : IDEALS , INTERESTS , AND CONFL ICTS 31

● The First Founding: Ideals, Interests, and Conflicts

Describe the events that led to the Declaration of Independence and the Articles of Confederation

The government created by the country’s Founders was the product of British legal and political traditions, colonial experience, and new ideas about governance that gained currency in the century before America broke with Britain. While America’s leaders were first and foremost practical politicians,

they also read political philosophy and were influenced by the important thinkers of their day, including Hobbes, Locke, and Montesquieu.

The seventeenth-century British philosopher Thomas Hobbes (1588–1679) was no advocate of democratic government, but he wrote persuasively in Leviathan about the necessity of a government authority as an antidote to human existence in a government-less state of nature, where life was “solitary, poor, nasty, brutish, and short.” He also believed that governments should have limits on the powers they exercised and that political systems are based on the idea of “contract theory”— that the people of a country voluntarily give up some freedom in exchange for an ordered society. The monarchs who rule that society derive their legitimacy from this contract, not from a God-given right to rule.

Another British political thinker, John Locke (1632–1704), advanced the prin- ciples of republican government by arguing not only that monarchical power was not absolute but that such power was dangerous and should therefore be limited. In a break with Hobbes, Locke argued that the people retain rights despite the social contract they made with the monarch. Preserving safety in society is not enough; people’s lives, liberty, and property also require protection. Further, Locke wrote in his Second Treatise of Civil Government that the people of a country have a right to overthrow a government they believe to be unjust or tyrannical. This key idea shaped the thinking of the Founders, including Thomas Jefferson, the primary author of the Declaration of Independence, who said that the document was “pure Locke.” Locke advanced the important ideas of limited government and consent of the governed.

Baron de la Brède et de Montesquieu (1689–1755) was a French political thinker who advocated the idea that power needed to be balanced by power as a bulwark against tyranny. The way in which this could be achieved was through the separation of governing powers. This idea was already in practice in Britain, where legislative and executive powers were divided between Parliament and the monarch. In The Spirit of the Laws, Montesquieu argued for the separation and elevation of judicial power, which in Britain was still held by the monarch. Montesquieu did not argue for a pure separation of powers; rather, basic functions would be separated, but there would also be some overlap of functions. These ideas were central in shaping the three-branch system of government that America’s Founders outlined in the Constitution of 1787.

Narrow Interests and Political Conflicts Shaped the First Founding The American Revolution and the U.S. Constitution were outgrowths of a struggle among competing economic and political forces within the colonies. Five sectors of society had interests that were important in colonial politics: (1) the New England

32 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

merchants; (2) the southern planters; (3) the “royalists”—holders of royal lands, offices, and patents (licenses to engage in a profession or business activity); (4) shopkeepers, artisans, and laborers; and (5) small farmers. Throughout the eigh- teenth century, these groups were in conflict over issues of taxation, trade, and commerce. For the most part, however, the southern planters, the New England merchants, and the royal office and patent holders—groups that together made up the colonial elite—were able to maintain a political alliance that held in check the more radical forces representing shopkeepers, laborers, and small farmers. After 1760, however, by seriously threatening the interests of New England merchants and southern planters, British tax and trade policies split the colonial elite, permit- ting radical forces to expand their political influence, and set in motion a chain of events that culminated in the American Revolution.2

British Taxes Hurt Colonial Economic Interests During the first half of the eighteenth century, Britain ruled its American colonies with a light hand. Evidence of British rule was hardly to be found outside the larg- est towns, and the enterprising colonists had founds ways of evading most of the taxes nominally levied by the distant British government. Beginning in the 1760s, however, the debts and other financial problems faced by the British government forced it to search for new revenue sources. This search rather quickly led to the Crown’s North American colonies, which, on the whole, paid remarkably little in taxes to their parent country. Much of Britain’s debt arose from the expenses it had incurred in defense of the colonies during the recent French and Indian War (1756–63), as well as from the continuing protection that British forces were giving the colonists from Indian attacks and that the British navy was providing for colonial shipping. Thus, during the 1760s, Great Britain sought to impose new, though relatively modest, taxes on the colonists.

Like most governments of the period, the British regime had limited ways in which to collect revenues. In the mid-eighteenth century, governments relied mainly on tariffs, duties, and other taxes on commerce; and it was to such taxes, including the Stamp Act, that the British turned during the 1760s.

The Stamp Act and other taxes on commerce, such as the Sugar Act of 1764, which taxed sugar, molasses, and other commodities, most heavily affected the two groups in colonial society whose commercial interests and activities were most extensive—the New England merchants and the southern planters. United under the famous slogan “No taxation without representation,” the merchants and plant- ers sought to organize opposition to these new taxes. In the course of the struggle against British tax measures, the planters and merchants broke with their royalist allies and turned to their former adversaries—the shopkeepers, laborers, artisans, and small farmers—for help. With the assistance of these groups, the merchants and planters organized demonstrations and a boycott of British goods that ulti- mately forced the Crown to rescind most of its hated new taxes.

From the perspective of the merchants and planters, this was a victorious con- clusion to their struggle with the parent country. They were anxious to end the unrest they had helped to arouse, and they supported the British government’s efforts to restore order. Indeed, most respectable Bostonians supported the actions

THE F IRST FOUND ING : IDEALS , INTERESTS , AND CONFL ICTS 33

of the British soldiers involved in the Boston Massacre (1770), when those soldiers killed five colonists while attempting to repel an angry mob moving against a gov- ernment building. In their subsequent trial, the soldiers were defended by John Adams, a pillar of Boston society and a future president of the United States. Adams asserted that the soldiers’ actions were entirely justified, provoked as they were by “a motley rabble of saucy boys, negroes and mulattoes, Irish teagues and outlandish Jack tars.” All but two of the soldiers were acquitted.3

Yet political strife persisted. The more radical forces representing shopkeepers, artisans, laborers, and small farmers, who had been mobilized and energized by the struggle over taxes, continued to agitate for political and social change. These radi- cals, whose leaders included Samuel Adams, a cousin of John Adams, asserted that British power supported an unjust political and social structure within the colonies and began to advocate an end to British rule.4

Political Strife Radicalized the Colonists The political strife within the colonies was the background for the events of 1773–74. In 1773 the British government granted the politically powerful but ailing East India Company a monopoly on the export of tea from Britain, eliminat- ing a lucrative form of trade for colonial merchants. To add insult to injury, the East India Company sought to sell the tea directly in the colonies instead of working through the colonial merchants. Tea was an extremely important commodity in

The British helped radicalize colonists through bad policy decisions in the years before the Revolution. For example, Britain gave the East India Company a monopoly on the tea trade in the American colonies, which colonists feared would hurt colonial merchants’ business.

34 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

the 1770s, and these British actions posed a serious threat to the New England merchants. Together with their southern allies, the merchants once again called upon the radicals for support. The most dramatic result was the Boston Tea Party of 1773, when anti-British radicals, led by Samuel Adams (some of them “disguised” as Mohawk Indians), boarded three vessels anchored in Boston Harbor and threw the entire cargo of 342 chests of tea into the harbor.

This event was of decisive importance in American history. The merchants had hoped to force the British government to rescind the Tea Act, but they did not support any demands beyond this one. They certainly did not seek independence from Britain. Samuel Adams and the other radicals, however, hoped to provoke the British government to take actions that would alienate its colonial supporters and pave the way for a rebellion. This was precisely the purpose of the Boston Tea Party, and it succeeded. By dumping the East India Company’s tea into Boston Harbor, Adams and his followers goaded the British into enacting a number of harsh reprisals that closed the port of Boston to commerce, changed the provin- cial government of Massachusetts, provided for the removal of accused persons to Britain for trial, and, most important, restricted movement to the West—further alienating the southern planters, who depended upon access to new western lands. These acts of retaliation confirmed the worst criticisms of British rule and helped radicalize Americans. Radicals such as Samuel Adams had been agitating for more violent measures against the British. But ultimately it was Britain’s political repres- sion that fanned support for independence.

Thus, the Boston Tea Party set in motion a cycle of provocation and retaliation that in 1774 resulted in the convening of the First Continental Congress—an assembly of delegates from all parts of the colonies that called for a total boycott of British goods and, under the prodding of the radicals, began to consider the possibility of independence from British rule. The eventual result was the Declaration of Independence.

The Declaration of Independence Explained Why the Colonists Wanted to Break with Great Britain In 1776, more than a year after open warfare had commenced in Massachusetts, the Second Continental Congress appointed a committee consisting of Thomas Jefferson of Virginia, Benjamin Franklin of Pennsylvania, Roger Sherman of Connecticut, John Adams of Massachusetts, and Robert Livingston of New York to draft a statement of American independence from British rule. The Declaration of Independence, written by Jefferson and adopted by the Second Continental Congress, was an extraordinary philosophical and political document. Philosophi- cally, the Declaration was remarkable for its assertion that certain rights, called “unalienable rights”—including life, liberty, and the pursuit of happiness—could not be abridged by governments. In the world of 1776, a world in which some kings still claimed to rule by divine right, this was a dramatic statement. As discussed earlier in this chapter, colonial political thought was heavily influenced by the works of the philosopher John Locke, who asserted that all individuals were equal and possessed a natural right to defend their lives, liberties, and posses- sions. Individuals created governments to help them protect these rights but, if a

THE F IRST FOUND ING : IDEALS , INTERESTS , AND CONFL ICTS 35

government failed in its duties, the citi- zenry had the right to alter or abolish it. It is easy to see why the colonists found inspiration in Locke’s writings as they contemplated altering their relationship to the British Crown.

Politically, the Declaration was re- markable because it focused on griev- ances, aspirations, and principles that might unify the various colonial groups that were otherwise divided economi- cally, philosophically, and by region. The Declaration was an attempt to identify and articulate a history and set of principles that might help to forge national unity.5 It also explained to the rest of the world why American colo- nists were attempting to break away from Great Britain.

The Articles of Confederation Created America’s First National Government Having declared their independence, the colonies needed to establish a governmental structure. In November 1777 the Continental Congress adopted the Articles of Confederation, the United States’ first written constitution. Although it was not ratified by all the states until 1781, it was the country’s operative constitution for almost 12 years, until March 1789.

The Articles of Confederation were concerned primarily with limiting the powers of the central government. The central government, first of all, was based entirely in a Congress. Since it was not intended to be a powerful government, it was given no executive branch. Execution of its laws was to be left to the individ- ual states. Second, the Congress had little power. Its members were not much more than delegates or messengers from the state legislatures. They were chosen by the state legislatures, their salaries were paid out of the state treasuries, and they were subject to immediate recall by state authorities. In addition, each state, regardless of its size, had only a single vote.

The Congress was given the power to declare war and make peace, to make trea- ties and alliances, to coin or borrow money, and to regulate trade with the Native Americans. It could also appoint the senior officers of the U.S. Army. But it could not levy taxes or regulate commerce among the states. Moreover, the army officers it appointed had no army to serve in because the nation’s armed forces were com- posed of the state militias. And in order to amend the Articles, all 13 states had to agree—a virtual impossibility. Probably the most unfortunate part of the Articles

The purpose of the Declaration of Indepen- dence was to explain to the world why the colonists had rebelled against the British and sought self-government. Every year, Americans celebrate the signing of the Declaration on the Fourth of July.

36 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

of Confederation was that the central government could not prevent one state from discriminating against other states in the quest for foreign commerce.

The relationship between the Congress and the states under the Articles of Confederation was much like the contemporary relationship between the United Nations and its member states, a relationship in which the states retained virtually all governmental powers. It was properly called a confederation (a system of gov- ernment in which states retain sovereign authority except for the powers expressly delegated to the national government) because, as provided under Article II, “each state retains its sovereignty, freedom and independence, and every Power, Jurisdic- tion and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Not only was there no executive, there also was no judicial authority and no other means of enforcing the Congress’s will. If there was to be any enforcement at all, the states would do it for the Congress.6

● The Failure of the Articles of Confederation Made the “Second Founding” Necessary

Analyze the reasons many Americans thought a new Constitution was needed, and assess the obstacles to a new Constitution

The Declaration of Independence and the Articles of Confederation were not suffi- cient to hold the new nation together as an independent and effective nation-state. From almost the moment of armistice with the British in 1783, moves were afoot to reform and strengthen the Articles of Confederation.

Competition among the states for foreign commerce posed a special problem to the new country because it allowed the European powers to play the states against one another, which not only made America seem weak and vulnerable abroad but also created confusion on both sides of the Atlantic. At one point during the winter of 1786–87, John Adams of Massachusetts, a leader in the independence struggle, was sent to negotiate a new treaty with the British, one that would cover disputes left over from the war. The British government responded that, because the United States under the Articles of Confederation was unable to enforce existing treaties, it would negotiate with each of the 13 states separately.

At the same time, well-to-do Americans—in particular the New England mer- chants and southern planters—were troubled by the influence that “radical” forces exercised in the Continental Congress and in the governments of several of the states. The colonists’ victory in the Revolutionary War had not only ended British rule but also significantly changed the balance of political power within the new states. As a result of the Revolution, one key segment of the colonial elite—the royal land, office, and patent holders—was stripped of its economic and political privileges. In fact, many of these individuals, along with tens of thousands of other colonists who considered themselves loyal British subjects, left for Canada after the British surrender. And while the pre-Revolutionary elite was weakened, the pre-Revolutionary radicals were better organized than ever and now controlled such states as Pennsylvania and Rhode Island, where they pursued economic

FA I LURE OF THE ART ICLES MADE THE “SECOND FOUND ING” NECESSARY 37

and political policies that struck terror into the hearts of the pre-Revolutionary political establishment. Of course, the central government under the Articles of Confederation was powerless to intervene.

The Annapolis Convention Was Key to Calling a National Convention The continuation of international weakness and domestic economic turmoil led many Americans to consider whether their newly adopted form of government might not already require revision. In the fall of 1786, many state leaders accepted an invitation from the Virginia legislature for a conference of representatives of all the states, to be held in Annapolis, Maryland. Delegates from only five states actually attended, so nothing substantive could be accomplished. Still, this confer- ence was the first step toward what is now known as the second founding. The one positive thing that came out of the Annapolis convention was a carefully worded resolution calling on the Congress to send commissioners to Philadelphia at a later time “to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union.”7 But the resolution did not necessar- ily imply any desire to do more than improve and reform the Articles of Confederation.

The government under the Articles did enact some important measures, including the Land Ordinance of 1785 and the Northwest Ordinance of 1787. The Land Ordinance established the principles of land surveying and landownership that governed America’s westward expansion, and under the North- west Ordinance the states agreed to surren- der their western land claims, which opened the way for the admission of new states to the Union. Still, the young nation’s political and economic position deteriorated during the 1780s, and something had to be done.

Shays’s Rebellion Showed How Weak the Government Was It is quite possible that the Constitutional Convention of 1787 in Philadelphia would never have taken place at all except for a single event that occurred during the winter following the Annapolis convention: Shays’s Rebellion.

Daniel Shays, a former army captain, led a mob of farmers in a rebellion against the government of Massachusetts, which had levied heavy taxes against them. The purpose

In the winter of 1787, Daniel Shays led a makeshift army against the federal arsenal at Springfield to protest heavy taxes levied by the Massachusetts legislature. The rebellion proved the Articles of Confederation too weak to protect the fledgling nation.

38 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

of the rebellion was to prevent foreclosures on farmers’ debt-ridden land by keep- ing the county courts of western Massachusetts from sitting until after the next election. The state militia dispersed the mob, but for several days in February 1787, Shays and his followers terrified the state government by attempting to capture the federal arsenal at Springfield, provoking an appeal to the Congress to help restore order. Within a few days, the state government regained control and captured 14 of the rebels. (All were eventually pardoned.) Later that year, a newly elected Massachusetts legislature granted some of the farmers’ demands.

George Washington summed up the effects of this incident: “I am mortified beyond expression that in the moment of our acknowledged independence we should by our conduct verify the predictions of our transatlantic foe, and render ourselves ridiculous and contemptible in the eyes of all Europe.”8

The Congress under the Confederation had been unable to act decisively in a time of crisis. This provided critics of the Articles of Confederation with precisely the evidence they needed to push the Annapolis resolution through the Congress. Thus, the states were asked to send representatives to Philadelphia to discuss consti- tutional revision. Delegates were eventually sent by every state except Rhode Island.

The Constitutional Convention Didn’t Start Out to Write a New Constitution The delegates who convened in Philadelphia in May 1787 had political strife, international embarrassment, national weakness, and local rebellion fixed in their minds. Recognizing that these issues were symptoms of fundamental flaws in the Articles of Confederation, the delegates soon abandoned the plan to revise the Articles and committed themselves to a second founding—a second, and ulti- mately successful, attempt to create a legitimate and effective national system of government. This effort would occupy the convention for the next five months.

A Marriage of Interest and Principle For years, scholars have disagreed about the motives of the Founders in Philadelphia. Among the most controversial views of the framers’ motives is the “economic interpretation” put forward by historian Charles Beard and his disciples.9 According to Beard’s account, America’s Found- ers were a collection of securities speculators and property owners whose only aim was personal enrichment. From this perspective, the Constitution’s lofty principles are little more than sophisticated masks behind which the most venal interests sought to enrich themselves.

The opposing view is that the framers of the Constitution were concerned with philosophical and ethical principles. Indeed, the framers did try to devise a system of government consistent with the dominant philosophical and moral principles of the day. But, in fact, these two views belong together; the Founders’ interests were reinforced by their principles. The convention that drafted the American Constitution was chiefly organized by the New England merchants and south- ern planters. Although the delegates representing these groups did not all hope to profit personally from an increase in the value of their securities, as Beard would have it, they did hope to benefit in the broadest political and economic sense by breaking the power of their radical foes and establishing a system of government

FA I LURE OF THE ART ICLES MADE THE “SECOND FOUND ING” NECESSARY 39

more compatible with their long-term economic and political interests. Thus, the framers sought to create a new government capable of promoting commerce and protecting property from radical state legislatures and populist forces hostile to the interests of the commercial and propertied classes.

The Great Compromise The proponents of a new government fired their open- ing shot on May 29, 1787, when Edmund Randolph of Virginia offered a resolution that proposed corrections and enlargements in the Articles of Confederation. The proposal, reflecting the strong influence of James Madison, was no simple motion; rather, it provided for an entirely new government.

The portion of Randolph’s motion that became most controversial was called the Virginia Plan. This plan provided for a system of representation in the national legislature based upon the population of each state or the proportion of each state’s revenue contribution to the national government or both. (Randolph also proposed a second chamber of the legislature, to be elected by the members of the first chamber.) Since the states varied enormously in size and wealth, the Virginia Plan was heavily biased in favor of the large states.

While the convention was debating the Virginia Plan, opposition to it began to mount as more delegates arrived in Philadelphia. William Paterson of New Jersey introduced a new resolution known as the New Jersey Plan, which called for equal state representation in the national legislature regardless of population. Its main proponents were delegates from the less populous states, including Delaware, New Jersey, Connecticut, and New York, who asserted that the more populous states, such as Virginia, Pennsylvania, North Carolina, Massachusetts, and Georgia, would dominate the new government if representation were determined by population. The smaller states argued that each state should be equally represented in the new regime regardless of the state’s population.

The issue of representation was one that threatened to wreck the entire consti- tutional enterprise. Delegates conferred, factions maneuvered, and tempers flared. James Wilson of Pennsylvania told the small-state delegates that if they wanted to disrupt the union, they should go ahead. The separation, he said, could “never hap- pen on better grounds.” Small-state delegates were equally blunt. Gunning Bedford of Delaware declared that the small states might, if forced, look elsewhere for friends. “The large states,” he said, “dare not dissolve the confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” These sentiments were widely shared. The union, as Luther Martin of Maryland put it, was “on the verge of dissolution, scarcely held together by the strength of a hair.”10

The outcome of this debate was the Connecticut Compromise, also known as the Great Compromise. Under the terms of this compromise, in the first chamber of Congress, the House of Representatives, the representatives would be apportioned according to the population in each state. This, of course, was what delegates from the large states had sought. But in the second chamber, the Senate, each state would have equal representation regardless of its population; this provision addressed the concerns of the small states. This compromise was not immediately satisfactory to all the delegates. Indeed, two of the most vocal members of the small-state faction, John Lansing and Robert Yates of New York, were so incensed by the concession

40 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

that their colleagues had made to the large-state forces that they stormed out of the convention. In the end, however, most of the delegates preferred compromise to the breakup of the Union, and the plan was accepted.

The Question of Slavery: The Three-Fifths Compromise Many of the con- flicts that emerged during the Constitutional Convention were reflections of the fundamental differences between the slave and the nonslave states—differences that pitted the southern planters against New England merchants. This was one example of the conflict that would later almost destroy the Republic.

More than 90 percent of the country’s slaves resided in five states—Georgia, Maryland, North Carolina, South Carolina, and Virginia—where they accounted for 30 percent of the total population. In some places, slaves outnumbered non- slaves by as many as 10 to 1. For the Constitution to embody any principle of national supremacy, some basic decisions would have to be made about the place of slavery in the general scheme. James Madison observed, “It seemed now to be pretty well understood that the real difference of interests lay, not between the large and small but between the northern and southern states. The institution of slavery and its consequences formed the line of discrimination.”11

The issue of slavery was the most difficult one faced by the framers, and it nearly destroyed the Union. Although some delegates believed slavery to be

Despite the Founders’ emphasis on liberty, the new Constitution allowed slavery, counting only three-fifths of all slaves in apportioning seats in the House of Representatives. In this 1792 painting, Liberty Displaying the Arts and Sciences, the books, instruments, and classical columns at the left contrast with the kneeling slaves at the right—illustrating the divide between America’s rhetoric of liberty and equality and the realities of slavery.

CONST I TUT ION CREATED BOLD POWERS AND SHARP L IM I TS ON POWER 41

morally wrong, an evil and oppressive institution that made a mockery of the ideals and values espoused in the Constitution, morality was not the issue that caused the framers to support or oppose the Three-Fifths Compromise. Whatever they thought of the institution of slavery, most delegates from the northern states opposed counting slaves in the distribution of congressional seats. James Wilson of Pennsylvania, for example, argued that if slaves were citizens, they should be treated and counted like other citizens. If, on the other hand, they were property, then why should not other forms of property be counted toward the apportionment of representatives? But southern delegates made it clear that if the northerners refused to give in, they would never agree to the new government. William R. Davie of North Carolina heatedly asserted that the people of North Carolina would never enter the Union if slaves were not counted as part of the basis for representation. Without such agreement, he asserted ominously, “the busi- ness was at an end.” Even southerners such as Edmund Randolph of Virginia, who conceded that slavery was immoral, insisted on including slaves in the allocation of congressional seats. Eventually the North and South compromised on the issue of slavery and representation. Indeed, northerners even agreed to permit a continua- tion of the odious slave trade until 1808 in order to keep the South in the Union. But eventually, the disparate interests of the North and the South could no longer be reconciled, and a bloody civil war was the result.

Northerners and southerners eventually reached agreement through the Three- Fifths Compromise. The seats in the House of Representatives would be appor- tioned according to a “population” in which only three-fifths of slaves would be counted. The slaves would not be allowed to vote, of course; but the number of representatives would be apportioned accordingly.

● The Constitution Created Both Bold Powers and Sharp Limits on Power

Explain how the Constitution attempted to improve America’s governance, and outline the major institutions established by the Constitution

The political significance of the Great Com- promise and the Three-Fifths Compromise was to reinforce the unity of the mercantile and planter forces that sought to create a new government. The Great Compromise reassured those in both groups who feared that this new governmental framework would reduce the importance of their own local or regional influence. The Three-Fifths

Compromise temporarily defused the rivalry between the merchants and planters. Their unity secured, members of the alliance supporting the establishment of a new government moved to fashion a constitutional framework consistent with their economic and political interests.

In particular, the framers sought a new government that, first, would be strong enough to promote commerce and protect property from radical state legisla- tures such as Rhode Island’s. This became the constitutional basis for national control over commerce and finance and for the establishment of national judicial

42 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

supremacy and the effort to construct a strong presidency. See Table 2.1 for a comparison of the Articles of Confederation to the Constitution. Second, the framers sought to prevent what they saw as the threat posed by the “excessive democracy” of the state and national governments under the Articles of Confederation. This led to such constitutional principles as a bicameral leg- islature (a legislative assembly composed of two chambers or houses), checks and balances (mechanisms through which each branch of government is able to

MAJOR PROVISIONS ARTICLES CONSTITUTION

Executive branch None President of the United States

Judiciary No federal court system. Judiciary exists only at state level.

Federal judiciary headed by the Supreme Court

Legislature Unicameral legislature with equal representation for each state. Delegates to the Congress of the Confederation were appointed by the states.

Bicameral legislature consisting of Senate and House of Representatives. Each state is represented by two senators, while apportionment in the House is based on state population. Senators are chosen by the state legislatures (changed to popular election in 1913) and House members by popular election.

Fiscal and economic powers

The national government is dependent upon the states to collect taxes. The states are free to coin their own money, print paper money, and sign commercial treaties with foreign governments.

Congress given the power to levy taxes, coin money, and regulate commerce. States prohibited from coining money or entering into treaties with other nations.

Military The national government is dependent upon state militias and cannot form an army during peacetime.

The national government is authorized to maintain an army and navy.

Legal supremacy State constitutions and state law are supreme.

National Constitution and national law are supreme.

Constitutional amendment

Must be agreed upon by all states.

Must be agreed upon by three-fourths of the states.

TABLE 2.1

Comparing the Articles of Confederation and the Constitution

CONST I TUT ION CREATED BOLD POWERS AND SHARP L IM I TS ON POWER 43

participate in and influence the activities of the other branches), staggered terms in office with longer terms for senators, and indirect election (selection of the president not by voters directly but by an electoral college, whereby presidential electors from each state who meet after the popular election cast ballots for presi- dent and vice president; senators also were chosen indirectly, by state legislatures). Third, the framers, lacking the power to force the states or the public at large to accept the new form of government, sought to identify principles that would help to secure support. This became the basis of the constitutional provision for di- rect popular election of representatives and, subsequently, for the addition of the Bill of Rights (the first 10 amendments to the Constitution, ratified in 1791; they ensure certain rights and liberties to the people). Finally, the framers wanted to be certain that the government they created did not pose an even greater threat to its citizens’ liberties and property rights than did the radical state legislatures they feared and despised. To prevent the new government from abusing its power, the framers incorporated principles such as the separation of powers (the division of governmental power among several institutions that must cooperate in deci- sion making) and federalism (a system of government in which power is divided, by a constitution, between a central government and regional governments) into the Constitution. Let us assess the major provisions of the Constitution’s seven articles to see how each relates to these objectives.

The Legislative Branch Was Designed to Be the Most Powerful In Article I, Sections 1–7, the Constitution provides for a Congress consisting of two chambers: a House of Representatives and a Senate. Members of the House of Representatives were given two-year terms in office and were to be elected directly by the people. Members of the Senate were to be appointed by the state legisla- tures (this was changed in 1913 by the Seventeenth Amendment, which instituted direct election of senators) for six-year terms. These terms were staggered so that the appointments of one-third of the senators would expire every two years. The Constitution assigned somewhat different tasks to the House and Senate. Although the approval of each body was required for the enactment of a law, the Senate alone was given the power to ratify treaties and approve presidential appointments. The House, on the other hand, was given the sole power to originate revenue bills.

The structure of the legislative branch reflected the framers’ major goals. The House of Representatives was designed to be directly responsible to the people in order to encourage popular consent for the new Constitution and to help enhance the power of the new government. At the same time, to guard against “excessive democracy,” the Constitution checks the power of the House of Representatives with that of the Senate, whose members were to be appointed by the states for long terms rather than elected directly by the people. The purpose of this provi- sion, according to Alexander Hamilton, was to avoid “an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive.”12 Staggered terms of service in the Senate, moreover, were intended to make that body even more resistant to popular pressure. Since only one-third of the senators would be selected at any given time, the composition of the institu- tion would be protected from changes in popular preferences transmitted by the

44 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

state legislatures. This would prevent what James Madison called “mutability in the public councils arising from a rapid succession of new members.”13 Thus, the struc- ture of the legislative branch was designed to contribute to governmental power, to promote popular consent for the new government, and at the same time to place limits on the popular political currents that many of the framers saw as a radical threat to the economic and social order.

The issues of power and consent were important throughout the Constitution. Section 8 of Article I specifically listed the powers of Congress, which include the authority to collect taxes, borrow money, regulate commerce, declare war, and maintain an army and navy. By granting Congress these powers, the framers indi- cated very clearly that they intended the new government to be far more powerful than its predecessor. At the same time, by defining the new government’s most im- portant powers as belonging to Congress, the framers sought to promote popular acceptance of this critical change by reassuring citizens that their views would be fully represented whenever the government exercised its new powers.

As a further guarantee to the people that the new government would pose no threat to them, the Constitution seems to say that any powers not listed are not granted at all. Specific powers granted to Congress in the Constitution are expressed powers. But the framers intended to create an active and powerful govern- ment, so they also included the necessary and proper clause, sometimes known as the elastic clause, which declared that Congress could write laws needed to carry out its expressed powers. This clause indicated that the expressed powers could be broadly interpreted as a source of strength for the national government, not a limitation on it. In response to the charge that they intended to give the national government too much power, the framers adopted language in the Tenth Amendment stipulating that powers not specifically granted by the Constitution to the federal government were reserved to the states or to the people. As we will see in Chapter 3, the resulting tension between the elastic clause and the Tenth Amendment has been at the heart of constitutional struggles between federal and state powers.

The Executive Branch Created a Brand New Office The Articles of Confederation had not provided for an executive branch, and the framers viewed this as a source of weakness, so the Constitution provides for the establishment of the presidency in Article II. As Hamilton commented, the presi- dential article aimed toward “energy in the Executive.” It did so in an effort to overcome the natural tendency toward stalemate that was built into the bicameral legislature as well as into the separation of powers among the three branches. The Constitution affords the president a measure of independence from the people and from the other branches of government—particularly the Congress.

In line with the framers’ goal of increased power to the national government, the president is granted the unconditional power to receive ambassadors from other countries—this amounts to the power to “recognize” other countries—as well as the power to negotiate treaties, although their acceptance requires the approval of two-thirds of the Senate. The president is also given the unconditional right to grant reprieves and pardons, except in cases of impeachment, and the powers to appoint major departmental personnel, to convene Congress in special

CONST I TUT ION CREATED BOLD POWERS AND SHARP L IM I TS ON POWER 45

session, and to veto congressional enactments. The veto power is formidable, but it is not absolute since Congress can override it by a two-thirds vote, reflecting the framers’ concern with checks and balances.

The framers hoped to create a presidency that would make the federal govern- ment rather than the states the agency capable of timely and decisive action to deal with public issues and problems. At the same time, however, the framers sought to help the presidency withstand excessively democratic pressures by creating a system of indirect rather than direct election through an electoral college.

The Judicial Branch Was a Check on Too Much Democracy In establishing the judicial branch in Article III, the Constitution reflects the fram- ers’ preoccupation with nationalizing governmental power and checking radical democratic impulses while preventing the new national government from interfer- ing with liberty and property.

Under the provisions of Article III, the framers created a court that was to be literally a supreme court of the United States and not merely the highest court of the national government. The most important expression of this intention was granting the Supreme Court the power to resolve any conflicts that might emerge between federal and state laws. In particular, the Supreme Court is given the right to determine whether a power is exclusive to the national government, concur- rent with the states, or exclusive to the states. In addition, the Supreme Court is assigned jurisdiction over controversies between citizens of different states. The long-term significance of this provision was that as the country developed a national economy, it came to rely increasingly on the federal judiciary, rather than on the state courts, for the resolution of disputes.

Judges are given lifetime appointments in order to protect them from popular politics and from interference by the other branches. This, however, does not mean that the judiciary remains totally impartial to political considerations or to the other branches, for the president is to appoint the judges and the Senate to approve the appointments. Congress also has the power to create inferior (lower) courts, change the jurisdiction of the federal courts, add or subtract federal judges, and even change the size of the Supreme Court.

No explicit mention is made in the Constitution of judicial review, the power of the courts to review and, if necessary, declare actions of the legislative and execu- tive branches invalid or unconstitutional. The Supreme Court asserted this power in Marbury v. Madison (1803).14 Its assumption of this power, as we shall see in Chapter 12, was based not on the Constitution itself but on the politics of later decades and the membership of the Court.

National Unity and Power Set the New Constitution Apart from the Old Articles Various provisions in the Constitution address the framers’ concern with national unity and power, including Article IV’s provisions for comity (reciprocity) among states and among citizens of all states. Each state is prohibited from discriminating against the citizens of other states in favor of its own citizens, and the Supreme Court is charged with deciding in each case whether a state has discriminated

46 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

against goods or people from another state. The Constitution restricts the power of the states in favor of ensuring enough power to the national government to give the country a free-flowing national economy.

The framers’ concern with national supremacy was also expressed in Article VI, in the supremacy clause, which provides that national laws and treaties “shall be the supreme Law of the Land” and superior to all laws adopted by any state or any subdivision. This means that states are expected to respect all laws made under the “Authority of the United States.” The supremacy clause also binds the officials of all state and local governments as well as the federal government to take an oath of office to support the national Constitution. This means that every action taken by the U.S. Congress has to be applied within each state as though the action were in fact state law.

The Constitution Establishes the Process for Amendment The Constitution establishes procedures for its own revision in Article V. Its pro- visions are so difficult that the document has been successfully amended only 17 times since 1791, when the first 10 amendments were adopted. Thousands of other amendments have been proposed in Congress, but fewer than 40 of them have even come close to fulfilling the Constitution’s requirement of a two-thirds vote in Congress, and only a fraction have gotten anywhere near adoption by three- fourths of the states. Article V also provides that the Constitution can be amended by a constitutional convention, but thus far, all the amendments to the U.S. Consti- tution have been approved first by the Congress and then by the state legislatures. The only exception is the amendment repealing prohibition, which was approved by Congress but ratified by state conventions. No national convention has been called since the Philadelphia convention of 1787.

The Constitution Sets Forth Rules for Its Own Ratification The rules for the ratification of the Constitution are set forth in Article VII. Nine of the 13 states have to ratify, or agree to, the terms in order for the Constitution to be formally adopted.

The Constitution Limits the National Government’s Power As we have indicated, although the framers sought to create a powerful national government, they also wanted to guard against possible misuse of that power. To that end, the framers incorporated two key principles into the Constitution: the separation of powers and federalism. A third set of limitations, the Bill of Rights, was added to the Constitution in the form of 10 amendments proposed by the first Congress and ratified by the states in 1791. Most of the framers had thought a Bill of Rights to be unnecessary but accepted the idea during the debates over the Constitution’s ratification.

The Separation of Powers No principle of politics was more widely shared at the time of the 1787 Founding than the principle that power must be used to balance power. As mentioned earlier in the chapter, Montesquieu believed that this balance was an indispensable defense against tyranny. His writings, especially his major

CONST I TUT ION CREATED BOLD POWERS AND SHARP L IM I TS ON POWER 47

work, The Spirit of the Laws, “were taken as political gospel” at the Philadelphia convention.15 Although the principle of the separation of powers is not explicitly stated in the Constitution, the entire structure of the national government is built precisely on Article I (the legislature), Article II (the executive), and Article III (the judiciary; see Figure 2.1).

However, separation of powers is nothing but mere words on parchment with- out a method to maintain that separation. The method became known by the popular label “checks and balances” (see Figure 2.2). Each branch is given not only its own powers but also some power over the other two branches. Among the most familiar checks and balances are the president’s veto as a power over Congress and Congress’s power over the president through its control of appointments to high executive posts and to the judiciary. Congress also has power over the president with its control of appropriations (the spending of government money) and the right of approval of treaties (by the Senate). The judiciary has the power of judicial review over the other two branches.

Another important feature of the separation of powers is the principle of giving each of the branches a distinctly different constituency. Theorists such as Montes- quieu called this a “mixed regime,” with the president chosen indirectly by elec- tors, the House by popular vote, the Senate (originally) by state legislature, and

Enforces laws

Commander in chief of armed forces

Makes foreign treaties

Proposes laws

Appoints Supreme Court justices and federal

court judges

Pardons those convicted in federal court

Passes federal laws

Controls federal appropriations

Approves treaties and presidential

appointments

Regulates interstate commerce

Establishes lower court system

Decides constitutionality of laws

Reviews lower court decisions

Decides cases involving disputes between states

EXECUTIVELEGISLATIVE JUDICIAL

FIGURE 2.1 The Separation of Powers

48 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

the judiciary by presidential appointment. By these means, the occupants of each branch would tend to develop very different outlooks on how to govern, different definitions of the public interest, and different alliances with private interests.

Federalism Compared to the confederation principle of the Articles of Confed- eration, federalism was a step toward greater centralization of power. The delegates agreed that they needed to place more power at the national level, without com- pletely undermining the power of the state governments. Thus, they devised a sys- tem of two sovereigns—the states and the nation—with the hope that competition between the two would be an effective limitation on the power of both.

The Bill of Rights Late in the Philadelphia convention of 1787, a motion was made to include a list of citizens’ rights in the Constitution. After a brief debate in which hardly a word was said in its favor and only one speech was made against it, the motion was almost unanimously defeated. Most delegates sincerely believed that since the federal government was already limited to its expressed powers, further protection of citizens was not needed. The delegates argued that the states should adopt bills of rights because their greater powers needed greater limitations. But almost immediately after the Constitution was ratified, there was a movement to adopt a national bill of rights. This is why the Bill of Rights, adopted in 1791,

EXECUTIVE

LEGISLATIVE

JUDICIAL

Legislative over Judicial Can change size of federal court

system and the number of Supreme Court justices

Can propose constitutional amendments

Can reject Supreme Court nominees

Can impeach and remove federal judges

Legislative over Executive Can override presidential veto

Can impeach and remove president

Can reject president’s appointments and refuse to ratify treaties

Can conduct investigations into president’s actions

Can refuse to pass laws or to provide funding that president

requests

Judicial over Executive Can declare executive actions

unconstitutional

Power to issue warrants

Chief justice presides over impeachment of president

Judicial over Legislative

Can declare laws unconstitutional

Chief justice presides over Senate during hearing to impeach

the president

Executive over Legislative Can veto acts of Congress

Can call Congress into a special session

Carries out, and thereby interprets, laws passed by Congress

Vice president casts tie-breaking vote in the Senate

Executive over Judicial Nominates Supreme Court

justices

Nominates federal judges

Can pardon those convicted in federal court

Can refuse to enforce Court decisions

FIGURE 2.2 Checks and Balances

RAT I F ICAT ION OF THE CONST I TUT ION WAS D I F F ICULT 49

comprises the first 10 amendments to the Constitution rather than being part of the body of it. (We will have a good deal more to say about the Bill of Rights in Chapter 4.)

● Ratification of the Constitution Was Difficult

Present the controversies involved in the struggle for ratification

The first hurdle facing the proposed Consti- tution was ratification by state conventions of delegates elected by the people of each state. This struggle for ratification was car- ried out in 13 separate campaigns. Each involved different people, moved at a differ-

ent pace, and was influenced by local and national considerations. Two sides faced off throughout the states, however; the two sides called themselves Federalists and Antifederalists (see Table 2.2).

The Federalists (who more accurately should have called themselves “National- ists” but who took their name to appear to follow in the Revolutionary tradition) supported the constitution proposed at the American Constitutional Convention of 1787 and preferred a strong national government. The Antifederalists favored strong state governments and a weak national government and opposed the docu- ment produced at the Constitutional Convention. They preferred a federal system of government that was decentralized; they took their name by default, in reaction to their better-organized opponents. The Federalists were united in their support of

FEDERALISTS ANTIFEDERALISTS

Who were they? Property owners, creditors, merchants

Small farmers, frontiersmen, debtors, shopkeepers, some state government officials

What did they believe? Believed that elites were most fit to govern; feared “excessive democracy”

Believed that government should be closer to the people; feared concentration of power in hands of the elites

What system of government did they favor?

Favored strong national government; believed in “filtration” so that only elites would obtain governmental power

Favored retention of power by state governments and protection of individual rights

Who were their leaders? Alexander Hamilton, James Madison, George Washington

Patrick Henry, George Mason, Elbridge Gerry, George Clinton

TABLE 2.2

Federalists versus Antifederalists

50 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

the Constitution, while the Antifederalists were divided over possible alternatives to the Constitution.

During the struggle over ratification of the Constitution, Americans argued about great political principles. How much power should the national govern- ment be given? What safeguards would most likely prevent the abuse of power? What institutional arrangements could best ensure adequate representation for all Americans? Was tyranny to be feared more from the many or from the few?

Federalists and Antifederalists Fought Bitterly over the Wisdom of the New Constitution During the ratification struggle, thousands of essays, speeches, pamphlets, and letters were written in support of and in opposition to the proposed Constitution. The best-known pieces supporting ratification of the Constitution were the 85 essays written, under the name of “Publius,” by Alexander Hamilton, James Madison, and John Jay between the fall of 1787 and the spring of 1788—known today as the Federalist Papers. They not only defended the principles of the Constitution but also sought to dispel fears of a strong national authority. The Antifederalists published essays of their own, arguing that the new Constitution betrayed the Revolution and was a step toward monarchy. Among the best of the Antifederal- ist works were the essays, usually attributed to New York Supreme Court justice Robert Yates, that were written under the name of “Brutus” and published in the New York Journal at the same time the Federalist Papers appeared. The Antifederal- ist view was also ably presented in the pamphlets and letters written by a former delegate to the Continental Congress and future U.S. senator, Richard Henry Lee of Virginia, using the pen name “The Federal Farmer.” These essays highlight the major differences of opinion between Federalists and Antifederalists. Federalists appealed to basic principles of government in support of their nationalist vision. Antifederalists cited equally fundamental precepts to support their vision of a looser confederacy of small republics. Three areas of disagreement were represen- tation, majority tyranny, and governmental power.

Representation The Antifederalists believed that the best and most representa- tive government was that closest to the people, what we would think of as local and state governments. These smaller, more homogeneous governing units would provide “a true picture of the people . . . [possessing] the knowledge of their cir- cumstances and their wants.”16 A strong national government could not represent the interests of the nation as effectively, the Antifederalists argued, because the nation as a whole was simply too large and diverse.

The Federalists, on the other hand, thought that some distance between the people and their representatives might be a good thing because it would encourage the selection of a few talented and experienced representatives to serve in a national legislature who could balance the wishes of the people with their own considered judgment. In James Madison’s view, representatives would not simply mirror society; rather, they must be “[those] who possess [the] most wisdom to discern, and [the] most virtue to pursue, the common good of the society.”17

RAT I F ICAT ION OF THE CONST I TUT ION WAS D I F F ICULT 51

Tyranny of the Majority Both Federalists and Antifederalists feared tyranny, oppressive and unjust government that employs cruel and arbitrary use of power and authority. But each painted a different picture of what kind of tyranny to fear.

The Antifederalists feared that tyranny would arise from the tendency of all governments to become more “aristocratic,” wherein a few individuals in posi- tions of authority would use their positions to gain more and more power over the people. For this reason, Antifederalists were sharply critical of those features of the Constitution that limited direct popular influence over the government, including the election of senators by state legislatures, election of the presi- dent by the electoral college, and selection of federal judges by the president and the Senate. Judges, who are appointed for life, were seen as an especially dire threat: “I wonder if the world ever saw . . . a court of justice invested with such immense powers, and yet placed in a situation so little responsible,” protested Brutus.18

For the Federalists, tyranny in a republic was less likely to come from aristocrats and more likely to come from the majority. They feared that a popular majority, “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens,” would attempt to “trample on the rules of jus- tice.”19 Those features of the Constitution opposed by the Antifederalists were the very ones that the Federalists defended as the best hope of avoiding tyranny. The sheer size and diversity of the American nation, as represented in the two houses of Congress, would provide a built-in set of balances that would force competing interests to moderate and compromise.

Governmental Power A third difference between Federalists and Antifed- eralists was over the matter of governmental power. Both sides agreed on the principle of limited government, meaning a government whose powers are defined and limited by a constitution; but they differed on how best to limit the government.

Antifederalists wanted the powers of the national government to be carefully specified and limited. Otherwise, the federal government would “swallow up all the power of the state governments.” Antifederalists bitterly attacked the suprem- acy clause and the elastic clause of the Constitution, saying that these provisions gave the national government dangerously unlimited grants of power. They also insisted that a bill of rights be added to the Constitution to place limits on the government’s power over citizens.

Federalists favored a national government with broad powers to defend the nation from foreign threats, guard against domestic strife and insurrection, pro- mote commerce, and expand the nation’s economy. Federalists agreed that such power could be abused but believed that the best safeguard against such abuse was through the Constitution’s internal checks and controls, not by keeping the national government weak. As Madison put it, “The power surrendered by the people is first divided between two distinct governments [federal and state], and then the portion allotted to each subdivided among distinct and separate departments. Hence, a double security arises to the rights of the people. The dif- ferent governments will control each other, at the same time that each will be

52 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

controlled by itself.”20 The Federalists considered a bill of rights to be unneces- sary, although this Antifederalist demand was eventually embraced by Federalists, including Madison.

Both Federalists and Antifederalists Contributed to the Success of the New System In general, the Federalist vision of America triumphed. The Constitution adopted in 1789 creates the framework for a powerful national government that for more than 200 years has defended the nation’s interests, promoted its commerce, and maintained national unity. In one notable instance, the national government fought and won a bloody war to prevent the nation from breaking apart. And despite this powerful government, the system of internal checks and balances has functioned reasonably well, as the Federalists predicted, to prevent the national government from tyrannizing its citizens.

Although they were defeated in 1789, the Antifederalists present us with an important picture of a road not taken and of an America that might have been. Would Americans in the eighteenth century have been worse off if they had been governed by a confederacy of small republics linked by a national administration with severely limited powers? Were the Antifederalists correct in predicting that a government given great power in the hope that it might do good would, through “insensible progress,” inevitably turn to evil purposes?

Debates over how much power the national government should have continue today. Here, a man protests the presence of the FBI in Harney County, Oregon, after an antigovernment group seized a U.S. wildlife refuge building.

There is tremendous variation across the world’s democracies. All democracies pos- sess some form of an executive, a legis- lature, and a judiciary; but the amount of power that each branch has varies. Note that in some systems, no one branch has

very much power. In the United States, that is because of the system of checks and balances among the branches. Israel and the United Kingdom, which lack written constitutions, have branches with even less power than in the United States.

Comparing Systems of Government

AMERICA Side by Side

Country Written

Constitution? Year

Enacted Length

(in Words)

Federal or Unitary System

Brazil Yes 1988 64,488 Federal

France Yes 1958 10,180 Unitary

India Yes 1949 146,385 Federal

Israel No — — Unitary

South Africa Yes 1996 43,062 Unitary

Tunisia Yes 2014 9,508 Unitary

United States Yes 1789 7,762 Federal

United Kingdom No — — Unitary

Country Strength of Executive

Strength of Legislature

Judicial Independence

Brazil High Medium High

France High Low Low

India Medium Low Medium

Israel Low Low Medium

South Africa Medium Low High

Tunisia High Medium Low

United States Low Medium High*

United Kingdom High* Low Medium

*Although the Comparative Constitutions Project classifies the formal powers of both the American presidency and the judicial branch, as originally provided for in the Constitution, as relatively weak, we have classified both here as strong, based on the greater powers that have developed over time. SOURCE: Comparative Constitutions Project, “CCP Rankings,” http://comparativeconstitutionsproject.org /ccp-rankings/ (accessed 7/16/15).

http://comparativeconstitutionsproject.org/ccp-rankings/

54 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

● Constitutional Amendments Dramatically Changed the Relationship between Citizens and the Government

Trace how the Constitution has changed over time through the amendment process

The Constitution has endured for more than two centuries as the framework of govern- ment because it has changed over time. Without change, the Constitution might have become merely a sacred but obsolete relic of a bygone era.

Amendments: Many Are Called; Few Are Chosen The inevitable need for change was recognized by the framers of the Consti- tution, and the provisions for amendment (a change added to a bill, law, or constitution) were incorporated into Article V. The Constitution has proven to be extremely difficult to amend. In the history of efforts to amend it, the most appropriate characterization is “many are called; few are chosen.” Since 1789, more than 11,000 amendments have been formally offered in Congress. Of these, Congress officially proposed only 29, and 27 of these were eventually ratified by the states.

Four methods of amendment are provided for in Article V:

1. Passage in House and Senate by two-thirds vote, then ratification by majority vote of the legislatures of three-fourths (now 38) of the states.

2. Passage in House and Senate by two-thirds vote, then ratification by conven- tions called for the purpose in three-fourths of the states.

3. Passage in a national convention called by Congress in response to petitions by two-thirds of the states, then ratification by majority vote of the legislatures of three-fourths of the states.

4. Passage in a national convention, as in method 3, then ratification by conven- tions called for the purpose in three-fourths of the states.

Figure 2.3 illustrates each of these possible methods. Since no amendment has ever been proposed by national convention, routes 3 and 4 have never been employed. And route 2 has only been employed once (the Twenty-First Amend- ment, which repealed the Eighteenth Amendment, or Prohibition). Thus, route 1 has been used for all the others.

Now it should be clear why it has been so difficult to amend the Constitution. The requirement of a two-thirds vote in the House and the Senate means that any proposal for an amendment in Congress can be killed by only 34 senators or 136 members of the House. What is more, if the necessary two-thirds vote is obtained, the amendment can still be killed by the refusal or inability of only 13 out of 50 state legislatures to ratify it. Since each state has an equal vote regardless of its population, the 13 holdout states may represent a very small fraction of the total American population.

THE RELAT IONSH IP BETWEEN C I T I zENS AND THE GOVERNMENT 55

The Amendment Process Reflects “Higher Law” The very high failure rate of nearly all amendment attempts suggests that only a limited number of changes can actually be made through the Constitution. Most efforts to amend the Constitution have failed because they were simply attempts to use the Constitution as an alternative to legislation for dealing directly with a specific public problem.

Successful amendments, on the other hand, are concerned with the structure or composition of government (see Table 2.3; the first 10 amendments will be discussed in Chapter 4). This is consistent with the dictionary, which defines constitution as the makeup or composition of something. And it is consistent with the concept of a constitution as “higher law” because the whole point and purpose of a higher law is to establish a framework within which government and the process of making ordinary law can take place. Even those who would have preferred more changes to the Constitution have to agree that there is great wisdom in this principle. A constitution ought to enable legislation and public policies to be enacted, but it should not determine what that legislation or those public policies ought to be.

FIGURE 2.3 Four Ways the Constitution Can Be Amended

*This method of proposal has never been employed. Thus, amendment routes 3 and 4 have never been attempted. **For each amendment proposal, Congress has the power to choose the method of ratification, the time limit for consideration by the states, and other conditions of ratification. The movement to repeal Prohibition in the Twenty- First Amendment was the only occasion in which route 2 was used successfully.

The National Level: Proposal of

Amendments

Route 1

Route 2

Route 3

Route 4

The State Level: Rati�cation of Amendments

C** Acceptance by

majority vote in the legislatures of

three-fourths of the states (38 states)

D** Acceptance by

conventions called for the purpose, in three-fourths of the states (38 states)

B* Passage in a national convention called by

Congress in response to petitions by two-thirds of the

states (34 states)

A Passage in House

and Senate, each by two-thirds vote

56 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

AMENDMENT PURPOSE

I Limits on Congress: Congress is not to make any law establishing a religion or abridging speech, press, assembly, or petition freedoms.

II, III, IV Limits on Executive: The executive branch is not to infringe on the right of people to keep arms (II), is not arbitrarily to take houses for a militia (III), and is not to engage in the search or seizure of evidence without a court warrant swearing to belief in the probable existence of a crime (IV).

V, VI, VII, VIII Limits on Courts:* The courts are not to hold trials for serious offenses without provision for a grand jury (V), a petit (trial) jury (VII), a speedy trial (VI), presentation of charges (VI), confrontation of hostile witnesses (VI), immunity from testimony against oneself (V), and immunity from more than one trial for the same offense (V). Neither bail nor punishment can be excessive (VIII), and no property can be taken without just compensation (V).

IX, X Limits on National Government: All rights not enumerated are reserved to the states or the people.

XI Limited jurisdiction of federal courts over suits involving the states.

XII Provided separate ballot for vice president in the electoral college.

XIII Eliminated slavery and eliminated the right of states to allow property in persons.**

XIV (Part 1) Provided a national definition of citizenship.†

XIV (Part 2) Applied due process of Bill of Rights to the states.

XV Extended voting rights to all races.

XVI Established national power to tax incomes.

XVII†† Provided direct election of senators.

XIX Extended voting rights to women.

XX Eliminated “lame-duck” session of Congress.

XXII Limited presidential term.

XXIII Extended voting rights to residents of the District of Columbia.

XXIV Extended voting rights to all classes by abolition of poll taxes.

XXV Provided presidential succession in case of disability.

XXVI Extended voting rights to citizens aged 18 and over.‡

XXVII Limited Congress’s power to raise its own salary.

* These amendments also impose limits on the law-enforcement powers of federal (and especially) state and local executive branches. ** The Thirteenth Amendment was proposed January 31, 1865, and adopted less than a year later, on December 18, 1865. † In defining citizenship, the Fourteenth Amendment actually provided the constitutional basis for expanding the electorate to include all races, women, and residents of the District of Columbia. Only the “18-year-olds’ amendment” should have been necessary since it changed the definition of citizenship. The fact that additional amendments were required following the Fourteenth suggests that voting is not considered an inherent right of U.S. citizenship. Instead, it is viewed as a privilege. †† The Eighteenth Amendment, ratified in 1919, outlawed the sale and transportation of liquor. It was repealed by the Twenty-First Amendment, ratified in 1933. ‡ The Twenty-Sixth Amendment holds the record for speed of adoption. It was proposed on March 23, 1971, and adopted on July 5, 1971.

TABLE 2.3

Amendments to the Constitution

THE RELAT IONSH IP BETWEEN C I T I zENS AND THE GOVERNMENT 57

For those whose hopes for change center on the Constitution, it must be emphasized that the amendment route to social change is, and always will be, extremely limited. Through a constitution it is possible to establish a working structure of government and basic rights of citizens by placing limitations on the powers of that government. Once these goals have been accomplished, the next problem is how to extend rights to those people who do not already enjoy them. Of course, the Constitution cannot enforce itself. But it can and does have a real influence on everyday life because a right or an obligation set forth in the Constitution can become a cause of action in the hands of an otherwise power- less person.

Private property is an excellent example. Property is one of the most fundamental and well-established rights in the United States, but it is well established not because it is recognized in so many words in the Con- stitution but because legislatures and courts have made it a crime for any- one, including the government, to trespass or to take away property without compensation.

A constitution is good if it produces the cause of action that leads to good legis- lation, good court decisions, and appropriate police behavior. A constitution cannot eliminate power. But its principles can be a citizen’s dependable defense against the abuse of power.

The Twenty-Sixth Amendment addressed an issue of representation that came to the fore when 18-, 19-, and 20-year-olds were drafted to serve in the Vietnam War but could not vote for Congress or the president who enacted the policies that affected their lives and deaths.

58 CHAPTER 2 THE FOUND ING AND THE CONST I TUT ION

The Constitution

and Your Future The Constitution’s framers placed individual liberty ahead of all other politi- cal values, a concern that led many of the framers to distrust both democracy and equality. They feared that democracy could degenerate into a majority tyranny in which the populace, perhaps led by rabble-rousing demagogues, trampled on liberty. As for equality, the framers were products of their time and place; our contemporary ideas of racial and gender equality would have been foreign to them. The basic structure of the Constitution—separated powers, internal checks and balances, and federalism—was designed to safe- guard liberty, and the Bill of Rights created further safeguards for liberty. At the same time, however, many of the Constitution’s other key provisions, such as indirect election of senators and the president and the appointment of judges for life, were designed to limit democracy and, hence, the threat of majority tyranny.

By championing liberty, however, the framers virtually guaranteed that democracy and even a measure of equality would sooner or later evolve in the United States. Where they have liberty, more and more people, groups, and interests will almost inevitably engage in politics and gradually overcome whatever restrictions might have been placed on participation. Indeed, this is precisely what happened in the early years of the American Republic. During the Jeffersonian period, political parties formed. During the Jacksonian period, many state suffrage restrictions were removed and popular participation greatly expanded. The “Who Participates?” feature on the following page traces the expansion of the United States from the founding to today. Over time, liberty is conducive to democracy.

W H O P A R T I C I P A T E S ?

Adult Citizens Eligible to Vote in National Elections*

Who Gained the Right to Vote through Amendments?

Percentages are of the adult (18+) population. These �gures are approximate for 1789 and 1869. The voting rights of convicted felons are restricted in some states, and of noncitizens in all states. SOURCES: U.S. Census of Population and Housing, 1790–2010, www.census.gov/prod/www/decennial.html (accessed 9/28/15); United States Elections Project, www.electproject.org/national -1789–present (accessed 9/27/15).

1789 The Founding:

White men of property, age 21+ (27.9%)

1971 Twenty-Sixth Amendment:

All men and women, age 18+ (99.9%)

1920 Nineteenth Amendment:

All men and women, age 21+ (92.6%)

1869 Fifteenth Amendment:

All men, age 21+ (31.7%)

W H A T Y O U C A N D O

chapterstudyguide

1. In their fight against British taxes such as the Stamp Act and the Sugar Act of 1764, New England merchants and southern planters allied with which of the following groups? (p. 32) a) shopkeepers, small farmers,

laborers, and artisans b) shopkeepers only c) laborers only d) artisans only e) shopkeepers and laborers only

2. How did the British attempt to raise revenue in the North American colonies? (p. 33) a) income taxes b) tariffs, duties, and other taxes on

commerce c) expropriation and sale of Native

American lands d) licensing fees for the mining of

natural resources e) requests for voluntary donations

Practice Quiz

60 CHAPTER STUDY GU IDE

Review your rights as outlined in the Constitution, a copy of which is reproduced in the appendix of this book.

Find out what voting rights are retained by individuals who have been convicted of a felony. Go to www.ncsl.org and search “felon voting rights” for more information.

Find out what voting rights are retained by individuals with mental illness. Go to www.bazelon.org and search “voting” for more information.

Should noncitizens (such as longtime permanent legal residents) have the right to vote? Go to www.latimes.com/citizenship to read more and to join the conversation online.

Know Your Constitutional Rights

WHAT YOU CAN DO

CHAPTER STUDY GU IDE 61

3. The first governing document in the United States was (p. 35) a) the Declaration of Independence. b) the Articles of Confederation. c) the Constitution. d) the Bill of Rights. e) the Virginia Plan.

4. Where was the execution of laws conducted under the Articles of Confederation? (p. 35) a) the presidency b) the Congress c) the states d) the federal judiciary e) the federal bureaucracy

5. Which event led directly to the Constitutional Convention by providing evidence that the government created under the Articles of Confederation was unable to act decisively in times of national crisis? (p. 37) a) the Boston Massacre b) the Boston Tea Party c) Shays’s Rebellion d) the Annapolis Convention e) the War of 1812

6. Which state’s proposal embodied a principle of representing states in the Congress according to their size and wealth? (p. 39) a) Connecticut b) Maryland c) New Jersey d) Rhode Island e) Virginia

7. The agreement reached at the Consti- tutional Convention that determined that every five slaves would be counted as three free persons for the purposes of taxation and representation in the House of Representatives was called the (p. 40) a) Virginia Plan. b) New Jersey Plan. c) Connecticut Compromise. d) Three-Fifths Compromise. e) Great Compromise.

8. What mechanism was instituted in the Congress to guard against “excessive democracy”? (p. 40) a) bicameralism b) staggered terms in office

c) appointment of senators for long terms

d) indirect election of the president e) all of the above

9. Which of the following best describes the Supreme Court as understood by the Founders? (p. 45) a) the body that would choose the

president b) the principle check on presidential

power c) arbiter of disputes within the

Congress d) a figurehead commission of

elders e) the highest court of both the

national government and the states

10. Theorists such as Montesquieu referred to the system of giving each branch of government a distinctly different constituency as (p. 47) a) a mixed regime. b) a confederation. c) a bicameral structure. d) a limited government. e) a federalist arrangement.

11. Which of the following were the Antifederalists most concerned with? (pp. 50–52) a) interstate commerce b) the protection of property c) the distinction between principles

and interests d) the potential for tyranny in the

central government e) abolishing slavery

12. Which of the following best describes the process of amending the Constitution? (p. 54) a) It is difficult and has rarely been

used successfully to address specific public problems.

b) It is difficult and has frequently been used successfully to address specific public problems.

c) It is easy and has rarely been used successfully to address specific public problems.

d) It is easy and has frequently been used successfully to address specific public problems.

e) It is easy, but it has never been used for any purpose.

62 CHAPTER STUDY GU IDE

amendment (p. 54) a change added to a bill, law, or constitution

Antifederalists (p. 49) those who favored strong state governments and a weak national government and were opponents of the constitution proposed at the American Constitutional Convention of 1787

Articles of Confederation (p. 35) America’s first written constitution; served as the basis for America’s national government until 1789

bicameral (p. 42) having a legislative assembly composed of two chambers or houses; distinguished from unicameral

Bill of Rights (p. 43) the first 10 amendments to the Constitution, ratified in 1791; they ensure certain rights and liberties of the people

checks and balances (p. 42) mechanisms through which each branch of government is able to participate in and influence the activities of the other branches. Major examples include the presidential veto power over congressional legislation, the power of the Senate to approve presidential appointments, and judicial review of congressional enactments

confederation (p. 36) a system of government in which states retain sovereign authority except for the powers expressly delegated to the national government

elastic clause (p. 44) Article I, Section 8, of the Constitution (also known as the necessary and proper clause), which declares that Congress can write laws needed to carry out its expressed powers, providing Congress with the authority to make all laws “necessary and proper” to do so

electoral college (p. 43) the electors from each state who meet after the popular election to cast ballots for president and vice president

expressed powers (p. 44) specific powers granted by the Constitution to Congress

(Article I, Section 8) and to the president (Article II)

federalism (p. 43) a system of government in which power is divided, by a constitution, between the central (national) government and regional (state) governments

Federalist Papers (p. 50) a series of essays written by James Madison, Alexander Hamilton, and John Jay supporting the ratification of the Constitution

Federalists (p. 49) those who favored a strong national government and supported the constitution proposed at the American Constitutional Convention of 1787

Great Compromise (p. 39) the agreement reached at the Constitutional Convention of 1787 that gave each state an equal number of senators regardless of its population but linked representation in the House of Representatives to population

judicial review (p. 45) the power of the courts to review and, if necessary, declare actions of the legislative and executive branches invalid or unconstitutional. The Supreme Court asserted this power in Marbury v. Madison (1803)

limited government (p. 52) a principle of constitutional government; a government whose powers are defined and limited by a constitution

New Jersey Plan (p. 39) a framework for the Constitution, introduced by William Paterson, that called for equal state representation in the national legislature regardless of population

separation of powers (p. 43) the division of governmental power among several institutions that must cooperate in decision making

supremacy clause (p. 46) Article VI of the Constitution, which states that laws passed by the national government and all treaties “shall be the supreme law of the land” and

Key Terms

CHAPTER STUDY GU IDE 63

superior to all laws adopted by any state or any subdivision

Three-Fifths Compromise (p. 41) the agreement reached at the Constitutional Convention of 1787 that stipulated that for purposes of the apportionment of congressional seats only three-fifths of slaves would be counted

tyranny (p. 51) oppressive and unjust government that employs cruel and unjust use of power and authority

Virginia Plan (p. 39) a framework for the Constitution, introduced by Edmund Randolph, that called for representation in the national legislature based on the population of each state

For Further Reading

Ackerman, Erin, and Benjamin Ginsberg. A Guide to the United States Constitution. 2nd ed. New York: W. W. Norton, 2011.

Beard, Charles. An Economic Interpretation of the Constitution of the United States. New York: Macmillan, 1913.

Beeman, Richard. Plain, Honest Men: The Making of the American Constitution. New York: Random House, 2009.

Chernow, Ron. Alexander Hamilton. New York: Penguin Books, 2005.

Ellis, Joseph. The Quartet: Orchestrating the Second American Revolution. New York: Knopf, 2015.

Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Edited by Isaac Kramnick. New York: Viking, 1987.

Jensen, Merrill. The Articles of Confederation. Madison: University of Wisconsin Press, 1963.

Rossiter, Clinton. 1787: Grand Convention. New York: Macmillan, 1966.

Storing, Herbert, ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.

Wood, Gordon S. Empire of Liberty: A History of the Early Republic. New York: Oxford University Press, 2011.

Federalism is at the center of a national debate over marijuana policy: while marijuana remains illegal under federal law, some states permit marijuana for medicinal or recreational use. Colorado legalized recreational use of marijuana in 2012, and participants in this 2015 Denver rally called for national legalization.

Federalism 3

WHAT GOVERNMENT DOES AND WHY IT MATTERS In 1996, voters in California approved a new law legalizing the cultivation, possession, and use

of marijuana for medical purposes. As the idea spread, other states followed

suit. By 2016, 26 states and the District of Columbia had approved medical

marijuana. In these states, medical clinics selling marijuana have popped up

in many cities. With a doctor’s prescription, patients can purchase marijuana

for personal use. Some states have gone even further. In 2012, voters in

Washington state and Colorado approved measures to legalize the recreational

use of marijuana. The laws gave adults over the age of 21 the right to buy

limited amounts of marijuana. And in the 2014 and 2016 elections, ballot

measures in Alaska, California, Maine, Massachusetts, Nevada, Oregon, and

Washington, D.C., also legalized recreational use of marijuana.

States routinely devise their own laws on a wide variety of topics. But the

marijuana laws passed over the past two decades are extraordinary because

marijuana remains a controlled substance under federal law, making it illegal to

grow, sell, or possess marijuana for medical or recreational purposes. States

began to legalize marijuana in defiance of clear federal prohibitions.

The federal response to the states has shifted over time. As state laws

began to loosen marijuana restrictions, the federal government at first sought

66 CHAPTER 3 FEDERAL ISM

to assert its authority. The federal Drug Enforcement Agency staged raids on

marijuana clinics and even searched individual homes to enforce the federal law

prohibiting marijuana. In 2005, the Supreme Court ruled that these federal actions

were constitutional. The Court affirmed the federal government’s right to prohibit

marijuana even as a growing number of state laws moved in the opposite direction.

By 2013, however, the Justice Department, bowing to the states, announced a

change of course. The department stated that it would not challenge state laws so

long as the states maintained a close watch over their marijuana markets. Instead

the federal government would focus its enforcement efforts on specific issues, includ-

ing trafficking by gangs, sales to minors, and selling across state lines. Washington

state’s governor, Jay Inslee, issued a joint statement with the state’s attorney general

noting that the decision “reflects a balanced approach by the federal government

that respects the states’ interests in implementing these laws and recognizes the

federal government’s role in fighting illegal drugs and criminal activity.”1

The debates about marijuana policy engage some of the oldest questions in

American government: What is the responsibility of the federal government, and

what is the responsibility of the states? And when should there be uniformity across

the states, and when is it better to let the states adopt their own laws based on the

preferences of their population, which may result in a diverse set of laws across

the nation? The United States is a federal system, in which the national govern-

ment shares power with lower levels of government. Throughout American history,

lawmakers, politicians, and citizens have wrestled with questions about how re-

sponsibilities should be allocated across the different levels of government. Some

responsibilities, such as foreign policy, clearly lie with the federal government.

Others, such as divorce laws, are controlled by state governments. Many govern-

ment responsibilities are shared in American federalism and require cooperation

among local, state, and federal governments. The debate about “who should do

what” remains one of the most important discussions in American politics.

chaptergoals ● Describe what the Constitution says about the powers of the

national government and of the states (pp. 67–70)

● Trace developments in the federal framework leading to a stronger national government (pp. 71–82)

● Analyze the developments in the federal framework since the 1970s (pp. 83–88)

FEDERAL ISM SHAPES AMER ICAN POL I T ICS 67

● Federalism Shapes American Politics

The Constitution has had its most funda- mental influence on American life through federalism. Federalism can be defined as the division of powers and functions between the national government and the state gov- ernments. Governments can organize power in a variety of ways. One of the most im- portant distinctions is between unitary and

federal governments. In a unitary system, the central government makes the im- portant decisions and lower levels of government have little independent power. In such systems, lower levels of government primarily implement decisions made by the central government. In France, for example, the central government was once so involved in the smallest details of local activity that the minister of education boasted that by looking at his watch he could tell what all French schoolchildren were learning at that moment because the central government set the school cur- riculum. In a federal system, by contrast, the central government shares power or functions with lower levels of government, such as regions or states. Nations with diverse ethnic or language groupings, such as Switzerland and Canada, are most likely to have federal arrangements. In federal systems, lower levels of government often have significant independent power to set policy in some areas, such as edu- cation and social programs, and to impose taxes. Yet the specific ways in which power is shared vary greatly: no two federal systems are exactly the same.

Federalism Comes from the Constitution The United States was the first nation to adopt federalism as its governing frame- work. With federalism, the framers sought to limit the national government by creating a second layer of state governments. American federalism thus recognized two sovereigns in the original Constitution by granting a few “expressed powers” to the national government and reserving the rest to the states.

The Powers of the National Government As we saw in Chapter 2, the expressed powers granted to the national government are found in Article I, Section 8, of the Constitution. These 17 powers include the powers to collect taxes, coin money, declare war, and regulate commerce. Article I, Section 8, also contains another important source of power for the national government: the implied powers that enable Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Such powers are not specifically expressed but are implied through the expansive interpretation of delegated powers. Not until several decades after the Founding did the Supreme Court allow Congress to exercise the power granted in this necessary and proper clause, but as we shall see later in this chapter, this doctrine allowed the national government to expand considerably the scope of its authority, although the process was a slow one.

Aside from these powers, the federal government operates with one other advantage over the states: as mentioned in the last chapter, Article VI of the

Describe what the Constitution says about the powers of the national government and of the states

68 CHAPTER 3 FEDERAL ISM

Constitution says that whenever there is a conflict between a national law and a state law, the national law shall prevail. This doctrine of national supremacy says that “[t]his Constitution, and the Laws of the United States . . . and all Treaties made . . . shall be the supreme Law of the Land,” even extending to state courts and constitutions.

The Powers of State Government One way in which the framers sought to preserve a strong role for the states was through the Tenth Amendment to the Constitution. The Tenth Amendment states that the powers that the Constitution does not delegate to the national government or prohibit to the states are “re- served to the States respectively, or to the people.” The Antifederalists, who feared that a strong central government would encroach on individual liberty, repeatedly pressed for such an amendment as a way of limiting national power. The Federal- ists agreed to the amendment because they did not think it would do much harm, given the powers of the Constitution already granted to the national government. The Tenth Amendment is also called the “reserved powers amendment” because it aims to reserve powers to the states.

The most fundamental power that the states retain is that of coercion— the power to develop and enforce criminal codes, to administer health and safety rules, and to regulate the family via marriage and divorce laws. The states have the power to regulate individuals’ livelihoods; if you’re a doctor or a lawyer or a plumber or a hair stylist, you must be licensed by the state. Even more fundamentally, the states have the power to define private property— private property exists because state laws against trespass define who is and is not entitled to use a piece of property. If you own a car, your ownership isn’t worth much unless the state is willing to enforce your right to possession by making it a crime for anyone else to drive your car without your permis- sion. These laws are essential to citizens’ everyday lives, and the powers of the states regarding such domestic issues are much greater than the powers of the national government.

A state’s authority to regulate the health, safety, and morals of its citizens is commonly referred to as the police power of the state. Policing is what states do— they coerce you in the name of the community in order to maintain public order. And this was exactly the type of power that the Founders intended the states, rather than the federal government, to exercise.

In some areas, the states share concurrent power (authority possessed by both state and national governments) with the national government, whereby they re- tain and share some power to regulate commerce and to affect the currency—for example, by being able to charter banks, grant or deny corporate charters, grant or deny licenses to engage in a business or practice a trade, and regulate the quality of products or the conditions of labor. Wherever there is a direct conflict of laws between the federal and the state levels, the issue will most likely be resolved in favor of national supremacy.

States’ Obligations to One Another The Constitution also creates obligations among the states. These obligations, spelled out in Article IV, were intended to

FEDERAL ISM SHAPES AMER ICAN POL I T ICS 69

promote national unity. By requiring the states to recognize actions and decisions taken in other states as legal and proper, the framers aimed to make the states less like in- dependent countries and more like parts of a single nation.

Article IV, Section 1, establishes the full faith and credit clause, stipulating that each state is normally expected to honor the “pub- lic Acts, Records, and judicial Proceedings” that take place in any other state. So, for example, if a person has a restraining order placed on a stalker or batterer in one state, the other states are required to enforce that order as if they had issued it.

Until recently, the full faith and credit clause was embroiled in the controversy over same-sex marriage. In 2004, Massa- chusetts became the first state to legalize gay marriage. By 2015, 37 states plus the District of Columbia had legalized gay mar- riage, and 13 states had either state constitutional amendments or laws that barred same-sex marriage.2 The principle of full faith and credit would seem to suggest that states without gay marriage would be obliged to recognize such unions in their states, just as they would recognize heterosexual marriages per- formed in other states. But to forestall this possibility, in 1996, Congress passed the Defense of Marriage Act (DOMA), which declared that states did not have to recognize same-sex marriage even if it were legal in other states. DOMA also said that the federal government would not recognize gay marriage, even if legal in some states, and that same-sex partners were not eligible for federal benefits such as Medicare and Social Security. In 2013, however, the Supreme Court in United States v. Windsor struck down part of the DOMA, ordering that same-sex married couples receive equal treatment on issues relating to taxes, inheritance, and other federal laws.3 It also opened the door for same-sex couples to receive federal social benefits on the same terms as heterosexual married couples. The court did not rule on whether states have to recognize same-sex marriages in other states.

In 2015, however, the Supreme Court ruled that the Fourteenth Amend- ment guaranteed a fundamental right to same-sex marriage. The case, Obergefell v. Hodges, combined four lawsuits by same-sex couples challenging their home states’ refusals to grant same-sex marriage licenses or recognize same-sex marriages performed out-of-state. While 37 states recognized same-sex marriage on the eve of the Obergefell announcement, the Court’s 5–4 decision immedi- ately required that all 50 states must offer marriage licenses to two people of the same sex and recognize same-sex marriages licensed out of state. In one stroke, same-sex marriage turned from a state-level policy choice to a

Previously a state-level policy, same-sex marriage was declared a fundamental right nationwide by the Supreme Court in 2015. The decision prompted a brief backlash when clerks in some states refused to issue marriage licenses to same-sex couples.

70 CHAPTER 3 FEDERAL ISM

nationally recognized right. In the aftermath of the Obergefell decision, several of the 13 states that were mandated to lift their bans on same-sex marriage protested the ruling. Ken Paxton, the attorney general of Texas, for example, called the decision “unlawful” and pledged to provide legal assistance to local officials who refused to carry out the new law.4 However, such resistance ebbed as it became clear that the courts would enforce the constitutional right to same-sex marriage.

Article IV, Section 2, known as the “comity clause,” also seeks to promote national unity. This clause provides that citizens enjoying the “privileges and immunities” of one state should be entitled to similar treatment in other states. What this has come to mean is that a state cannot discriminate against someone from another state or give special privileges to its own residents. For example, in the 1970s, when Alaska passed a law that gave residents preference over nonresi- dents in obtaining work on the state’s oil and gas pipelines, the Supreme Court ruled the law illegal because it discriminated against citizens of other states.5 The comity clause also regulates criminal justice among the states by requiring states to return fugitives to the states from which they have fled. Thus, in 1952, when an inmate escaped from an Alabama prison and sought to avoid being returned to Alabama on the grounds that he was being subjected to “cruel and unusual punishment” there, the Supreme Court ruled that he must be returned according to Article IV, Section 2.6

Local Government and the Constitution Local government occupies a peculiar but very important place in the American system. In fact, the status of American local government is probably unique in world experience. First, local government has no status in the U.S. Constitution and is therefore an authority or function un- der the control of the states. State legislatures created local governments, and state constitutions and laws permit local governments to take on some of the respon-

sibilities of the state governments. Most states amended their consti- tutions to give their larger cities home rule, powers delegated by the state to a local unit of government to manage its own affairs. But local governments enjoy no such recog- nition in the federal Constitution. Local governments have always been creatures of the states.7

Local governments became administratively important in the early years of the Republic be- cause the states relied on local governments (cities and counties) to implement the laws of the state. Local government was an alterna- tive to a statewide bureaucracy (see Table 3.1).

90,107 Governments in the United States

TYPE NUMBER

National 1

State 50

County 3,031

Municipal 19,519

Townships 16,360

School districts 12,880

Other special districts 38,266

SOURCE: U.S. Census Bureau, www2.census.gov/govs/cog /g12_org.pdf (accessed 11/02/13).

TABLE 3.1

http://www2.census.gov/govs/cog/g12_org.pdf

THE DEF IN I T ION OF FEDERAL ISM HAS CHANGED RAD ICALLY OVER T IME 71

● The Definition of Federalism Has Changed Radically over Time

Many of the fiercest political controversies in American history have revolved around competing views of federalism. The best way to understand these disputes, and how federalism has been redefined throughout American history, is to examine how its conception has changed over time. During

the “traditional system” in America, from 1789 to 1937, the political scales clearly favored the states over the federal government. (We call it the “traditional system” because it covered much of American history and because it closely approximated the intentions of the framers of the Constitution.) Then, from the New Deal period of the 1930s to the present, some important limits were placed on state governments and the federal government exerted far more power than it had un- der the traditional system, despite efforts to roll back national government powers in recent decades.

Federalism under the “Traditional System” Gave Most Powers to the States The prevailing view of national government–state government relations under the traditional system was one of dual federalism, in which most fundamental govern- mental powers were shared between the federal and state governments. During this time, the states possessed a vast amount of governing power, and virtually all of the important policies affecting the lives of Americans were made by the state govern- ments. For evidence, look at Table 3.2, which lists the major types of public policies by which Americans were governed for the first century and a half under the Con- stitution. Under the traditional system, the national government was quite small by comparison both with the state governments and with the governments of other Western nations. It was not only smaller than most governments of that time but also very narrowly specialized in the functions it performed. The national government built or sponsored the construction of roads, canals, and bridges (internal improve- ments). It provided cash subsidies to shippers and shipbuilders and distributed free or low-priced public land to encourage western settlement and business ventures. It placed relatively heavy taxes on imported goods (tariffs), not only to raise revenues but also to protect “infant industries” from competition from the more advanced European enterprises. It protected patents and provided for a common currency, which encouraged and facilitated enterprises and helped to expand markets.

What do these functions of the national government reveal? First, virtually all the national government’s functions were aimed at assisting commerce. It is quite appropriate to refer to the traditional American system as a “commercial repub- lic.” Second, virtually none of the national government’s policies directly coerced citizens. The emphasis of governmental programs was on assistance, promo- tion, and encouragement—the allocation of land or capital to meet the needs of economic development.

Trace developments in the federal framework leading to a stronger national government

72 CHAPTER 3 FEDERAL ISM

Meanwhile, state legislatures were also actively involved in economic regulation during the nineteenth century. In the United States, then and now, private property exists only in state laws and state court decisions regarding property, trespass, and real estate. American capitalism took its form from state property and trespass laws and from state laws and court decisions regarding contracts, markets, credit, banking, in- corporation, and insurance. Laws concerning slavery were a subdivision of property law in states where slavery existed. The practice of important professions, such as law and medicine, was (and is) illegal except as provided for by state law. To educate or not to educate a child has been a decision governed more by state laws than

NATIONAL GOVERNMENT POLICIES (DOMESTIC)

STATE GOVERNMENT POLICIES

LOCAL GOVERNMENT POLICIES

Internal improvements

Subsidies

Tariffs

Public land disposal

Patents

Currency

Property laws (including slavery)

Estate and inheritance laws

Commerce laws

Banking and credit laws

Corporate laws

Insurance laws

Family laws

Morality laws

Public health laws

Education laws

General penal laws

Eminent domain laws

Construction codes

Land-use laws

Water and mineral laws

Criminal procedure laws

Electoral and political party laws

Local government laws

Civil service laws

Occupations and professions laws

Adaptation of state laws to local conditions

Public works

Contracts for public works

Licensing of public accommodation

zoning and other land- use regulation

Basic public services

The Federal System: Specialization of Governmental Functions in the Traditional System, 1789–1937

TABLE 3.2

THE DEF IN I T ION OF FEDERAL ISM HAS CHANGED RAD ICALLY OVER T IME 73

by parents. It is important to note also that most criminal laws, from trespass to murder, have been state laws. Thus, most of the fundamental governing in the United States was done by the states.

Ultimately, the fundamental impact of federalism on the way the United States is governed comes not from any particular provision of the Constitution but from the framework itself, which has determined the flow of government functions and, through that, the political development of the country. By allowing state governments to do most of the fundamental governing, the Constitution saved the national govern- ment from many policy decisions that might have proved too divisive for a large and very young country. There is little doubt that if the Constitution had provided for a unitary system rather than a federal system, the war over slavery would have come in 1789 or not long thereafter; and if it had come that early, the South might very well have seceded and established a separate and permanent slaveholding nation.

In helping the national government remain small and apart from the most divi- sive issues of the day, federalism contributed significantly to the political stability of the young nation, even as the social, economic, and political systems of many of the states and regions of the country were undergoing tremendous, profound, and sometimes violent change.8 As we shall see, some important aspects of federal- ism have changed, but the federal framework has survived over two centuries and through a devastating civil war.

The Supreme Court Paved the Way for the End of the “Traditional System” As the nation grew, disputes arose about the powers of the federal government versus the powers of the states. In the first several decades after the Founding, the Supreme Court decided several critical cases that expanded federal powers and facilitated trade across the states. These decisions removed barriers to trade in the new nation and laid the groundwork for a national economy. However, by the end of the nineteenth century, as reformers began to enact laws regulating businesses through such measures as child labor restrictions, the Court took a much more restrictive view of federal power. Not until well into the New Deal, in 1937, did the federal government gain the expansive powers it exercises today.

Article I, Section 8, of the Constitution delegates to Congress the power “to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes.” For most of the nineteenth century, the Supreme Court consis- tently interpreted this commerce clause in favor of national power over the econ- omy. The first and most important such case was McCulloch v. Maryland (1819), which involved the question of whether Congress had the power to charter a national bank as such an explicit grant of power was nowhere to be found in Article I, Section 8.9 Chief Justice John Marshall answered that this power could be “implied” from other powers that were expressly delegated to Congress, such as the “powers to lay and collect taxes; to borrow money; to regulate commerce; and to declare and conduct a war.”

By allowing Congress to use the necessary and proper clause to interpret its delegated powers expansively, the Supreme Court created the potential for an unprecedented increase in national government power. Marshall also concluded

74 CHAPTER 3 FEDERAL ISM

that whenever a state law conflicted with a federal law (as in the case of McCulloch v. Maryland), the state law would be deemed invalid since the Constitution states that “the Laws of the United States . . . shall be the supreme Law of the Land.” Both parts of this great case are pro-national, including the verification of the principle of “national supremacy,” yet Congress did not immediately seek to expand the policies of the national government.

Another major case, Gibbons v. Ogden (1824), reinforced this nationalistic interpretation of the Constitution. The important but relatively narrow issue was whether the state of New York could grant a monopoly to Robert Fulton’s steamboat company to operate an exclusive service between New York and New Jersey. Chief Justice Marshall argued that New York state did not have the power to grant this particular monopoly. In reaching this decision, Marshall had to define what Article I, Section 8, meant by “commerce among the sev- eral states.” He insisted that the definition was “comprehensive,” extending to “every species of commercial intercourse.” However, this comprehensiveness was limited “to that commerce which concerns more states than one.” Gibbons is im- portant because it established the supremacy of the national government in all matters affecting what later came to be called “interstate commerce.”10 But the precise meaning of interstate commerce would remain uncertain during several decades of constitutional discourse.

Backed by the implied powers and national supremacy decision in McCulloch and by the broad definition of “interstate commerce” in Gibbons, Article I, Section 8, was a source of power for the national government as long as Congress sought to facilitate commerce through subsidies, services, and land grants. Later in the nineteenth century, though, the Supreme Court declared any effort of the national government to regulate commerce in such areas as fraud, the production of substandard goods, the use of child labor, or the existence of dangerous work- ing conditions or long hours to be unconstitutional as a violation of the concept of interstate commerce. Such legislation meant that the federal government was entering the factory and the workplace—local areas—and was attempting to regu- late goods that had not yet passed into interstate commerce. To enter these local workplaces was to exercise police power—a power reserved to the states. No one questioned the power of the national government to regulate businesses that in- trinsically involved interstate commerce, such as railroads, gas pipelines, and water- way transportation. But well into the twentieth century, the Supreme Court used the concept of interstate commerce as a barrier against most efforts by Congress to regulate local conditions.

This interpretation of federalism gave the American economy a freedom from federal government control that closely approximated the ideal of free enterprise. The economy was never entirely free, of course; in fact, entrepreneurs themselves did not want complete freedom from government. They needed law and order. They needed a stable currency. They needed courts and police to enforce contracts and prevent trespass. They needed roads, canals, and railroads. But federalism, as interpreted by the Supreme Court for 70 years after the Civil War, made it possible for business to have its cake and eat it, too. Entrepreneurs enjoyed the benefits of national policies facilitating commerce but were shielded by the courts from policies that regulate commerce by protecting the rights of

consumers and workers.11 In addition, the Tenth Amendment was used to bolster arguments about states’ rights, the principle that the states should oppose the increasing authority of the national government. This principle was most popular in the period before the Civil War.

In the early twentieth century, however, the Tenth Amendment appeared to lose its force as reformers began to press for national regulations to limit the power of large corporations and to protect the health and welfare of citizens, as we shall see next.

FDR’s New Deal Remade the Government The New Deal of the 1930s marked a major change in how the courts interpreted national power. The door to increased federal action opened when states proved unable to cope with the demands brought on by the Great Depression. Before the depression, states and localities took responsibility for addressing the needs of the poor, usually through private charity. But the extent of the need created by the depression quickly exhausted local and state capacities. By 1932, 25 percent of the workforce was unemployed. The jobless lost their homes and settled into camps all over the country, called “Hoovervilles” after President Herbert Hoover. Elected in 1928, the year before the depression hit, Hoover steadfastly maintained that there was little the federal government could do to alleviate these people’s misery caused by the depression. It was a matter for state and local governments, he said.

Yet demands mounted for the federal government to take action. When Franklin Delano Roosevelt took office in 1933, he energetically threw the federal government into the business of fighting the depression through a number of proposals known collectively as the New Deal. He proposed a variety of temporary measures to provide federal relief and work programs. Most of the programs he proposed were to be financed by the federal government but administered by the states. In addition to these temporary meas- ures, Roosevelt presided over the creation of several important federal programs de- signed to provide future economic security for Americans. The New Deal signaled the rise of a more active national government.

For the most part, the new national pro- grams that the Roosevelt administration developed did not directly take power away from the states. Instead, Washington

John C. Calhoun, one of the most prominent advocates of states’ rights, argued that states should have the right to veto any federal law they found to be unconstitutional.

76 CHAPTER 3 FEDERAL ISM

typically redirected states by offering them grants-in-aid, programs through which Congress provided money to state and local governments on the condition that the funds be employed for purposes defined by the federal government.

Franklin Roosevelt did not in- vent the idea of grants-in-aid, but his New Deal vastly expanded the range of grants-in-aid to include social pro- grams, providing grants to the states for financial assistance to poor chil- dren. Congress added more grants after World War II, creating new programs to help states fund activities such as providing school lunches and build- ing highways. Sometimes the national government required state or local governments to match the national contribution dollar for dollar, but in some programs, such as the develop- ment of the interstate highway sys- tem, the congressional grants provided 90 percent of the cost.

These types of federal grants-in-aid are called categorical grants because they are given to states and localities by the national government on the condition that expenditures be limited to a problem or group specified by law. For the most part, the categorical grants created before the 1960s simply helped the states perform their traditional functions.12 In the 1960s, however, the national role expanded and federal funding in the form of categorical grants increased dramatically (see Figure 3.1). For example, during the 89th Congress (1965–66) alone, the number of categorical grant-in-aid programs grew from 221 to 379.13 The value of categorical grants also has risen dramatically, from $2.3 billion in 1950 to an estimated $667 billion in 2016. The grants authorized during the 1960s addressed national purposes much more strongly than did earlier grants. One of the most important—and expensive—was the federal Medicaid program, which provides states with grants to pay for medical care for the poor, the disabled, and many nursing home residents.

Changing Court Interpretations of Federalism Helped the New Deal While Preserving States’ Rights In a dramatic change beginning in 1937, the Supreme Court threw out the old distinction between interstate and intrastate commerce on which it had relied in the late 1800s and early 1900s. It converted the commerce clause from a source of limitations to a source of power for the national government. The Court began to refuse to review appeals that challenged acts of Congress protecting the rights of

The New Deal expanded the scope of the federal government. One of the largest and most effective New Deal programs, the Works Progress Administration, employed millions of Americans in public-works projects such as constructing highways, bridges, and public parks.

THE DEF IN I T ION OF FEDERAL ISM HAS CHANGED RAD ICALLY OVER T IME 77

employees to organize and engage in collective bargaining, regulating the amount of farmland in cultivation, extending low-interest credit to small businesses and farmers, and restricting the activities of corporations dealing in the stock market; it upheld many other laws that contributed to the construction of the modern “welfare state.”14

The Court also reversed its position on the Tenth Amendment, which it had used to strike down national laws as violations of state power. Instead, the Court approved numerous expansions of national power, to such an extent that the Tenth Amendment appeared irrelevant. In fact, in 1941, Justice Harlan Fiske Stone declared that the Tenth Amendment was simply a “truism” that had no real meaning.15

Yet the idea that some powers should be reserved to the states did not go away. Indeed, in the 1950s, southern opponents of the civil rights movement revived the idea of states’ rights. In 1956, 96 southern members of Congress issued a “Southern Manifesto” in which they declared that southern states were not constitutionally

FIGURE 3.1 Historical Trend of Federal Grants-in-Aid,* 1950–2017 Spending on federal grants-in-aid to the states and local governments has grown dramatically since 1990. These increases reflect the growing public expectations about what government should do. What has been the most important cause of the steady increase in these grants?

*Excludes outlays for national defense and international affairs. **Data for 2016 and 2017 are estimated.

SOURCE: Office of Management and Budget, U.S. Budget for Fiscal Year 2017, “Historical Tables: Table 12.2—Total Outlays for Grants to State and Local Governments, by Function and Fund Group: 1940–2021” and “Table 10.1—Gross Domestic Product and Deflators Used in the Historical Tables: 1940–2021,” www.whitehouse.gov/omb/budget /Historicals (accessed 4/12/16).

1950 1955

1960 1965

1970 1975

1980 1985

1990 1995

2000 2006 2005 2007

2008 2009

2010 2011

2012 2013

2014 2015

2016** 2017**

B IL

LI O

N S

O F

C O

N S

TA N

T (F

Y 2

00 9)

D O

LL A

R S

100

200

300

400

500

600

Federal Medicaid program �rst enacted.

The increasing costs of medical care pushed up government spending on health care in the 2000s.

Grants to the states rose sharply in 2009 as a result of federal efforts to stimulate the economy.

http://www.whitehouse.gov/omb/budget/Historicals

78 CHAPTER 3 FEDERAL ISM

bound by Supreme Court decisions outlawing racial segregation. They believed that states’ rights should override individual rights to liberty and formal equality. With the triumph of the civil rights movement, the slogan of “states’ rights” became tarnished by its association with racial inequality.

The 1990s saw a revival of interest in the Tenth Amendment and important Supreme Court decisions limiting federal power. Much of the interest in the Tenth Amendment stemmed from conservatives who believe that a strong federal government encroaches on individual liberties. They believed such freedoms were better protected by returning more power to the states through the process of devolution, whereby a program is removed from one level of government by delegating it or passing it down to a lower level of government, such as from the national government to the state and local governments. In 1996, Republican pres- idential candidate Bob Dole carried a copy of the Tenth Amendment in his pocket as he campaigned, pulling it out to read at rallies.16 The Supreme Court’s 1995 ruling in United States v. Lopez fueled further interest in the Tenth Amendment. In that case, the Court, stating that Congress had exceeded its authority under the commerce clause, struck down a federal law that barred handguns near schools.17 This was the first time since the New Deal that the Court had limited congressio- nal powers in this way. In 1997 the Court again relied on the Tenth Amendment to limit federal power in Printz v. United States.18 The decision declared unconsti- tutional a provision of the Brady Handgun Violence Prevention Act that required state and local law-enforcement officials to conduct background checks on hand- gun purchasers. The Court declared that this provision violated state sovereignty guaranteed in the Tenth Amendment because it required state and local officials to administer a federal regulatory program.

Cooperative Federalism Pushes States to Achieve National Goals The growth of categorical grants, along with favorable court rulings, created a new kind of federalism. If the traditional system of two sovereigns performing highly different functions could be called dual federalism, historians of federal- ism suggest that the system since the New Deal could be called cooperative feder- alism, in which grants-in-aid have been used strategically to encourage states and localities to pursue nationally defined goals, with national and state governments sharing powers and resources via intergovernmental cooperation. One political scientist, Morton Grodzins, characterized this as a move from “layer cake federal- ism” to “marble cake federalism,”19 in which intergovernmental cooperation and sharing have blurred a once-clear distinguishing line, making it difficult to say where the national government ends and the state and local governments begin (see Figure 3.2).

For a while in the 1960s, it appeared as if the state governments would become increasingly irrelevant to American federalism. Many of the new federal grants bypassed the states and instead sent money directly to local governments and even to local nonprofit organizations. The theme heard repeat- edly in Washington was that the states simply could not be trusted to carry out national purposes.20

THE DEF IN I T ION OF FEDERAL ISM HAS CHANGED RAD ICALLY OVER T IME 79

One of the reasons that Washington distrusted the states was the way African American citizens were treated in the South. The southern states’ forthright defense of segregation, justified on the grounds of states’ rights, helped tarnish the image of the states as the civil rights movement gained momentum. The national officials who planned the War on Poverty during the 1960s pointed to the racial exclusion practiced in the southern states as a reason for bypassing state govern- ments. Political scientist James Sundquist described how the “Alabama syndrome” affected the War on Poverty: “In the drafting of the Economic Opportunity Act, an ‘Alabama syndrome’ developed. Any suggestion within the poverty task force that the states be given a role in the administration of the act was met with the ques- tion, ‘Do you want to give that kind of power to [then–Alabama governor] George Wallace?’”21 (Wallace at the time was nationally known for his virulent opposition to the civil rights movement.)

Yet even though many national policies of the 1960s bypassed the states, other new programs, such as Medicaid, relied on state governments for their imple- mentation. In addition, as the national government expanded existing programs run by the states, states had to take on more responsibilities. These new respon- sibilities meant that the states were now playing a very important role in the federal system.

National Standards Have Been Advanced through Federal Programs Over time, the Supreme Court has pushed for greater uniformity in rules and procedures across the states. In addition to legal decisions, the national govern- ment uses two other tools to create similarities across the states: grants-in-aid and regulations.

Grants-in-aid, as we have seen, are incentives: Congress gives money to state and local governments if they agree to spend it for the purposes Congress

DUAL FEDERALISM COOPERATIVE FEDERALISM

“Marble Cake”

Cooperate on some policies

“Layer Cake”

National Government

State Governments

National Government

State Governments

FIGURE 3.2 Dual versus Cooperative Federalism In layer-cake federalism, the responsibilities of the national government and state governments are clearly separated. In marble-cake federalism, national policies, state policies, and local policies overlap in many areas.

80 CHAPTER 3 FEDERAL ISM

specifies. But as Congress began to enact legislation in new areas, such as envi- ronmental policy, it also imposed additional regulations on states and localities. Some political scientists call this a move toward regulated federalism.22 The effect of these national standards is that state and local policies in the areas of environ- mental protection, social services, and education are more uniform from coast to coast than are other nationally funded policies.

Some national standards require the federal government to take over areas of regulation formerly overseen by state or local governments. Such preemption (the principle that allows the national government to override state or local actions in certain policy areas) occurs when state and local actions are found to be inconsistent with federal requirements. If this occurs, all regulations in the preempted area must henceforth come from the national government. In many cases, the courts determine the scope of the federal authority to pre- empt. For example, in 1973 the Supreme Court struck down a local ordinance prohibiting jets from taking off from the airport in Burbank, California, be- tween 11 P.M. and 7 A.M. It ruled that the federal Civil Aeronautics Act granted the Federal Aviation Administration all authority over flight patterns, takeoffs, and landings and that local governments could not impose regulations in this area. As federal regulations increased after the 1970s, Washington increasingly preempted state and local action in many different policy areas. This preemp- tion has escalated since 1994, when Republicans gained control of Congress. Although the Republicans came to power promising to grant more responsibil- ity to the states, they reduced state control in many areas by preemption. For example, in 1998, Congress passed a law that prohibited states and localities from taxing Internet access services. The 1996 Telecommunications Act reduced local control by giving broadcasters and digital companies broad discretion over where they could erect digital television and cellular phone towers even if local citizens objected.23

In 2009, after only a few months in office, President Obama reversed the Bush administration’s use of federal regulations to limit state laws. Under the new pol- icy, federal regulations should preempt state laws only in extraordinary cases. The president directed agency leaders to review the regulations that had been put in place over the past 10 years and consider amending them if they interfered with the “legitimate prerogatives of the states.”24 But as we will see later in this chapter, the Obama administration did use its power of preemption to challenge state immigration laws, charging that states were making laws in a domain reserved for federal authority.

The growth of national standards has created some new problems and has raised questions about how far federal standardization should go. One problem that emerged in the 1980s was the increase in unfunded mandates—regulations or new conditions for receiving grants that impose costs on state and local govern- ments for which they are not reimbursed by the national government. The growth of unfunded mandates was the product of a Democratic Congress, which wanted to achieve liberal social objectives, and Republican presidents who opposed in- creased social spending. Between 1983 and 1991, Congress mandated standards in many policy areas, including social services and environmental regulations, without providing additional funds to meet those standards. Altogether, Congress enacted

A key difference between unitary and federal systems of government is in the amount of power that is reserved for state and local governments. In federal systems, subna- tional units are given considerable taxation and spending power, whereas the federal (or central) government carries out most of these tasks in unitary systems.

The graph here shows the percentage of total government expenditures by the central government and by the state and/ or local governments. The central govern- ments of France, the United Kingdom, and New zealand, all unitary countries, spend

a larger percentage than federal countries such as Mexico and the United States.

South Korea is a unitary country where lo- cal governments operate under a great deal of autonomy, carrying out many of the coun- try’s administrative functions. Local govern- ment spending in South Korea is thus higher than in many unitary countries, and, as a re- sult, its spending behavior falls somewhere in the middle of the federal–unitary divide. This example shows that while the distinc- tion between federalism and unitary systems is important, it is not the only factor in deter- mining who holds power in a country.

Government Spending in Federal and Unitary Systems

AMERICA Side by Side

Mexico

United States

New Zealand

United Kingdom

France

South Korea

DISTRIBUTION OF GENERAL GOVERNMENT EXPENDITURES ACROSS LEVELS OF GOVERNMENT, 2013

10 20 30 40 50 60 70 80 90 100

65.5 34.4

79.4 20.5

74.9 25.1

88.7 11.3

51.9 48.1

53.3 46.7

Central government State and local government

SOURCE: OECD, Government at a Glance 2015, www.oecd-ilibrary.org/governance/government-at-a-glance-2015_gov _glance-2015-en (accessed 7/15/15).

http://www.oecd-ilibrary.org/governance/government-at-a-glance-2015_gov_glance-2015-en

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27 laws that imposed new regulations or required states to expand existing programs.25 For example, the 1973 Rehabilitation Act pro- hibited discrimination against the disabled in programs that were partly funded by the fed- eral government. The new law required state and local governments to make public transit accessible to disabled people with wheelchair lifts in buses, elevators in train stations, and special transportation systems where needed. These requirements were estimated to cost state and local governments $6.8 billion over 30 years.26 But Congress did not supply additional funding to help states meet these new requirements; the states had to shoulder the increased financial burden themselves. States complained that mandates took up so much of their budgets that they were not able to set their own priorities.27

These burdens became part of a rally- ing cry to reduce the power of the federal government—a cry that took center stage when a Republican Congress was elected in 1994. One of the first measures the new Congress passed was an act to limit the cost of unfunded mandates, the Unfunded Mandates Reform Act (UMRA). Under this law, Congress must estimate the expense for any proposal it believes would exceed the

threshold established in UMRA ($76 million in 2014, adjusted for inflation). Congress must then identify funding sources for bills that exceed the threshold established in UMRA.

New national problems inevitably raise the question of who pays. Recently, concern about unfunded mandates arose around health care reform. The major health care legislation enacted during Obama’s presidency, the Affordable Care Act of 2010, called for a major expansion of Medicaid. But because Medicaid is partly funded by the states, any major increase in the number of Medicaid recipients could impose a significant fiscal burden on the states. Although the law provided additional federal aid to support the new requirements, the Medicaid provisions became a target for state challenges to the health care law. One of the central claims in the 26 states’ lawsuits charged that the federal government did not have the power to withhold Medicaid funds from states that did not imple- ment the new expansions. The Supreme Court ultimately ruled that states could decline to expand Medicaid coverage without losing their existing Medicaid funds. After the Court’s decision, some Republican governors announced that they would not implement the expanded coverage.

The federal government frequently passes laws that impose mandates on the states, such as the 1990 Americans with Disabilities Act, which protects against discrimination based on disability. States were required to pay for changes to meet federal standards for accessibility in public transportation and public facilities.

NEW FEDERAL ISM MEANS MORE STATE CONTROL 83

● New Federalism Means More State Control

Analyze the developments in the federal framework since the 1970s

Since the 1970s, as states have become more capable of administering large-scale pro- grams, the idea of devolution—transferring responsibility for policy from the federal government to the states and localities—has become popular.

Proponents of more state authority have looked to block grants as a way of reducing federal control. Block grants are federal grants-in-aid that allow states considerable discretion in how the funds are spent. President Richard Nixon led the first push for block grants in the early 1970s. Nixon’s approach consoli- dated programs in the areas of job training, community development, and social services into three large block grants. These grants imposed some conditions on states and localities as to how the money should be spent but avoided the narrow regulations contained in the categorical grants discussed earlier. In addition, Congress approved a fourth block grant called general revenue sharing, whereby the federal government provided money to local governments and counties with no strings attached; localities could spend the money as they wished. In enacting revenue sharing, Washington acknowledged both the criti- cal role that state and local governments play in implementing national priori- ties and their need for increased funding and enhanced flexibility in order to carry out that role (see Figure 3.3). Ronald Reagan’s version of New Federalism

The debate over national versus state control of speed limits arose in 1973, when gas prices skyrocketed and supplies became scarce. Drivers nationwide were forced to wait in long lines at gas stations. The federal government responded to the gas crisis by instituting a national 55-mile-per-hour speed limit.

84 CHAPTER 3 FEDERAL ISM

(returning power to the states through block grants) similarly aimed to reduce the national government’s control. In all, Congress created 12 new block grants between 1981 and 1990.28

But this new approach, like those that preceded it, has not provided magic solutions to the problems of federalism. For one thing, there is always a trade-off between accountability—that is, whether the states are using funds for the pur- poses intended—and flexibility. If the objective is to have accountable and efficient government, it is not clear that state bureaucracies are any more efficient or more capable than national agencies. In Mississippi, for example, the state Department of Human Services spent money from the child care block grant for office furniture and designer salt and pepper shakers that cost $37.50 a pair. As one Mississippi state legislator said, “I’ve seen too many years of good ol’ boy politics to know they shouldn’t [transfer money to the states] without stricter controls and require- ments.”29 Even after block grants were created, Congress reimposed regulations in order to increase the states’ accountability.

At times the federal government has also moved to limit state discretion over spending in cases where it thinks states are too generous. For example, in 2007, President Bush issued regulations that prevented states from providing benefits un- der the State Child Health Insurance Program (SCHIP) to children in families well above the poverty line. The Bush administration also barred states from providing chemotherapy to illegal immigrants, who are guaranteed emergency medical treat- ment under Medicaid.30

There Is No Simple Answer to Finding the Right National–State Balance As Figure 3.4 indicates, federalism has changed dramatically over the course of American history, even over just the past several decades. Finding the right balance among states and the federal government is an evolving challenge for American democracy. In recent years, many of the most controversial issues in American politics—including the appropriate size of public social spending, the rights and benefits of immigrants (legal as well as undocumented), what government should

Regulated Federalism New Federalism

National government sets policy for the states

State governments help pay for and administer programs

State governments have �exibility to make policy and administer programs

National government provides funding

National standards

Conditional grants

Unfunded mandates

Block grants

Revenue sharing

Devolution

FIGURE 3.3 Regulated versus New Federalism

NEW FEDERAL ISM MEANS MORE STATE CONTROL 85

do in response to climate change, and whether and how government should regu- late business and moral behavior—have been fought out through the federal sys- tem. Politicians of all stripes regularly turn to the federal government to override decisions made by states. Likewise, when the federal government proves unable or unwilling to act, activists and politicians try to achieve their goals in states and localities. In many cases, it is up to the courts to decide which level of government should have the final say.

Although conservatives proclaim their preference for a small federal govern- ment and their support for more state autonomy, in fact, they often expand the federal government and limit state autonomy. President George W. Bush, for example, expanded federal control and increased spending in various policy areas. The 2001 No Child Left Behind Act, passed with Democratic support, introduced unprecedented federal intervention in public education, tradition- ally a state and local responsibility. New detailed federal testing requirements stipulating how states should treat failing schools were major expansions of fed- eral authority in education. When a number of states threatened to defy some of the new federal requirements, Bush’s Department of Education relaxed its tough stance and became more flexible in enforcing the act. But the administra- tion did not back down entirely, leading to several legal challenges to different aspects of the law.

In the Supreme Court, too, many decisions supported a stronger federal role over the states. Decisions to uphold the federal Family and Medical Leave Act and the Americans with Disabilities Act asserted federal authority against state claims of immunity from the acts. In one important 2005 case, the Court upheld the right of Congress to ban medical marijuana, even though 11 states had legalized its use. Overturning a lower court ruling that said Congress did not have authority to regu- late marijuana when it had been grown for noncommercial purposes in a single state, the Supreme Court ruled that the federal government did have the power to regulate use of all marijuana under the commerce clause. Even so, as we have seen, by 2016, 26 states and the District of Columbia had legalized medical marijuana, and a few states have now gone further to legalize its recreational use. Although the federal government has not endorsed these laws, it has made prosecution of marijuana in these states a low priority.

FIGURE 3.4 The Changing Federal Framework

1789

Dual Federalism 1789–1937

1937

Cooperative Federalism 1937–60

1960

Regulated Federalism 1960s–1970s

1970 2000

New Federalism 1970s–

In other policy areas, states and localities have forged their own policies because the federal government has not acted. One of the most controversial of these issues is immigration legislation. In the first half of 2013, for example, state legislatures enacted 377 laws and resolutions related to immigration.31 Many state and local laws that govern immigration are not controversial, but some raise critical questions about the federal government’s role as opposed to the responsibilities of state and local governments. In 2010, Arizona enacted an extremely controversial immigration measure requiring immigrants to carry identity documents and requiring police to ask about immigration status when they stop drivers they suspect of being illegal immigrants. The federal Department of Justice joined several other groups in challenging the law. In the words of then–attorney general Eric Holder, “It is clearly unconstitutional for a state to set its own immigration policy.”32 In 2012 the Supreme Court ruled that Arizona’s law did not preempt federal authority to make immigration law.33 The court’s decision in Arizona v. United States did overturn three of four provisions in Arizona’s law, but it ruled in favor of the most controversial pro- vision, which allows state police to check the immigration status of anyone stopped or arrested.

Immigration policy once again became embroiled in federal–state conflict after 2014. Frustrated by congressional inaction on immigration, President Obama issued an executive order that would provide temporary legal status to those who had been brought to the United States as children and would extend legal status to the parents of U.S. citizens and legal residents. Approximately 5 million undocumented immigrants could receive work permits under the new program.

The federal government brought Arizona to court over law SB1070, which imposed strict requirements on immigrants. The Supreme Court found that three provisions of the law were preempted by federal law, meaning Arizona did not have the authority to make the regula- tion. However, the controversial “show me your papers” provision of the law was upheld.

NEW FEDERAL ISM MEANS MORE STATE CONTROL 87

However, led by Texas, 26 states challenged the executive order in court, charg- ing that it exceeded executive authority and would impose unreasonable costs on states. The program was never implemented because the Supreme Court, in the wake of the death of Justice Antonin Scalia, deadlocked in a 4–4 decision, leaving in place lower-court decisions that sided with the states.34

Obama also announced the termination of the controversial Secure Communi- ties program in 2014. Initially launched in 2008, Secure Communities required state and local authorities to check the fingerprints of people being booked into jail against a Homeland Security database. The policy led to a record number of deportations, leading several states and localities to pull out of the agreement with the federal government on the grounds that the law was detaining too many un- documented immigrants who had never committed a crime. The administration softened its deportation policy in 2011, but sustained opposition as well as fed- eral court decisions that challenged the constitutionality of elements of the policy ultimately led the government to end the program in late 2014. In its place, the Obama administration launched the Priority Enforcement Program in July 2015, which adopts a more limited deportation policy than the one formerly mandated by Secure Communities.35

In some ways, the Obama White House signaled that it would allow the states more leeway for action than they had under the Bush administration. This was particularly true in the domains of social policy and the environment when states sought to enact laws more stringent than those of the federal govern- ment. In the memo reversing the Bush policy of preemption, the White House noted, “Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.”36

The most significant Obama law to affect the states was the 2010 health care overhaul. One controversial part of that legislation required states to expand their Medicaid programs to cover more low-income residents and to offer them additional services. As we saw earlier, the Supreme Court’s 2012 ruling in National Federation of Independent Business v. Sebelius that the federal government could not impose all-or-nothing conditions on the states—implement the expansion or lose all Medicaid funding—represented a new limit on the national government’s power. The ruling mostly upheld the law but also gave the states more leeway. The other controversial provision of the Affordable Care Act was the “individual mandate,” the requirement that individuals without health care insurance be required to purchase such insurance. The 26 states suing the federal government charged that Congress had no power to force individuals to purchase a product and that it had exceeded its power under the commerce clause. In defending the law, the federal government argued the opposite: that the complex interactions of the health care market made the individual mandate constitutional under the commerce clause.37 From the moment a person is born, he or she is part of the health care economy. Even if a person does not have health insurance, federal law requires that hospitals provide treatment in an emergency. Those costs are borne by all of the people who do pay for health insurance.

Taking a more narrow view of the health care market, the Court rejected this argument on the grounds that the federal government cannot regulate economic

88 CHAPTER 3 FEDERAL ISM

inactivity, that is, the failure to purchase health insurance. Instead, it found that the Affordable Care Act was constitutional based on Congress’s power to tax. The law requires individuals who do not receive insurance from their employers or their parents and are not eligible for Medicaid to purchase insurance or pay a penalty. The Court reasoned that the penalty could be considered a tax and, in that sense, passed constitutional muster. The Court placed limits on two of the key powers that have expanded the reach of the federal government since the New Deal—the power to regulate commerce and the power to spend for the general welfare.

The Affordable Care Act survived another challenge in 2015 when the Supreme Court ruled that federal subsidies to help pay for insurance should be available to residents in states that offered insurance only through the federal exchange as well as in states that had formed their own state insurance market- places. The outcome of King v. Burwell ensured that subsidies would be available in all states.38

Federalism

and Your Future The connections between federalism and our fundamental national values have made federalism a focus of political contention throughout our nation’s history. In recent years, sharp differences in Americans’ views on many economic and social issues have been reflected in the federal system. More than half of the 50 states have legalized medical marijuana, while eight have gone further and legalized recreational marijuana. Until 2015, when the Supreme Court ruled that state-level bans on same-sex marriage were unconstitutional, 37 states allowed same-sex marriage. Some states actively welcome immigrants and seek to opt out of restrictive federal laws; other states go beyond the federal government in enact- ing restrictive immigration laws. Yet, while states have the authority to devise their own laws on a variety of important issues, Americans’ participation in state and local politics remains low (see the “Who Participates?” feature on p. 89).

For young people, differences across the states provoke important questions about the future. Is the federal government endangering people by allowing states to legalize marijuana? Is it fair that a transgender person in California can legally change the sex on her birth certificate but a transgender person in Tennessee would be denied the same? Each generation confronts a different set of questions about how much variation across the states is appropriate. Are some of the issues on which the states differ fundamental rights that should be uniform across the coun- try? As today’s youth help to answer these questions in the coming decades, they will be remaking American federalism.

W H O P A R T I C I P A T E S ?

Who Participates in State and Local Politics?

The voting-eligible population excludes noncitizens and people who are institutionalized or not allowed to vote in some states because they are ex-felons. The voting-age population includes everyone over 18. SOURCES: 2014 November General Election Turnout Rates, United States Election Project, www.electproject.org/2014g (accessed 9/27/15); Voting Age Population by Citizenship and Race (CVAP), U.S. Census American Community Survey, www.census.gov/rdo/ data/voting_age_population_by_citizenship_and_race_cvap.html (accessed 9/27/15).

Percentage of Voting-Eligible Population*

Turnout in 2014 Election, by State

Seattle

43%

Washington, D.C. 38%

Chicago

33%

Detroit

27%

Denver

24%

Houston

22%

San Antonio

10%

Percentage of Voting-Age Population in Selected Cities*

Turnout in Most Recent Municipal Election

NY 28% MT 47%

WI 57%

CA 30%

TX 28% FL 43%

25–34%

55–64%

35–44%

45–54%

New York City

W H A T Y O U C A N D O

Attend a board of supervisors, city council, planning commission, or other local government meeting. Agendas and minutes will usually be available on county and city websites.

Visit the state capitol. If you make an appointment, you might be able to meet with your local representative. Committee meetings and hearings are generally open to the public, as are meetings of the legislature.

Attend a session of your local or state judiciary. Cases on the docket are available online, as are rules for attendance and behavior when the court is in session.

Get Involved in State and Local Politics

WHAT YOU CAN DO

chapterstudyguide

1. Which term describes the division of powers between the national government and the state governments? (p. 67) a) separation of powers b) federal system c) checks and balances d) expressed powers e) implied powers

2. Which amendment to the Constitution stated that the powers not delegated to the national government or prohib- ited to the states were “reserved to the states”? (p. 68) a) First Amendment b) Fifth Amendment c) Tenth Amendment d) Fourteenth Amendment e) Twenty-Sixth Amendment

3. A state government’s authority to regulate the health, safety, and morals of its citizens is frequently referred to as (p. 68) a) the reserved power. b) the expressed power. c) the police power. d) the concurrent power. e) the implied power.

4. Which constitutional clause requires that states normally honor the public acts and judicial decisions of other states? (p. 69) a) privileges and immunities clause b) necessary and proper clause c) interstate commerce clause d) preemption clause e) full faith and credit clause

Practice Quiz

90 CHAPTER STUDY GU IDE

CHAPTER STUDY GU IDE 91

5. Many states have amended their con- stitutions to guarantee that large cities will have the authority to manage local affairs without interference from state government. This power is called (p. 70) a) home rule. b) preemption. c) devolution. d) states’ rights. e) New Federalism.

6. The relationship between the states and the national government from 1789 to 1937 is known as (p. 71) a) dual federalism. b) regulated federalism. c) states’ rights. d) cooperative federalism. e) New Federalism.

7. In which case did the Supreme Court create the potential for increased national power by ruling that Congress could use the necessary and proper clause to interpret its delegated powers broadly? (p. 73) a) United States v. Lopez b) Printz v. United States c) Loving v. Virginia d) McCulloch v. Maryland e) Gibbons v. Ogden

8. Which of the following tools has the federal government used in the past to create similarities across the states? (p. 79) a) states’ rights b) general revenue sharing c) grants-in-aid d) eminent domain e) home rule

9. The process of returning more of the responsibilities of governing from the national level to the state level is known as (p. 78) a) dual federalism. b) devolution.

c) preemption. d) home rule. e) incorporation.

10. The principle that allows the federal government to take over areas of regulation formerly overseen by states or local governments is called (p. 80) a) categorical grants. b) devolution. c) formula grants. d) preemption. e) project grants.

11. When state and local governments must conform to costly regulations or conditions in order to receive grants but do not receive reimbursements for their expenditures from the federal government it is called (p. 80) a) a reciprocal grant. b) an unfunded mandate. c) general revenue sharing. d) a counterfunded mandate. e) a concurrent grant.

12. To what does the term New Federalism refer? (pp. 83–84) a) the era of federalism initiated by

President Roosevelt during the late 1930s

b) the national government’s regulation of state action through grants-in-aid

c) the type of federalism that uses categorical grants to influence state action

d) efforts to return more policy-making discretion to the states through the use of block grants

e) the recent emergence of local governments as important political actors

block grants (p. 83) federal grants-in-aid that allow states considerable discretion in how the funds are spent

categorical grants (p. 76) congressional grants given to states and localities on the

condition that expenditures be limited to a problem or group specified by law

commerce clause (p. 73) Article I, Section 8, of the Constitution, which delegates to Congress the power “to regulate Commerce

Key Terms

92 CHAPTER STUDY GU IDE

with foreign Nations, and among the several States and with the Indian Tribes”; this clause was interpreted by the Supreme Court in favor of national power over the economy

concurrent powers (p. 68) authority possessed by both state and national governments, such as the power to levy taxes

cooperative federalism (p. 78) a type of federalism existing since the New Deal era in which grants-in-aid have been used strategically to encourage states and localities (without commanding them) to pursue nationally defined goals; also known as “intergovernmental cooperation”

devolution (p. 78) a policy to remove a program from one level of government by delegating it or passing it down to a lower level of government, such as from the national government to the state and local governments

dual federalism (p. 71) the system of government that prevailed in the United States from 1789 to 1937 in which most fundamental governmental powers were shared between the federal and state governments

expressed powers (p. 67) specific powers granted by the Constitution to Congress (Article I, Section 8) and to the president (Article II)

federal system (p. 67) a system of government in which the national government shares power with lower levels of government such as states

federalism (p. 67) a system of government in which power is divided, by a constitution, between the central (national) government and regional (state) governments

full faith and credit clause (p. 69) provision from Article IV, Section 1, of the Constitution requiring that the states normally honor the public acts and judicial decisions that take place in another state

general revenue sharing (p. 83) the process by which one unit of government

yields a portion of its tax income to another unit of government, according to an established formula; revenue sharing typically involves the national government providing money to state governments

grants-in-aid (p. 76) programs through which Congress provides money to state and local governments on the condition that the funds be employed for purposes defined by the federal government

home rule (p. 70) power delegated by the state to a local unit of government to manage its own affairs

implied powers (p. 67) powers derived from the necessary and proper clause of Article I, Section 8, of the Constitution; such powers are not specifically expressed but are implied through the expansive interpretation of delegated powers

necessary and proper clause (p. 67) provision from Article I, Section 8, of the Constitution providing Congress with the authority to make all laws necessary and proper to carry out its expressed powers

New Federalism (p. 83) attempts by presidents Nixon and Reagan to return power to the states through block grants

police power (p. 68) power reserved to the state government to regulate the health, safety, and morals of its citizens

preemption (p. 80) the principle that allows the national government to override state or local actions in certain policy areas; in foreign policy, the willingness to strike first in order to prevent an enemy attack

privileges and immunities clause (p. 70) provision, from Article IV, Section 2, of the Constitution, that a state cannot discriminate against someone from another state or give its own residents special privileges

reserved powers (p. 68) powers, derived from the Tenth Amendment to the Constitution, that are not specifically delegated to the national government or denied to the states

CHAPTER STUDY GU IDE 93

states’ rights (p. 75) the principle that the states should oppose the increasing authority of the national government; this principle was most popular in the period before the Civil War

unfunded mandates (p. 80) regulations or conditions for receiving grants that impose

costs on state and local governments for which they are not reimbursed by the federal government

unitary system (p. 67) a centralized government system in which lower levels of government have little power independent of the national government

For Further Reading

Dye, Thomas R. American Federalism: Competition among Governments. Lexington, MA: Lexington Books, 1990.

Elazar, Daniel. American Federalism: A View from the States. 3rd ed. New York: Harper & Row, 1984.

Gerston, Larry N. American Federalism: A Concise Introduction. Armonk, NY: M. E. Sharpe, 2007.

Johnson, Kimberly S. Governing the American State: Congress and the New Federalism, 1877–1929. Princeton, NJ: Princeton University Press, 2007.

Kettl, Donald. The Regulation of American Federalism. Baltimore: Johns Hopkins University Press, 1987.

Mettler, Suzanne. Dividing Citizens: Gender and Federalism in New Deal Public Policy. Ithaca, NY: Cornell University Press, 1998.

Peterson, Paul E. The Price of Federalism. Washington, DC: Brookings Institution, 1995.

Pierceson, Jason. Same-Sex Marriage in the United States: The Road to the Supreme Court. Lanham, MD: Rowman and Littlefield, 2013.

Robertson, David Brian. Federalism and the Making of America. New York: Routledge, 2011.

Van Horn, Carl E. The State of the States. 4th ed. Washington, DC: CQ Press, 2005.

zimmerman, Joseph. Contemporary American Federalism. 2nd ed. Albany: SUNY Press, 2009.

Though the black civil rights movement of the 1960s addressed civil and political rights, many people worry that African Americans still face structural racism in the United States. The Black Lives Matter movement gained momentum in response to a number of incidents of excessive police force against African Americans.

Civil Liberties and Civil Rights

WHAT GOVERNMENT DOES AND WHY IT MATTERS Today in the United States, we often take for granted the liberties contained in the first 10 amend-

ments to the Constitution, known as the Bill of Rights. In fact, few people in

recorded history, including American citizens before the 1960s, have enjoyed

such protections. And as we shall see in this chapter, guaranteeing the liber-

ties articulated in the Bill of Rights to all Americans required a long struggle.

As recently as the early 1960s, many of the freedoms we have today were not

guaranteed. At that time, criminal suspects in state cases did not have to be

informed of their rights, some states required daily Bible readings and prayers

in their public schools, and some communities regularly censored material they

deemed to be obscene.

Since the early 1960s the Supreme Court has expanded considerably the

scope of civil liberties, defined as individual rights and personal freedoms with

which governments may not interfere; that is, they are protections for Ameri-

cans from the government. These liberties are constantly subject to judicial

interpretation, and their provisions need to be safeguarded vigilantly, especially

during times of war or a threat to national security, such as in the aftermath of

the terrorist attacks of September 11, 2001.

96 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

Civil rights—protections of citizen equality provided by the government—have

also expanded dramatically since the middle of the twentieth century, when the

African American struggle for equal rights took center stage. Many goals of the

civil rights movement that once aroused bitter controversy are now widely ac-

cepted as part of the American commitment to equal rights. But even today the

question of what is meant by “equal rights” is hardly settled. To what extent can

states mandate racial preferences in college admissions? Do transgender

individuals have the right to use a public restroom based on their gender identi-

fication rather than their physical characteristics? What rights do undocumented

immigrants possess? Although the United States was founded on the ideals of

liberty, equality, and democracy, its history of civil rights reveals a gap between

these principles and actual practice. This history also demonstrates how the

struggle to attain those ideals has helped narrow this gap. The election of Barack

Obama as the nation’s first black president was a testament to the successes

of those struggles but did not alter persistent social and economic differences

across racial lines.

chaptergoals ● Explain the origins and evolution of the civil liberties in the Bill

of Rights as they apply to the federal government and the states (pp. 97–100)

● Describe how the First Amendment protects freedom of religion (pp. 101–3)

● Describe how the First Amendment protects free speech and freedom of the press (pp. 103–9)

● Explore whether the Second Amendment means people have a right to own guns (pp. 109–11)

● Explain the major rights that people have if they are accused of a crime (pp. 111–15)

● Assess whether people have a right to privacy under the Constitution (pp. 116–18)

● Trace the legal developments and social movements that expanded civil rights (pp. 118–26)

● Describe how different groups have fought for and won protection of their civil rights (pp. 126–34)

● Contrast arguments for and against affirmative action (pp. 134–35)

OR IG IN OF B I LL OF R IGHTS L I ES IN OPPOS IT ION TO CONST I TUT ION 97

● The Origin of the Bill of Rights Lies in Those Who Opposed the Constitution

Explain the origins and evolution of the civil liberties in the Bill of Rights as they apply to the federal government and the states

When the first Congress under the newly ratified Constitution met in April 1789, the most important item of business was the proposal to add a bill of rights to the Consti- tution. Such a proposal had been turned down with little debate in the waning days of the Philadelphia Constitutional Conven- tion in 1787, not because the delegates were

against rights but because—as the Federalists, led by Alexander Hamilton, later argued—such a bill was “not only unnecessary in the proposed Constitution but would even be dangerous.”1 First, according to Hamilton, a bill of rights would be irrelevant to a national government that was given only delegated powers in the first place. To put restraints on “powers which are not granted” could provide a pretext for governments to claim more powers than were in fact granted: “For why declare that things shall not be done which there is no power to do?”2 Second, the Constitution was to Hamilton and the Federalists a bill of rights in itself, containing provisions that amounted to a bill of rights without requiring additional amend- ments (see Table 4.1). For example, Article I, Section 9, included the right of habeas corpus, a court order demanding that an individual in custody be brought into court and shown the reason for detention. This prohibits the government from depriving a person of liberty without explaining the reason before a judge.

Despite the power of Hamilton’s arguments, when the Constitution was submitted to the states for ratification, Antifederalists, most of whom had not been delegates in Philadelphia, picked up on the argument of Thomas Jefferson

CLAUSE RIGHT ESTABLISHED

Article I, Section 9 Guarantee of habeas corpus

Article I, Section 9 Prohibition of bills of attainder

Article I, Section 9 Prohibition of ex post facto laws

Article I, Section 9 Prohibition against acceptance of titles of nobility, etc., from any foreign state

Article III Guarantee of trial by jury in state where crime was committed

Article III Treason defined and limited to the life of the person convicted, not to the person’s heirs

Rights in the Original Constitution (Not in the Bill of Rights)

TABLE 4.1

98 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

(who also had not been a delegate) that the omission of a bill of rights was a major imperfection of the new Constitution. The Federalists conceded that for the docu- ment to gain ratification they would have to make an “unwritten but unequivocal pledge” to add a bill of rights.

The Bill of Rights might well have been titled the “Bill of Liberties” because the provisions that were incorporated in it were seen as defining a private sphere of personal liberty, free from governmental restrictions.3 As Jefferson put it, a bill of rights “is what people are entitled to against every government on earth.” Note the wording: against government. Civil liberties are protections of citizens from improper government action. Some of these restraints are substantive liber- ties, which put limits on what the government shall and shall not have power to do—such as establishing a religion, quartering troops in private homes without consent, or seizing private property without just compensation. Other restraints are procedural liberties, which are restraints on how the government is supposed to act. These procedural liberties are usually grouped under the general category of due process of law, which is the right of every citizen to be protected against arbitrary action by national or state governments. It first appears in the Fifth Amendment provision that “no person shall be . . . deprived of life, liberty, or property, without due process of law.” For example, even though the govern- ment has the substantive power to declare certain acts to be crimes and to arrest and imprison persons who violate criminal laws, it may not do so with- out meticulously observing procedures designed to protect the accused person. The best-known procedural rule is that an accused person is presumed innocent until proven guilty. This rule does not question the government’s power to punish someone for committing a crime; it questions only the way the government determines who committed the crime. Substantive and procedural restraints together identify the realm of civil liberties.

In contrast, civil rights are the obligations imposed on government to take posi- tive action to protect citizens from any illegal actions by government agencies and by other private citizens. Civil rights did not become part of the Constitution until 1868, with the adoption of the Fourteenth Amendment, which sought to provide for each citizen “the equal protection of the laws.”

The Fourteenth Amendment Nationalized the Bill of Rights through Incorporation In the first 70 years of the country’s history, the Bill of Rights was understood to apply only to the national government and not to the states. In fact, the Supreme Court said this in a decision in 1833, Barron v. Baltimore.4 But the Civil War cast new light on the large question of state versus national governmental power. After the war, the Fourteenth Amendment was added to the Constitution. Part of the amendment reads as though it were meant to tell the states that they must now adhere to the Bill of Rights:

No State shall make or enforce any law which shall abridge the privileges or immu- nities of citizens of the United States; nor shall any State deprive any person of life,

OR IG IN OF B I LL OF R IGHTS L I ES IN OPPOS IT ION TO CONST I TUT ION 99

liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This language sounds like an effort to extend the Bill of Rights to all citizens, wher- ever they might reside.5 Yet this was not the Supreme Court’s interpretation of the amendment for nearly 100 years. Within five years of ratification of the Fourteenth Amendment, the Court was making decisions as though the amendment had never been adopted.6

The first change in civil liberties following the adoption of the Fourteenth Amendment came in 1897, when the Supreme Court held that the due process clause of the Fourteenth Amendment did in fact prohibit states from taking prop- erty for a public use without just compensation (a protection found in the Fifth Amendment), overruling the Barron case.7 However, the Supreme Court had se- lectively “incorporated” under the Fourteenth Amendment only the property pro- tection provision of the Fifth Amendment and no other clause of the Fifth or any other amendment of the Bill of Rights. In other words, although according to the Fifth Amendment “due process” applied to the taking of life and liberty as well as property, only property was incorporated into the Fourteenth Amendment as a limitation on state power.

No further expansion of civil liberties via the Fourteenth Amendment occurred until 1925, when the Supreme Court held that freedom of speech is “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”8 In 1931 the Court added freedom of the press to that short list protected by the Bill of Rights from state action; by 1939 it had added freedom of assembly and petitioning the government for redress of grievances.9 But that was as far as the Court was then willing to go.

As Table 4.2 shows, selective incorporation—the process by which different protections in the Bill of Rights were incorporated or applied to the states, part by part, using the Fourteenth Amendment, thus guaranteeing citizens’ protec- tion from state as well as national government—continued to occur gradually, up until 2010. The final provision of the Bill of Rights to be incorporated by the Supreme Court was the Second Amendment, which protects the right to bear arms.10 (Incorporation is also sometimes referred to as the “absorption” or the “nationalizing” of the Bill of Rights.)

To make clear that “selective incorporation” should be narrowly interpreted, Justice Benjamin Cardozo, writing for an 8–1 majority in 1937, asserted that although many rights have value and importance, some rights do not repre- sent a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” So, until 1961, only the First Amend- ment and one clause of the Fifth Amendment had been clearly incorporated into the Fourteenth Amendment as binding on the states as well as on the national government.11

The best way to examine the Bill of Rights today is the simplest way: to take each of the major provisions one at a time. Some of these provisions are settled areas of law; others are not.

100 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

SELECTED PROVISIONS AND AMENDMENTS INCORPORATED KEY CASE

Eminent domain (V) 1897 Chicago, Burlington, and Quincy R.R. v. Chicago

Freedom of speech (I) 1925 Gitlow v. New York

Freedom of press (I) 1931 Near v. Minnesota

Free exercise of religion (I) 1934 Hamilton v. Regents of the University of California

Freedom of assembly (I) and freedom to petition the government for redress of grievances (I)

1937 DeJonge v. Oregon

Freedom of assembly (I) 1939 Hague v. CIO

Nonestablishment of state religion (I)

1947 Everson v. Board of Education

Freedom from unnecessary search and seizure (IV)

1949 Wolf v. Colorado

Freedom from warrantless search and seizure (IV; “exclusionary rule”)

1961 Mapp v. Ohio

Freedom from cruel and unusual punishment (VIII)

1962 Robinson v. California

Right to counsel in any criminal trial (VI)

1963 Gideon v. Wainwright

Right against self- incrimination and forced confessions (V)

1964 Malloy v. Hogan; Escobedo v. Illinois

Right to counsel and remain silent (V)

1966 Miranda v. Arizona

Right against double jeopardy (V)

1969 Benton v. Maryland

Right to bear arms (II) 2010 McDonald v. Chicago

Incorporation of the Bill of Rights into the Fourteenth Amendment

TABLE 4.2

THE F IRST AMENDMENT GUARANTEES FREEDOM OF REL IG ION 101

● The First Amendment Guarantees Freedom of Religion

Describe how the First Amendment protects freedom of religion

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

The Bill of Rights begins by guaranteeing freedom of religion, and the First Amendment provides for that freedom in two distinct clauses: “Congress shall make no law (1) respecting an establishment of religion, or (2) prohibiting the free exercise thereof.” The first clause is called the “establishment clause,” and the second is called the “free exercise clause.”

Separation between Church and State Comes from the First Amendment The establishment clause and the idea of “no law” regarding the establishment of religion can be interpreted in several ways. One interpretation, which probably re- flects the views of many of the First Amendment’s authors, is that the government is prohibited from establishing an official church. Official state churches, such as the Church of England, were common in the eighteenth century and were viewed by many Americans as inconsistent with a republican form of government. Indeed, many American colonists had fled Europe to escape persecution for having rejected state-sponsored churches. A second interpretation is the view that the government may not take sides among competing religions but may provide assistance to re- ligious institutions or ideas as long as it shows no favoritism. The United States accommodates religious beliefs in a variety of ways, from the reference to God on U.S. currency to the prayer that begins every session of Congress. These forms of establishment have never been struck down by the courts.

The third view regarding religious establishment, the most commonly held today, is the idea of a “wall of separation” between church and state—Jefferson’s formulation—that cannot be breached by the government. For two centuries, Jefferson’s words have had a powerful impact on our understanding of the proper relationship between church and state in America.

Despite the seeming absoluteness of the phrase “wall of separation,” there is ample room to disagree on how high or strong this wall is. For example, the Court has been consistently strict in the area of public education in cases of school prayer, striking down such practices as Bible reading,12 nondenominational prayer,13 reading prayers over a public address system during a football game,14 and even a moment of silence for meditation.15 In each of these cases, the Court reasoned that school- sponsored religious observations, even if nondenominational, are highly suggestive of school sponsorship and therefore violate the prohibition against establishment of religion. On the other hand, the Court has been quite permissive (and some would say inconsistent) about the public display of religious symbols, such as city-sponsored

102 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

Nativity scenes in commercial or municipal areas.16 And although the Court has consistently disapproved of government financial support for religious schools, even when the purpose has been purely educational and secular, it has permitted certain direct aid to students of such schools in the form of busing, for example.

The difficulty in defining what religious establishment means is evident from two cases in 2005 involving government-sponsored displays of religious symbols. In Van Orden v. Perry, the Court decided by a 5–4 margin that a display of the Ten Commandments at the Texas State Capitol did not violate the Constitution.17 However, in McCreary v. ACLU of Kentucky, decided at the same time and also by a 5–4 margin, the Court determined that a display of the Ten Commandments inside two Kentucky courthouses was unconstitutional.18 Justice Stephen Breyer, the swing vote in the two cases, said that the displays in Van Orden had a secular purpose, whereas the displays in McCreary had a purely religious purpose. The key difference between the two cases is that the Texas display had been exhibited in a large park for 40 years with other monuments related to the development of American law without any objections raised until this case, whereas the Kentucky display was erected much more recently and initially by itself, suggesting to some justices that its posting had a religious purpose. But most observers saw little dif- ference between the two cases. Clearly, the issue of government-sponsored displays of religious symbols has not been settled.

Free Exercise of Religion Means You Have a Right to Your Beliefs The free exercise clause protects the citizen’s right to believe and to practice any religion; it also pro- tects the right to choose not to practice a religion. The precedent-setting case involving free exercise is West Virginia State Board of Education v. Barnette (1943), which involved the children of a fam- ily of Jehovah’s Witnesses who refused to salute and pledge allegiance to the American flag on the grounds that their religious faith did not permit it. Three years earlier, the Court had upheld such a requirement and had permitted schools to expel students for refusing to salute the flag. But the entry of the United States into a war to defend democ- racy, coupled with the ugly treatment to which the Jehovah’s Witnesses children had been subjected, induced the Court to reverse itself and to endorse the free exercise of religion even when it may be offensive to the beliefs of the majority.19

In recent years, the principle of free exercise has been bolstered by statutes prohibiting reli- gious discrimination by public and private entities in a variety of realms including hiring, land use, and the treatment of prison inmates. Two recent

Does it violate the free exercise clause if a private business does not allow its employees to wear religious headscarves to work? In 2015, the Supreme Court ruled in favor of Samantha Elauf, declar- ing that Abercrombie and Fitch could not make an applicant’s religious practice a factor in employment decisions.

FREEDOM OF SPEECH AND OF THE PRESS 103

cases illustrating this point are Holt v. Hobbs and Equal Employment Opportunity Commission v. Abercrombie and Fitch Stores, Inc.20 The Holt case involved a Muslim prisoner in an Arkansas jail. The prisoner, Gregory Holt, asserted that his religious beliefs required him to grow a beard. Thus, according to Holt, an Arkansas prison policy prohibiting beards was a violation of his ability to exercise his religion. The Court held that the prison policy was a violation of the free exercise clause and violated a federal statute designed to protect the ability of prisoners to worship as they pleased. In the second case, the Equal Employment Opportunity Commission (EEOC) brought suit against Abercrombie for refusing to hire a Muslim woman who wore a head scarf in violation of the company’s dress code. The Court held that the store’s actions amounted to religious discrimination in hiring—a violation of Title VII of the U.S. Code.

● The First Amendment and Freedom of Speech and of the Press Ensure the Free Exchange of Ideas

Describe how the First Amendment protects free speech and freedom of the press

Congress shall make no law . . . abridging the freedom of speech, or of the press.

Freedom of speech and of the press have a special place in American political thought. To begin with, democracy depends upon the ability of individuals to talk to one another

and to disseminate information. A democratic nation could not function without free and open debate. Such debate, moreover, is seen as an essential mechanism for determining the quality or validity of competing ideas. As Justice Oliver Wendell Holmes said, “The best test of truth is the power of the thought to get itself ac- cepted in the competition of the market . . . that at any rate is the theory of our Constitution.”21 What is sometimes called the “marketplace of ideas” receives a good deal of protection from the courts. In 1938 the Supreme Court held that any legislation that attempts to restrict these fundamental freedoms “is to be subjected to a more exacting judicial scrutiny . . . than are most other types of legislation.”22 This higher standard of judicial review came to be called strict scrutiny.

The doctrine of strict scrutiny places a heavy burden of proof on the government if it seeks to regulate or restrict speech. Americans are assumed to have the right to speak and to broadcast their ideas unless some compelling reason can be identified to stop them. But strict scrutiny does not mean that speech can never be regulated. According to the courts, although virtually all speech is protected by the Constitu- tion, some forms of speech are entitled to a greater degree of protection than others.

Political Speech Is Consistently Protected Over the past 200 years, the courts have scrutinized many different forms of speech and constructed different principles and guidelines for each. And of all forms of speech, political speech is the most consistently protected.

Political speech was the activity of greatest concern to the framers of the Constitution, even though some found it the most difficult provision to tolerate.

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Within seven years of the ratification of the Bill of Rights in 1791, Congress adopted the infamous Alien and Sedition Acts (long since repealed), which, among other things, made it a crime to say or publish anything that might tend to defame or bring into disrepute the government of the United States. Quite clearly, the acts’ intentions were to criminalize the very conduct given absolute protection by the First Amendment. Fifteen violators, including several newspaper editors, were indicted; and a few were actually convicted before the relevant portions of the acts were allowed to expire.

The first modern free speech case arose immediately after World War I. It involved persons who had been convicted under the federal Espionage Act of 1917 for opposing U.S. involvement in the war. The Supreme Court upheld the Espionage Act and refused to protect the speech rights of the defendants on the grounds that their activities—appeals to draftees to resist the draft—constituted a “clear and present danger” to national security.23 This is the first and most famous, though since discarded, “test” for when government intervention or censorship can be permitted.

It was only after the 1920s that real progress toward a genuinely effective First Amendment was made. Since then, the courts have consistently protected political speech even when it has been deemed “insulting” or “outrageous.”

Symbolic Speech, Speech Plus, Assembly, and Petition Are Highly Protected The First Amendment treats the freedoms of religion and political speech as equal to the freedoms of assembly and petition—speech associated with action. Freedom of speech and freedom of assembly are closely related by the “public forum doc- trine.” In the 1939 case of Hague v. Committee for Industrial Organization, the Court declared that the government may not prohibit speech-related activities such as demonstrations or leafleting in public areas traditionally used for that purpose, though, of course, the government may impose rules designed to protect the public safety so long as these rules do not discriminate against particular viewpoints.24

Generally, the Supreme Court has protected actions that are designed to send a political message. Thus, the Court held unconstitutional a California statute mak- ing it a felony to display a red Communist flag “as a sign, symbol or emblem of opposition to organized government.”25

Another example is the burning of the American flag as a symbol of protest. In 1984, at a political rally held during the Republican National Convention in Dallas, Texas, a political protester burned an American flag, thereby violating a Texas law that prohibited desecration of a venerated object. The Supreme Court declared the Texas law unconstitutional on the grounds that flag burning was expressive conduct protected by the First Amendment.26

In the 2011 case of Snyder v. Phelps, the Court continued to protect symbolic speech. Members of the Westboro Baptist Church had frequently demonstrated at military funerals, claiming that the deaths of soldiers were a sign that God dis- approved of acceptance of homosexuality in the United States. They carried signs that included slogans like “Thank God for dead soldiers.” The father of a soldier

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killed in Iraq brought suit against the church and its pastor claiming that the dem- onstrators had caused him and his family severe emotional distress. The Supreme Court ruled, however, that the First Amendment protected this form of speech in a public place against such suits.27

Closer to the original intent of the assembly and petition clause is the category of “speech plus”—speech accompanied by conduct or physical activity such as sit- ins, picketing, and demonstrating; protection of this form of speech under the First Amendment is conditional, and restrictions imposed by state or local authorities are acceptable if properly balanced by considerations of public order. Courts con- sistently protect such assemblies under the First Amendment; state and local laws regulating such activities are closely scrutinized and frequently overturned. But the same assembly on private property is quite another matter and can in many circumstances be regulated. For example, the directors of a shopping center can lawfully prohibit an assembly protesting a war or supporting a ban on abortion. Assemblies in public areas can also be restricted in some circumstances, especially when the assembly or demonstration jeopardizes the health, safety, or rights of others. This condition was the basis of the Supreme Court’s decision to uphold a lower-court order that restricted the access abortion protesters had to the en- trances of abortion clinics.28

Should the First Amendment’s protection of free speech apply even when that speech is seen as offensive? The Supreme Court ruled that members of the Westboro Baptist Church had a right to picket soldiers’ funerals to demonstrate what they take as a sign of God’s disapproval of homosexuality.

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Speech by Public School Students One group that seems to enjoy only a lim- ited right of free speech is public school students. In 1986 the Supreme Court upheld the punishment of a high school student for making sexually suggestive speech. The Court opinion held that such speech interfered with the school’s goal of teaching students the limits of socially acceptable behavior.29 Two years later, the Supreme Court restricted student speech and press rights even further by defining them as part of the educational process, not to be treated with the same standard as adult speech in a regular public forum.30 In the 2007 case of Morse v. Frederick, the Court held that a principal did not violate a student’s free speech rights by suspending him for displaying a banner proclaiming, “BONG HiTS 4 JESUS.”31 The decision affirmed that school officials can censor student speech that advo- cates or celebrates the use of illegal drugs.

Freedom of the Press Is Broad For all practical purposes, freedom of speech implies and includes freedom of the press. With the exception of the broadcast media, which are subject to federal regulation, the press is protected under the doctrine against prior restraint (efforts by a governmental agency to block the publication of material it deems libelous or harmful in some other way; otherwise known as “censorship”). Beginning with the landmark 1931 case of Near v. Minnesota, the U.S. Supreme Court has held that, except under the most extraordinary circumstances, the First Amendment of the Constitution prohibits government agencies from seeking to prevent news- papers or magazines from publishing whatever they wish.32 In the case of New York Times v. United States (1971), the so-called Pentagon Papers case, the Supreme Court ruled that the government could not block publication of secret Defense Department documents given to the New York Times by an opponent of the Vietnam War who had obtained the documents illegally.33

Another press freedom issue is the question of whether journalists can be com- pelled to reveal their sources of information. Journalists assert that if they cannot promise to keep the confidentiality of their sources, the flow of information will be reduced and press freedom effectively curtailed. Government agencies, how- ever, assert that the names of news sources may be relevant to criminal or even national security investigations. Nearly all states have “shield laws” that to varying degrees protect journalistic sources. There is, however, no federal shield law, and the Supreme Court has held that the press has no constitutional right to withhold information in court.34 In 2005, Judith Miller, a New York Times reporter, was jailed for contempt of court for refusing to tell a federal grand jury the name of a con- fidential source in a case involving the leaked identity of the CIA analyst Valerie Plame. Plame’s husband, Joseph Wilson, had been critical of the Bush administra- tion’s Iraq policies.

Some Speech Has Only Limited Protection At least four categories of speech fall outside the guarantees of the First Amend- ment and therefore outside the realm of absolute protection: (1) libel and slander, (2) obscenity and pornography, (3) fighting words, and (4) commercial speech. It

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should be emphasized once again that these types of speech still enjoy considerable protection by the courts.

Libel and Slander If a written statement is made in “reckless disregard of the truth” and is considered damaging to the victim because it is “malicious, scandalous, and defamatory,” it can be punished as libel. If an oral statement of such a nature is made, it can be punished as slander.

Today, most libel suits involve freedom of the press, and the realm of free press is enormous. Historically, newspapers were subject to the law of libel, which pro- vided that newspapers that printed false and malicious stories could be compelled to pay damages to those they defamed. In recent years, however, American courts have greatly narrowed the meaning of libel and made it extremely difficult, par- ticularly for politicians or other public figures, to win a libel case against a news- paper. In the important 1964 case of New York Times v. Sullivan, the Court held that to be deemed libelous, a story about a public official not only had to be untrue but also had to result from “actual malice” or “reckless disregard” for the truth.35 In other words, the newspaper had to print false and malicious material deliberately. In practice, this is a very difficult legal standard to meet.

With the emergence of the Internet as an important communications medium, the courts have had to decide how traditional libel law applies to Internet content. In 1995 the New York courts held that an online bulletin board could be held re- sponsible for the libelous content of material posted by a third party. To protect In- ternet service providers, Congress subsequently enacted legislation absolving them of responsibility for third-party posts. The federal courts have generally upheld this law and declared that service providers are immune from suits regarding the content of material posted by others.36

Obscenity and Pornography If libel and slander cases can be difficult because of the problem of determining the truth of statements and whether those state- ments are malicious and damaging, cases involving pornography and obscenity can be even trickier. Not until 1957 did the Supreme Court confront these issues, and it did so with a definition of obscenity that may have caused more confusion than it cleared up. Justice William Brennan, in writing the Court’s opinion, defined obscenity as speech or writing that appeals to the “prurient interest”—that is, whose purpose is to excite lust as this appears “to the average person, applying contem- porary community standards.” Even so, Brennan added, the work should be judged obscene only when it is “utterly without redeeming social importance.”37 In 1964, Justice Potter Stewart confessed that, although he found pornography impossible to define, “I know it when I see it.”38

An effort was made to strengthen the restrictions in 1973, when the Supreme Court expressed its willingness to define pornography as a work that (1) as a whole, is deemed prurient by the “average person” according to “community standards”; (2) depicts sexual conduct “in a patently offensive way”; and (3) lacks “serious lit- erary, artistic, political, or scientific value.” This definition meant that pornography would be determined by local rather than national standards. Thus, a local book- seller might be prosecuted for selling a volume that was a best-seller nationally but that was deemed pornographic locally.39 This new definition of standards did not

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help much either, and not long after 1973 the Court began again to review all such community antipornography laws, reversing most of them.

In recent years, the battle against obscene speech has targeted “cyberporn,” pornography on the Internet. Opponents of this form of expression argue that it should be banned because of the easy access children have to the Internet. The first major effort to regulate the content of the Internet occurred in 1996, when Congress passed the Communications Decency Act (CDA), designed to regulate the online transmission of obscene material. The constitutionality of the CDA was immediately challenged in court by a coalition of interests led by the American Civil Liberties Union (ACLU). In the 1997 Supreme Court case of Reno v. ACLU, the Court struck down the CDA, ruling that it suppressed speech that “adults have a constitutional right to receive,” saying that “the level of discourse reaching the mailbox simply cannot be limited to that which would be suitable for a sandbox.” Supreme Court justice John Paul Stevens described the Internet as the “town crier” of the modern age and said that the Internet was entitled to the greatest degree of First Amendment protection possible.40 By contrast, radio and television are sub- ject to more control than the Internet. In 2008, the Supreme Court upheld a law that made it a crime to sell child pornography on the Internet.41

In 2000, the Supreme Court extended the highest degree of First Amendment protection to cable (not broadcast) television. In United States v. Playboy Entertain- ment Group, the Court struck down a portion of the 1996 Telecommunications Act that required cable TV companies to limit the broadcast of sexually explicit programming to late-night hours. In its decision, the Court noted that the law already provided parents with the means to restrict access to sexually explicit cable channels through various blocking devices. Moreover, such programming could come into the home only if parents decided to purchase such channels in the first place.42

Closely related to the issue of obscenity is the matter of violent broadcast con- tent. Here, too, the Court has generally upheld freedom of speech. For example, in the 2011 case of Brown v. Entertainment Merchants Association the Court struck down a California law banning the sale of violent video games to children, saying that the law violated the First Amendment.43

Fighting Words Speech can also lose its protected position when it moves toward the sphere of action. “Expressive speech,” for example, is protected until it moves from the symbolic realm to the realm of actual conduct—to direct incitement of damaging conduct with the use of so-called fighting words. In 1942 a man called a police officer a “goddamned racketeer” and “a damn Fascist” and was arrested and convicted of violating a state law forbidding the use of offensive language in public. When his case reached the Supreme Court, the arrest was upheld on the grounds that the First Amendment provides no protection for such offensive language be- cause such words “are no essential part of any exposition of ideas.”44 This decision was reaffirmed in the important 1951 case of Dennis v. United States, in which the Supreme Court held that there is no substantial public interest in permitting cer- tain kinds of utterances: the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.45 Since that time, however, the

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Supreme Court has reversed almost every conviction based on arguments that the speaker had used “fighting words.”

Commercial Speech Commercial speech, such as newspaper or television adver- tisements, has only partial First Amendment protection because it cannot be con- sidered political speech. Initially considered to be entirely outside the protection of the First Amendment, commercial speech is subject to regulation, although it is also recognized and protected for the part it plays in the free flow of informa- tion. For example, prohibition of false and misleading advertising by the Federal Trade Commission is an old and well-established power of the federal government. The Supreme Court long ago approved the constitutionality of laws prohibiting electronic media from carrying cigarette advertising.46 It has also upheld city ordi- nances prohibiting the posting of all signs on public property (as long as the ban is total so that there is no hint of censorship).47

However, the gains outweigh the losses in the effort to expand the protec- tion of commercial speech under the First Amendment. For example, in 1996 the Court struck down Rhode Island laws and regulations banning the advertisement of liquor prices,48 and in 2001 the Court overturned a Massachusetts ban on all cigarette advertising as violations of the First Amendment.49 These instances of commercial speech indicate the breadth and depth of the freedom today to direct appeals to a large public, to sell goods and services, and to mobilize people for political purposes.

● The Second Amendment Now Protects an Individual’s Right to Own a Gun

Explore whether the Second Amendment means people have a right to own guns

The Second Amendment was included in the Bill of Rights to provide for “well- regulated” militias to enforce the “security of a free State,” which were to be the backing of the government for the maintenance of local public order. Militia was understood at

the time of the Founding to be a military or police resource for state governments; militias were specifically distinguished from professional armies, which came with- in the sole constitutional jurisdiction of Congress. While the right of the people “to keep and bear Arms” was linked to citizen service in militias, many have argued that the Second Amendment also establishes an individual right to bear arms, aside from militia service.

A 1939 Supreme Court case upheld a federal gun law in which the Court con- cluded that the Second Amendment pertained to “the preservation or efficiency of a well regulated militia,”50 but the Court made no further Second Amendment decisions for nearly 70 years. Thus, states and localities across the country have very different gun ownership standards. For instance, in Wyoming there is no ban on any type of gun, there is no waiting period to purchase a firearm, and no permit is required for carrying a concealed weapon. In California, by contrast, the posses- sion of assault weapons is banned, there is a 10-day waiting period to purchase a

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firearm, and a permit is required to carry a concealed weapon. Figure 4.1 shows the percentage of adults in each state who own guns.

The Court’s silence on the application of the Second Amendment ended in 2008, when it made the first of two rulings in favor of expansive rights of gun ownership by individuals. The case of District of Columbia v. Heller challenged a strict Washington, D.C., law that banned handguns. In a 5–4 decision, the Court ruled that the Second Amendment provides a constitutional right to keep a loaded handgun at home for self-defense. The Court also said that the decision was not intended to cast doubt on most existing gun laws. The dissenting opinion asserted that the Second Amendment only protects the rights of individuals to bear arms as part of a militia force, not in an individual capacity.51 Because the District of Columbia is an entity of the federal government, the ruling did not apply to state firearm laws. However, in the 2010 case of McDonald v. Chicago, the Court applied the Second Amendment to the states, making this decision the first new incor- poration decision by the Court in 40 years (see Table 4.2). The case concerned a Chicago ordinance that made it extremely difficult to own a gun within city limits, and the Court’s ruling had the effect of overturning the law.52

FIGURE 4.1 Gun Ownership by State Although state gun laws must conform to the Second Amendment as interpreted by the U.S. Supreme Court, laws concerning gun sales and ownership vary widely from state to state. It is much more difficult to buy a gun in, say, New York or California than in Texas or Kentucky. This map shows the percentage of the adult population in each state owning a gun in 2013.

SOURCE: Bindu Kalesan, Marcos D. Villarreal, Katherine M. Keyes, and Sandro Galea, “Gun Ownership and Social Gun Culture,” June 29, 2015, http://injuryprevention.bmj.com/content/early/2015/06/09/injuryprev-2015-041586 .full.pdf?keytype5ref&ijkey5doj6vx0laFzMsQ2 (accessed 6/13/16).

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Despite these rulings, the debate over gun control continues to loom large. A series of tragic shootings in recent years—including the killing of 20 elementary school students in Newtown, Connecticut; 9 parishioners at a Charleston, South Carolina, church; 14 people at a San Bernardino, California, office building; and, in the worst mass shooting in U.S. history, 50 people at a gay nightclub in Orlando, Florida—has kept the issue of gun laws firmly on the national agenda.

● Rights of the Criminally Accused Are Based on Due Process of Law

Explain the major rights that people have if they are accused of a crime

Except for the First Amendment, most of the battle to apply the Bill of Rights to the states was fought over the various protec- tions granted to individuals who are accused of a crime, who are suspects in the commis- sion of a crime, or who are brought before

the court as a witness to a crime. The Fourth, Fifth, Sixth, and Eighth amendments, taken together, are the essence of the due process of law, even though this key phrase does not appear until the very last words of the Fifth Amendment.

The Fourth Amendment Protects against Unlawful Searches and Seizures

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

The purpose of the Fourth Amendment is to guarantee the security of citizens against unreasonable (that is, improper) searches and seizures. In 1990 the Supreme Court summarized its understanding of the Fourth Amendment bril- liantly and succinctly: “A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.”53 But how are we to define what is reasonable and what is unreasonable?

The 1961 case of Mapp v. Ohio illustrates one of the most important prin- ciples that has grown out of the Fourth Amendment: the exclusionary rule, which is the ability of courts to exclude evidence obtained in violation of the Fourth Amendment, such as barring evidence obtained during an illegal search from being introduced in a trial. Acting on a tip that Dollree Mapp was har- boring a suspect in a bombing incident, several police officers forcibly entered Mapp’s house claiming they had a warrant to look for the bombing suspect. The police did not find the bombing suspect but did find some materials con- nected to the local numbers racket (an illegal gambling operation) and a quan- tity of “obscene materials,” in violation of an Ohio law banning possession of such materials. Although no warrant was ever produced, the evidence that had been

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seized was admitted by a court; and Mapp was convicted for illegal possession of ob- scene materials.

By the time Mapp’s appeal reached the Supreme Court, the question was whether any evidence produced under the circum- stances of the search of her home was admissible. The Court’s opinion affirmed the exclusionary rule: under the Fourth Amendment (applied to the states through the Fourteenth Amendment), “all evidence obtained by searches and seizures in viola- tion of the Constitution . . . is inadmissi- ble.”54 This means that even people who are clearly guilty of the crime of which they are accused must not be convicted if the only evidence for their conviction was obtained illegally. This idea was expressed by future

Supreme Court justice Benjamin Cardozo nearly a century ago when he wrote that “the criminal is to go free because the constable has blundered.”55

The exclusionary rule is the most dramatic restraint imposed by the courts on police behavior because it rules out precisely the evidence that produces a convic- tion; it frees those people who are known to have committed the crime of which they have been accused because the evidence was obtained improperly, though few convictions are actually lost because of excluded evidence. Because it works so dramatically in favor of persons known to have committed a crime, the Court has since softened the application of the rule. In recent years, the federal courts have relied upon a discretionary use of the exclusionary rule, whereby they make a judgment as to the “nature and quality of the intrusion.” It is thus difficult to know ahead of time whether a defendant will or will not be protected from an illegal search under the Fourth Amendment.56 Several recent cases have imposed strict interpretations of a reasonable search. In 2013, the Court held that the use of a drug-sniffing dog on the front porch of a home constituted an improper search in the absence of consent or a warrant. The decision rested on “traditional property notions.”57

Changes in technology have also had an impact on Fourth Amendment jurisprudence. In the 2012 case of United States v. Jones, the Court held that prosecutors violated Jones’s rights when they attached a Global Positioning System device to his Jeep and monitored his movements for 28 days.58 On the other hand, in Maryland v. King, the Court upheld DNA testing of arrestees without the need for individualized suspicion. The Court characterized DNA testing as an administrative tool for identifying the arrestee and thus as legally indistinguishable from photographing and fingerprinting.59 In the 2014 case of Riley v. California, the Court held that the police were constitutionally prohibited from seizing and searching the digital contents of a cell phone during an arrest.60 As new technologies develop, the Court will continue to face the question of what constitutes a reasonable search. In 2016, the Federal Bureau of Investigation (FBI)

Under what circumstances can the police search an individual’s car? The Fourth Amendment protects against “unreasonable searches and seizures,” but the Supreme Court has had to interpret what is unreasonable.

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sought to compel the Apple Corporation to unlock the cell phone used by Syed Farook, an alleged terrorist who, along with his wife Tashfeen Malik, killed 14 people in San Bernardino, California. Apple asserted that creating a new software to enable the FBI to unlock the phone would allow the agency to invade the pri- vacy of millions of iPhone users. The case became moot when the FBI was able to unlock the phone without Apple’s help.

Finally, the Fourth Amendment places limits on government surveillance of individuals, an ongoing and controversial issue in the United States today. For example, a federal judge in Washington, D.C., recently ruled that a National Security Agency (NSA) program that collected millions of records of telephone calls was impermissible under the Fourth Amendment.61

The Fifth Amendment Covers Court-Related Rights

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

Grand Juries The first clause of the Fifth Amendment sets forth the right to a grand jury (a jury that determines whether sufficient evidence is available to justify a trial; grand juries do not rule on the accused’s guilt or innocence) to determine whether a trial is warranted. Grand juries play an important role in federal criminal cases. However, the provision for a grand jury is the one impor- tant civil liberties provision of the Bill of Rights that was not incorporated by the Fourteenth Amendment to apply to state criminal prosecutions. Thus, some states operate without grand juries. In such states, the prosecuting attorney simply files a “bill of information,” affirming that there is sufficient evidence available to justify a trial. If the accused person is to be held in custody, the prosecutor must take the available information before a judge to determine that the evidence shows probable cause.

Double Jeopardy “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb” is the constitutional protection from double jeopardy, a protection to prevent a person from being tried more than once for the same crime. The protection from double jeopardy was at the heart of the Palko v. Connecticut case in 1937. In that case, a Connecticut court had found Frank Palko guilty of second-degree murder and sentenced him to life in prison. Unhappy with the verdict, the state of Connecticut appealed the conviction to its highest state court, won the appeal, got a new trial, and then succeeded in getting Palko convicted of first-degree murder. Palko appealed to the Supreme Court on what seemed an open-and-shut case of double jeopardy. Yet, although

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the majority of the Court agreed that this could indeed be considered a case of double jeopardy, they decided that double jeopardy was not one of the provisions of the Bill of Rights incorporated in the Fourteenth Amendment as a restric- tion on the powers of the states.62 It took more than 30 years for the Court to nationalize the constitutional protection against double jeopardy, when the court overruled Palko and declared that double jeopardy now applied to the states (see Table 4.2). Palko was eventually executed for the crime, because he lived in Connecticut rather than in a state whose constitution included a guarantee against double jeopardy.

Self-Incrimination Perhaps the most significant liberty found in the Fifth Amend- ment, and the one most familiar to many Americans who watch television crime shows, is the guarantee that no citizen “shall be compelled in any criminal case to be a witness against himself.” The most famous case concerning self-incrimination involved 23-year-old Ernesto Miranda, who was sentenced to between 20 and 30 years in prison for the kidnap and rape of an 18-year-old woman. The woman had identified him in a police lineup, and, after two hours of questioning, Miranda confessed, subsequently signing a statement that his confession had been made voluntarily, without threats or promises of immunity. This confession was admitted into evidence and served as the basis for Miranda’s conviction. After his conviction, Miranda argued that his confession had not been truly voluntary and that he had not been informed of his right to remain silent or his right to consult an attorney. The Supreme Court agreed and overturned the conviction.63 Following one of the most intensely and widely criticized decisions ever handed down by the Supreme Court, Miranda’s case produced the rules the police must follow before question- ing an arrested criminal suspect. The reading of a person’s “Miranda rights” became a standard scene in every police station and on virtually every dramatization of police action on television and in the movies. Miranda advanced the civil liber- ties of accused persons not only by expanding the scope of the Fifth Amendment clause covering coerced confessions and self-incrimination but also by confirming the right to counsel (discussed later). Subsequent Supreme Courts considerably softened the Miranda restrictions, but the Miranda rule (as set out in Miranda v. Arizona) that persons under arrest must be informed prior to police interrogation of their rights to remain silent and to have the benefit of legal counsel, still stands as a protection against egregious police abuses of arrested persons. However, in the 2010 case of Berghuis v. Thompkins, the Supreme Court introduced an important qualification to the Miranda rule, deciding that statements made by suspects who did not expressly waive their rights (usually by signing a form) could be used against them.64

Eminent Domain The other fundamental clause of the Fifth Amendment is the “takings clause,” which extends to each citizen a protection against the “taking” of private property by the government “without just compensation.” The power of any government to take private property for public use is called eminent domain. The Fifth Amendment puts limits on that inherent power through procedures that require a showing of a public purpose and the provision of fair payment for the government’s taking of someone’s property.

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The Sixth Amendment’s Right to Counsel Is Crucial for a Fair Trial

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

Like the exclusionary rule of the Fourth Amendment and the self-incrimination clause of the Fifth Amendment, the “right to counsel” provision of the Sixth Amendment is notable for sometimes freeing defendants who seem to the public to be guilty as charged. Other provisions of the Sixth Amendment, such as the right to a speedy trial and the right to confront witnesses before an impartial jury, are not very controversial.

Gideon v. Wainwright (1963) is the perfect case study because it involved a dis- reputable person who seemed patently guilty of the crime of which he was con- victed. In and out of jails for most of his 51 years, Clarence Earl Gideon received a five-year sentence for breaking and entering a poolroom in Panama City, Florida. While serving time in jail, Gideon became a fairly well-qualified “jailhouse lawyer,” made his own appeal on a handwritten petition, and eventually won the landmark ruling on the right to counsel in all felony cases. After the Supreme Court’s decision, Gideon was granted a new trial. This time, represented by an attorney, he was found not guilty.65 The right to counsel was later expanded, beyond just serious crimes, to any trial, with or without a jury, that holds the possibility of imprisonment.

The Eighth Amendment Bars Cruel and Unusual Punishment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Virtually all the debate over Eighth Amendment issues focuses on the last clause of the amendment: the protection from “cruel and unusual punishment.” One of the greatest challenges in interpreting this provision consistently arises over the death penalty. In 1972, the Supreme Court overturned several state death penalty laws, not because they were cruel and unusual but because they were being ap- plied unevenly—that is, blacks were much more likely than whites to be sentenced to death, the poor more likely than the rich, and men more likely than women.66 Very soon after that decision, a majority of states revised their capital punishment provisions to meet the Court’s standards, and the Court reaffirmed that the death penalty could be used if certain standards were met.67 Since 1976, the Court has consistently upheld state laws providing for capital punishment, although it also continues to review death penalty appeals each year.

Between 1976 and October 2016, states executed 1,439 people. Most of those executions occurred in southern states, with Texas leading the way at 538. As of 2016, 31 states had statutes providing for capital punishment for specified offenses, a policy supported by a majority of Americans, according to polls. On the other

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hand, 19 states bar the death penalty; and since the end of the 1990s, both the number of death sentences and the number of executions have declined annually.68

Many death penalty supporters assert its deterrent effects on other would-be criminals. Although studies of capital crimes usually fail to demonstrate any direct deterrent effect, this failure may be due to the lengthy delays (typically years and even decades) between convictions and executions. A system that eliminates undue delays might enhance deterrence.

Death penalty opponents are quick to counter that the death penalty has not been proven to de- ter crime, either in the United States or abroad. In fact, America is the only Western nation that still executes criminals. If the government is to serve as an example of proper behavior, say foes of capital punishment, it has no business sanctioning killing when incarceration also pro- tects society. Furthermore, execution is time- consuming and expensive—more expensive than life imprisonment—precisely because the govern- ment must make every effort to ensure that it is

not executing an innocent person. Curtailing legal appeals would increase the possibility of a mistake. Race also intrudes in death penalty cases: people of color are disproportionately more likely than whites charged with identical crimes to be given the ultimate punishment.

In recent years, the Court has issued a number of death penalty opinions, declar- ing that death was too harsh a penalty for the crime of raping a child69 and invali- dating a death sentence for a black defendant when the prosecutor had improperly excluded African Americans from the jury.70 In 2015, the Court upheld lethal injection as a mode of execution, despite arguments that this form of execution was likely to cause considerable pain.71

● The Right to Privacy Means the Right to Be Left Alone

Assess whether people have a right to privacy under the Constitution

Although the word privacy never appears in the Bill of Rights, there is general agreement that a right to privacy emanates from the first 10 amendments—even though judges and legal scholars continue to disagree about where the right comes from. The idea

behind the right to privacy is simple: people have a right to be left alone from government or other persons’ interference in certain personal areas.

Opponents argue that the death penalty constitutes cruel and unusual punishment. In recent years, the use of lethal injection drugs including Midazolam has come under scrutiny after troubling executions where the process was drawn out and painful. In 2015 the Supreme Court upheld the use of lethal injection.

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The sphere of privacy was drawn by the Supreme Court in 1965, when it ruled that a Connecticut statute forbidding the use of contraceptives violated the right of marital privacy. Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, was arrested by the state of Connecticut for providing information, instruction, and medical advice about contraception to married couples. She and her associates were found guilty as accessories to the crime and fined $100 each. The Supreme Court reversed the lower-court deci- sions and declared the Connecticut law unconstitutional because it violated “a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”72 Justice William O. Douglas, author of the major- ity decision in the Griswold v. Connecticut case, argued that this right of privacy is also grounded in the Constitution because it fits into a “zone of privacy” cre- ated by a combination of the Third, Fourth, and Fifth amendments. A concurring opinion, written by Justice Arthur Goldberg, attempted to strengthen Douglas’s argument by adding that “the concept of liberty . . . embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution [and] is supported by numerous decisions of this Court . . . and by the language and history of the Ninth Amendment [emphasis added].”73

The right to privacy was confirmed and extended in 1973 in an important but controversial privacy decision: Roe v. Wade. This decision established a woman’s right to seek an abortion and prohibited states from making abortion a criminal act prior to the point at which the fetus becomes viable, which, in 1973, was the twenty-seventh week.74 It is important to emphasize that the preference for privacy rights and for their extension to include the rights of women to con- trol their own bodies was not something invented by the Supreme Court in a vacuum. Most states did not regulate abortions in any fashion until the 1840s, at which time only 6 of the 26 existing states had any regulations governing abortion. In addition, many states had begun to ease their abortion restrictions well before the 1973 Roe decision. In recent years, a number of states have reinstated some restrictions on abortion, including lowering the viability standard to 20 weeks (Texas), 12 weeks (Arkansas), and 6 weeks (North Dakota). While the Supreme Court has continued to affirm a woman’s right to seek an abortion, it has limited the right, approving restrictions as long as they do not pose an “undue burden.”

Like any important principle, once pri- vacy was established as an aspect of civil liberties protected by the Bill of Rights through the Fourteenth Amendment, it took on a life of its own. In a number of important decisions, the Supreme Court and the lower federal courts sought to protect rights that could not be found in the text of the Constitution but could be

One of the most important cases related to the right to privacy was Roe v. Wade, which established a woman’s right to seek an abortion. However, the decision has remained highly controversial, with opponents arguing that the Constitution does not guarantee this right.

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discovered through a study of the philosophic sources of fundamental rights. Right-to-privacy claims have been made by those attempting to preserve the right to obtain legal abortions, by those seeking to obtain greater rights for gay people, and by supporters of physician-assisted suicide (also known as the “right-to-die” movement). In the case of gay people, the Supreme Court ex- tended privacy protections to them in 2003 when it ruled that they are “entitled to respect for their private lives” in the case of Lawrence v. Texas.75 The case overturned a Texas law banning certain sexual acts among same-sex partners. The Court concluded, “Petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” For the first time, gay men and lesbians could claim right-to-privacy protection.

● Civil Rights Are Protections by the Government

Trace the legal developments and social movements that expanded civil rights

With the adoption of the Fourteenth Amendment in 1868, civil rights became part of the Constitution, guaranteed to each citizen through “equal protection of the laws.” Together with the Thirteenth Amend- ment, which abolished slavery, and the

Fifteenth Amendment, which guaranteed voting rights for black men, it seemed to provide a guarantee of civil rights for the newly freed black slaves. But the general language of the Fourteenth Amendment meant that its support for civil rights could be even more far-reaching. The very simplicity of the equal protection clause of the Fourteenth Amendment left it open to interpretation:

No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.

This provision of the Fourteenth Amendment guarantees citizens “the equal protection of the laws.” These words launched a century of political movements and legal efforts to press for racial equality. The African American quest for civil rights in turn inspired many other groups, including members of other racial and ethnic groups, women, the disabled, and gay men, lesbians, and transgender individuals, to seek new laws and constitutional guarantees of their civil rights.

Plessy v. Ferguson Established “Separate but Equal” The Supreme Court was initially no more ready to enforce the civil rights aspects of the Fourteenth Amendment than it was to enforce the civil liber- ties provisions. Resistance to equality for African Americans in the South led Congress to adopt the Civil Rights Act of 1875, which attempted to protect blacks from discrimination by proprietors of hotels, theaters, and other public accommodations. But the Court declared the Civil Rights Act of 1875 unconstitutional on the grounds that it sought to protect blacks against

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discrimination by private businesses, while the Fourteenth Amendment, ac- cording to the Court’s interpretation, was intended to protect individuals only from discrimination that arose from actions by public officials of state and local governments.

In the infamous case of Plessy v. Ferguson (1896), the Court went still fur- ther by upholding a Louisiana statute that required segregation of the races on trolleys and other public carriers (and, by implication, in all public facilities, including schools). Homer Plessy, a man defined as “one-eighth black,” had vio- lated a Louisiana law that provided for “equal but separate accommodations” on trains and a $25 fine for any white passenger who sat in a car reserved for blacks or any black passenger who sat in a car reserved for whites. The Supreme Court held that the Fourteenth Amendment’s “equal protection of the laws” was not violated by laws requiring segregation of the races in public accommodations as long as the facilities were equal, thus establishing the “separate but equal” rule that prevailed through the mid-twentieth century.76 People generally pretended that segregated accommodations were equal as long as some accommodation for blacks existed. Thus, racial inequality in the guise of the separate but equal doctrine persisted for decades.

Lawsuits to Fight for Equality Came after World War II The Supreme Court had begun to change its position on racial discrimination before World War II by being stricter about the criterion for equal facilities in the “separate but equal” rule. In 1938, for example, the Court rejected Missouri’s

The 1896 Supreme Court case of Plessy v. Ferguson upheld legal segregation and created the “separate but equal” rule, which fostered national segregation. Overt discrimination in public accommodations was common.

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policy of paying the tuition of qualified blacks to out-of-state law schools rather than admitting them to the University of Missouri Law School.77 Similar rulings in the 1940s and ’50s began to chip away at “separate but equal.”

Although none of those pre-1954 cases confronted “separate but equal” and the principle of racial discrimina- tion head-on, they gave black leaders encouragement to believe that recent legal precedent might change the con- stitutional framework itself. Much of this legal work was done by the Legal Defense and Educational Fund of the National Association for the Advance- ment of Colored People (NAACP). Formed in 1909 to fight discrimination against African Americans, the NAACP was the most important civil rights organization during the first half of the twentieth century.

In the fall of 1952 the Court had on its docket cases from Delaware, the District of Columbia, Kansas, South Carolina, and Virginia challenging the con- stitutionality of school segregation. Of these, the case filed in Kansas became the chosen one by the NAACP. It seemed to be ahead of the pack in its district court, and it had the special advantage of being located in a state outside the Deep South, which would minimize local opposition to a favorable decision.78 Oliver Brown, the father of three girls, lived “across the tracks” in a low-income, racially mixed Topeka neighborhood. Every school day morning, Linda Brown took the school bus to the Monroe School for black children about a mile away but had to walk through a dangerous railroad switchyard to get to the stop—all this, even though a white school was closer to their home. In September 1950, Oliver Brown took Linda to the closer all-white Sumner School to enter her into the third grade in defiance of state law and local segregation rules. When they were refused, Brown took his case to the NAACP; and soon thereafter Brown v. Board of Education was born.

In deciding the Brown case, the Court, to the surprise of many, rejected as inconclusive all the learned arguments about the intent and the history of the Fourteenth Amendment and committed itself instead to considering only the con- sequences of segregation:

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. . . . We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.79

“Massive resistance” among white southerners attempted to block the desegregation efforts of the national government. For example, at Little Rock Central High School in 1957, an angry mob of white southerners prevented black students from entering the school.

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The Brown decision altered the constitutional framework in two fundamental respects. First, after Brown, the states no longer had the power to use race as a cri- terion of discrimination in law. Second, the national government from then on had the power (and eventually the obligation) to intervene with strict regulatory poli- cies against the discriminatory actions of state or local governments, school boards, employers, and many others in the private sector.

The Civil Rights Struggle Escalated after Brown v. Board of Education Brown v. Board of Education withdrew all constitutional authority to use race as a criterion for exclusion, and it signaled more clearly the Court’s determination to use the strict scrutiny test in cases related to racial discrimination. This meant that the burden of proof would fall on the government to show that the law in question was constitutional—not on the challengers to show the law’s unconstitutionality.80 But the historic decision in Brown v. Board of Education was merely a small open- ing move. First, most states refused to cooperate until sued, and many ingenious schemes were employed to delay obedience (such as states paying the tuition for white students to attend newly created “private” academies). Second, while school boards began to cooperate by eliminating legally enforced school segrega- tion (what is referred to as de jure segregation, meaning literally “by law” or legally enforced practices), extensive actual segregation remained (what is referred to as de facto segregation, meaning literally “by fact,” wherein races are still segregated even though the law does not require it). Thus, school segregation in the North as well as in the South remained as a consequence of racially segregated housing pat- terns that were untouched by the 1954–55 Brown principles. Third, discrimination in employment, public accommodations, juries, voting, and other areas of social and economic activity was not directly touched by Brown.

Social Protest and Congressional Action Ten years after Brown, fewer than 1 percent of black school-age children in the Deep South were attending schools with whites.81 A decade of frustration made it fairly obvious to all observers that adjudication alone would not succeed. The goal of “equal protection” required positive, or affirmative, action by Congress and by federal agencies. And given mas- sive southern resistance and a generally negative national public opinion toward racial integration, progress would not be made through courts, Congress, or federal agencies without intense, well-organized support. Organized civil rights demon- strations began to mount slowly but surely after Brown v. Board of Education. Only a year after Brown, black citizens in Montgomery, Alabama, challenged the city’s segregated bus system with a yearlong boycott. The boycott began with the arrest of Rosa Parks, who refused to give up her bus seat for a white man. A seamstress who worked with civil rights groups, Parks eventually became a civil rights icon, as did one of the ministers leading the boycott: Martin Luther King, Jr. After a year of private carpools and walking, Montgomery’s bus system desegregated but only after the Supreme Court ruled the system unconstitutional.

By the 1960s the many organizations that made up the civil rights movement had accumulated experience and built networks capable of launching massive

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direct-action campaigns against southern segregationists. The Southern Christian Leadership Conference, the Student Nonviolent Coordinating Committee, and many other organizations had built a movement that stretched across the South, using the media to attract nationwide attention and support. The image of protest- ers being beaten, attacked by police dogs, and set upon with fire hoses did much to win broad sympathy for the cause of black civil rights and to discredit state and local governments in the South. In the massive March on Washington in 1963, the Reverend Martin Luther King, Jr., staked out the movement’s moral claims in his famous “I Have a Dream” speech.

Protests against discriminatory practices toward African Americans did not end in the 1960s. Beginning in 2012, a variety of protests coalesced under the banner Black Lives Matter to focus attention on allegations of police misconduct directed at African Americans. The movement took off after the shooting of an unarmed black teenager by a white police officer in Ferguson, Missouri, in 2014 and spread across the nation as the media carried reports, photos, and videos of police violence against blacks around the country. African Americans have long asserted that they are often victims of racial profiling and more likely than whites to be harassed or arrested by the police. Police departments have always replied that blacks are more likely than whites to be engaged in criminal activity. Reports and even film footage of killings, however, proved difficult for the police to justify and seemed likely to lead to new rules governing police behavior.

The Civil Rights Acts Made Equal Protection a Reality The right to equal protection of the laws could be established and, to a certain extent, implemented by the courts. But after a decade of very frustrating efforts, the courts and Congress ultimately came to the conclusion that the federal courts alone were not adequate to the task of changing the social rules and that legislation and administrative action would be needed.

Congress used its legislative powers to help make equal protection of the laws a reality by passing the Civil Rights Act of 1964, prohibiting major forms of dis- crimination against racial, ethnic, national and religious minorities, and women in voting registration, schools, public accommodations, and the workplace. The act seemed bold at the time, but it was enacted 10 years after the Supreme Court had declared racial discrimination “inherently unequal” and long after blacks had dem- onstrated that discrimination was no longer acceptable.

Public Accommodations After the passage of the 1964 Civil Rights Act, public accommodations quickly removed some of the most visible forms of racial dis- crimination. Signs defining “colored” and “white” restrooms, water fountains, wait- ing rooms, and seating arrangements were removed and a host of other practices that relegated black people to separate and inferior arrangements were ended. In addition, the federal government filed more than 400 antidiscrimination suits in federal courts against hotels, restaurants, taverns, gas stations, and other “public accommodations.”

Many aspects of legalized racial segregation, such as using separate Bibles to swear in black and white witnesses in the courtroom, seem like ancient history

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today. But the issue of racial discrimination in public settings is by no means over. In 1993, six African American Secret Service agents filed suit after a Denny’s res- taurant in Annapolis, Maryland, failed to serve them. Similar charges citing dis- criminatory service at Denny’s restaurants surfaced across the country. Faced with evidence of a pattern of systematic discrimination and numerous lawsuits, Denny’s paid $45 million in damages to plaintiffs in Maryland and California in what is said to be the largest settlement ever in a public accommodation case.82 In addition to the settlement, the chain vowed to expand employment and management oppor- tunities for minorities in Denny’s restaurants.

School Desegregation The 1964 Civil Rights Act also declared discrimination by private employers and state governments (school boards, etc.) illegal, then went further by providing for administrative agencies to help the courts implement these laws. The act, for example, authorized the executive branch, through the Justice Department, to implement federal court orders to desegregate schools and to do so without having to wait for individual parents to bring complaints. The act also provided that federal grants-in-aid to state and local governments for educa- tion be withheld from any school system practicing racial segregation.

In recent years, a series of court rulings have slowed race-based integration efforts. In 2007, the Supreme Court’s ruling in Parents Involved in Community Schools v. Seattle School District No. 1 limited the measures that can be used to pro- mote school integration.83 The case involved school assignment plans voluntarily initiated by the cities of Seattle, Washington, and Louisville, Kentucky. By making race one factor in assigning students to schools, the cities hoped to achieve greater racial balance across the public schools. The court ruled that these plans, even though they were voluntarily adopted by cities, were unconstitutional because they discriminated against white students on the basis of race. Many observers described the decision as the end of the Brown era because it eliminated one of the few public strategies left to promote racial integration.84

Outlawing Discrimination in Employment The federal courts and the Justice Department also fought employment discrimination through the Civil Rights Act of 1964, which outlawed job discrimination by all private and public employers, including governmental agencies (such as fire and police departments) that em- ployed more than 15 workers.85 The 1964 act makes it unlawful to discriminate in employment on the basis of color, religion, sex, or national origin, as well as race.

In order to enforce fair employment practices, the national government could revoke public contracts for goods and services and refuse to engage in contracts with any private company that could not guarantee that its rules for hiring, promo- tion, and firing were nondiscriminatory.

But one problem was that the complaining party had to show that deliberate discrimination was the cause of the failure to get a job or a training opportunity. Rarely, of course, does an employer explicitly admit discrimination on the basis of race, sex, or any other illegal reason. Recognizing this, the courts have allowed aggrieved parties (the plaintiffs) to make their case if they can show that an employer’s hiring practices had the effect of exclusion, even if they cannot show the intention to discriminate.

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Voting Rights Although 1964 was the most important year for civil rights legisla- tion, it was not the only important year. In 1965, Congress significantly strength- ened legislation protecting voting rights by barring literacy and other tests as a condi- tion for voting in six southern states,86 by making it a crime to interfere with voting, and by providing for the replacement of local registrars with federally appointed reg- istrars in counties designated by the attorney general as significantly resistant to register- ing eligible blacks to vote. The right to vote was further strengthened with ratification in 1964 of the Twenty-Fourth Amendment, which abolished the poll tax, and later with legislation permanently outlawing literacy tests and mandating bilingual ballots or oral assistance for speakers of Spanish, Chinese,

Japanese, Korean, and Native American languages. This 1965 law finally broke the back of voting discrimination, meaning that it took almost 100 years to carry out the Fifteenth Amendment.

In the long run, the laws extending and protecting voting rights could prove to be the most effective of all the great civil rights legislation because the progress in black political participation produced by these acts has altered the shape of American politics. In 1965, in the seven states of the Old Confederacy covered by the Voting Rights Act, 29.3 percent of the eligible black residents were registered to vote, compared with 73.4 percent of the white residents (see Table 4.3). In 1967, a mere two years after implementation of the voting rights laws, 52.1 percent of the eligible blacks in the seven states were regis- tered. By 1972 the gap between black and white registration in the seven states was only 11.2 points.

A new area of controversy in the realm of voting rights concerns so-called voter ID laws. Some 34 states have enacted legislation requiring voters to show positive identification at the polls. As of 2016, seven of these states required photo ID, like a driver’s license, in order to vote. Republicans generally sup- port such laws, arguing that they deter voter fraud. Democrats generally oppose such laws, countering that they are particularly burdensome to poor, young, and minority voters, who they say are less likely than others to possess such IDs. Crit- ics also note that virtually no documented cases of voter ID fraud exist, despite intensive efforts to uncover them. Several studies of whether such laws suppress voter turnout have been conducted but have produced inconclusive results.

Housing The Civil Rights Act of 1964 did not address housing, but in 1968, Congress passed another civil rights act specifically to outlaw housing discrimina- tion. Called the Fair Housing Act, the law prohibited discrimination in the sale or rental of most housing, eventually covering nearly all of the nation’s housing.

One of the most contentious areas of voting rights today is voter ID laws. Proponents say ID requirements prevent fraud, while opponents argue the rules purposely keep the poor and minorities, who are less likely to have picture IDs, from the polls.

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Housing was among the most controversial of discrimination issues because of deeply entrenched patterns of residential segregation across the United States.

Although it pronounced sweeping goals, the Fair Housing Act had little effect on housing segregation because its enforcement mechanisms were so weak. Indi- viduals believing they had been discriminated against had to file suit themselves. The burden was on the individual to prove that housing discrimination had oc- curred, even though such discrimination is often subtle and difficult to document. Although local fair-housing groups emerged to assist individuals in their court claims, the procedures for proving discrimination created a formidable barrier to effective change. These procedures were not altered until 1988, when Con- gress passed the Fair Housing Amendments Act. This new law put more teeth in the enforcement procedures and allowed the Department of Housing and Urban Development to initiate legal action in cases of discrimination.87

Another kind of discrimination, related to discriminatory home mortgage– lending practices, remained significant. So-called predatory lending—offering loans with interest rates that are higher than prevailing market rates, including “subprime

The VRA had a direct impact on the rate of black voter registration in the southern states, as measured by the gap between white and black voters in each state. Further insights can be gained by examining changes in white registration rates before and after passage of the VRA and by comparing the gaps between white and black registration. Why do you think registration rates for whites increased significantly in some states and dropped in others? What impact could the increase in black registration have had on public policy?

BEFORE THE ACT* AFTER THE ACT* 1971–72

WHITE (%)

BLACK (%)

GAP** (%)

WHITE (%)

BLACK (%)

GAP (%)

Alabama 69.2 19.3 49.9 80.7 57.1 23.6

Georgia 62.6 27.4 35.2 70.6 67.8 2.8

Louisiana 80.5 31.6 48.9 80.0 59.1 20.9

Mississippi 69.9 6.7 63.2 71.6 62.2 9.4

North Carolina 96.8 46.8 50.0 62.2 46.3 15.9

South Carolina 75.7 37.3 38.4 51.2 48.0 3.2

Virginia 61.1 38.3 22.8 61.2 54.0 7.2

TOTAL 73.4 29.3 44.1 67.8 56.6 11.2

*Available registration data as of March 1965 and 1971–72. **The gap is the percentage-point difference between white and black registration rates.

SOURCE: U.S. Commission on Civil Rights, Political Participation (1968), Appendix VII: Voter Education Project, attachment to press release, October 3, 1972.

Registration by Race and State in Southern States Covered by the Voting Rights Act (VRA)

TABLE 4.3

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mortgages”—led to charges that such loans were offered to African Americans and Latinos, while whites with similar incomes were offered loans with lower inter- est rates. These charges received extensive national attention when the economic downturn of 2008–09 led to widespread mortgage defaults, with many people losing their homes.88 Lawsuits over these practices have resulted in the largest financial settlements ever issued for lending discrimination.

● The Civil Rights Struggle Was Extended to Other Disadvantaged Groups

Describe how different groups have fought for and won protection of their civil rights

Even before equal employment laws began to have a positive effect on the economic situation of blacks, something far more dra- matic began to happen: the universalization of civil rights. The right not to be discrimi- nated against was being successfully claimed by the other groups listed in the 1964 Civil

Rights Act (those defined by sex, religion, or national origin) and eventually by still other groups (defined by age or sexual orientation). This extension of civil rights became the new frontier of the civil rights struggle, and women emerged with the greatest prominence in this new struggle.

Americans Have Fought Gender Discrimination In many ways the Civil Rights Act fostered the growth of the women’s movement (although critics noted that this movement largely benefited white women). The first major campaign of the National Organization for Women (NOW) involved pick- eting the EEOC for its refusal to ban sex-segregated employment advertisements. NOW also sued the New York Times for continuing to publish such ads after the pas- sage of the act. Another organization, the Women’s Equity Action League, pursued legal action on a wide range of sex-discrimination issues, filing lawsuits against law schools and medical schools for discriminatory admission policies, for example.

Building on these victories and the growth of the women’s movement, feminist activists sought to add an “Equal Rights Amendment” (ERA) to the Constitution. The proposed amendment was short; it stated that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The amendment’s supporters believed that such a sweeping guarantee of equal rights was a necessary tool for ending all discrimination against women and for making gender roles more equal. Opponents charged that it would be socially disruptive and would introduce changes (such as unisex restrooms) that most Americans did not want. The amendment easily passed Congress in 1972 and won quick approval in many state legislatures, but it fell 3 states short of the 38 needed to ratify it by the 1982 deadline.89

Despite the failure of the ERA, efforts to stop gender discrimination ex- panded dramatically as an area of civil rights law. In the 1970s the conservative

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Burger Court (under Chief Justice Warren Burger) helped establish gender dis- crimination as a major and highly visible civil rights issue. Although the Supreme Court refused to treat gender discrimination as the equivalent of racial discrimina- tion,90 it did make it easier for plaintiffs to file and win suits on the basis of gender discrimination.

Courts began to find sexual harassment a form of sex discrimination during the late 1970s. Most of the law on sexual harassment has been developed by courts through interpretation of Title VII of the Civil Rights Act of 1964. In 1986, the Supreme Court recognized two forms of sexual harassment: the quid pro quo type, which involves an explicit or strongly implied threat that submission is a condition of continued employment, and the hostile environment type, which involves offensive or intimidating employment conditions amounting to sexual intimidation.91

Another major step was taken in 1992, when the Court decided in Franklin v. Gwinnett County Public Schools that violations of Title IX of the 1972 Education Act could be remedied with monetary damages.92 Title IX forbade gender discrimination in education, but it initially sparked little litiga- tion because of its weak enforcement provisions. The Court’s 1992 ruling that monetary damages could be awarded for gender discrimination opened the door for more legal action in the area of education. The greatest impact has been in the areas of sexual harassment (the subject of the Franklin case) and in equal treatment of women’s athletic programs. The potential for monetary damages has made universities and public schools take the problem of sexual harassment more seriously.

Political equality did not end discrimination against women in the workplace or in society at large. African Americans’ struggle for civil rights in the 1950s and ’60s spurred a parallel equal rights movement for women in the 1960s and ’70s.

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In 1996, the Supreme Court made another important decision by putting an end to all-male schools supported by public funds. It ruled that the policy of the Virginia Military Institute (VMI) not to admit women was unconstitutional.93 Along with The Citadel, an all-male military college in South Carolina, VMI had never admitted women in its 157-year history. VMI argued that the unique educational experience it offered—including intense physical training and the harsh treatment of freshmen— would be destroyed if women were admitted. The Court, however, ruled that the male-only policy denied “substantial equality” to women. Two days after the Court’s ruling, The Citadel announced that it would accept women.

Women have also pressed for civil rights in employment. In particular, women have fought against pay discrimination, which occurs when a male employee is paid more than a female employee of equal qualifications in the same job. In the 1960s, pay discrimination was common. After the Equal Pay Act of 1963 made such dis- crimination illegal, women’s pay slowly moved toward the level of men’s pay. In 2007, this movement received a setback when the Supreme Court ruled against a claim of pay discrimination. The case, Ledbetter v. Goodyear Tire and Rubber Co., involved a female supervisor named Lily Ledbetter, who learned late in her career that she was being paid up to 40 percent less than male supervisors, including those with less seniority. Ledbetter filed a grievance with the EEOC, charging sex discrimi- nation.94 The Supreme Court denied her claim, ruling that, according to the law, workers must file their grievance 180 days after the discrimination occurs. Many observers found the ruling unfair because workers often do not know about pay dif- ferentials until well after the initial decision to discriminate has been made. In 2009, the Lily Ledbetter Fair Pay Act became the first bill that President Obama signed into law, giving workers expanded rights to sue in cases, such as Ledbetter’s, when an employee learns of discriminatory treatment well after it has started.

In recent years, laws and court decisions designed to deal with discrimination against women have been used by groups representing transgender individuals to press for equal rights, especially in the realm of employment. For example, Title VII of the 1964 Civil Rights Act makes it unlawful to discriminate in employ- ment on the basis of color, religion, sex, national origin, or race. Pressed by groups representing transgender workers, in 2015, President Obama issued an executive order prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity. Two months later, the EEOC filed its first ever lawsuits to protect transgender workers under Title VII of the Civil Rights Act. Later that year, Attorney General Eric Holder announced that, going forward, the Justice Department would consider discrimination against trans- gender people as covered by the Civil Rights Act’s prohibition of sex discrim- ination.95 Nonetheless, attempts have been made to pass legislation requiring transgender individuals to use public bathrooms that correspond to the gender designated on their birth certificates. In 2016, North Carolina enacted such a law. After the federal Department of Justice warned the state that the law violated the Civil Rights Act, the state and the department filed opposing lawsuits over the issue. As the legal standoff continued, many companies pulled conventions and other events out of the state, costing North Carolina’s economy millions of dollars. In the midst of this battle, in June 2016, the U.S. military dropped its ban against openly transgender people serving in the uniformed services.

THE C IV I L R IGHTS STRUGGLE WAS EXTENDED 129

Latinos and Asian Americans Fight for Rights Although the Civil Rights Act of 1964 outlawed discrimination on the basis of national origin, limited English proficiency kept many Asian Americans and Latinos from full participation in American life. Two developments in the 1970s, however, established rights for language minorities. In 1974 the Supreme Court ruled in Lau v. Nichols, a suit filed on behalf of Chinese students in San Francisco, that school districts have to provide education for students whose English is lim- ited.96 It did not mandate bilingual education, but it established a duty to provide instruction that the students could understand. And the 1970 amendments to the Voting Rights Act permanently outlawed literacy tests in all 50 states and man- dated bilingual ballots or oral assistance for those who speak Spanish, Chinese, Japanese, Korean, or Native American languages.

Asian Americans and Latinos have also been concerned about the impact of immigration laws on their civil rights. Many Asian American and Latino orga- nizations opposed the Immigration Reform and Control Act of 1986 because it imposed sanctions on employers who hire undocumented workers. Such sanc- tions, they feared, would lead employers to discriminate against Latinos and Asian Americans. These suspicions were confirmed in a 1990 report by the General Accounting Office that found employer sanctions had created a “widespread pattern of discrimination” against Latinos and others who appear foreign.97

Young adults demonstrate their support for the DREAM Act by staging a sit-in protest on the floor of Senator John McCain’s headquarters in Tucson, Arizona. The DREAM Act would provide a path to permanent residency via military service or college atten- dance for individuals who were brought to the United States illegally as children by their parents.

130 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

As we saw in Chapter 3, a number of states, including Arizona, Utah, South Carolina, Georgia, and Alabama, have recently passed very strict immigration laws. Civil rights groups have contested the laws in court, and the federal Justice Department has instituted its own legal challenges. Arizona’s 2010 law provided the inspiration for these far-reaching state measures. Arizona’s law required im- migrants to carry identity documents with them at all times, made it a crime for an undocumented immigrant to apply for a job, gave the police greater powers to stop anyone they suspected of being an unauthorized immigrant, and required the police to check the immigration status of a person they detain if they suspect that person is an unauthorized immigrant. The Justice Department challenged the law on the grounds that the federal government was responsible for making immigration law, not the states. In 2012, the Court struck down three parts of the Arizona law on the grounds that they preempted federal responsibility. These included the provision that immigrants carry identity papers, that undocumented immigrants cannot apply for jobs, and that police can stop persons they suspect of being undocumented immigrants. But the Court let stand the provision that required local police to check the immigration status of an individual detained for other reasons, if they had grounds to suspect that the person was in the coun- try illegally.98

In 2014, President Obama issued executive orders granting quasi-legal status and work permits to millions of individuals who entered the United States illegally as children or who have children who are American citizens. The Supreme Court challenged Obama’s authority to issue the executive order, and in 2016, with only eight members on the Court after the death of Justice Scalia, the Court issued a 4–4 tie.99 The stalemate let stand a lower-court decision striking down Obama’s order. The lower-court decision, however, did not establish a binding national precedent and the administration seemed likely to ignore it.

Native Americans Have Sovereignty but Still Lack Rights As a language minority, Native Americans were affected by the 1975 amend- ments to the Voting Rights Act and the Lau decision. The Lau decision estab- lished the right of Native Americans to be taught in their own languages. This marked quite a change from the period when Native American children attended boarding schools run by the Bureau of Indian Affairs, where they were forbid- den from speaking their own languages. In addition to these language-related issues, Native Americans have sought to expand their rights on the basis of their sovereign status. Since the 1920s and ’30s, Native American tribes have sued the federal government for illegally seizing land, seeking monetary reparations and land as damages. Both types of damages have been awarded in such suits but only in small amounts. Native American tribes have been more successful in winning federal recognition of their sovereignty. Sovereign status has, in turn, allowed them to exercise greater self-determination. Most significant economically was a 1987 Supreme Court decision that freed Native American tribes from most state regulations prohibiting gambling. The establishment of casino gambling on Native American lands has brought a substantial flow of new income into some desperately poor reservations.

THE C IV I L R IGHTS STRUGGLE WAS EXTENDED 131

Disabled Americans Won a Great Victory in 1990 The concept of rights for the disabled began to emerge in the 1970s as the civil rights model spread to other groups. The seed was planted in a little-noticed provision of the 1973 Rehabilitation Act, which outlawed discrimination against individuals on the basis of disabilities. As in many other cases, the law itself helped give rise to the movement demanding rights for the disabled.100 Model- ing it on the NAACP’s Legal Defense Fund, the disability movement founded the Disability Rights Education and Defense Fund to press its legal claims. The movement achieved its greatest success with the passage of the Americans with Disabilities Act of 1990, which guarantees equal employment rights and access to public businesses for the disabled and bars discrimination in employment, housing, and health care. The EEOC is a body that considers claims of discrimi- nation in violation of this act. The impact of the law has been far-reaching as businesses and public facilities have installed ramps, elevators, and other devices to meet the act’s requirements.101

Gay Men and Lesbians Have Gained Significant Legal Ground In less than 50 years, the lesbian, gay, bisexual, transgender, and queer (LGBTQ) movement has become one of the largest civil rights movements in contempo- rary America. For much of the country’s history, any sexual orientation other than heterosexuality was considered “deviant” and many states criminalized sexual acts considered to be “unnatural.” Gay people were often afraid to reveal their sexual orientation for fear of reprisals, including being fired from their jobs; and the police in many cities raided bars and other establishments where it was believed that gay people gathered. While no formal restrictions existed on their political participation, gay people faced the possibility of ostracism, discrimination, assault, and even prosecution.102

The contemporary gay rights movement began in earnest in the 1960s, grow- ing into a well-financed and sophisticated lobby. But until 1996, there was no Supreme Court ruling or national legislation explicitly protecting gays and lesbi- ans from discrimination. The first gay rights case that the Court decided, Bowers v. Hardwick (1986), ruled against a right to privacy that would protect consen- sual homosexual activity.103 After the Bowers decision, the gay and lesbian rights movement sought suitable legal cases to test the constitutionality of discrimina- tion against gay men and lesbians, much as the black civil rights movement did in the late 1940s and ’50s. As one advocate put it, “lesbians and gay men are looking for their Brown v. Board of Education.”104 In 1996, the Supreme Court, in Romer v. Evans, explicitly extended fundamental civil rights protections to gays and lesbians by declaring unconstitutional a 1992 amendment to the Colorado state constitution that prohibited local governments from passing ordinances to protect gay rights.105 In its decision, the Court highlighted the connection between gay rights and civil rights as it declared discrimination against gay people unconstitutional.

The gay community won another major victory in the 2003 case of Lawrence v. Texas, in which the Supreme Court overturned Bowers and struck

132 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

down a Texas law that made certain sexual conduct between consenting partners of the same sex illegal. Extending the right-to-privacy umbrella to lesbians and gay men, the Court said that “petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”106

While the ruling in Lawrence struck down laws that made homosexual acts a crime, it did not change federal and state laws that deprived gay people of full civil rights, including the right to marry. In 2013 the Supreme Court struck down a federal law (the Defense of Marriage Act, or DOMA) that barred benefits to married same-sex couples and let stand a California law recognizing same- sex marriage. Invoking several constitutional protections, the cases significantly strengthened the rights of married gay couples.107 The federal government subse- quently expanded recognition of same-sex marriages for the purpose of federal benefits and legal proceedings, such as survivor benefits, bankruptcies, tax pur- poses, and immigration.

In 2015 the Supreme Court clarified the law concerning same-sex marriage. In the landmark case of Obergefell v. Hodges, the Court ruled that the Constitu- tion’s equal protection clause and the Fourteenth Amendment’s due process clause guarantee same-sex couples the right to marry in all states and required states to recognize same-sex marriages performed in other jurisdictions.108 Though deemed controversial, the Court’s decision actually reflected a shift in public opinion on same-sex unions, with a majority of Americans now favoring the right of same-sex couples to wed.

Another significant victory at the national level occurred in 2009, when new legislation extended the definition of hate crimes to include crimes against gays and transgender people. Such legislation had been sought since the 1998 murder of Matthew Shepard, a Wyoming college student who was brutally slain because of his sexual orientation. The new law allows for tougher penalties when a crime is designated a hate crime. In another important victory for the gay rights movement,

Edith Windsor (left center) won her case in 2013 when the Supreme Court struck down the portion of the Defense of Marriage Act denying federal benefits to married same-sex couples. This decision paved the way for the Court decision two years later legalizing same-sex marriage nationwide. The Obama administration showed its support by illuminating the White House in rainbow light (right).

When the U.S. Supreme Court legalized same-sex marriage in 2015, the United States joined the roughly 20 countries in the world that allow gay marriage. As the map shows,

most of these countries are in Western Europe and the Americas, and we see in the time line that most have only legalized same- sex marriage in the past several years.

Same-Sex Marriage around the World

AMERICA Side by Side

*Same-sex marriage is legal in some jurisdictions. SOURCES: Pew Research Center, “Gay Marriage around the World,” June 26, 2016, www.pewforum.org/2015/06/26 /gay-marriage-around-the-world-2013/ (accessed 4/18/16); Sibylla Brodzinsky, “Colombia’s Highest Court Paves Way for Marriage Equality in Surprise Ruling,” The Guardian, April 7, 2016, www.theguardian.com/world/2016/apr /07/colombia-court-gay-marriage-ruling (accessed 4/18/16).

2000

The Netherlands

Belgium

Canada, Spain

South Africa

DATE SAME-SEX MARRIAGE LEGALIZED

Mexico,* Norway, Sweden

Argentina, Iceland, Portugal

Denmark ColombiaLuxembourg

Brazil, France, New Zealand, United Kingdom,* Uruguay

Finland, Greenland, Ireland, United States

2003

2005

2006 2009

2010

2012

2013

2014

2015

2016

Same-sex marriage

is not legal

Same-sex marriage is

legal in some jurisdictions

Same-sex marriage is

legal nationwide

No data available

WWN86-03 Same-sex marriage 5th proof

LEGALIZATION OF SAME-SEX MARRIAGE

http://www.pewforum.org/2015/06/26/gay-marriage-around-the-world-2013/

http://www.theguardian.com/world/2016/apr/07/colombia-court-gay-marriage-ruling

134 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

an executive order signed by President Obama in 2011 repealed the U.S. military’s “Don’t Ask, Don’t Tell” policy, a 20-year-old rule that expelled gays and lesbians from the military if they made their sexual orientation known. The new policy allows gays to serve openly in the military.

● Affirmative Action Attempts to Right Past Wrongs

Contrast arguments for and against affirmative action

Over the past half-century, the relatively narrow goal of equalizing opportunity by eliminating discriminatory barriers devel- oped toward the far broader goal of affirma- tive action, government policies or programs

that seek to redress past injustices against specified groups by making special efforts to provide members of these groups with access to educational and employ- ment opportunities. An affirmative action policy uses two novel approaches: (1) positive or benign discrimination in which race or some other status is counted as a positive rather than negative factor and (2) compensatory action to favor members of the disadvantaged group who themselves may never have been the victims of discrimination.

Affirmative action also took the form of efforts by the agencies in the Depart- ment of Health, Education, and Welfare to shift their focus from “desegregation” to “integration.”109 Federal agencies required school districts to present plans for busing children across district lines, for closing certain schools, and for redistribut- ing faculties as well as students or face the loss of aid from the federal government. The guidelines constituted preferential treatment to compensate for past discrimi- nation, leading to a dramatic increase in the numbers of black children attending integrated classes.

Affirmative action was also initiated in the area of employment opportunity. The EEOC has often required plans whereby employers must attempt to increase the number of minority employees, and the Department of Labor has used the threat of contract revocation for the same purpose.

The Supreme Court Shifts the Burden of Proof in Affirmative Action Efforts by the government to shape the meaning of affirmative action today tend to center on one key issue: What is the appropriate level of review in affirmative action cases—that is, on whom should the burden of proof be placed: the plain- tiff, to show that discrimination has not occurred, or the defendant, to show that discrimination has occurred? Affirmative action was first addressed formally by the Supreme Court in the case of Allan Bakke. Bakke, a white male, brought suit against the University of California at Davis Medical School on the grounds that it denied him admission on the basis of his race. (That year the school had reserved 16 of its 100 available slots for minority applicants.) Bakke argued that his grades and test scores had ranked him well above many students who had been accepted

C IV I L L IBERT IES , C IV I L R IGHTS , AND YOUR FUTURE 135

at the school and that the only possible explanation for his rejection was that he was white, whereas those others accepted were black or Latino. In 1978, Bakke won his case before the Supreme Court and was admitted to the medical school, but he did not succeed in getting affirmative action declared unconstitutional. The Court accepted the argument that achieving “a diverse student body” was “a com- pelling public purpose,” but it ruled that the method of a rigid quota of student slots assigned on the basis of race was incompatible with the Fourteenth Amend- ment’s equal protection clause. Thus, the Court permitted universities and other hiring authorities to continue to take minority status into consideration but barred the use of quotas.110

The Supreme Court’s 1995 ruling in Adarand Constructors v. Peña further weak- ened affirmative action. This decision stated that race-based policies must survive strict scrutiny, placing the burden on the government to show that such affirmative action programs serve a compelling government interest and are narrowly tailored to address identifiable past discrimination.111

This betwixt-and-between status of affirmative action was how things stood in 2003, when the Supreme Court took two cases against the University of Michigan. In Grutter v. Bollinger, the Court upheld the “holistic” and “individualized” affir- mative action program used by Michigan’s law school, finding it in keeping with the standard set in the Bakke case.112 Michigan’s undergraduate affirmative ac- tion program was declared unconstitutional, however, in Gratz v. Bollinger because its ranking system for admissions gave specific points (20 out of 150) to African American, Latino, and Native American applicants.113 This approach was barred for resembling too closely the specific numerical quota system struck down by Bakke. In 2013 the Court indicated in Fisher v. University of Texas that a school’s affirmative action program of admissions that seems to discriminate in favor of black students must be subjected to the same “strict scrutiny” as a program that seems to discriminate against black students and sent the case back to the lower courts for consideration.114 The Court heard the case again in 2016, and declared that some intrusion on equal protection was warranted by the importance of creat- ing a diverse student body.115

Civil Liberties, Civil Rights,

and Your Future Government surveillance of its citizens—encompassing their communications, travel, and personal conduct—is among the major civil liberties questions facing Americans today. Revelations in 2013 of extensive electronic surveillance by the NSA of Americans’ phone and Internet communications caused an uproar in Congress and in the country.

While many expressed concerns about citizens’ privacy, NSA officials declared in 2013 congressional testimony that the agency’s eavesdropping program had averted dozens of potential terrorist attacks. But since the matters were highly classified, no actual proof of these assertions was proffered, and many members

136 CHAPTER 4 C IV I L L IBERT IES AND C IV I L R IGHTS

of Congress expressed doubts about the agency’s claims. Later, the NSA conceded that its domestic surveillance programs had possibly thwarted only one terror- ist plot, rather than the dozens initially claimed. Are worries about privacy over- blown, or are the actual threats exaggerated? How have new technologies affected the government’s ability to monitor its citizens? These issues, along with questions about the right to bear arms, the use of the death penalty, and religious freedom (see the “Who Participates?” feature on the facing page) are unlikely to go away anytime soon.

For the past several decades, the civil rights revolution has broadened to include not only women and Latinos but sexual orientation and immigration status. As our nation becomes more and more diverse, equal protection of the laws will become more and more important. What civil rights battles now appear on the country’s horizon? And how does a country based on the democratic principle of majority rule ensure that the civil rights of minorities are protected?

W H O P A R T I C I P A T E S ?

Religious Affiliation and Freedom of Religion

W H A T Y O U C A N D O SOURCE: Pew Research Center, “America’s Changing Religious Landscape,” www.pewforum.org/2015/05/12/americas-changing -religious-landscape, (accessed 9/20/15).

Percentage of American Adults in Each Religious Tradition

Under the First Amendment, Americans enjoy the freedom to practice (or not practice) the religion of their choice. Most Americans identify with and participate in some form of religion.

Protestant 46.5%

Other Christian 3.3%

Catholic 20.8%

Jewish 1.9%

Buddhist 0.7%

Muslim 0.9%

Hindu 0.7%

Other faiths 1.7%

Nothing in particular 15.8%

Atheist 3.1%

Agnostic 4%

Don’t know 0.6%

Learn more about freedom of religion from a variety of legal scholars at www.constitutioncenter.org.

Share your opinion about the First Amendment and religion on campus with your school newspaper. Find information about students’ religious rights at www.thefire.org.

Learn more about your other First Amendment rights, such as free speech on the Internet, at www.eff.org.

Know Your First Amendment Rights

WHAT YOU CAN DO

chapterstudyguide

1. Which of the following rights was not included in the original Constitution? (p. 97) a) prohibition of bills of attainder b) prohibition of ex post facto laws c) guarantee of habeas corpus d) guarantee of trial by jury in state

where crime was committed e) prohibition of warrantless search

and seizure

2. When did civil rights become part of the Constitution? (p. 98) a) in 1789 at the Founding b) with the adoption of the Fourteenth

Amendment in 1868 c) with the adoption of the Nineteenth

Amendment in 1920 d) in the 1954 Brown v. Board of

Education case

e) with the passage of the 1964 Civil Rights Act

3. The process by which some of the liberties in the Bill of Rights were applied to the states (or nationalized) is known as (p. 99) a) selective incorporation. b) judicial activism. c) civil liberties. d) establishment. e) preemption.

4. The judicial doctrine that places a heavy burden of proof on the govern- ment when it seeks to regulate or restrict speech is called (p. 103) a) judicial restraint. b) judicial activism. c) habeas corpus.

Practice Quiz

138 CHAPTER STUDY GU IDE

CHAPTER STUDY GU IDE 139

d) prior restraint. e) strict scrutiny.

5. Which of the following protections are not contained in the First Amendment? (pp. 103–9) a) the establishment clause b) the free exercise clause c) freedom of the press d) the right to peaceably assemble e) freedom from unlawful searches

and seizures

6. In McDonald v. Chicago, the Supreme Court ruled that (p. 110) a) states can require citizens to own

firearms. b) federal grants can be used to

support the formation of state militias.

c) felons can be prevented from purchasing assault rifles.

d) the Second Amendment applies to states as well as the federal government.

e) the Second Amendment applies only to the federal government and not to states.

7. The Fourth, Fifth, Sixth, and Eighth amend- ments, taken together, define (p. 111) a) due process of law. b) free speech. c) the right to bear arms. d) civil rights of minorities. e) freedom of religion.

8. In Mapp v. Ohio, the Supreme Court ruled that (pp. 111–12) a) evidence obtained from an illegal

search could not be introduced in a trial.

b) the government must provide legal counsel for defendants who are too poor to provide for themselves.

c) persons under arrest must be informed prior to police interroga- tion of their rights to remain silent and to have the benefits of legal counsel.

d) the government has the right to take private property for public use if just compensation is provided.

e) a person cannot be tried twice for the same crime.

9. In which case did the Supreme Court rule that state governments no longer had the authority to make private sexual behavior a crime? (p. 118) a) Webster v. Reproductive Health

Services b) Gonzales v. Oregon c) Lawrence v. Texas d) Bowers v. Hardwick e) Texas v. Johnson

10. Which of the following was not a way the Twenty-Fourth Amendment of 1964 and the Voting Rights Act of 1965 significantly extended and protected voting rights? (p. 124) a) barring literacy tests as a condition

for voting in six southern states b) requiring all voters to register two

weeks before any federal election c) making it a crime to interfere with

voting d) abolishing the poll tax e) providing for the replacement

of local registrars with federally appointed registrars in counties designated as significantly resistant to registering eligible black voters

11. The Supreme Court’s decision in Bakke v. Board of Regents was signifi- cant because (pp. 134–35) a) it stated that race can never be

used as a factor in university admissions.

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