AP US Gov and Politics

This course can help prepare students who wish to continue their social studies education after high school, as well as students who wish to perform exceptionally well on the SAT exam. The level of aptitude in this subject will assist students wishing to excel on the SAT and in college courses.

This course focuses on the philosophical and institutional foundations of the American political system. Particularly, students will investigate the various roles that the Constitution, public opinion, political parties, campaigns and elections, interest groups, the media, and the various institutions of the federal government—the President, Congress, Judiciary, and the Bureaucracy—play in the development of federal public policy. Throughout the course students will enhance their reading, writing, and oral presentation skills.

According to the College Board’s website, AP US Government and Politics focuses primarily on teaching students to:

  • Know important facts, concepts, and theories pertaining to the US government and politics.
  • Understand typical patterns of te political processes and behavior and their consequences (including the components of political behavior, the principles used to explain or justify various government structures and procedures, and the political effects of these structures and procedures).
  • Be able to analyze and interpret basic data relevant to US government and politics, including data presented through charts, tables, and other formats.
  • Be able to critically analyze relevant theories and concepts, apply them appropriately, and develop their connections across the curriculum.

Students taking AP US Government and Politics will also cover such topics and themes as:

  • The Constitution and the United States: Since the Constitution is the foundation of the United States government, students will be required to gain an understanding of the rhetoric used in setting up the government and the laws that keep it running.
  • Political Behaviors and Beliefs: Since individuals hold a variety of beliefs about their government, its leaders, and the United States political system in general, it is helpful to understand different points of view in order to form solutions to political problems. It is also helpful when trying to promote peace among the general population.
  • Political Parties, Interest Groups, and Mass Media: Students should understand the mechanisms that allow the United Stated government to run the way it does. Among these mechanisms are political parties, elections, political action committees, interest groups, and the mass media All of these combine to form the massive political machine that is the United States government.
  • Institutions of the National Government: Students should become familiar with the different organizations and the powers that they hold, especially when it comes to the political process.  Understanding different groups within the national government and how they relate to each other can have a rather large effect on a person’s political beliefs and actions.
  • Civil Rights and Civil Liberties: Understanding the United States’ system of government requires an understanding of the rights allotted to the people as part of a democracy. This will allow students to gain a deeper knowledge of their own part in the political system.

Along with these themes, students will also be able to use study notes, study guides, and various other study techniques in conjunction with AP US Government and Politics textbooks such as America: Past and Present and American Pageant.

Students interested in enrolling in AP United States Government and Politics should remember that taking a college course will require quite a bit more time and energy than other high school courses. Failing to commit to AP courses can result in a student’s GPA taking a dive, so it’s important that students set aside extra time and energy to make sure they excel in these classes. Students who do dedicate themselves to these classes will see a large payoff in their GPA, their high school transcripts, and ultimately in their preparedness for college level courses.

Students who wish to get into their top college or university should seriously consider taking Advanced Placement courses. Not only do AP courses set students apart on their high school transcripts, they can also prepare them for what will be expected once they step into a college environment. Most importantly, AP courses will help students to develop the discipline and time management skills essential to succeeding both inside and outside of the classroom. Students interested in enrolling in AP courses should visit their high school counselor for more information about how to enroll and what the course requirements are. The more students focus on excelling in their education, the bigger their reward will be once graduation day rolls around!

Here you find AP Government and Politics outlines, notes, vocabulary terms, court cases, political parties, political timelines and biographies. We are always adding more AP Government and Politics resources so if you have any requests, please use the Contact Us form to let us know what we can do to help.

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Outlines

Here you find AP US Government and Politics outlines that are from the American Government, Seventh Edition textbook. These outlines, along with the AP US Government and Politics vocabulary terms, political parties, political timelines, biographies, case briefs, and important documents will help you prepare for the AP US Gov and Politics exam.

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American Government, 11th Edition

Below are the US Government and Politics chapter outlines for the American Government, 11th Edition by Wilson textbook.

Additional Information:

  • Hardcover: 464 pages
  • Publisher: Prentice Hall; 11 edition (April 14, 2006)
  • Language: English
  • ISBN-10: 0132211084
  • ISBN-13: 978-0132211086

 

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Chapter 01 - The Study of American Government

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Chapter 02 - The Constitution

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Chapter 03 - Federalism

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Chapter 04 - American Political Culture

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Chapter 05 - Civil Liberties

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Chapter 06 - Civil Rights

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Chapter 07 - Public Opinion

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Chapter 08 - Political Participation

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Chapter 09 - Political Parties

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Chapter 10 - Elections and Campaigns

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Chapter 11 - Interest Groups

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Chapter 12 - The Media

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Chapter 13 - Congress

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Chapter 14 - The Presidency

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Chapter 15 - The Bureaucracy

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Chapter 16 - The Judiciary

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Chapter 17 - The Policy-Making Process

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Chapter 18 - Economic Policy

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Chapter 19 - Social Welfare

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Chapter 20 - Foreign and Military Policy

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Chapter 21 - Environmental Policy

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Chapter 22 - Who Governs? To What Ends?

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American Government, 7th Edition Textbook

Below are the US Government and Politics chapter outlines for the American Government, 7th Edition textbook

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Chapter 02 - The Constitution

  1. The Problem of Liberty
    1. In the decade that preceded the Revolutionary War, most American colonists believed that they could obtain certain liberties and still be a part of the British Empire, liberties such as:
      1. The right to bring cases to truly independent judges that weren’t subordinate to the king.
      2. The right to NOT have British troops quartered in private houses.
      3. The right to NOT have to pay taxes without direct Parliamentary representation.
    2. However, by the time war broke out, many colonists had lost faith in the [unwritten] British constitution, one that allowed liberties to be violated and abuse of political power to flourish.
    3. Colonists believed that English politicians tended to be corrupt, since they naturally desired power, and that was their explanation of why the British constitution was insufficient for their American liberties.
      1. The colonists desired protected liberties based not on the king but on a “higher law” that embodied “natural rights,” such as those of life, liberty, and property, that were given by God.
      2. These rights could not be taken away from anyone by anyone, theoretically.
      3. By property, the revolutionaries did not be money, land, or economics; they meant the idea of being able to move up in life, of being capable of improving.
    4. The Declaration of Independence listed man’s “natural rights,” but it also displayed 27 complaints against the British king.
    5. The “real revolution” was not just the fighting and combat that went on during the war, but the actual “radical change in the principles, opinions, and sentiments of the people.”
      1. Such revolutionary ideas included: (1) Human liberty exists before government organization, and is the number ONE priority; (2) The legislative branch of the government represents the people and should be more powerful than the executive branch; (3) Only a written constitution could allow political power to be recognized.
    6. In 1776, eight states adopted written constitutions, and within a few years, all states except Connecticut and Rhode Island (who relied on colonial charters) had constitutions of their own.
    7. The 11 years between the Declaration of Independence and the Constitution were tumultuous; George Washington had to run an army without a strong, supportive national government, many parts of the nation were in shambles, and even after their loss, the British continued to hold posts in Canada and the western territories of the U.S.; also, Spain held territory in Florida and the Mississippi River.
    8. In 1781, the Articles of Confederation went into effect, creating a confederation, NOT a country.
      1. Each state retained its sovereignty and independence and had one vote in Congress.
      2. Nine votes out of thirteen were needed to pass ANY measure while amendments had to be unanimously approved, and the vote-casting delegates were chosen by state legislatures.
      3. Congress could make piece, coin money, run the post office, and appoint the key army officers, but it could not settle states claims, call for taxes, or raise an effective military.
    9. Men like George Washington and Alexander Hamilton lament the weakness of the government under the Articles, so in May, 1787, a group of men met in Philadelphia to discuss ways of remedying the Articles.
  2. The Constitutional Convention
    1. The delegates who met in Philadelphia were authorized by Congress only to revise the Articles, but aside from agreeing that the protection of life, liberty, and property must be kept, they had little idea of how to fix the Articles of Confederation.
    2. The delegates, such as James Madison, had spent a good deal studying ancient and modern political history, but had come to the conclusion that nothing in history had worked; there was no good model.
      1. The problems of past governments had seemed to be that weak governments had collapsed from internal dissention while strong governments trampled their people’s liberties.
    3. Pennsylvania and Massachusetts provided two examples of this lack of a good model on which to create a government: Pennsylvania had the most radically democratic state constitution, in which all power was given to a unicameral legislature, where members served one-year terms and could not serve more than four years, and where there was no governor or president; Massachusetts had a clear separation of powers, and both voters and office holders had to be property holders.
      1. Thomas Paine hailed the Pennsylvania constitution as the “best in America,” and French philosophers loved it too, but to Madison and others, it could be tyrannical, since in concentrated all power into one set of hands.
    4. In January 1787, a group of ex-Revolutionary War soldiers, plagued by debts and high taxes, decided to take matters in their own hands and rebel under the leadership of Daniel Shays.
      1. Shays Rebellion showed the weakness of the federal government, since it could not stop it, and ultimately, private funds had to be used to hire a volunteer army, which marched into Springfield, Massachusetts, and dispersed the rebels with a few shots.
      2. This revolt made people afraid that state governments were about to collapse from internal dissention, and it helped persuade many that a strong central government was required.
    5. The Philadelphia Convention attracted 55 mostly young but experienced delegates who met in blazing hot weather and swore to keep their proceedings a secret.
      1. Thomas Jefferson, Samuel Adams, and Patrick Henry were among those NOT attending.
      2. What the convention came up with was NOT a revision of the Articles, but rather a whole new constitution, which is today’s oldest written constitution in the world.
      3. The delegates didn’t always agree on issues (such as powers given to the central government, state representation, the issue of slavery), but instead often compromised.
      4. All the delegates were heavily influenced by the writings of John Locke, who preached that in a “state of nature,” all men were perfectly free, but that men gave up a bit of their “perfect freedom” to enter a society that could protect their property.
      5. The delegates knew that a popular government could be too weak to prevent on faction from abusing another and that a popular majority could be tyrannical.
    6. Thus, the problem laid in the fact that the delegates had to devise a government strong enough to preserve order but not so strong as to threaten liberty.
    7. The answer was not “democracy” as it was then thought of (back then, “democracy” meant rule by the mob), but rather, a republic, which was slightly limited.
  3. The Challenge
    1. Almost immediately after the convention was established, the Virginia delegation, led by Edmund Randolph presented a plan to fix the Articles, and little else was discussed for the next two weeks.
    2. The Virginia Plan called for a strong national union organized into three branches: the legislative, the executive, and the judicial.
      1. There were to be two houses—the first chosen by the people and the second chosen by members of the first—and the executive was to be chosen by the national legislature.
      2. The executive and some members of the judiciary could veto acts of legislature, but such vetoes could be overruled by the legislature.
      3. The national legislature would have supreme powers on all matters on which the separate states could not handle and could veto state law.
    3. However, as debate dragged on, delegates of small states started to worry that the small states would not be properly represented, so they, under William Paterson, submitted the New Jersey Plan.
      1. It enhanced the power of the national government (though not as much as the Virginia Plan did) but restricted the votes of each state to one; state population would NOT determine the number of votes.
      2. Proposed after the Virginia Plan, it was not as favored as the first, and after much debating, the committee remained deadlocked.
    4. Then, on July 5, 1787, a compromise was submitted; the Great Compromise was adopted on July 16th.
      1. The House of Representatives would consist of about 65 members, be elected by the people, and be apportioned according to state population.
      2. The Senate would consist of two senators from each state; each senator would be chosen by state legislatures.
    5. After this, there was a much larger spirit of accommodation, and after delegates could not agree on whether the president should be chosen by the people or by Congress, they came up with the idea of creating an Electoral College that would choose the president.
      1. They also compromised and set the presidential term at four years, without restrictions on re-election and agreed to let Supreme Court justices be picked by the president and approved by the Senate.
    6. On September 17, all twelve states (but not all the delegates) approved this new constitution.
  4. The Constitution and Democracy
    1. The framers of the Constitution intended to create a republic, by which a government was operated by a system of representation; a pure democracy was NOT desired, as shown by the fact that state legislatures, not the people, elected senators
    2. They wanted both the majority of voters AND the majority of states to make key decisions, not just one or the other.
    3. The power of the Supreme Court to declare acts of Congress unconstitutional, or judicial review, was another way of limiting popular majorities.
    4. An amendment to the Constitution can be proposed either by 2/3 vote of BOTH houses of Congress OR by a national convention called by Congress at the request of 2/3 of the states.
      1. It must be passed by ¾ of the states, either by legislatures or in special state conventions.
    5. Federalism describes a political authority divided between a national and several state governments.
    6. People naturally tended to be corrupt, but a good government could be created if good people were cultivated, and many Americans believed this.
      1. However, Madison and his supporters believed that it would be hard and catastrophic to cultivate virtue; therefore, the best solution was to create a government that could function well even without virtuous people—one with separation of powers.
      2. Therefore, federalism was good because states and the central government checked each other, thus eliminating the strength that any factions, or political groups, might have.
      3. Power could be gained, but not FULL power.
  5. The Constitution and Liberty
    1. Supporters of the Constitution and its strong central government called themselves Federalists, while those more in favor of states’ rights were called Antifederalists.
    2. The framers of the Constitution devised it so that the Constitution could be passed by special state conventions (where the people had direct says), rather than in state legislatures (where it was more likely to be rejected by politicians fearing loss of power).
    3. Antifederalists’ main issue was liberty, not democracy, and they argued that a strong central government would be distant from the people and could take over powers belonging to states.
      1. Congress could tax heavily, the Supreme Court could overrule state courts, and the President could head a large standing army, which was too tyrannical in their views.
      2. Antifederalists proposed limiting the national government by checking the president’s power, leaving military affairs to state militias, increasing the size of the House of Representatives, and reducing or eliminating Congress’s tax levying powers.
      3. James Madison’s answer to them came in the form of Federalist papers 10 and 51, in which he argued that the checks and balances would help and that liberty was safest in large republics, in which anyone could have support, even rebels who went against the norm.
        1. To rule, different interests must come together and form a coalition, or an alliance.
        2. In large republics, coalitions would be more moderate because more interests would be represented by them, as opposed to the opposite in small republics.
    4. Basically, Madison was arguing that if people could be corrupted by office, they could also be corrupted by factional self-interests, and that was a radical argument in 1787.
      1. Yet, this argument won, mostly because most people believed that there would have to be a strong argument if the United States was to survive foreign attacks, facilitate trade among the states, and keep one faction from oppressing another.
    5. Perhaps the framers of the Constitution didn’t add a bill of rights because there were already numerous protections of liberty included in the Constitution:
      1. Writ of habeas corpus (meaning you can’t hold a person in jail without a reason) could not be suspended except in invasion or rebellion.
      2. No bill of attainder (declaring a person guilty without trying him in a trial) could be passed by Congress or the states.
      3. No ex post facto law (arresting someone for breaking a new law a month that wasn’t law a month ago) could be passed by Congress or the states.
      4. Right by trial by jury in criminal cases was guaranteed.
      5. The citizens of each state were entitled to the privileges and immunities of the citizens of every other state.
      6. No religious test or qualification for holding federal office could be imposed.
      7. No law impairing the obligation of contracts could be passed by states.
    6. Most states already had bills of rights anyway, and the framers thought that they were creating a government with specific, limited powers that could do ONLY what the Constitution said it could do and NOTHING ELSE.
    7. In any case, it soon became clear that a bill of rights was needed; many states approved the Constitution only after a bill of rights was promised, and even then, they passed it after much debate.
    8. On June 21, 1788, New Hampshire, the ninth state, approved the Constitution, and it was made legal.
    9. James Madison finally introduced a set of proposals, mostly based on the Virginia bill of rights, to Congress, which passed twelve of them; ten of those twelve were passed by the states and went into effect as the first ten amendments, or the Bill of Rights, in 1791.
    10. Interestingly, nowhere in the Constitution did the words “slave” or “slavery” appear, and Congress was even forbidden to ban slave importation until the year 1808.
      1. This hypocritically broke with the Declaration of Independence’s “all men are created equal.”
      2. Actually, there was some effort made into eliminating slavery in the Constitution, but the Framers decided that this would undoubtedly cause the southern states to reject the Constitution, so they let the issue remain undecided until the nation could be strong enough to deal with slavery when the issue could no longer be postponed.
      3. Meanwhile, the northern states gradually passed state measures that banned slavery.
      4. Another compromise with slavery was the 3/5 Compromise, which counted slaves as 3/5 of people when determining House representation.
  6. The Motives of the Framers
    1. Astonishingly, personal economic factors barely played a role in the Framers’ drafting of the Constitution; some framers were rich, others poor, some creditors, others debtors.
    2. In 1913, in An Economic Interpretation of the Constitution, Charles Beard argued that the better-off urban and commercial classes favored the Constitution because they would have benefited from it.
    3. In the 1950s, that view was opposed by some historians who claimed that this was not true: some of the richest delegates, like Elbridge Gerry and George Mason, refused to sign, while many of its backers, like James Madison and James Wilson, were from modest means or were in heavy debt.
    4. In the 1980s, historians found that economic positions of delegates did play some role in their decisions, but the economic positions of delegates’ states played a bigger role.
      1. Basically, the delegates represented their states’ interests—just like they were supposed to—and only let personal beliefs interfere on certain matters, like slavery.
    5. In state conventions, economics played a larger role, with richer people more likely to vote for the Constitution, but still, the whole voting process was remarkably democratic—for the time period.
    6. Back in the 1700s, the argument was that the government shouldn’t fall into the hands of tyrants but it shouldn’t be too distant from the people; today, people argue that the government should be strong enough to restrain natural economic frequencies that hurt the country and capable of producing a greater degree of equality then society could if it had been left alone.
      1. Back then, people wanted to limit the government; today, some want to strengthen it.
  7. Constitutional Reform—Modern Views
    1. In general, today, just as in the 18th century, there are two types of critics to the Constitution: those who say that it’s too weak and those who say it’s too strong.
    2. Those who want to reduce separation of powers claim that such limitations strong inhibit change, and since even a single bill must take a long, arduous process before it becomes law, changes—even those for the better—are very difficult to implement.
      1. These people want to strengthen the executive office so that the president and his party can be accountable for everything—gains and mistakes.
      2. Critics of separation of powers complain that compromises must be taken between the president and Congress if a program is to be passed, and the resulting program is usually not much liked by either branch.
      3. Government agencies are also exposed to undue interference from legislators and special interests, and thus can be corrupted.
      4. Basically, all critics of separation of powers fear that the president is too weak and insufficiently accountable; thus they have proposed the following:
        1. Let the President appoint Congressmen to his cabinet.
        2. Let the President dissolve Congress and call special elections.
        3. Let Congress require a president who has lost its confidence to face the country before his term would normally end.
        4. Have the president serve a single six-year term, so that he doesn’t have to worry about re-election and can go on with his programs uninhibited.
        5. Lengthen the House terms from two to four years so that they can stand for re-election at the same time as the President.
      5. Many of these changes are based on the British parliamentary system, which is the major alternative to the American separation of powers system in the world.
      6. Critics of these proposed remedies argue that many times, Congressional scrutiny has improved presidential decisions more than it has worsened them, that other systems have done no better than the U.S. in dealing with their problems, and that the average person stands a better chance of fighting back against bureaucracy in the current system.
      7. Each of these proposals would add confusion to the country, barely improve matters, or reduce stabilizing and moderating effects of the current governmental system.
    3. Other Constitutional critics argue that the government is too strong, not too weak, and that democracy can produce bad results if government caters to citizens’ special interests rather than long-term values.
      1. The government generally wants to do more for everybody (good), but that means a lot of overspending and a possible weakening of the American economy (bad).
      2. These critics suggest limits on the federal budgets every year; these limits could be overruled by, say, 60% of Congress, and would not apply during wartime.
        1. This would force Congress and the president to look at the big picture, rather than simply “pressing the ‘add’ button all the time.”
      3. Another proposed remedy is giving the president a line-item veto in which the President can veto a part of a bill that he doesn’t like but sign the rest of the bill (Bill Clinton got a limited version of this in 1996, but Congress could limit his use of it by simply writing that a bill could not be subject to the provisions of the Line Item Veto Act).
      4. Still other critics want to limit the power of the judicial courts.
      5. ARGUMENT FAULTS: Congress can always borrow money and thus easily evade any budget limits; line-item vetoes can be used by the President to spend more, not less; curtailing judicial power would limit the way they protect essential citizen rights.
    4. Actually, both sides may be right, but the Constitution has worked for over 200 years, so no change might even be necessary.
      1. Critical questions in this debate are: How well has the Constitution worked over the long sweep of American history? AND How well has it worked compared toe the constitutions of other democratic nations?
      2. The only way to answer those questions is the study American government closely, probing into how the government works and why it has produced the policies that it has.
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Chapter 03 - Federalism

  1. Governmental Structure
    1. The single most persistent source of conflict in U.S. politics since the adoption of the Constitution has been the relations between the national and state governments.
    2. Today, an effort is underway to reduce national gov’t powers, giving more strength to the states; this effort is known as devolution.
      1. Some proposals give states block grants in which states get money that they can spend in any way they want—as long as it is within broad guidelines set by Congress.
    3. Federalism is the political system in which local units of government and a national government make final decisions with respect to at least some governmental activities and whose existence is specially protected; both local and national forms of government have their own sovereign powers and some powers that overlap, thus making the two share authority.
      1. The United States, Canada, Australia, India, Germany, and Switzerland have federal systems.
      2. France, Great Britain, Italy, and Sweden have unitary systems in which the national government can abolish local governments at will and have the final say in all important gov’t matters.
      3. Federalism works in practice due to the people; the USSR technically had a “federalist” gov’t, but in reality, the Kremlin controlled the “states.”
        1. It takes the commitment of the people to support a slightly independent local gov’t and the same desire from the Congressmen to allow local governments to exist.
      4. The national government, while owning sweeping powers, actually exercises most of those powers through state, county, and city governments.
    4. To some, federalism means allowing states to block actions, prevent progress, upset national plans, protect powerful local interests, and cater to the self-interest of hack politicians; to others, it means developing mechanisms vital to governmental strength, political flexibility, and individual liberty.
      1. Federalism allows people to pass laws according to local interest, and even though some may pass bad laws, others may pass laws to counteract the previous “bad” laws.
      2. EXAMPLE: In England and France, local groups would have no success in trying to ban the landing of Concorde jets in local airports, but in the U.S., such groups have actually won.
    5. According to James Madison, since there are so many diverse interests, only a large government (like the U.S.) can adequately have the maximum number of sides to be heard, as opposed to small nations, where not as many interests could be known and argued.
    6. Federalism is more likely to get the average Joe interested in politics because there is a more likely chance that what Joe does will have an effect on politics and on his life.
      1. This is due to the numerous elected representatives in all levels of gov’t.
  2. The Founding
    1. To the founding fathers, federalism seemed the perfect way to protect personal liberty, since concentrating all power into one hand (even one popularly elected hand) might prove to be tyrannical; while working under a confederation, or an alliance of states where the state governments are more powerful than the national governments, could totally prevent progress.
    2. The Founders envisioned federalism as a system in which both national and state governments would have certain powers, but neither would have supreme authority over the other.
      1. In Federalist No. 46, Madison argued that state and national governments were simply different agents and trustees of the people, who held the ultimate power.
      2. In Federalist No. 28, Alexander Hamilton explained that, in federalism, people would shift their support between national and state governments to keep the two in balance.
    3. Actually, this was a brand-new plan in which no one really knew how it would work; little discussion of it actually took place, and few people even used the word “federalism” to mean what we mean today.
      1. In fact, it wasn’t until the 10th Amendment that states actually received power; in that amendment, all power not given to the national gov’t are given to the states.
      2. On the other hand, it seems that the national government has usually retained these “other powers” anyway, despite what is said, due to support from the courts.
      3. The language used to describe national/state government relationships was vague, and it was later left up to the courts to interpret it.
    4. Knowing that they could not possibly list every single power that Congress could have, the Founding Fathers added the elastic clause: “Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”
      1. Coming out of the Constitutional Convention in Philadelphia, different views of federalism were carried: (1) Alexander Hamilton believed that the national government was the superior and leading force in political affairs, since the people created it and its laws were the “supreme law of the land;” (2) Thomas Jefferson believed that “the people” were the ultimate sovereigns, and since the states was a result of agreement among the states, the states were supreme over the national gov’t.
        1. Hamilton believed that the Constitution could be loosely interpreted while Jefferson believed in a strict interpretation of the Constitution (later used in argument for the Bank of the United States, which was “necessary and proper,” as said by Hamilton, who supported it, but “not addressed in the Constitution and therefore illegal,” as said by Jefferson, who was against it).
        2. James Madison first supported national supremacy but later switched to states’ rights.
  3. The Debate on the Meaning of Federalism
    1. The Civil War was fought over the issue of national supremacy vs. states’ rights, but its conclusion only settled the fact that the national government’s sovereignty came from the people, that the national gov’t was supreme, and that states couldn’t secede, but left other issues open.
    2. In the U.S.’s early years, the Supreme Court was led by Alexander Hamilton’s firm supporter: Chief Justice John Marshall.
      1. In a series of rulings, he upheld the supremacy of the national gov’t.
      2. In McCulloch v. Maryland, James McCulloch, a Baltimore cashier of the Bank of the United States, refused to pay the taxes that the state of Maryland levied on money and was jailed.
        1. Marshall ruled that Maryland had no right to tax the notes of national currency, and thus, McCulloch had the right not to pay a tax that wasn’t supposed to be levied.
        2. That ruling also firmly strengthened the “necessary and proper” (elastic) clause.
    3. Later, the Supreme Court ruled that since state governments couldn’t tax federal bonds, the national gov’t couldn’t tax the interest people earned from state and municipal bonds… but in 1988, it changed its mind and gave Congress the power to do so; so far, Congress has chosen not to do so.
    4. In response to the Alien and Sedition Acts, James Madison and Thomas Jefferson wrote the Virginia and Kentucky Resolutions, stating that states had the right to “nullify” laws that, in the state’s opinion, violated the Constitution, thus presenting the concept of nullification.
      1. John C. Calhoun later revived this doctrine, and the ensuing battle later led to the explosion of the Civil War.
    5. The doctrine of Dual Federalism emerged after the Civil War; it stated that though the national gov’t was supreme in its sphere, state governments were supreme in theirs as well, and that these two spheres should be kept separate.
      1. This applied to commerce: Congress could regulate interstate commerce, but states regulated intrastate commerce.
      2. The courts were left to specify the difference between inter- and intrastate commerce, but for a while, it simply classified differences according to product…then came the question of when commerce turned from interstate to intrastate.
      3. Eventually, the courts decided to let Congress regulate practically everything that flowed within the stream of interstate commerce; anything that was related to interstate commerce, such as window washers working on a building housing an insurance company that dealt insurance to people inside and outside of the state, was regulated by Congress.
      4. Currently, the differences are complex and hard to explain, but the concept of dual federalism is far from being extinct.
  4. Federal-State Relations
    1. The national gov’t is supreme, but Congressmen selected from the states must pass its laws.
    2. The best illustration of how political realities may affect legal authority can be found in federal grants-in-aid, where the national gov’t granted land or money to various people or places for helpful use.
      1. At first, cash grants weren’t plentiful, as they were usually devoted to helping state militias or such, but in the 20th century, these exploded, and today, housing aid fro low-income families, Medicaid, highway construction, services to the unemployed, and welfare programs for single mothers and for the disabled take up a huge chunk of grants-in-aid.
      2. While states wanted money, Congress couldn’t simply give cash to them without reason or Constitutional authorization; the solution was for Congress to give money to state (pay the bills) and for states to do what they needed to do (run the exercises).
      3. Reasons for states’ turning to Washington for $$$: (1) There was a lot of it (in the 1800s, there were lots of surpluses); (2) The federal government had an income tax that could generate revenue; (3) The federal gov’t could print more cash whenever it needed it and only had to borrow from itself; (4) Politics—federal money seemed to be “free” money for states.
      4. On the other hand, if Washington sends money to one state or congressional district, it will have to send money to all others as well, since it “wouldn’t be fair” for just one state to get the cash while others have nothing.
    3. In the 1960s and beyond, though, the national gov’t began giving money not according to states’ needs, but to what it thought would be best for national needs.
      1. Unfortunately, some states and cities became dependent on national financial aid.
      2. To fix this, intergovernmental lobbies have been set up to seek national aid for cities & states.
        1. For a while, cities and states did get more money but by the 1980s, federal grants had stopped growing.
    4. To get more money, lobbyists wanted federal aid moved from categorical grants, or one with a specific purpose, to revenue sharing, where a set amount of money could be distributed to anything (funds didn’t have to match in subject) or to block grants.
      1. Block grants were basically categorical grants jumbled together to form one large, broad grant to which cities could easily adapt their funds to support; only five were enacted—among them was one devoted to cities, another to law enforcement, and a third to the unemployed.
      2. In theory, block grants and revenue sharing were supposed to give states total freedom to do what they wanted with money, but in reality, the money did not become as readily available as states hoped and the federal gov’t actually increased restrictions on this “unrestricted” money.
  5. The Slowdown in “Free” Money
    1. Categorical grants gave the federal gov’t, not the states, control over the money, and this was good for Washington, since federal officials tended to distrust state governments.
    2. Revenue sharing spread money out so much that to individual receivers, the cash wasn’t “a matter of life and death,” whereas in categorical grants, it often was “a matter of life and death” because of the concentration of cash.
      1. Revenue sharing money went to all divisions, regardless of need, and thus was wasteful.
    3. The more important federal money becomes to the states, the more likely they are to fight over it, and the question of whether the federal gov’t helps certain areas of the country by distributing more cash to those areas arises.
      1. It is very hard for Washington to figure out how to distribute money, since money given to a defense contractor headquartered in California might go to New York if that contractor pays subcontractors from that area.
      2. Recently, “distribution formulas” have arisen to decide this, thus giving huge importance to the results of the census, which is taken every 10 years.
      3. Distribution formulas are okay, since there are computers take can predict all effects, but even occasionally, such formulas may end up strangely doling out money where it’s not needed.
  6. Federal Aid and Federal Control
    1. Some people fear that the federal gov’t is controlling the states by controlling the money that goes to them, thus, in effect, nullifying the 10th Amendment.
    2. The fed gov’t can control state activities by using traditional controls (telling a state gov’t what it must do to get grant money) and attaching conditions of aid or by using mandates—telling the states what they must do period.
    3. Mandates can concern civil rights (no discrimination on sex, race, or disability) and environmental protection (anti-pollution laws).
      1. Some mandates are clearly advantageous and easily to enforce (like no dumping sewage into the ocean) while others are not so clear and hard to administer (like the Americans with Disabilities Act of 1990, where the disabilities have to be specified).
      2. Mandates, along with certain taxes, can be used by the fed gov’t to impose costs on states.
      3. Citizens can also control the behavior of local governments, thanks to the Supreme Court, by suing them over just about anything that they are “entitled to” under federal law.
    4. Conditions of aid are purely optional (don’t want restrictions, don’t take money), but since much of the state budgets depend on federal grants, these conditions are often taken anyway, w/ or w/o gusto.
      1. These conditions can be specific (i.e. only applying to highways and beautification) or general.
      2. Example Problem: The 1973 Rehabilitation Act forbid discrimination of disabled people in any program receiving federal financial aid; loosely read, this could mean that otherwise capable disabled persons had to be hired for jobs, but broadly read, it could mean that buses and subways had to give access for disabled people onto their vehicles.
      3. Basically, this “free money” was no longer free.
    5. Bargains struck to get benefits while passing costs onto the other side used to benefit local officials, since the Congressmen were elected by the local people, but ever since the 1960s, American politics has shifted to favor Washington’s needs over local needs.
      1. President Richard Nixon tried to reverse this by creating block grants and revenue sharing.
      2. President Ronald Reagan tried to stop this by combining 33 categorical grants into six large block grants, but Congress attached restrictions to many of the new grants.
      3. Thus, the cutbacks in money during the 1980s led to many states experimenting with new ways of delivering services.
  7. A Devolution Revolution?
    1. The Reagan administration nudged the political pendulum in favor of states’ getting lots of leeway, but the 104th Congress, dominated by Republicans for the first time in 40 years, worked VERY hard to shove in further in that direction.
    2. There are three type of block grants: operational grants are for purposes like running state child care programs; capital grants are for purposes like building local wastewater treatment plants; entitlement grants are for purposes like transferring income to families and individuals.
      1. All of the block grants that existed before the 104th Congress convened were operation or capital only, and thus, the 104th Congress enacted a large number of entitlement grants.
        1. Welfare (Aid to Families with Dependent Children) and Medicaid were not created as block grants, though they account for half of all federal grant-in-aid spending.
        2. However, the 104th Congress tried to turn these two in block grant programs.
        3. Welfare did turn into a block program, but Medicaid did not.
    3. Devolution seems to be driven by three things:
      1. People distrust the federal gov’t and feel that governments closer to the people can serve the people better than distant federal governments.
      2. In order for the fed gov’t to decrease spending on, say, Medicaid, state governors must receive certain powers in exchange for going along with certain caps in grants-in-aid.
      3. Most citizens also feel that devolution is a good thing, at least in principle.
  8. Congress and Federalism
    1. The devolution movement may gain steam or fizzle out, but in the end, the U.S. will NOT remain a wholly centralized nation.
    2. Still, Congressmen sometimes pass laws that impede upon progress because of their different backgrounds and because of how they expect their constituents would act on certain subjects.
      1. Organizations that once linked members of Congress to local groups have eroded.
      2. Party groups are becoming more and more varied, and a city or state may not have a single authority that can represent it.
      3. The best deciders of policies are no longer the politicians, but the occupation-holders like the teachers and doctors of a city.
      4. People also differ on how they feel local and federal governments benefit them (depending on financial state, gender, race, and/or religion).
    3. On the other hand, it is this diversity that keeps federalism alive and prevents the United States from falling into a unitary system.
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Chapter 05 - Public Opinion

  1. What is Public Opinion?
    1. Because the government doesn’t do everything that the people want, some people become cynical and say that the government is democratic in name only, but this is not true because the Framers of the Constitution created a government that would achieve certain substantial goals, not simply “do what the people want.”
    2. The Framers knew that with a country so large, there could never be a true, unified “public opinion;” instead, there would be factions of opinions.
      1. Also, public polls are taken based on a tiny fraction of the American public; they cannot truly represent what everyone thinks.
      2. People who are more “in the know” about government think about it differently than the rest of the public, who only ponders politics occasionally.
    3. Polls should not be trusted to tell universal truths, since many people are ignorant of politics and apathetic about the government.
      1. How a poll words a question can significantly affect the outcome and results.
        1. Altering the order of options or the type of options can produce wide results for the same question!
      2. Opinions can also change in short periods of time, as a person agreeing with a statement in January can disagree with the same one in June.
    4. In short, public opinion suffers from ignorance, instability, and sensitivity to the way questions are worded in polls.
      1. Different people give different weight, or importance, to different aspects of politics.
  2. The Origins of Political Attitudes
    1. Advertising and media affect the way people think of and view politics, but it does not control the opinions of people, or else democracy would be a joke.
    2. Family plays a large part in political views, as many young people seem to be able to identify their parent’s political party and even agree with it.
      1. Even youths who disagree with their parents favor an “independent” party, not an opposition party; however these days, family does not play as large of a role in opinion.
      2. While family preference in party does play a role in shaping a child’s future political inclinations, that role is small, since the parents rarely talk about politics (clearly and explicitly) and issues that affect the children may be different from adult-affect issues.
        1. There are, of course, exceptions to this; some families are politically clear and active.
    3. Religion is another key factor in public opinion (e. Catholic families are somewhat more liberal on economic issues than Protestant ones, while Jewish families are much more liberal on both economic and social issues than Catholic OR Protestant families).
      1. The social status of religious groups of America may account for this difference, since when Catholics and Jews came to America, they were often subject to discrimination and poverty, and thus clung to whichever party welcomed them more—the more liberal Democratic Party.
        1. Today, Catholics and Jews are more prosperous, and thus their support has shrunk.
      2. Another theory for why religion plays a part of beliefs emphasizes the content of religious tradition more than the social status of that religion’s members; the religion’s teachings affect the way people think about ideas.
      3. In the early 1990s, the Christian Coalition, founded by Pat Robertson and headed by Ralph Reed, began allying with mainstream politicians, thus becoming a major force in today’s politics, despite the fact that it’s mostly strong in the South, Midwest, and West.
    4. Yet another variable in public opinion forming is gender.
      1. In the 1950s, women were more likely to be Republicans than men, and in the next decade, they were more likely to be Democrats; the reason for this shift was due to the parties’ changing of stances on women’s issues.
      2. The gender issue seems to disappear when gender-sensitive policies—war, gun control, or pornography—are not in the spotlight, but when these issues become “hot” again, the gender gap re-emerges as a major factor in political opinion.
    5. Schooling and information can affect political thinking; more educated people tend to be more liberal while less educated ones tend to be more conservative.
      1. It seems that the longer students stay in college, the more liberal they become.
      2. This trend could be because college people’s own personalities allow them to be more liberal, but it could also be because exposure to more information can shape their minds.
      3. The level of information on a political topic is the biggest factor in one’s opinions on that topic.
      4. Another view states that colleges teach liberalism, since college professors are more liberal than people in other occupations.
      5. As more and more people attend college, this factor has become more important, but experts largely agree that colleges today are more conservative than colleges of the past; also, how long college affects political thought can depend on a huge variety of reasons.
  3. I Cleavages in Public Opinion
    1. The way in which public opinion forms helps explain why there are so many cleavages in political thought, cuts that do not follow any one pattern but instead are complex and complicated.
    2. Because America is diverse, it’s virtually impossible to say that a person believes “View A” just because he belongs to a certain gender or race or religion or economic status.
      1. There are general shapes of patterns, but these are very general and not at all helpful for determining detailed views.
        1. Rich Jews and rich Protestants still differ on social welfare, and plumbers and professors, who make the same amount of money, can differ on their views as well.
      2. Class has a small effect in America, but a much larger one in other countries where the population is mostly homogeneous.
    3. Social class does separate Americans, as the “blue-collar” working class has different views from the “management” upper class.
      1. In the last few decades, however, class than has influenced less opinions in previous ones.
      2. Voting patterns among different classes have become more similar lately, but once again, if an issue that directly affects a certain class arises, the concept of social class will play a big part in determining the opinions of class members.
        1. Social class differences could be attributed to schooling (at one time, only the rich went to college, while the poor or middle class only needed a high school graduation), or they could be attributed to the fact that, these days, non-economic issues are making people choose which party to support, as opposed to econ. ones.
    4. Race and ethnicity, on the other hand, seems to be a clearer source of political cleavage than class.
      1. Whites are more likely than blacks to support the death penalty for murder& increased defense spending but less likely to support national health insurance.
      2. Many modern differences hinge on remedying past discrimination and racism.
      3. However, Blacks and Whites do agree that police should be allowed to search homes of known drug dealers without warrants, that women shouldn’t be able to get abortions simply by demanding them, and that marijuana shouldn’t be legalized.
      4. Blacks have become the most consistently liberal group in the Democratic Party.
      5. There also appears to be less cleavage among [poor and rich] Blacks than among [poor and rich] Whites.
    5. Geographical region also widely affects political attitudes.
      1. Southern members of Congress seem to vote more conservatively than Northern ones.
      2. In the past, Southerners agreed with Northerners on issues of economic issues, but issues of race and liberty always seemed to pull them apart.
      3. The Southern lifestyle itself is different from the Northern way of life since the South has been more receptive to business enterprise and less so to organized labor than the Northeast.
      4. The South has been against big government and civil rights, and lately, less Southerners are identifying themselves as Democrats than in the 1950s.
      5. These changes are important, since without the South, no Democrat except Lyndon B. Johnson would have become president of the United States.
  4. Political Ideology
    1. The words liberal and conservative are actually vague words and broad generalizations.
    2. Political Ideology is a coherent and consistent set of beliefs about who ought to rule, what principles rulers ought to obey, and what policies rulers ought to pursue.
    3. Political scientists can measure how much political ideology people have by [1]seeing how often they call themselves a broad term (e. “liberal,” “conservative,” “moderate”) or by [2] trying to predict a person’s view on a subject at one time or another based on his/her views on that subject previously.
      1. The more accurate the prediction, the more that person is likely to have an ideology, or “constraint,” according to these scientists.
      2. Obviously, most Americans don’t refer to themselves as “conservative” or “liberal,” except when asked in a poll, so the second one seems to work better.
    4. Of course, polls and surveys cannot be trusted 100% because people are apt to change their minds often, but in terms of ideology, many Americans do share similar views, such as the desire for freedom and justice and the yearning for equality (economic and social).
      1. Still, scholars regularly see that people have “inconsistent,” or conflicting, opinions on matters.
    5. While “liberalism” and “conservatism” are not consistent views, it doesn’t mean that they’re useless terms; they’ve merely evolved since they first came into use.
      1. In the 19th century, a liberal favored a free market and opposed gov’t control of the trade while a conservative abhorred the excesses of the French Revolution’s emphases on personal freedom and favored a restoration of the power of the state, the church, and the aristocracy.
      2. Around the time of the New Deal, these terms began to change, as liberals became favorers of active governments that would intervene in the economy while conservatives were against that.
        1. Now, the conservatives favored a free market instead of the liberals.
      3. Realize that there are different types of liberals and conservatives.
    6. Three categories have proven to be useful in seeing what people believe:
      1. The 1st category involves government’s regard to the economy; liberals favor gov’t efforts to ensure that everyone has a job.
      2. The 2nd involves questions on civil rights and race relations; liberals favor strong federal action to desegregate schools and promote better civil rights and more equality.
      3. The 3rd involves public and political conduct; liberals are okay with protests that want to legalize marijuana, want to “decriminalize” so-called victimless crimes, emphasize animal rights, and want to solve to crime by eliminating its causes, not super-punishing offenders.
    7. Here are four groups of people who are liberal and/or conservative:
      1. Pure liberals are liberal on economic policy and personal conduct, wanting to tax the rich heavily, allow abortions, and protect the rights of the accused, among others; they were more likely to be young, college-educated, and either Jewish or nonreligious.
      2. Pure conservatives are conservative on both economic and conduct issues, wanting the gov’t to cut back on welfare state, allow the market to allocate goods and services, and keep taxes low; they’re more likely to be older, richer, White, and live in the Midwest.
      3. Libertarians are conservative on both economic issues and more liberal on social affairs, wanting a small, weak gov’t; they are more likely to young, college-educated, White, have higher incomes, and live in the West.
      4. Populists are liberal on economic matters and conservative on social ones, wanting the gov’t to regulate personal conduct, lock up criminals, permit school prayer, and control business; they were more likely to be older, poorly-educated, poorer, religious, female, and live in the South or Midwest.
      5. BTW, this list above is an oversimplification, of course, but it is still useful to explain views.
    8. The Political Elite (people having more money, prestige, ability, schooling, etc… than the average Joe) can be classified as liberals or conservatives in a pure sense; they are often referred to as “activists.”
      1. Activists are more likely to display their political views openly and act upon them.
      2. This is due to having more information (which leads to thinking about politics differently), and peers (other people like them can influence them, of course).
    9. Some say that there is a “new class” emerging in America, which consists of people who possess certain advantages conferred not by the power, resources, and growth of business, but by the power, resources, and growth of government.
      1. The old classes were the capitalists or the workers.
      2. Higher education tends to make people more liberal (now, at least; this wasn’t always the case), and has split the middle class into the traditional middle class and the “new class” of college students who have gone on to graduate school.
      3. This rift has made it harder to hold together the coalition of workers and liberal middle classmen that once made the Democratic Party so strong.
  5. Political Elites, Public Opinion, and Public Policy
    1. The elites influence what issues the public should be involved in (through media and such) and also state the norms, or the standard of right or proper conduct.
      1. They help determine the range acceptable and unacceptable behavior.
        1. The elites used to say racism was wrong; now they say sexism is wrong; they’ve also made public reception to AIDS less fearing and loathing.
    2. The elites do NOT define economic problem (the public can see that for itself); they only shape the policy.
    3. In foreign affairs, though, they DO define the problem (e. Iraq).
    4. There are many elites, just as there are many publics (factions), and it is important to study the differences between the elites and the public; that way, people can see if there’s enough variety of opinion and influence among elites to call American politics “pluralist.”
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Chapter 06 - Political Participation

  1. A Closer Look at Nonvoting
    1. Only half of Americans vote, and many people blame this on apathy and urge the gov’t to turn up campaigns to urge people to vote, but this is an incorrect description of the problem, and the solution does not help matters either.
    2. When a list of the percentage of the voting-age population goes out to vote, America ranks near last, but if the percentage is of registered voters who vote in elections, the U.S. is in the middle of the pack.
    3. Apathy is not the solution to why America has such a low voter turnout rate because of the people who are registered voters, a large percentage (well over 80%) do vote.
      1. The problem is that a low percentage (comparatively to other nations) of U.S. adults are actually registered to vote.
    4. In America, the burden to register to vote falls on the people, and the registration process can often be too much of a hassle for people to go through; in European countries, most citizens are automatically registered when they are old enough to vote.
      1. In 1993, Congress passed the motor-voter bill, which required states to allow people to register to vote when applying for driver’s licenses and provide registration through the mail.
        1. This program seems to have encouraged many people to register.
    5. Voting is not the only way to participate in politics; joining civic associations, supporting social movements, writing to legislators, and fighting city hall are also forms of political participation.
      1. If one uses that to measure political participation, then Americans possible participate more than members of any other country!
      2. Also, if fewer people actually register and vote, it could mean that people are satisfied with things the way they are, but voting is still important.
  2. The Rise of the American Electorate
    1. Ironically, it was America were large numbers of people were first allowed to vote.
      1. When the Constitution was framed, voting was limited to property owners of taxpayers, but by the time Andrew Jackson became prez, voting was available to all white males.
      2. Blacks gained the right to vote after the Civil War; women won suffrage in 1920; today, being in prison bars a person from voting.
    2. The Constitution initially permitted the states to decide who could vote for what, and in the early days, different states ran their elections and their voting processes in widely varied ways.
      1. Some picked their House members statewide, rather than by district, while others used districts but still elected more than one member per district.
      2. Presidential electors were first picked by state legislatures, rather than by the people directly.
      3. In 1842, a federal law required that all House members be elected by districts.
    3. The 15th Amendment supposedly gave Blacks the right to vote, but not technically.
      1. Racists used different stratagems, like the literacy test (one must be able to read to vote; most Blacks were illiterate), the poll tax (pay to vote; most former slaves were poor), and the grandfather clause (one could vote if his/her ancestors voted before 1867; Blacks couldn’t vote before 1867 because they were slaves).
      2. Gradually, the Supreme Court overturned most of these “catches,” allowing minorities to vote.
    4. In 1965, the passage of the Voting Rights Act suspended the use of literacy tests and authorized the appointment of federal examiners who could register Blacks in [mostly Southern] states where less than 50% of the voting-age population had voted or registered in the last presidential election.
      1. Afterwards, the number of Black voters shot up drastically.
    5. The 19th Amendment gave women suffrage after decades of fight and protest.
    6. The Voting Rights Act of 1970 gave 18 year-olds the right to vote beginning January 1, 1971, but was declared unconstitutional; the 26th Amendment later lowered the minimum voting age to 18.
      1. In 1961, the 23rd Amendment let Washington D.C. residents vote.
    7. One would think that by letting so many more groups of people vote, that turnout would skyrocket, but instead, the percentage of eligible Americans who’ve voted has remained steady, and the number hasn’t come near the late 19th century levels of 70-80%.
      1. One view for this drop in turnout says that in the late 1800s, politicians worked hard for people’s votes, but afterwards, the public got bored of constant Republican landslides.
      2. Another view states that during the period where turnout rates were high, fraud ruled the polls, since political parties, not the gov’t, printed the polls and a person could vote more than once.
        1. Bosses and political parties controlled the counting of votes, and often padded the counts when they feared losing; in 1888, West Virginia had a voter turnout of 108%!
        2. Luckily, in 1890, states began using the Australian ballot, which was government-printed and uniform in size and shape, to vote, and voting was done privately, not publicly; thus, this cut back on but didn’t eliminate fraud.
    8. Voting rates probably have dropped, simply because it has become more difficult to register to vote.
      1. Of course, some drops and rises in voter turnout simply cannot be explained.
  3. Who Participates in Politics?
    1. Studies show that politics is not at the heart of day-to-day life, and many people even misreport whether or not they vote, often saying they have when they have not (according to Sidney Verba and Normal Lie).
      1. Work, family, church, and other voluntary activities come first.
    2. About one-fifth of Americans seem to be completely inactive: they rarely vote or take part in politics; while about one-ninth of Americans are on the other end: these activists are highly educated, are rich, and tend to participate in all forms of government.
    3. There are four groups that are between these extremes:
      1. The voting specialists vote a lot but do little else and are older, poorer, and less educated.
      2. The campaigners vote but also get involved in campaign activities and are smarter.
      3. The communalists are much like campaigners in social background but are most involved in community activities than partisan campaigns.
      4. The parochial participants don’t vote and stay out of campaigns and community activities but are willing to contact local officials about problems.
    4. More schooling and heavier religion tend to encourage people to vote more.
    5. Richer white vote more than poorer Blacks, but if income and schooling between both are the same, then Blacks actually vote more than Whites do.
    6. So, why are less people voting? Probably because there are more young people and more Blacks and other minorities, thus pushing down the percentage of Americans who are registered and vote, despite the fact that the process of registration has become a lot easier now than in the past.
      1. Political parties aren’t as good as mobilizing voters anymore; those states where voting registration is difficult still impede potential voters; voting is costless (in Italy, nonvoters get the stamp “DID NOT VOTE” on their ID papers, and in other nations, fines can be levied on nonvoters); and people don’t feel that voting matters much any more (“How can one vote make a difference in a huge election?”).
    7. To solve this lack of voters, registration could be made automatic, but that could lead to more voter fraud; and voting could be made mandatory, but Americans would most certainly object to that.
    8. Interestingly, Democrats usually think that higher turnouts will help them and Republicans think that higher turnouts will hurt them, even though sometimes, the opposite has occurred.
    9. Americans may vote less than citizens of other countries, but they are participating more, and public demonstrations such as sit-ins and protest marches have become much more common than before.
      1. Furthermore, Americans vote for more officials than people of other nations (president, governor, senators, state representatives, city council, mayor, school board members, etc…).
      2. In European countries, a person may only be able to vote one person every few years.
    10. Unfortunately, in America, due to the imbalance in voter turnout, many social groups are underrepresented while others are over-represented; the ratio is not equal.
    11. Obviously, what accounts for differences in political participation are not totally clear, but one can get a general idea of why, and that alone helps.
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Chapter 07 - Political Parties

  1. Parties—Here and Abroad
    1. There is a much greater sense of party loyalty and voting participation today in Europe than in America because in America, being a part of a political party isn’t as important or major as before.
      1. However, at one time, being a part of the Democratic or Republican Party was very important.
    2. A political party seeks to elect candidates to a public office by supplying them with a label—a “party identification” name—by which they are known to the voting population, or the electorate.
      1. This broad definition covers well-known parties, like the Democrats and the Republicans, as well as lesser-known parties, like the Whigs, Libertarians, and Socialist Workers.
      2. On ballots, though, political party names rarely even appear!
    3. Strong parties have strong labels—these labels appeal to people greatly; but nowadays, parties are much weaker, since fewer people participate in elections and identify themselves as belonging to a certain party.
    4. People see parties as a label in the minds of voters, an organization that recruits and campaigns for candidates, and a set of leaders who try to organize and control government.
      1. Recently, the drop in strong party affiliation has been gradual (22%-18% in Democrats; 13%-11% in Republicans), and more and more people are calling themselves “independent’s.”
      2. As the set of leaders who organize gov’t, parties have remained strong, but as organizations that elect people to office, they have lost a LOT of power, since more and more states are having primaries (less influence by the political elite) and boss corruption has been broken.
    5. In Europe, things are different: candidates are elected by party leaders, elected officials should vote in favor of what the party wants, and the party runs the campaign, not the candidate.
    6. The difference is because of the decentralization of gov’t in America, since power is not held on a national level and national parties are basically coalitions of local parties; though lately, American gov’t has become more nationalized—the federal gov’t, not the state ones, makes the decisions on schooling and welfare, issues that affect people’s lives and once were made by local governments.
    7. However, political parties have become more decentralized, since in the U.S., state and federal laws regulate how political parties function: the public selects candidates to run for office in election primaries (in Europe, the parties do that); and the party that wins control of Congress does not, as it does in European nations, control the right to select the chief executive of the gov’t.
      1. The leader does not pick cabinet members from Congressmen, but rather, from people NOT in Congress, thus weakening the significance and power of parties in terms of organizing gov’t and conducting business.
    8. In America, political parties rarely play an important role in the lives of citizens, whereas in Europe, “joining” a party means paying dues, attending regular meetings, and going to party-sponsored groups like labor unions, youth groups, educational programs, and even chess clubs.
      1. In America, rarely does local gov’t excite the people; usually, it’s presidential elections.
  2. The Rise and Decline of the Political Party
    1. In the beginning of America, there were no political parties, but later, they formed, became very powerful, and then weakened due to reform, and that’s where they are today.
      1. Four broad periods showing this are: creation of parties (1820s); two-party system emerges (Andrew Jackson’s presidency to Civil War); parties developed comprehensive organizational form and became popular (Civil War to 1930s); reform weakens parties (New Deal to today).
    2. The Founding Fathers thought parties were bad and called them harmful factions; George Washington even warned of the dangers of political factions in his Farewell Address.
      1. When Thomas Jefferson organized his followers to opposed Alexander Hamilton, Hamilton though Tom was opposing the very concept of gov’t, while Tom thought Hamilton was subverting the Constitution itself.
      2. The first organized parties were there Jeffersonian Republicans (today’s Democrats) and the Hamiltonian Federalists, loose caucuses of political notables.
        1. New England tended to be strongly Federalists while the South tended to be Jeffersonian Republican.
      3. After Jefferson won the presidency, Federalists feared that he would dismantle all the things that Federalists had done, but Tom instead adopted a policy in which he eventually incorporated many of the Federalists ideas, thus leading to the decline and eventual extinction of the Federalist Party.
      4. From Madison’s presidency to past Monroe’s, there was virtually only one party standing—the Jeffersonian Republicans, just as Jefferson had hoped, and during this time, differences in party opinions did not fall on economic lines, but rather, more geographical ones.
    3. In around 1824, Andrew Jackson made his first run for presidency; a decade later, voting requirements had been so stripped that all white males could vote, bringing the total number of voters from 365,000 in 1824 to over 2 million in 1840.
      1. As time went one, presidential electors were also increasingly chosen by the popular vote rather than by state legislatures.
      2. ii. After the caucus system, where a group of chosen representatives chose a “qualified” candidate, was ended in 1824, the party convention, where more people could participate, was invented.
        1. The Anti-Masonic Party held the first convention in 1831, while the first one from a major party was of the anti-Jackson Republicans later that year.
        2. In fact, the party convention was created in order to make America more democratic; practically no other country adopted this method.
    4. After the split over slavery, Whigs and Democrats tried to saddle the issue, but this could not be done, and thus, a new part against slavery emerged: the Republican Party.
      1. Republicans tended to be Northern and anti-slavery, while Democrats tended to be Southern and pro-slavery, but while Republicans tended to win the presidency and the Senate, they often lost the House of Representatives.
      2. William Jennings Bryan also split the Democrats from the South to the West.
      3. As a result, states tended to be one-party states, and competition went down to the state level.
      4. In the Republican Party, there emerged the Stalwarts, who were professional politicians, called the “Old Guard,” built up party loyalty, and were skilled in organization, negotiation, bargaining, and compromise; and the mugwumps (aka progressives), who wanted to reform politics, disliked party machinery, and wanted to see the party take unpopular stances on issues like free trade.
    5. Progressives began to attack corruption in big business, and big gov’t.
      1. They wanted more voting rights, stricter voting regulations to reduce voting fraud, nonpartisan elections, primary elections, and civil-service reform to eliminate patronage.
      2. In California, progressives found success in Governor Hiram Johnson, who adopted procedures called initiative and referendum so that citizens could vote directly on proposed legislation.
      3. These reformists lowered gov’t and political corruption but also weakened political parties, and thus, indirectly lowered the odds of having good, qualified, intelligent candidates.
  3. The National Party Structure Today
    1. In today’s governments, each level of gov’t (federal, state, local) exists on its own, with little or no organization, and all are practically independent of each other.
    2. Democratic and Republican parties do look alike, since both have national conventions that meet every four years to choose a presidential candidate, national committees that manage party affairs in between elections, and congressional campaign committees that help their members of Congress running for re-election, and national chairmen who manage the day-to-day work of the parties.
    3. In the 1960s and the 70s, Democrats became a factionalized party while Republicans became a bureaucratized one, and after Republicans won four of the five presidential elections from 1968 to 1984, Democrats decided that the Rep. way of doing things was better and emulated them.
      1. The Republicans had used computerized mailings to build up huge files of people who had donated money to the party and used that list to make a big budget for itself.
        1. In 1983, the Republican National Committee (RNC) raised $35 million from over 1.7 individual donors, and by 1994, the RNC, Senate Committee, and Congressional Committee had raised $246 million from 2.8 million donors.
      2. The RNC used this money to run the party and help its candidates, and later, the Democratic National Committee (DNC) used the same strategies to raise money for its party.
        1. By law, national parties can only spend $12 million on presidential candidates, but by sending money to states to help the candidates, the law was bypassed.
        2. RNC money also goes to taking polls to see what the people are concerned about.
      3. In 1996, Republicans and Democrats redoubled their efforts to raise soft money, or funds to aid parties and their ads and polls, but President Clinton and VP Al Gore were caught funneling illegal funds into these fundraisers…
    4. Party conventions are chosen, and then the place has to be selected; for years, Democrats and Republicans have been split over where to put a convention, since the area near the convention is likely to have its opinions addressed more solidly, since more people there can go to the conventions.
      1. The Democrats have been split between South and West/North while Republicans are befuddled between East and South/Southwest.
    5. The way people who attend these conventions are chosen is very complex, but the Democrats have recently tried to make the field more diverse and equally representative of minority groups, etc…
      1. The rules have been altered many times, but basically, they aim for intraparty AND interparty democracy: men and women delegates must be equally divided; “goals” of minority races must be established and addressed; selections procedures must be open; 75% of the delegates must come from the congressional district of lower; there is a limited number of party leaders and elected officials who can vote at conventions; all delegates pledged to a candidate must vote for that candidate.
        1. As a result of these rules, more senators and representatives became delegates.
        2. These “superdelegates” helped elect Walter Mondale.
    6. After a while, Democrats decided not to change the rules and put on a mask of uniformity to cover the turbulent faction that lied beneath the skin of the party.
      1. Still, people like Jesse Jackson protested that the rules made it harder for candidates like him to win delegates in proportion to their share of the primary vote.
      2. The response was more rule changing: winner-reward systems were banned; proportional representative system was put into use; rule-violating states lose 25% of their delegates.
  4. State and Local Parties
    1. In every state there is a Democratic and Republican state party organized under state law, where each will consist of a state central committee, below which exists county committees and sometimes, city, town, and precinct committees.
      1. It’s better to know the actual distribution of power in each state party, but first, the incentives that motivate people in a place to become active in a party organization must be found.
    2. A political machine is a party organization that recruits members through the use of tangible incentives like jobs, money, and the chance to get high favors from the gov’t.
      1. At one time, patronage, or the struggle over political jobs, was the main concern of party organization members.
      2. Places like Tammany Hall became famous for the political machines that operated there, and the federal bureaucracy became in important source of jobs (incentive), with the New York Custom House and the postal system becoming “rewards for good service.”
      3. Fraud reigned supreme, and the arrival of Italian and Irish immigrants made it easier to gain cheap support, but gradually, fraud was curtailed, as civil service reforms and laws like the Hatch Act of 1939 cut down on offering gov’t jobs in return for service or support.
      4. In many cities, however, ways were found to get around the law and maintain machines, but as voters grew in education, income, and sophistication, their need for party welfare system sank.
    3. Politics requires organization, and machines were efficient ways of maintaining that, plus there was huge voter turnout (even with fraud) where machines operated most heavily.
      1. Since machines were interested in winning, they didn’t usually care about the political views of a candidate, as long as he had the best chance of winning.
    4. The old campaign machine is almost extinct, but new machines that use money from donating individuals to knit together many politicians are springing up more frequently.
      1. Example: Henry A. Waxman and Howard L. Berman’s west Los Angeles machine gets lots of money but also has a strong interest in issues, especially at a national level.
    5. The opposite of a political machine is an ideological party, which is all about principle, spurns money incentives, and is usually contentious and factionalized (like pro- and anti-abortionists).
      1. Usually, ideological parties are third parties like the Socialist Workers or Libertarians.
      2. In the 1950s and 60s, many of these groups were “reform clubs” that actually saw some success against mainstream political groups, but in the 1960s and 70s, these “clubs” coalesced into more focused social movements, based upon a sense of liberalism (Democrats) or conservatism (Republicans).
        1. Example: Pro-Republican Christian Coalition, which is very conservative and pro-life.
      3. Now that social movements are the “farm clubs” of the big-league Republicans and Democrats, the major parties behave differently than before, when party machines were the “minor leagues”: internal factions abound while party leaders have greatly reduced powers.
    6. People who participate politically just for fun respond to solidary incentives.
      1. Many of these solidary associations are old machines that broke down and whose members continue to work and participate for sake of comradery and friendship.
      2. Such groups are not corrupt or inflexible, but they are lazy.
    7. If an organization that can sponsor a local party structure exists in a community, a sponsored party can occur (example: the Democratic Party in Detroit is sponsored, led, and somewhat funded by the United Auto Workers union).
      1. The UAW has been successful in carrying Democratic wins in state and national elections, but sponsored parties are still not common in the United States.
    8. Some candidates form personal followings, made up of friends and family, to ascend the political ladder (i.e. the Kennedy family) and later try to form them into ideological groups, but to do this, a prospective candidate must have an appealing personality, a lot of friends, and/or a big bank account.
      1. This strategy is often used where political organization is weak or nonexistent.
    9. The traditional party organization exists only in about 8 states today, usually the old northeastern ones.
  5. The Two-Party System
    1. A two-party system is rather rare in the world, as many other nations have multi-party systems, but in the U.S. the Republicans and Democrats have balanced each other rather well, even reviving after having been called politically dead (Dem.’s in the 1st third of the century and Rep.’s in 1930s & 60s).
      1. On the state level, though, there is rarely balance (South used to be REALLY Democratic while New England and the Dakotas were Republican), but parties are less competitive here than in presidential contests or the national level.
    2. This may be because of the system of elections, since most states are based on a plurality, or winner-take-all system, rather than a majority system where candidates must get more than half the vote, rather than just the most votes.
      1. In France, if no one gets the majority, run-off elections are held until someone wins.
      2. The biggest example of this is the Electoral System, because only two states don’t use the plurality system, and as a result, a person who didn’t get more than half the votes in a state still can win all the votes of that state (see Clinton in Missouri in 1992 or the 2000 Election).
      3. In England, proportional representation is used: if a party gets 35% of the vote, its members sit in 35% of the Parliament seats, and this system has been tried in the U.S.
      4. To win the presidency (huge prize), a party must have broad support and broad ideas; only one third party has ever won the presidency—the 1860 Republicans, but by then, they had virtually replaced the dying Whigs anyway.
    3. This may also be because of the fact that, most of the time, voters agree broadly enough to coalesce into two wide coalitions.
      1. There hasn’t been a successful group that has objected to the U.S. economic system, the non-monarchial way of U.S. life, or the privatization of religion.
    4. Despite racial or sectional differences, the system has prevailed, which means that the way it’s run is very important; pluralities make it useless for anyone to create, say, an all-Black or all-White national party to take away votes from one of the two major parties.
    5. For many years, state laws made it very difficult for a third party to get onto a presidential ballot (i.e. George Wallace originally had to collect 443,000 signatures to get on), but gradually, these laws were ruled unconstitutional or repealed.
  6. Minor Parties
    1. Minor parties my not win, but they certainly can form, and there are four main types of minor parties:
      1. Ideological parties have outlooks that are radically different from that of established parties.
      2. One-issue parties usually stay focused on one issue, like abortion, slavery, or alcohol.
      3. Economic-protest parties are usually based in one region, protest certain economic conditions, and disappear when conditions improve.
      4. Factional parties have split off of the Republicans and/or Democrats.
    2. Minor parties have carried several states in Congressional elections or received a good chunk of the popular vote in presidential elections (i.e. the Populists or Eugene Debs and the Socialists), but they seldom caused the defeat of a party that they hoped to split (exception: Republicans and the “Bull Moose” Progressives in 1912, which enabled Woodrow Wilson to win the election).
    3. It’s surprising that there haven’t been more minor parties, as the Civil Rights and the Anti-War movements of the 1960s failed to form a third party, as did the labor movement earlier in the century.
      1. The Blacks were with the Republicans after the Civil War and with the Democrats after the New Deal, while antiwar protesters supported Democrats; labor unions have been w/ the Dem.’s.
      2. This is because direct primaries and national conventions have made it possible for dissident elements of a major party to still have influence, unless they’re completely upset with things.
    4. Some say that minor parties come up with ideas that major parties later adopt, but this isn’t necessarily true because FDR adopted Socialists ideas into the New Deal because parts of his own party threatened to leave if he did not do so; also, prohibition was adopted from the Anti-Saloon League, not the Prohibition Party.
      1. The minor parties most successful in influencing the major parties have been the factional parties, since leaving a major party for sake of an issue sensitizes that issue.
      2. Recently, Ross Perot’s Reform Party, or United We Stand America has been a strong 3rd party.
  7. Nominating a President
    1. Major parties must balance the desire to win the presidency and lead the nation with the need to compromise with extreme factions (perhaps hurting the party itself) to avoid having them leave.
      1. In old days, when party leaders controlled or heavily influenced candidate selection, it was easy to ignore the extremists, but lately, with weakened leader control, it has been much harder.
    2. Oddly, often, party delegates and candidates have different and sometimes opposite opinions and views from the normal party members (the public).
      1. The main question is why certain elements of minority groups are represented at conventions, NOT why delegate and public opinion are so different.
    3. Before, party leaders chose delegates, but after 1972, more and more primaries and caucuses, or meetings of party followers, occurred more often, thus letting people chose candidates who may or may not have the qualifications or the connection to the public as before.
      1. Only the most dedicated members attend caucuses.
    4. Delegates are no longer “in it for the money” or there to help their won re-election prospects, and today’s delegates tend to be issue-oriented activists.
      1. Thus, they might not choose a candidate with similar views to the public, since they themselves don’t share similar views with the public; on the other hand, this new trend increases the chance for those with strong policy preferences to play a role in the party and decreases the chance that they will leave the party out of dissatisfaction.
    5. Basically, since now, convention delegates are mostly ideological activists, the presidential nominating system has changed dramatically from what it was in the mid-1960s.
  8. Parties versus Voters
    1. In the past forty years, Democrats have usually won Congressional seats but lost presidential elections while the Republicans have usually won the presidency but not Congressional seats.
      1. This is because the Democratic presidential candidate or the Republican Congressional candidate has usually NOT shared the same views as the public.
    2. To win, a party simply has to present a candidate that shares similar opinions and views to the public, and in the long run, the desire to win will make one major party or another take that step.
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Chapter 08 - Elections and Campaigns

  1. Presidential versus Congressional Campaigns
    1. Elections have two critical phases—getting nominated and getting elected—and to win an election, one must develop a unique plan that would probably only work in the U.S.
    2. In getting nominated in America, individual effort is greatly needed, whereas in Europe, it’s a party try.
    3. Parties used to play a much bigger role in U.S. politics than they do now, where voters usually vote for a name, not a party (the opposite is true in most other Democratic nations).
      1. It used to be that party machines and/or caucuses could heavily influence or even select who their candidates would be, but with the decentralization of gov’t and the campaign reforms, campaigns have fallen more and more onto the candidates themselves, NOT the parties.
    4. Presidential and Congressional races are different in important ways:
      1. Presidential elections are bigger and more competitive than Congressional races, but in Congress, incumbents (people already holding office) have huge advantages over newcomers.
      2. During off years (no presidential election), much fewer people actually go out and vote.
      3. Members of Congress can take credit for successes (even if they don’t deserve it) and communicate with their constituents much more directly than the president can.
      4. Congressmen can deny responsibility for any messes or wrongdoings in Congress, since they tend to run as individuals, not as members of a party.
    5. At one time, riding the coattails of a popular president could get politicians into office; these people would try to attach their name to the popular president somehow and hope that the people, seeing such names together, would vote for that politician as well (that’s not the case today).
      1. As a result, Congressional elections have become independent of presidential ones, and Congressmen can be elected even though other, more influential members of their party have drastically lost popularity.
    6. In running for a presidency, one must “get mentioned,” or somehow have his/her name heard by the public, whether it is through the media, by making lots of speeches, by being associated with a famous piece of legislation, by being governor of a major state (New York, etc…) or by already being famous!
      1. It’s usually wise to set aside a lot of time to run for presidency, but some people have managed their campaigns while still holding office!
      2. It takes a lot of money to run a campaign (the wealthier candidate usually wins).
      3. A single individual can only give $1000 to a candidate, while a political action committee (PAC)—a committee set up by and representing a corporation, labor union, or other special interest group, can give up to $5000; to be able to get federal matching grants, one must raise at least $5000 from individual contributions of $250 or less in each of at least 20 states.
      4. Organization is required, as a staff of fund-raisers, lawyers, accountants, a press secretary, a travel scheduler, an advertising specialist, a pollster, and a direct-mail company must be hired and paid to organize campaigns, inform a candidate, write position papers (candidates’ opinions and positions used to answer media questions), and basically help a candidate.
      5. A candidate’s strategy and theme can be that which attacks an incumbent or that which announces a bold, new plan, but they have to have a tone (positive/negative), a theme, timing (advertise early, late, in the middle), and a target (groups of people).
  2. Primary versus General Campaigns
    1. The primary selects the nominees who will later run in the general campaign to get elected to office.
    2. To win a nomination, one must mobilize political activists who will give money, attend local caucuses, and do volunteer work.
      1. The Iowa caucuses are a real test for candidates, since those who do poorly are less likely to get attention and contributions from the media and the contributors (of course, Iowans may not be representative of the views of everyone else in the country).
      2. These caucuses don’t even resemble elections; they’re more like rallies.
    3. A problem for candidates is that they may sound very conservative in one state to get votes from there, but if they venture into a more liberal state, they may not get votes there because of earlier statements.
    4. Primary election voters can sometimes be more extreme than general-election voters.
    5. Elections used to involve parades, big rallies, and “whistle-stop” train tours where candidates would shake hands with people in high density areas (factories, shopping centers), but now, candidates mostly utilize the media, broadcasting their messages through paid announcements or commercials (called spots) or by being mentioned in a nightly news program (called visuals).
      1. Television probably has a much greater effect on primaries than on general elections, since there is less information on a candidate during a primary than during a general election.
      2. Plus, both (or more) candidates’ ads will probably cancel each other out.
    6. Being mentioned on the news is not easy, since one must do something that a reporter would think is interesting (visiting elderly folks, shaking hands with people in an unemployed line), but it is cheap and can be very useful in a political campaign.
      1. However, candidates must take care to do these actions where a news camera is most likely to capture them on camera.
      2. Ironically, news visuals give less information than spots, even though most people believe that the opposite is true!
    7. Debates can help in popularity, but generally, incumbents, who already have name recognition, do not debate newcomers because doing so just gives the newcomer more publicity.
      1. Nixon debated JFK in 1960 and Ford debated Jimmy Carter in 1976; Nixon and Ford lost.
      2. The big risk of debates and visuals is that one accidental slip of the tongue could cause the doom of a campaign, as the media rapidly focuses on that one mistake, regardless of the past.
        1. As a result, many candidates have “stock speeches” that are repeated over and over again at different locations to attract the centrist voter.
    8. Television has helped many “unknown” candidates make it into the national picture; Ross Perot made successful appearances on the CNN program “Larry King Live” and used half-hour slots (“infomercials”) to present his ideas and plans to the public.
    9. A candidate can use direct mail to be much more specific than on television because he is speaking to a much more specific group of people.
    10. The consequence of modern campaign running is that those who vote for one candidate now may work for another in a later election; the campaign process has become divorced from the governing process.
  3. Money
    1. Money can play a vital role in campaigning, but it alone may not always help a candidate win.
    2. Presidential candidates can get part of their money from private donors and part from the federal gov’t, while Congressional candidates must get all their money from private sources.
      1. The federal gov’t will provide matching funds that will give as much money to the candidate has he/she has raised through individual donors who’ve given $250 or less, each.
      2. The gov’t also gives a lump-sum grant to each PARTY to help pay for costs.
    3. Congressional candidates get money from many individual donors, and some use special fundraisers, like rock band concerts or benefit performances, to raise money quickly.
      1. Incumbents spend very little of their own money in elections, usually getting it from PAC’s and private donors, while their challengers usually spend a lot of their own money.
    4. In 1974, after the Nixon Watergate Scandal, Congress passed a new federal campaign finance reform law, creating a six-person Federal Election Commission (FEC) to enforce a tougher, new set of laws.
      1. Today, any individual contribution of $100 or more must be reported to the FEC.
      2. Corporations and labor unions cannot make contributions, but they can for PAC’s to do so.
      3. There is a $50,000 limit on how much candidates can spend if they accept gov’t funds.
      4. There are now laws against “independent” political advertising (NOT asked to advertise by a candidate or a political party); these are usually ideological groups attacking a certain person.
    5. There are loopholes through these laws, though:
      1. If a party spends money on local party activities, it can get that as much of that money anywhere it likes; such funds are called soft money.
      2. Small contributions from PAC’s or individuals can be bundled together at one time to increase the impact of the donation.
    6. Because PAC’s can contribute to campaigns, they have increased enormously. | Election reform has shifted power away from political parties and toward the individual. | The reforms give wealthy people the edge (as long as they don’t take matching funds, they can spend however much they want). | These reforms have given ideological candidates, who can use direct-mail to appeal to the emotions of people, more power and more advantage. | Reforms hurt those who start campaigning late because they have less time to raise all that money need. | Finally, the reforms help incumbents and hurt challengers, since incumbents can raise money from PAC’s and solo donors more easily than challengers can.
    7. In presidential races, money is not a big factor, since both candidates usually have the same amount, but in Congressional races, the challenger who spends more money usually does better than the one who spends less, and the incumbent who spends more can be more successful as well!
      1. Incumbents can send mail to constituents for free, raise money easily, and provide services for their constituents; challengers cannot.
        1. Thus, an overwhelming majority of incumbents win elections.
    8. Some people want to undo some of the 1974 reform laws, but this would be difficult and perhaps useless: the incumbents (the advantaged ones) make the laws, not the challengers, and limiting PAC contribution, shortening campaigning time, or providing free TV time for speeches could make little difference or even worsen matters.
  4. What Decides the Election?
    1. Party plays a strong part in determining whom people vote for, as some vote for candidates of their own party without completely knowing what the candidates’ stances are.
      1. On the other hand, some people who identify with a certain party do not vote that way.
    2. Issues can also play a part in determining who voters vote for: they are more likely to vote for a candidate who will make the voter’s life easier and better, even if the voter doesn’t know the issues affecting him/her that well.
      1. A citizen does not have to be informed on all the issues, only those that affect him/her.
    3. Prospective Voting requires a lot of information about issues and candidates because people examine the views of candidates and then vote for the one they think will hand the issues best in the future.
    4. Retrospective Voting involves looking back at how people have dealt with situations and then voting for a candidate, hoping that he/she will handle future issues similarly.
      1. It doesn’t need much information, just the memory of what’s gone on in the past.
      2. Retrospective voters win elections: in 1980, voters chose Ronald Reagan because Carter’s era had been highlighted by lots of inflation, and many wanted an alternative to Carter—Reagan just happened to be that alternative.
      3. Those incumbents who lose seats lose because of retrospective voting.
      4. Since 1860, only one election—1934—has gone by without the party holding presidential office losing Congressional seats.
    5. Some feel that retrospective voting is based on the economy (good economy, incumbents stay), while others believe that it is more complicated, but both have come up with ways to “forecast” presidential elections and predict the winners (Congressional races are a LOT tougher).
    6. Campaigns can make the difference in elections by reawakening partisan loyalties of voters, giving voters a chance to see how candidates handle pressure and giving candidates a chance to apply pressure (negative advertising), and letting voters judge the character and core values of candidates.
      1. People want to know how candidates will really act, not just what their position papers say.
      2. Thus, there is a tendency to focus on the themes and not on the details so that as many people as possible can be satisfied.
      3. Themes have changed from slavery in the 19th century to temperance and women suffrage at the turn of the century to abortion and moral topics in the 1970s and 80s.
    7. Today, the emphasis is on picking the “right” leader, not just one who will win, and the advent of primaries has helped to further this new cause.
      1. Since there doesn’t have to be a majority in a primary, single-issue groups (self-explanatory) can help give the winner that extra edge and those extra votes that he/she needs.
    8. In putting together a winning coalition, one must retain those committed partisans and attract those who can swing either way—the undecided voters.
      1. In examining the nature of parties’ voting coalitions, one can see what percentage of certain groups supported the Democrat or the Republican, or one can see how much of a party’s vote came from this or that group.
        1. The first shows group loyalty; the second shows group importance.
      2. Blacks are most solidly Democratic, while Jews used to but are now Republican; Hispanic voters usually vote for Democrats, but there are divisions within Hispanics (Cubans, Mexicans, etc…).
      3. Democrats have lost their hold on Catholics, Southerners, and union members, while Republicans still have strong loyalty from businessmen and professional people.
      4. Farmers have voted for the group that would/could make farm prices most favorable to them.
      5. Interestingly, Blacks, who are the most dependable Democrats, make up very little of the votes, while those that make up much more can be swayed much more easily.
  5. Election Outcomes
    1. Voters and candidates may only be concerned with who wins, but political scientists analyze the trends of elections and what they imply about the candidates, the system, and the fate of political parties.
      1. The Democrats and Republicans were very close in races from 1876-96, and then the Republicans became dominant, continuing to even today, except for the FDR years.
    2. Scholars have developed the theory of critical or realignment periods, when support for one party becomes very strong and lasts for long periods of time, due to change in issues and voters.
      1. Five realignments seem to have occurred so far at around 1800 (Jefferson takes over), 1828 (Jacksonian Democrats rise), 1860 (rise of Republicans and collapse of the Whigs), 1896 (Republican dominance) and 1932 (Democrats came to office under Franklin D. Roosevelt).
      2. Realignment can occur when a party is so badly defeated that they disappear (Federalists in 1800 and Whigs in 1860) or when one party just loses a lot of support (1860, 1896, 1932).
    3. In 1860, the Republicans came to power after having been formed four years earlier to combat slavery, and afterwards, they and the Democrats became stiffly opposite, with middle parties eliminated.
    4. In 1896, economics (depressions) gave Republicans the edge, with farmers supporting Republicans.
      1. The split was now between east and west, not north and south like after the Civil War.
    5. In 1932, in the midst of the Great Depression, the “New Deal coalition” was formed, headed by Franklin Roosevelt, uniting various Democratic factions and old supporters.
    6. Basically, realignment occurs when an issue of great importance causes to voters to shift their support from one party to another, because they think that will be for the best.
      1. Some have said that the election of 1980 was a realignment, but the Democrats still controlled Congress; however, the South has become more Republican lately, so that might be true.
      2. Yet, another realignment may NEVER occur again, just because party labels have lost their meaning to voters, and there’s more likely to be dealignment, not realignment!
    7. People voting a split ticket (Congressmen = same party as president) as opposed to a straight ticket have increased in recent years.
      1. In the 19th century, ticket splitting was unheard of because people basically voted for parties, not candidates, and since today, people vote more for the candidates than the party, it’s risen.
      2. Around the turn of the century, Progressives began urging states to adopt the office-bloc ballot or the party-column ballot where candidates were organized by the office they were running for, not by the party they were in, making it much harder to vote straight.
  6. The Effects of Elections on Policy
    1. Public policy may or may not remain the same regardless of the party of the office holder because while there are only two parties, each one is made up of a wide range of DIVERSE groups with many different interests and policies that they want to make used.
      1. In a parliamentary system with strong parties, an election w/ a change in parties can lead to a strong change in public policy, but in the U.S., that’s not always the case.
        1. A position issue has people take one side or the other in a debate.
        2. A valence issue has people debate on HOW an issue is to be resolved.
      2. In fact, in America, strong shifts in public policies have usually paralleled realignments.
        1. One exception is 1964, when mass election of Democrats gave rise to programs such as Medicare and Medicaid, federal aid to education and local law enforcement, two dozen environmental and consumer-protection laws, the Voting Rights Act of 1965, and other massive, sweeping changes.
        2. In 1980, the voters brought in a much more conservative Congress, led by Reagan, who made cuts on many “excess” programs and tried to reduced spending.
    2. Elections CAN be important, as many promises actually ARE put into place.
      1. When there have been big differences in policy, most action seems to have been done (in law-making, etc…).
      2. People think elections don’t do much probably because public opinion and political parties enter a phase of consolidation and continuity between periods of rapid change.
        1. Even elections that occur during “normal” times can bring big effects (Ronald Reagan), but many times, they don’t do much either!
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Chapter 09 - Interest Groups

  1. Explaining Proliferation
    1. Interest groups are active participants in the political scene, lobbying for certain causes.
    2. There are so many interest groups in the U.S. because there are so many cleavages, or differences, in opinion, because the Constitution contributes by giving so many points where they can contact the gov’t (political authority is shared by the president, the courts, and Congress), and because today’s weak political parties let lobbies work directly on the gov’t.
      1. In Great Britain, centralization has made it so that only one group represents the farmers, one represents industry, and so on…
      2. To lobby is to try to influence gov’t decisions through petitions or other means; lobbyists are people whom, naturally, lobby for changes or actions.
  2. The Birth of Interest Groups
    1. The 1960s and 70s were a boom for the establishment of interest groups, but these groups also sprang up quickly during the 1770s to agitate for American independence; during the 1830s-40s to protest slavery (mostly religious groups here); in the 1860s, when crafts-based trade unions sprang up; and during the 1880s-90s, when business associations were commonplace.
      1. The biggest area of organization of interest groups came in the first two decades of the 20th century, when groups like the Chamber of Commerce, the National Association of Manufacturers, the American Medical Association, the NAACP, the Urban League, the American Farm Bureau, the Farmers’ Union, the National Catholic Welfare Conference, the American Jewish Committee, and the Anti-Defamation League sprang up.
      2. The 1960s-70s interest groups were mostly based on environmental, consumer, and political reform issues and were sponsored by people like Ralph Nader.
    2. Interest groups arise because of certain reasons (usually):
      1. Broad economic developments create new interests and redefine old ones.
        1. The farmers didn’t organize until they started selling their products through forces that THEY could not control (railroads, etc…).
      2. Gov’t policy helps create such groups (i.e. war creates veterans who can band together).
        1. The Grand Army of the Republic was the first large such organization.
      3. Political organizations often emerge as results of social movements, where bands of people rally for a cause, like anti-slavery, women’s suffrage, and Darwinism.
      4. The more activities undertaken by the gov’t, the more organized groups there will be that will be interested in those activities, simply because America is so diverse.
        1. When the gov’t starting making policies important to a certain subject, interest groups devoted to that subject sprang up.
  3. Kinds of Organizations
    1. Many interest groups are made up of corporations, law firms, or public relations firms, not necessarily individual members.
      1. There are two types of interest groups: “institutional” groups and “membership” groups.
    2. Institutional interest groups are individuals or organizations representing other organizations, like General Motors, which has a rep that represents it.
      1. People in these groups tend to be interested in the bread-and-butter issues of vital concern to their clients, and some people who work in these groups (lawyers) can charge up to $250 an hour for their time—and thus are expected to do a lot!
      2. What they deliver varies with the company: the American Cotton Manufacturers Institute represents southern textile mills, but these mills are broad enough to let the institute to carry out clear policies based squarely on the business interests on its clients.
        1. Other groups may not be like that because of more diversity in the group.
      3. Institutional interest groups can also represent governments, foundations, & universities.
    3. Membership interest groups are made up of Americans who join because they feel strongly on an issue (religious, civic, or political feelings can play parts).
      1. They are willing to join a group to make a real difference in a situation.
      2. On the other hand, people don’t join clubs JUST because they think that one member can make an enormous difference; instead, they have incentives that entice them.
        1. Solidary incentives are the sense of pleasure, status, or companionship that arises out of meeting in small groups (for example, local members that support a national staff).
        2. Material incentives include money or things and services that are valued by members and lure them into the group; they are tangible rewards.
        3. Purposive incentives are based on an ideal of accomplishment, and when an interest group’s goal can benefit even those who don’t join, those who do are very ideological; these are ideological interest groups.
      3. A public-interest lobby will even benefit those people who are NOT members of it.
    4. Most of these public-interest lobbies are controversial, and that controversy is what attracts people to the groups.
      1. After Ralph Nader won a settlement against General Motors, he got royalties and got rich and created many groups that dealt with matters of interest to consumers.
      2. He founded Public Citizen, a group that raised money, as well as Public Interest Research Groups (PIRGs) that were supported by students.
    5. Membership groups that offer purposive incentives tend to be shaped by the times; the an issue is hot, there are bound to be more organizations there, and when it’s not, there’s less.
      1. These groups try to take advantage of critical atmospheres, when the gov’t is hostile.
    6. In many cases, an interest group does what its staff wants rather than what its members believe, especially when there are members that join for material incentives.
      1. The staff will sometimes push for actions, even though the members want those actions.
  4. Interest Groups and Social Movements
    1. A social movement is a widely shared demand for change in some aspect of the social or political order.
      1. One can be triggered by a scandal, widely publicized activities of a few leaders, or by the coming of age of a new generation that takes up a cause.
    2. Then environmental movement included the organization of groups such as the Sierra Club (1890s), the Wilderness Society and the National Wildlife Federation (1930s), and the Environmental Defense Fund and Environment Action (1960s-70s) and had spread out groups, with large groups being more moderate than the smaller, liberal ones, and thus, lasting longer.
    3. There have been many feminist movements (1830s, 1890s, 1920s, 1960s) that have brought forth organizations like the League of Women Voters.
      1. Feminist orgs. that rely chiefly on solidary incentives recruit middle-class women with relatively high levels of schooling and tend to support those causes that command the widest support among women generally (i.e. the League of Women Voters & the Federation of Business and Professional Women, which supported the Equal Rights Amendment, but not intensely).
      2. Some women orgs. attract people through purposive incentives (i.e. National Organization for Women and the National Abortion Rights Action League, which take strong positions, tackle decisive issues, and employ intense tactics to please their members.
      3. The third type of women org. takes on specific issues that have some material benefit to women (i.e. the Women’s Equity Action League).
    4. Labor Unions often struggle to stay alive because their social movements have often run out of steam.
      1. The peak of labor union membership was in the 1930s, during the Great Depression, but since then, membership has steadily fallen, and many today only exist because they rely on anything but purposive incentives.
      2. Unions made up of government workers are growing in importance and size, as have groups affiliated with the AFL-CIO.
  5. Funds for Interest Groups
    1. Membership groups have more trouble raising money and are more crowded and small than institutional lobbies made up of wealthy companies or corporations.
    2. A huge amount of lobbying groups receive money from foundation grants, which are donations that come from foundations like the Ford Foundation or the Rockefeller Family Fund.
    3. Gov’t can sometimes give money that can indirectly support a group for doing a certain action(s).
    4. The modern interest group can use direct-mail to solicit funds and donations from individuals.
      1. An example of a group that thrives on direct-mail is the Common Cause, a liberal org. founded in 1970 by John Gardner, who sent letters to thousands of people to join and donate.
      2. Using mail to get money costs money, so to get more money than it spends, a group usually uses techniques such as: putting a “teaser” on the envelope so it isn’t thrown away unread; arousing emotions, usually be talking about a threat caused by “some devil;” having the endorsement of a famous name; or personalizing the letter by having the computer insert the recipient’s name so that he/she will think the letter’s personally written to him/her.
  6. The Problem of Bias
    1. Some people think interest groups benefit the wealthy more because rich people are more likely to join them than poor people and interest groups representing businesses and professions are much more common than those representing minorities, consumers, and/or the disadvantaged.
      1. Even though these facts are true, what actually gets done is also important, because those represented may not always win, and those not represented (minorities, etc…) may be unexpected recipients of rewards.
      2. Also, business-oriented groups are often divided themselves, and while they may represent a rich company overall, it can also represent a poorer minority working for that company.
    2. It’s important to ask precisely what any “upper class bias” is so that one doesn’t just make an errant generalization, but one shouldn’t ignore the overrepresentation of business in Washington DC either.
  7. The Activities of Interest Groups
    1. Size and wealth do not measure an interest group’s influence—what do are dramatic newspaper headlines, protests, suits in federal court that block actions, or big letter-writing campaigns.
    2. The single most important tactic is to supply detailed and valid information, gathering it and supplying it in the most influential and persuasive way possible.
      1. Constant, habitual suppliers of information to the gov’t can have great advantages over newer or contrasting suppliers of information.
      2. Public officials also want political cues, which are signals telling the official what values are at stake in an issue: if many respected groups are on the same side of an issue, an official will feel more securely about his/her own stance on that issue.
      3. Ratings are ways in which cues are made known, and they are designed to generate public support or opposition to various legislators.
      4. Ratings and cues can come instantaneously, now, due to the advent of fax machines.
    3. Lobbyists used to use an “insider strategy” where they’d meet personally with Congressmen and exchange favors and information, but no, they use an “outsider strategy” where they spread information out to the public quickly, using grass-roots lobbying to get the members of the public to put pressure on the politicians.
      1. Of course, sometimes, politicians simply listen to presented info and make their own choices.
      2. Lobbyists also like to work with legislators who will NOT argue with them, but they may make an effort to persuade an undecided legislator by starting polls or getting citizens to write to that Congressman to get a change.
    4. Some lobbying groups, especially those that use an ideological appeal to attract supporters, will actually ATTACK the gov’t in order to embarrass them and therefore gain publicity (Ralph Nader) and get action.
      1. Congressmen are skilled at seeing what kind of public pressure is forced and what kind should be heeded, so attacking the gov’t has varying effects in terms of action produced.
    5. Lately, though, special interest groups have developed close ties with grass-roots organization, counting on their support at times (like when the FDA said saccharin could cause cancer and the Calorie Control Council rallied people to reverse a ban on the substance that was used by many soft drinks).
      1. Usually, though, direct-mail is relied upon more, because the public doesn’t seem to care that much about a subject.
    6. A few decades ago, powerful interest groups used fat wallets to buy support and get influence in Congress, but after 1973, that changed, and now, money is one of the least effective ways that interest groups can get influence, because the 1973 campaign finance reform law restricted the amount that any interest group could give to a candidate and made it legal for PAC’s to give money to politicians.
      1. With the enormous growth of political action committees (PAC’s) and the ease in which one can be formed, it’s likely that there is money supporting every side of almost all issues.
      2. Instead of PAC’s controlling Congress with money, sometimes, Congressmen tell PAC’s when to give them money, so that they might consider a certain action!
      3. Ideological PAC’s have risen faster than business or labor PACs and have raised more money than the other two, but they’ve donated less money to the other two as well.
    7. There have been suggestions to lower the maximum PAC donation from $5000 to $2500, but the truth is that most PAC donations are small, spreading large sums of money over MANY candidates.
      1. If PAC donations do make a difference it is only on some issues, not all, and the only thing that money really buys is access to the Congressmen.
    8. There are some fears that a “revolving door” of politicians taking lucrative jobs in the private sector after they have helped interest groups will lead to the suffering of public interest.
      1. Michael K. Deaver was convicted of perjury, and Lyn Nofziger was convicted of breaking the Ethics in Government Act by lobbying the White House on behalf of special groups soon after he left it.
      2. Whether or not the “revolving door” really poses a problem is not really known, because a member of the FDA may approve a drug to get a good position at the company that makes that drug later, but a member of the Federal Trade Commission may want to prosecute businesses vigorously to prove that he can win cases later on when he works as a lawyer.
    9. Protests have been used since the beginning of America, and they have ranged from peaceful sit-ins to violent rallies and riots and lynchings.
      1. Since the 1960s, making trouble (protesting) has become an accepted way of getting a point from interest groups across to the public and to politicians.
      2. Women used to chain themselves to lampposts or engage in “sit-ins” to disrupt normal, orderly work and cause trouble in hopes that their opponents, tired of such problems, would give in to their demands and do what they wanted.
      3. Gov’t officials hate protests, because if they ignore the demonstrators, they’re “insensitive” and “arrogant,” if they give in, they encourage other such protests, and if they call in police to break them up, injuries and lawsuits may abound.
  8. Regulating Interest Groups
    1. Lobbying cannot be made against the law, but in 1944, there was an ineffective law passed that required lobbyists to register.
      1. In late 1995, a tighter law was passed that broadened a lobbyists to include people who spent at least 20% of their time lobbying, people who were paid at least $5000 in any 6-month period to lobby, and corporations/other groups that spent $20,000+ in 6 months to lobby.
      2. Twice a year, all lobbyists must report the names of their clients, their income and expenditures, and the issues on which they worked.
      3. The law didn’t include “grass-roots” organizations, and the more seriously a group lobbied, the more likely it would lose its tax-exempt status and find operating itself very difficult.
        1. Donations would not be as effective, then.
        2. The NAACP lobbies, and pays taxes, but the NAACP Legal Defense and Education Fund, which does NOT lobby, is exempt from paying taxes to the IRS.
    2. Beyond making bribery illegal and banning other forms of corrupt money transfer, there’s probably no real way of controlling special interest groups.
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Chapter 10 - The Media

  1. Journalism in American Political History
    1. In America the media has much greater freedom than in other countries, such as France and Great Britain, because in the U.S., media companies are privately controlled, and they only need licenses from the gov’t—nothing else.
      1. In England, politicians can sue those who make fun of them, while in France, broadcasting is governed by a national agency that can control what and what not to show the public.
    2. The media can provide exposure for a political candidate, but it can also ruin a politician’s career by showing negative views of him or her.
    3. Basically, there are four general periods in American journalistic history, each with its own major change during the time:
      1. In the early years of the Republic, newspapers were expensive to print and usually read by the political elite, and the lack of transportation made each paper’s circulation small; as a result, the earliest newspapers tended to be very partisan and support political parties.
        1. There was not necessarily objective news reporting.
        2. Alexander Hamilton created the Gazette of the United States, while Thomas Jefferson created the National Gazette, financing its editor with federal funds.
      2. Advances in technology and transportation made newspapers cheaper to buy and more widely available, and the invention of the telegraph meant that news could be flashed almost instantaneously from cities across the country!
        1. The partisanship became one that was based on the editors’ points of view, not on the influences of the political parties, and many journalists resorted to sensationalism, or the filling of stories with violence, romance, patriotism, and exposés, to popularize their papers.
        2. As a result, the real stories were often embellished to make readers interested, and many stories were just flat out made up!
        3. Strong-willed publishers like William Randolph Hearst and Joseph Pulitzer became powerful political forces, using their influence to shape political actions (i.e. Spanish-American War) and enrich themselves.
      3. The middle class was soon repelled by this “yellow journalism,” and many opinion magazines, like the Atlantic Monthly, Harper’s, McClure’s, Scribner’s, and Cosmopolitan sprang up, bemoaning the issues of corruption during the times and constantly adding muckrakers, or people who looked to expose the dirt and evil in society (monopolies, corrupt gov’t, et al).
        1. Some people didn’t like the muckrakers, calling them troublemakers.
      4. In the 1920s and 40s, the invention of the radio and television greatly enhanced political strategy, since candidates could buy [expensive back then in the early days] radio or television time to expose their ideas to the public.
        1. However, people could simply tune to another station or channel.
        2. Eventually, CBS, NBC, and ABC came to dominate the news market, covering all the events with their massive influence, but recently, due to the Internet and other forms of media, their power has declined.
        3. The sound bite, of a video clip of a presidential contender speaking, has dropped from 42 seconds in 1968 to less than 10 seconds in 1988, which means that candidates have had a harder time recently to get their messages across television.
    4. Many candidates prefer call-in, town meeting formats when they are on TV as opposed to confrontational, disputative debates, but when they are prepared on what to say, it doesn’t necessarily help the public decide who is the best one, since no one can be sure how the candidate really feels.
      1. Most politicians nevertheless crave the spotlight, and they constantly try to get “visuals,” or filmed stories, about themselves on television—simply to get more exposure and more fame.
    5. It used to be that the media covered small groups of people, and that the readers of the newspapers were highly partisan, but as media has become less concentrated, the public has become freer to form groups according to what they believe, not to what others tell them to believe, and with electronic journalism in the form of the Internet and cable news networks, a new era of journalism has begun.
  2. The Structure of the Media
    1. The relationship between media and politics is a two-way street: while politicians can try to use media for their own gain, the media can use politicians for humorous or informative purposes.
      1. The media does not simply deliver the truth; there is a process of editing and choosing behind the scenes, dictating what really is shown and what is not.
    2. The number of newspaper companies has not declined, but the number of cities with competing paper companies HAS; only 4% of America’s cities have competing newspapers.
      1. However, many smaller cities have access to different papers due to readership overlaps.
    3. Television and radio, on the other hand, are highly competitive, for although there are only five major networks, there are over 1000 TV stations, and each one has its own news programs.
      1. There are a multitude of cable TV channels and a plethora of radio stations.
      2. Astonishingly to foreigners, the American press—radio, television, and newspapers—is independently operated by local enterprises, not national ones.
    4. However, the American newspaper is more locally geared (more local stories than national ones) then European papers.
      1. The Federal Communications Commission (FCC) prohibits people from operating more than one newspaper, AM radio station, FM station, or TV station in a given market, and companies cannot own more than 12 TV stations and 12 AM and 12 FM stations in the country.
      2. Networks cannot make a local affiliate accept any particular broadcast (it’s all voluntary).
      3. The recent 1996 Telecommunications Act gives broadcasters greater freedom to enter new businesses and purchase more TV and radio stations; its effects are unknown as of now.
    5. Certain publications and broadcast services have offset local orientation: the Associated Press and United Press International supply most of the news reported in local papers; the Cable News Network shows news 24/7; certain magazines like Newsweek, Time, and U.S. News & World Report have national influences; network evening news broadcasts from ABC, NBC, and CBS are usually shown by local affiliates; and the New York Times and Washington Post have acquired national influence because they’re read by practically every important person in Washington, thus joining the three truly national papers—the Wall Street Journal, Christian Science Monitor, and USA Today—in popularity and scope.
      1. The existence of a national press is important because politicians pay attention to the opinions of a writer in a national paper; also, reporters for national papers tend to come from more prestigious colleges, be more liberal, be better paid, and seek the chance to write stores that are not accounts of a certain news event but rather investigate about issues and policies.
    6. The national press can play the role of the gatekeeper by deciding what topics and stories get attention and what topics do not (i.e. auto safety, H2O pollution, quality of prescription drugs weren’t big issues till the press covered them).
    7. It can also be the scorekeeper by keeping track of and helping to make national reputations.
      1. This is where the exposure that politicians so dearly desire comes from.
      2. As a result, though, the news often covers presidential elections as if they were horse races rather than choices among policies (i.e. the attention lavished on the Iowa and New Hampshire primaries, the “discovery” of Gary Hart in 1984 and George McGovern in 1972 after they finished second in primary races).
    8. The press can be the watchdog, exposing scandals and corruption when and where needed (i.e. the press discovering Gary Hart’s infidelity to his wife).
    9. Newspaper folks have more freedom and less pressure than TV folks, but they make less money.
  3. Rules Governing the Media
    1. Interestingly, the newspapers, which have the least competition, are the most loosely governed, while radio and TV, which are the most competitive, must have gov’t licenses and follow a lot of gov’t rules.
    2. The 1st Amendment of the U.S. Constitution has given the press virtually complete freedom, with the only restrictions being very narrowly defined.
      1. After publishing something, a paper CAN be sued if it is libelous or obscene or if it incites someone to commit an illegal act, but to collect damages, it must be proven that the printed material was false AND was printed with intended, malicious intent.
      2. It’s illegal to use printed words to advocate the violent overthrow of the gov’t if one invites others to join, but that rule has been applied to newspapers rarely.
    3. Reporters believe that they should have the right to hold the confidentiality of their sources, but in many cases, reporters were jailed for not revealing their sources because the case required the identity of such sources as evidence so that the trial would be fair and just.
    4. TV stations must renew their licenses ever five years while radio stations do so every seven years, and until recently, the FCC required all broadcasters to meticulously detail information about their programming and how their planned to serve “community needs,” thus receiving valuable information that could be manipulated so that the FCC would influence what was put on the air.
    5. Radio and TV stations are still regulated by a few rules that are still stringently enforced:
      1. The Equal Time Rule states that if a station sells time to one candidate, it must be willing to sell equal time to all other candidates.
      2. The Right-of-Reply Rule states that if a person is attacked on a broadcast program (not regular news), he can reply on that same program.
      3. The Political Editorializing Rule states that if a broadcaster endorses a candidate, the opposing candidate(s) has/have the right to reply.
      4. For many years, there WAS the fairness doctrine, in which broadcasters had to discuss both sides of a controversial issue, but in 1987, the FCC abolished that rule because if felt that it inhibited the free discussion of issues; many broadcasters still follow it voluntarily.
    6. At one time, the equal time rule meant that TV and radio could not broadcast a presidential debate between Democrats and Republicans without inviting ALL the other groups as well, so they simply it a “news event” and had the League of Women Voters sponsor it, but today, there’s no problem.
    7. A market is an area easily reached by a television signal, and about 200 of these exist in the U.S., but some are larger than others, and some are cheaper (# of people reached per dollar spent) than others, so some politicians use TV more than others (senators more than house reps).
  4. The Effects of the Media on Politics
    1. The media does have SOME effect on the public as to what is important and who is the best candidate.
      1. The effect is not that great, since TV and radio also suffer from selective attention, where the viewer or listener sees and hears what he/she wants to see and hear.
      2. Nevertheless, politicians spend millions on advertising because they know that people will somewhat rely on the ads to made a decision that will stick for two, four, or even six years.
    2. Local newspapers have generally picked Republican candidates over Democrats, even though Democrats have won eight of the 14 elections between 1932 and 1984, but this has actually affected people to vote a certain way! It’s not all useless!!!
    3. Media doesn’t affect major elections that much, usually minor ones, but it can help unknown’s get their name out (say, at a major event covered by the press) and suddenly gain major political power.
      1. The media also sets agendas on issues that have little effect on people, but on issues that have great on people, the media has very little effect (this varies from person to person).
    4. Viewers of different types of media have different opinions too (i.e. newspaper readers thought Jimmy Carter was more liberal and Gerald Ford was more conservative than did television viewers).
      1. TV can also affect the popularity of presidents through its commentary on them.
  5. Government and the News
    1. Gov’t agencies all try to shape public opinion, and they have to, because if they don’t sooner or later, they’ll find themselves weak, without allies and in trouble.
    2. Theodore Roosevelt was the first president to use the press to his advantage, giving inside stories to his friends in the press, keeping them away from those he didn’t like, and including a reporters’ room in the West Wing of the White House.
      1. Franklin Delano Roosevelt made his press secretary a major instrument for cultivating and managing, as well as informing, the press.
    3. The White House press corps is a group of men and women who are closest to the president, always there whenever anything newsworthy occurs.
    4. Congress has watched with jealousy at all the attention lavished on the president but has been unsure how to act; it was only in 1974 that significant press coverage of Congress began.
      1. Since 1979, C-SPAN has provided coverage of House events, but the Senate has used TV much more fully, allowing many events to be broadcast for live TV or for videos, and as a result, many senators have used this TV coverage to propel themselves to the presidency.
  6. Interpreting Political News
    1. New stories are apt to be accepted by the public without question, and Americans tell pollsters that they thing that TV is more reliable than newspapers, but lately, many people have felt that the media tends to cover one side of stories more than it is fair—the exact opposite of what the media thinks of itself.
      1. The question is whether or not the media is totally accurate or not, and in studies, the media seems to be a lot more liberal on many controversial issues.
    2. There are three types of stories, and these types of news can have different types of influences from the media, simply because of their characteristics and importance:
      1. Routine stories are easily described by acts or statements and are not really significant.
      2. Feature stories are not routinely covered by reporters and reporters must take the initiative write about them and persuade their editors to print them.
      3. Insider stories involve information that is not usually made public but has been suddenly “leaked,” thus indicating that someone on the inside has helped the reporter.
    3. Routine stories can actually be misinterpreted if the facts are not totally reported, as was the case of the Tet Offensive in Vietnam.
    4. Since feature and insider stories must be chosen, they can be greatly affected by political bias.
      1. Some selected stories will be common, though, since sometimes, the press wants to focus on the same story because it is a great newsmaker.
    5. If a nonroutine story is major news, the media will all cover it, but with slightly varying degrees and views…each group putting a different version and opinion to the story.
      1. Every reader or viewer should keep in mind: what beliefs or opinions led the editors to run a certain story, how representative of expert and popular opinion are the views of the people quoted in the story, and what adjectives are being used to color the story?
    6. Insider stories are the trickiest, because there involves a motive for the insider to “leak” a story, and many times, reporters will not reveal the insider.
    7. There are so many news leaks because each branch of gov’t has different power, and those different branches compete for power by leaking news so that one can seem more powerful than another.
      1. In other countries, where the power is centralized, there is less competition and less leaks (plus, there are laws preventing this more than in the U.S.).
      2. However, ever since the Vietnam War, the Watergate scandal, and the Iran-contra affair, the press has been less willing to simply accept leaks at face value and more likely to see if the stories are actually true—thus becoming an adversarial press.
    8. Now, as the press is really distrustful of politicians, it is more likely to seize any little error made by a politician and maybe blow it into epic proportions, covering all goofs and mess-ups.
      1. After Bill Clinton became president, the press started to uncover his sexual escapades, the Whitewater deals, and Hillary Clinton’s profits in commodities trading, and turned on him.
      2. People’s confidence in big business (which includes the media) and the gov’t has eroded, and as a result, people are not trusting the news as willingly as before.
    9. With this adversarial media likely to stay for a long time, many candidates have turned to attacking their opponents on a personal level because such tactics work: they DO help them win; but such tactics do come with a price: reduced voter turnout.
    10. Reporters must balance between not expressing their personal views too much in stories (or risk losing their sources) and keeping a source (and risk becoming its mouthpiece), but luckily for them, Congress has become a goldmine for sources, because there are so many (thousands) of potential sources.
      1. Press officers sometimes try to win journalistic friends by releasing background stories, or stories that proportionately and anonymously explain a current policy.
    11. The ultimate weapon of the government’s effort to shape the press is the president: he can favor friendly reporters and tongue-lash unfavorable ones.
      1. The press and the president do not trust one another, but they need one another, and resulting relationship is almost always rocky but necessary.
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Chapter 11 - Congress

  1. Introduction
    1. The Congress that the U.S. and most Latin American countries has is different from the Parliament that most European nations have because in Europe, a person who wants to run for office must persuade his party to nominate him, while in America, politicians can run for themselves.
      1. In Europe, people vote for parties; in America, they vote for individuals.
      2. In primaries, people vote especially for a “person” (and his qualities, traits, etc…), and in general elections, this is sometimes true also.
      3. In parliament, legislators can support their leaders or not, and if they don’t then new leaders (prime minister and various cabinet members) must be elected.
        1. This ensures that more action can occur, since the parties of the executive and legislative branches are practically always the same.
      4. Congress is free from the turmoil of possible collapsing executive branches and is more powerful to make decisions; Congressmen don’t have to worry about easily losing their positions come another election.
        1. In Congress, there is less cohesion in bill passing, and less stuff can get done.
      5. Parliaments members usually engage in debate, are poorly paid, have little independent power, and receive little power as well.
      6. Meanwhile, Congressmen are much better paid, have more power, do many things in committees, and have staff members of their own, thus “proving how important they are.”
  2. The Evolution of Congress
    1. The framers of the Constitution chose a congress over other forms of representative gov’t because they didn’t want all power concentrated together, even if it was in a group of people, but they also knew that the states would want to be heavily represented and have power.
      1. Thus, they created a bicameral legislature, which consisted of two houses—a House of Representatives and a Senate—where one was based on population representation and the other was more evenly balanced.
    2. Despite the checks and balances created, the framers still expected Congress to be the dominant branch in politics, and for a while, it was, except with strong presidents like Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Woodrow Wilson were in power.
      1. Many struggles within Congress have been over important issues like slavery and tariffs, but there has also been debate over how power should be spread within Congress itself.
        1. Centralization leads to quick, decisive actions but limits individual power and rights.
        2. Decentralization protects individual representation but leads to many gridlocks.
        3. The trend over the years has been toward decentralization.
    3. The House has given its Speaker much power at times and little power at other times, and there have been six main ways it has operated over the years:
      1. During the first three administrations, the House was often led by presidential cabinet members or the president himself, but the House quickly began to gain its own power and personality, with great Speakers like Henry Clay leading the way and new implementations like the caucus system (used to choose presidential candidates in those days) used to get power.
      2. In the late 1820s, Andrew Jackson greatly strengthened the power of the presidency, the caucus system was replaced by national nominating conventions, House Speakers lost great power, the issue of slavery divided and weakened the House greatly, and radical groups used what power they could to punish the South after the Civil War.
      3. Near the end of the 1800s, when Thomas Reed of Maine became speaker, the Speaker position gained more power than ever, with Reed even chairing the Rules Committee (the one that selected which piece of legislation would even be debated in Congress) and unifying the Republican party greatly, but later, Joseph Cannon of Illinois, trying to exert the same power Reed did, led the House to a revolt against the Speaker.
      4. In 1910-11, the House revolted against Cannon, stripping the Speaker position of many powers (like the right to appoint members to committees and a position in the Rules Committee), and adopted the caucus system again, but members soon dropped it; also, the power of committee chairmen rose because they could control what was discussed.
      5. In the 1960s-70s, the power of chairmen was greatly lowered, committees had to create sub-committees if they didn’t already exist, and individual members of the House became powerful.
      6. In 1994-95, after seeing how individualism made it hard for things to be done, the House made measures to strengthen leadership, leading to domination by Speaker Newt Gingrich, and the Republicans in particular became very unified.
    4. The basic problem with the House is that it wants to be big and powerful AND it wants to have individuals with power, which contradicts itself.
    5. The Senate has been small enough to evade many of the House problems, and in the Senate, there is no limit on the amount of time that can be used to debate over a topic.
      1. Until the 1900s, senators were picked by legislators, not the public, and before the Civil War, it was quite balanced, with equal members from slave-holding and non-slave-holding states.
      2. The big fight was over who should elect senators, since during the Gilded Age, when corruption reigned, it seemed that anyone with lots of money could simply buy a senator position, leading the Senate to be called the “Millionaire’s Club,” but finally, after a long struggle, the 17th Amendment was passed, allowing direct elections of senators.
      3. Another issue was the use of the filibuster, or the stalling of time (usually to prevent the discussion or passage of a bill) by a senator (he/she could do anything to stall, as long as he/she kept talking), but Rule 22 sort of solved this by allowing senators to end a filibuster if 2/3 of the senators (now it’s just 60) present voted for a “cloture” and thus end a debate.
  3. Who Is in Congress?
    1. The typical stereotype of Congress is that it is populated with white middle-aged male Protestant lawyers, but actually, Congress has become more diversified (more women and minorities), and though there still are relatively few minority members, some of the minorities present are committee chairs.
    2. In the early days of America, most Congressmen served only one term, due to the facts that the pay was low, the travel to Washington, D.C. was difficult, and the city was not nice to live in, but by the 1950s, being a Congressman had become a career.
      1. More and more Congressmen were incumbents who were re-elected, and while some tried to impose term limits, many movements to do so failed in the Senate or the Supreme Court.
      2. Luckily, there has recently been a surge in the number of new Congressmen, in part because new districts (from the census) have changed power, voters have become disgusted by some scandals, and traditional party areas have shifted allegiances.
      3. Still, incumbents enjoy great advantages, and the number of safe districts, where incumbents win 55% of the vote or more, is still much greater than the number of marginal districts, where incumbents win by less than 55%.
        1. Incumbents probably win because voters are more familiar with their names and faces; they can mail information to constituents for free, and can pass measures that benefit their districts and themselves.
    3. Since 1933, Democrats have controlled the house well over 80% of the time, and this may be because Democrats have often redrawn district lines to benefit themselves and weaken Republicans.
      1. Also, the Democrats were often in power during the time when the power and advantages of incumbents grew vastly, and many Democratic candidates have proven to appeal to voters.
      2. However, in 1994, the Democrats suddenly lost their majority and much of their power, probably because voters no longer wanted “professional politicians” who were responsible for the “mess in Washington,” and were upset over the various scandals that broke.
        1. Thus, during the anti-incumbent period, when Democrats held the power, most incumbents—Democrats—were ousted.
    4. Democrats have been more divided throughout history than Republicans; in fact, in the 1960s and 70s, they formed the conservative coalition, teaming up with Republicans to pass many laws, but over time, their influence has waned.
  4. Getting Elected to Congress
    1. Each state has two senators in the Senate and at least one representative, with the number of reps determined by state population, but the Constitution says virtually nothing about voting districts and HOW Congressmen would be elected.
    2. There were two problems in apportioning voting districts: malapportionment, where districts were unequally sized and a person in would district could have his vote have twice the power of that of a person in another district, and gerrymandering, where districts are drawn in bizarre shapes so that a candidate of a party can easily win that district (like connected two large areas of opposite party strength by a thin line so that instead of two districts, they are one).
      1. Solutions have been to establish the total size of the House, to allocate seats in the House among states, and to determine the size and shapes of congressional districts within states.
    3. In 1911, Congress voted to fix the size of the House at 435 members, and it was also decided that districts would be redrawn every decade according to the results of the census, but states did very little about malapportionment and gerrymandering until the Supreme Court ordered them to do so in 1964.
      1. Still, many problems remain, and parties can still gerrymander by going through loopholes, even though this is technically illegal!
      2. A problem is majority-minority districts, created by some Southern states to allow minority voters to elect minority candidates so that Congress can be more diverse, but some districts drawn have been very weird, and the Supreme Court has made a few 5-4 decisions that have ruled against this type of action (nothing has been solved, though).
    4. There’s a difference between descriptive representation, or the statistical correspondence of the demographic characteristics of representatives with those of their constituents, and substantive representation, or the correspondence between representatives’ and their constituents’ opinions.
      1. The first can be used to support majority-minority districts, while the second supports ethics.
    5. Today, a candidate usually gets enough signatures to get his name on a ballot, and parties have very little influence in the process, but incumbents still usually win primaries due to their large support.
      1. The 10% of new House members are usually people who have become strong in their districts very quickly, a phenomenon called sophomore surge, so that today, freshmen politicians running for re-election typically get 8-10% more votes than the first time around.
      2. These people have figured out how to use their offices to run personal campaigns instead of party ones, playing on constituents’ concern over the “mess in Washington” by promising to “clean it up.”
      3. Thus, if a local candidate is on a certain committee, that locale will probably get more funds for whatever that committee is for.
    6. There’s a question that asks if legislators are delegates who do what their district wants or trustees who use their best judgment on issues and act based on what THEY think, even if it contradicts constituents.
      1. Most are mixtures of both, but delegates value re-election more than trustees while trustees may seek committees that have little or no effects on their districts.
  5. The Organization of Congress: Parties and Caucuses
    1. While other legislative organizations in other nations may be only one organization (where, say, only the party is important), Congress is a mixture of many organizations.
    2. The majority party chooses one of its members (usually the one with greatest seniority) to be president pro tempore of the Senate—a position that is really just honorary and has no real power.
      1. The president of the Senate is the vice president of the U.S., but he has little power too.
      2. The real leadership is in the hands of the majority leader, who schedules business and can be recognized first in the Senate but can do much more if he is skilled at political bargaining and has a strong personality (i.e. Lyndon Johnson), the minority leader, and the whip, who basically enlightens the party leader and also makes sure party members are present for and vote for important decisions.
    3. The key party organization is the group that assigns senators to the standing committees of the Senate, and what committee a senator is appointed to can be very advantageous to new senators’ careers.
    4. In the House, the Speaker is the most powerful and important person because he controls who can speak and influences decisions (there are limits on speaking and debating times in the House).
      1. He decides who to recognize, what bills to debate, and what rules to obey.
      2. Each party in the house also has a majority or minority leader that can become Speaker if/when the Speaker dies or retires, provided that his party is still the majority one.
    5. One important measure of strength in the House is the ease in which a party leader can get sweeping decisions, even ones that some people don’t like, passed, but in the Senate, changes since the 1950s & 60s have made it easier for freshmen for work.
      1. A party unity vote is a vote in which a majority of voting Democrats oppose a majority of voting Republicans, and it can measure party strength, because the more people from opposing parties vote similarly, the weaker each party supposedly is.
      2. While parties don’t play that big of a role in helping candidates, Congressmen still vote in support with their party, probably because they have certain ideological traits, turn to one another when unsure of how to vote, and follow what their leader says.
        1. While party is not as important to a politician today as it was, it is still very vital.
    6. A caucus is an association of members of Congress created to advocate a political ideology or a regional or economic interest, and more and more have sprung up over the years.
      1. Legislators join caucuses to prove that they are actively working to solve issues, and while recently, Republicans have adopted rules that have made caucus operation harder, caucuses still remain strong and popular.
        1. Groups with similar ideologies form intraparty caucuses.
  6. The Organization of Congress: Committees
    1. It is in the committees that real work is done, and there are many types of committees:
      1. Standing committees are pretty much permanent and have specified legislative duties.
      2. Select committees are appointed for limited purposes and last only a few congresses.
      3. Joint committees have both representatives and senators serving on them.
        1. A special type of this is the conference committee, made up of people who resolve differences in House and Senate versions of the same bills before final passage.
    2. The Legislative Reorganization Act of 1946 sought to lower the number of committees so that those remaining would have greater influences and powers.
      1. The 104th Congress actually tried to lower the number of committees (against the norm).
      2. Usually, the majority party simply takes a majority of the seats in each committee and lets the minority party have the rest.
      3. Representatives can serve on a maximum of two committees unless one of them is “exclusive” (i.e. Appropriations, Rules, Ways and Means), where the limit is one, and Senators can be on two major and one minor committee.
      4. Committee chairmen used to be loyal friends of strong speakers, but that changed to seniority, and now, even that trend is sinking, so that chairmen can be anyone qualified, really.
    3. To let less experienced Congressmen have better chances of chairing committees, Congress adopted some rules, like:
      1. In the House, committee chairmen were selected by secret ballot in party caucus; no member could chair more than one committee; all committees with 20+ member had to have 4 subcommittees; committee and personal staffs had to be increased in size; and committee meetings had to be public unless members voted to close them.
      2. In the Senate, the rules were the same, except the chairmen would be selected by secret ballot if 1/5 of the people asked for it.
      3. This decentralization gave individuals more power, but less could be done, and subcommittees began to be attended by few people only.
        1. Chairmen began to cast proxy votes, where he voted in place of another member (with that member’s approval, of course).
    4. The 1995 Republicans, angered by this loss of power, enacted new changes, such as banning proxy voting, limiting the terms of chairmen and Speakers, allowing more floor debate under open rules, reducing the number of committees and subcommittees, and authorizing committee chairmen to hire subcommittee staffs.
      1. Basically, the proxy voting, etc… made it easier for work to be done, at the expense of individual power and influence, and the opposite led to less work being done.
      2. In the Senate, the most important of the few changes have been to put a 6-year limit on chairmen and to have chairmen selected by secret ballots.
    5. Nevertheless, the committee is where most work still takes place.
  7. The Organization of Congress: Staffs and Specialized Offices
    1. Congressmen have extensive staff members. In fact, until the 1990’s, Congress had the most rapidly growing bureaucracy in Washington.
    2. Tasks of Staff Members
      1. Staff functions can be split up into three areas:
        1. Much of the time of the staff members is spent servicing requests from constituents, ultimately helping the members of Congress get reelected. This would be the representative function.
        2. Very large portions of congressional staffs work in the district offices of the Congressmen (and women) rather than directly from Washington.
        3. This might be a reason why it is so hard to defeat incumbents.
        4. Also, the staff has a legislative function. There are too many proposals for Congress members to get to know in detail. Therefore, the staff plays a large role in devising proposals, meeting with lobbyists, etc.
        5. There is an entrepreneurial function as well: sell your employer. This applies more to those staff members that work directly for an individual member of Congress as opposed to a committee. It’s the game of “find something the boss can take credit for.”
        6. Lobbyists and reporters understand the entrepreneurial function, and spend a lot of time courting congressional staffers as sources of information and consumers of ideas.
      2. One reason for the increase in staff is that large staffs seem to create demands for more staff members. For example, large staffs generate a lot of legislative work. Subcommittees come up to handle all those issues, but the workload increases.
      3. Reliance on the staff has increased a bunch, not because staffers do things against their “elected masters,” but because they change the environment where things are done. As a result, Congress has become much more individualistic, and less of a deliberative body.
    3. Staff Agencies
      1. Congress also has staff agencies that work not for individuals within Congress, but Congress as a whole. This position came into being to give Congress the same information that the president got from a trusty, reliable source.
        1. Congressional Research Service (CRS): Created in 1914 and part of the Library of Congress, the CRS, while not recommending policy, does look up policy and give the for-and-against sides of each policy, and it also keeps track of all bills (library service) and gives summaries of each one via computer terminals in almost all Congress offices.
        2. General Accounting Office (GAO): Started out in 1921 as a financial auditing service of the executive-branch departments, it ended up investigating agencies and policies and making recommendations on almost every aspect of government. Congress is downsizing it now.
        3. Office of Technology Assessment (OTA): A short-lived agency that was created in 1972 but abolished in 1995 that studied and evaluated policies and programs that had significant use of or impact on technology.
        4. Congressional Budget Office (CBO): Advises Congress on likely economic effects of spending programs, provides info on proposed policies cost, analyzes president’s budget, and gives conclusions different from administration (giving Congressmen grit in debates).
  8. How a Bill Becomes Law (I’m just a bill, a regular old bill, and I’m sitting here on Capitol Hill . . .)
    1. Congress is like a freeway: sometimes you might as well be on the autobahn, others you might as well get out and crawl.
    2. Reasons some bills zip and others don’t:
      1. Bills that spend a lot of money move slower (especially when the government is running up deficit, which is always does).
      2. Bills that will tax or regulate businesses go through slowly because the multitude and variety of interests have to be accounted for.
      3. But bills with clear, strong messages (“stop drugs,” “end scandal”) go through quickly, especially when the government doesn’t have to spend too much money.
      4. Plus, sheer complexity of procedures lends some more obstacles; so, a member of Congress must either assemble a majority ever so slowly, or take advantage of some enthusiasm.
    3. Introducing a Bill
      1. In House: Hand it to the clerk, or drop it in the “hopper” box. Bills here bear the prefix H.R.
      2. In Senate: Being recognized by the presiding officer (take him out to dinner the night before) and announcing the bills introduction. Bills here bear the prefix S.
      3. Public bill: pertains to public affair in general.
      4. Private bill: pertains to an individual. There aren’t too many of these around any more.
      5. The stereotype is that the President proposes legislation, and Congress disposes. The reality is more complicated, and rather opposite to the stereotype.
        1. Besides, only Congress can introduce legislation, not the president.
      6. Also, Congress can pass resolutions.
        1. Simple resolution: used for things like operating rules for each body. Not signed by president and don’t have the force of law.
        2. Concurrent resolution: settles housekeeping and procedural matters that affect both houses, is not signed by the president, and does not have the force of law.
        3. Joint resolution: both Congress and presidential approval needed. In practice, it is the same as a law. Also used to propose a constitutional amendment, but those propositions don’t require the presidential signature.
    4. Study by Committees
      1. In House, the Speaker refers a bill to committee; in Senate, the presiding officer refers it. Therefore, the Speaker and the presiding officer wield great power. Depending on whether or not they like the bill, they assign it to committees with chairmen favorable or hostile to the bill.
      2. All bills for raising money have to start in the House of Representatives. Also, House usually originates appropriations bills (how money gets to be spent). Members of the Ways and Means Committee (revenue legislation) get lots of Christmas presents.
      3. Most bills die in committee. They serve only as publicity stunts for Congressmen.
      4. Bills of general interest that get through are assigned to a subcommittee, the hearing of which is then used to inform Congress, to permit interest groups to squall, and/or to build public support.
      5. However, the hearings fragment the process of considering such bills; with power and info being dispersed, it is hard to get a full view of a matter crossing committee boundaries.
      6. Multiple referral was the process by which a bill can be sent to multiple committees, but this was abolished in 1995.
        1. Advantage: All views have a chance to be heard.
        2. Disadvantage: More chances to kill the bill.
      7. Now, the Speaker uses sequential referral, through which the Speaker can either send a bill to a second committee after the first is done acting or send parts of a bill to different committees.
      8. Then, the (sub)-committees “mark up” the bill, making any suitable changes, etc.
      9. Even if the bill is stalled, House can file a discharge petition and get it on the floor anyway, but discharge is rarely used in Senate because almost any proposal can get to the floor as an amendment to another bill.
      10. In order for a bill to come before house, it needs to go on calendar (5 in House, 2 in Senate).
      11. Even though the bills are on calendars, they aren’t always considered chronologically.
      12. There are three rules to the procedures.
        1. Closed rule: sets a strict time limit, and forbids introduction of other amendments from the floor (yes or no vote).
        2. Open rule permits amendments from the floor.
        3. Restrictive rule permits some amendments but not others.
      13. The trend now is towards closed rules; this is due to the decision of the Rules Committee.
      14. How to bypass Rules Committee:
        1. Move that rules be suspended, requiring two-thirds vote.
        2. File a discharge petition.
        3. “Calendar Wednesday” procedure, by which a committee can bring up for action a bill of its own already on the calendar. Rarely used because a big bill can hardly be completely voted on in one day. If the business is not completed by the end of the day, the bill goes back to committee.
      15. Although theoretically, there aren’t very many barriers to floor consideration in Senate, in practice getting proposals to Senate floor is really complicated. The interests of individual senators must be accommodated, as opposed to the House, which just plows through its schedule.
    5. Floor Debate—The House
      1. Before the bills are voted on, the “Committee of the Whole” (translation: whoever’s there at the moment) debates on it and changes the stuff the want to. The quorum (minimum required members) for the Committee of the Whole is 100 members. Speaker doesn’t preside. After amending, the bill goes back to the House.
      2. During debate, sponsoring committee guides discussion, divides time, and decides how long each member speaks. Amendments put forth can’t be riders (extraneous material), but must be germane to the bill.
      3. Quorum call is a Congressional roll call, during which members can take a breather to discuss strategy or refill coffee (probably the latter).
    6. Floor Debate—The Senate
      1. Things are more casual here, and there is no rule limiting debate (except for cloture).
      2. Members aren’t really limited to what they can say.
      3. Amendments don’t have to directly pertain to the bill; as a result, many riders are attached. In fact, this is a way to get other bills onto the floor without the calendar; call it an amendment and you’re in business (appropriations bills are exceptions).
      4. The total debate time cannot exceed one hundred hours, though.
      5. Double tracking is the process by which a disputed bill is shelved temporarily while other Congressional business goes on.
    7. Methods of Voting
      1. Not everybody who voted for a bill supported it fully.
      2. There are four voting procedures in the House.
        1. Voice vote: shout “yea” or “nay.” Not recorded.
        2. Division vote: standing and being counted. Not recorded.
        3. Teller vote: members pass between two tellers, one for the yeas and one for the nays. At the request of twenty members, people can be recorded for what they voted on.
        4. Roll-call vote: It’s sort of like the voice vote, but electronic (recently, anyway). These are recorded.
        5. Senate is much the same, except there is no teller vote or electronic counters.
      3. If bills pass House and Senate in different forms, something must be done.
        1. If differences are minor, usually one house just refers the bill back to the other house, which then accepts the alterations.
        2. If differences are major, then a conference committee might be appointed by both houses through a vote to iron the differences out.
      4. After the ironing, the bill is usually accepted and then goes to the President, who may decide to accept and sign it or just veto it.
      5. In the condition that the President vetoes it, the bill is returned to the house of origin. An effort to override the veto may be attempted through a roll-call vote, and if more than two-thirds of the house votes “yea,” screw the president…the bill is passed.
  9. How Members of Congress Vote
    1. This question has at least three answers.
      1. Representational: Members want to get reelected, so they represent their constituents. Problem being, sometimes, public opinion isn’t clear or strong enough on the issues that are really important (e.g. abortion).
      2. Organizational: Since most constituents don’t know how their legislator voted, it is not necessary to please the constituents. But fellow members of Congress do know. Here, the principal cue is the party.
      3. Attitudinal: The pressures on Congressmen cancel out, leaving them to vote on their own beliefs.
  10. Reforming Congress
    1. Most citizens are more interested in whether or not Congress fulfills its mission than they are about why members of Congress vote the way they do.
    2. Recently, the trend has been to reduce individual power while making it easier to pass legislation in Congress.
    3. Representative or Direct Democracy?
      1. The framers of the Constitution believed that representative should define public opinion, but nowadays, we believe the Constitution should reflect public opinion.
      2. In fact, some people think we should just bypass Congress entirely.
        1. Half of the people in a 1993 survey favored a selection means by which members of Congress were randomly selected from lists of eligible voters.
        2. One in six supported the idea of auctioning seats in Congress off to the highest bidder to lower the national debt (back to the Millionaires’ Club.).
      3. In contrast, representative democracy is pretty much what we have now: legislators serving as the people’s trustees, expert staffs, no term limits, and work-related perks.
    4. Proper Guardians of the Public Weal?
      1. Congress should serve the public interest. What’s the public interest again?
      2. James Madison said that public interest transcends the “local prejudices” and “sinister designs” of factions.
      3. Madison believed that a representative government would be best able to serve the people as a whole without succumbing to “factions.”
    5. A Decisive Congress or a Deliberative One?
      1. Congress was designed to move slowly, deliberatively: this way, it would check and balance strong leaders in the executive branch instead of automatically giving in to executive authority.
      2. Some people don’t like this slowness, or this “policy gridlock.” They want the gov’t to be reformed to match more of a parliamentary gov’t, so that legislation can be sped along.
      3. The problem is that if good legislation can be speeded along, so can the bad.
    6. Imposing Term Limits
      1. This is a big one: people are worried about corruption (with good reason), but imposing term limits would mean younger people went in, leaving the older people with less control.
      2. Problem: The principle of seniority would be totally disrupted, and committees would be lost.
      3. Also, the incumbent has to do something for his constituents, whereas the young guy coming in has no such obligation.
      4. Amateur legislators are more prone to be stubborn, whereas the older ones practice the ABC’s of democratic politics—making Alliances, striking Bargains, and forging Compromises. In such a diverse society, unbending politics may be very bad.
      5. Another thing to consider would be that, if term limits in Congress limited without limiting other elected offices, than we would get a bunch of office-hopping cronies who only used the position in Congress to step up to the next position, or an electoral “musical chairs.”
      6. Some states actually passed term limiting laws, but Supreme Court ruled them unconstitutional.
    7. Reducing Powers and Perks
      1. Pork-barrel legislation: Bills that give tangible benefits to the people (freeways, post offices, dams, etc.), but don’t tackle the more complex issues of the nation.
      2. Congress is criticized for being overstaffed and self-indulgent. But are we being too harsh?
      3. Banning Legal Bribes
        1. This brings up the issue of corruption.
        2. House rules adopted in 1995 permit only family and close friends to give gifts to Representatives.
        3. Senate put a limit of $50 on any gift (including dinner) and a $100 dollar/year limit on gifts from a single source, unless the gift-givers are family or “close personal friends.”
        4. However, there are still many loopholes: people can give donations to campaign funds or give Congressmen free flights to “speak on Congress,” etc… and the House Committee on Standards of Official Conduct can grant waivers for “unusual” cases.
      4. Fencing in the Frank
        1. Frank: the fax signature substituted for postage.
        2. The franking privilege lets them send stuff for free and right before an election, there is a lot of franking going on by incumbents who want to win.
        3. In 1995, House limited use of the frank and prevented the frank from being used as a campaign tool; also, the House Oversight Committee decreased franking authorization.
      5. Placing Congress Under the Law
        1. Often, Congressional members are exempt from certain laws; the excuse was that obeying these laws would give the executive branch too much power over the legislative branch, interfering with separation of powers.
        2. Therefore, the Office of Compliance was created, making politicians follow certain rules.
        3. Obviously, the Congressmen and women didn’t like this.
      6. Trimming the Pork
        1. Congressmen are criticized for spending money on pork-barrel legislation for the voters.
        2. However, most categories of pork spending have decreased in the last ten or fifteen years, and pork spending is only a fraction of entitlement spending (e.g. health care), the main cause of budget deficit.
        3. Also, pork is certainly better than bribery, for pork benefits the community and the district.
      7. Cutting Committees
        1. Congress, while supposedly organized to enable its members to “deliberate, debate, and decide” matters of national policy, instead seems organized to afford each member a committee spot.
        2. Therefore, some committee cuts have taken place, and the number of committees one could serve on was decreased (there’s a big chart in your book about this, I think).
      8. Most people that believe in downsizing committees also believe in doing the same to Congressional staffs.
      9. However, this would be a “penny-wise, pound-foolish approach.”
      10. After all, the members of Congress would hardly be able to handle all that work by themselves. They need large staffs to gather information and process constituent demands.
  11. Ethics and Congress
    1. Most people believe that the phrase “congressional ethics” constitutes an oxymoron.
    2. The separation of powers seems to actually have increased corruption, as there are more places to buy and sell “stuff.”
    3. Divided power = divided responsibility; divided responsibility = evaded responsibility.
    4. It also equals the necessity to assemble a lot of power to get anything done.
    5. However, scandals continue.
    6. The book, though, says that Congress is not necessarily inherently corrupt. It’s just that we notice the bad apples more than all the good ones surrounding them.
    7. Also, there are three other, really difficult issues:
      1. What limits should exist on a Congressman (or woman) for his job: looking out for his/her constituents?
      2. Executive branch ethics cases are turned over to an independent special prosecutor, whereas Congress has the right to judge and discipline its own members. Shouldn’t the same rules apply to both branches?
      3. Election campaigns are expensive, but challengers are at a disadvantage, so isn’t there a way to make it both fair and honest?
      4. Ethics is really hard, and the Framers went for liberty more than morality, though ultimately they knew that the latter was essential to the former.
      5. They didn’t want a “simon-pure” Congress; they want a powerful, yet still checked, Congress.
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Chapter 12 - The Presidency

  1. I. Presidents and Prime Ministers
    1. 1. Only sixteen countries in the world have a directly elected president, out of the 60 or so countries that have democratic characteristics; the alternative to a president is a prime minister.
      1. i. In a parliamentary system, like in Europe, the legislature, not the people, chooses the leader (the prime minister), who in turn chooses the other ministers from parliament members.
      2. ii. The prime minister stays in power as long as his supporting party or coalition stays in power, and the voters vote for members of the parliament (usually by party), not for the leader.
    2. 2. Presidents are usually (but not always) outsiders with little previous major political experience to Washington because they are not usually associated with the “mess in Washington” and voters thus elect them; meanwhile, since prime ministers are from the parliament, they are always insiders.
    3. 3. The President cannot choose Congressional members to be a part of his cabinet, but a prime minister’s cabinet can come from the parliament.
    4. 4. While a president may lead a Congress dominated by the opposing party, a prime minister’s party always controls parliament, and thus, in a parliamentary system, much work can be done quickly while the American system of checks and balances can slow down legislation drastically.
      1. i. Even when the executive and legislative branches are manned by the same party, there can be friction, and very little may be done (as in the Kennedy and Carter administrations).
  2. II. Divided Government
    1. 1. A divided government is when the president’s party is not the same as the party that controls the House or Senate; this has occurred fifteen times in the past 22 Congressional elections.
    2. 2. Unified governments, where the same party controls the presidency and Congress, are relatively rare.
      1. i. Many people complain about gridlock that comes from a divided gov’t, but there has been little proof to show that a divided gov’t is the cause of legislative gridlock.
    3. 3. Studies show that divided governments pass and deny bills as likely as unified governments do, and this is probably because the concept of a unified gov’t is a myth: just because the same party controls both branches does not mean the branches will agree.
      1. i. Separation of powers and checks and balances ensure that Congress and the presidency will always compete for power, and besides, parties themselves are split among liberal and conservative lines, among others.
      2. ii. The only time a truly unified gov’t is in power is when the same ideological wing of a party controls both branches, such as during Franklin D. Roosevelt’s New Deal days or Lyndon B. Johnson’s Great Society Days, and only then does rapid change come.
        1. a. Such events are very rare, though.
    4. 4. Gridlock is a necessary part of representative democracy, a system that causes delays, intensifies deliberations, and forces compromises, as opposed to direct democracy, which is the opposite.
      1. i. Gridlock is actually good in that it protects the interests of many, since gridlock only occurs when many diverse sides are present, and the more sides are present, the more people are being represented, and the more gridlock there can be.
    5. 5. Recently, divided gov’t has become more common than unified gov’t, which seemed to reign during the first half of the 20th century.
    6. 6. The relative power of the president and Congress, though, has changed greatly over the times.
  3. III. The Evolution of the Presidency
    1. 1. The Founding Fathers feared anarchy and monarchy about equally, and initially, governor positions reflected that (elected by legislatures; some had one-year terms).
      1. i. Many wanted an executive that was checked by a council that would have to approve all executive decisions, and few listened to Alexander Hamilton’s pleas for something that was very similar to an elective monarchy like in Britain.
    2. 2. Eventually, those who believed that a large nation could only be successfully ruled by single president with significant powers won out, and the U.S. Constitution created a single president with broad powers.
    3. 3. Early politicians were worried that a president could take over state governments with its power over the militia or rig elections to re-elect himself over and over again.
    4. 4. The American president was the first leader of its type ever, and the Framers could not have predicted all consequences that it could have, but they did know that they had to create a balanced position, so that neither he could dominate Congress nor the other way around, and eventually, the Framers decided to create a president elected by an Electoral College, thus allowing people to indirectly choose their leader.
      1. i. George Washington’s decision to serve two terms established a “two term precedent” that was not broken until Franklin Roosevelt’s presidency, and today, there is a two term limit for the president, as dictated by the 22nd Amendment.
    5. 5. At the time the Constitution was written, its writers could only hope that an orderly transition of power would occur when one president left office and another assumed this, but such fears were laid to rest when Thomas Jefferson peacefully took power after John Adams’s term expired.
      1. i. Today, we take transfer of power for granted, but in other countries, power sometimes only changes as a result of political intrigue or violence.
    6. 6. Parties were not anticipated or wanted at first, but they became quite common, and the first few presidents were prominent, respected politicians who left office without any trouble; this, as well as the fact that early U.S. gov’t had relatively little to do, helped to legitimize the presidency.
      1. i. The presidency was also kept simple and modest, so that there would not be any of the glitz, ego, and glamour associated with royalty, and early presidents did not use their vetoes much, thus appearing honest, forthright, and not tyrannical.
    7. 7. When Andrew Jackson became president, he saw himself as the “Tribune of the People,” and he used his power more than ever, vetoing 12 acts of Congress, not shrinking back when Congress didn’t like what he was doing, and lashing out at policies that he didn’t like.
      1. i. He was the strongest president to date, and he showed what a popular president could do.
    8. 8. For the next hundred years, though (excluding the presidency of Lincoln, Polk at times, and Grover Cleveland), Congress thoroughly dominated the gov’t, becoming the leading institution.
      1. i. This was an intensely partisan era, though Lincoln’s use of power was quite expansive and also unexpected: he had been initially elected through a minority, but he had taken unprecedented use of “implied powers” to do some Constitutionally questionable acts without Congressional approval, especially during the Civil War.
      2. ii. However, Lincoln showed that great, drastic action could be taken during time of national emergency, and that the gridlock usually found in politics could stand back when needed.
    9. 9. Until the 1930s, Congress was likely to initiate programs to which the president responded, but afterwards, the presidency grew quite powerful, and not only during national emergencies.
      1. i. Congress, though, still appears to take the lead in initiating legislation (i.e. 1970 and 1990 Clean Air Acts), and the President “simply” signs or vetoes it.”
  4. IV. The Powers of the President
    1. 1. Only the president of the United States can:
      1. i. Serve as commander in chief of the armed forces
      2. ii. Commission officers of the armed forces
      3. iii. Grant reprieves and pardons for all federal offenses except impeachment
      4. iv. Convene Congress in special sessions
      5. v. Receive ambassadors
      6. vi. Take care that the laws be faithfully executed
      7. vii. Wield “executive power”
      8. viii. Appoint officials to lesser offices
    2. 2. The president AND the Senate can make treaties and appoint ambassadors, judges, and high officials
    3. 3. The president and all of Congress can approve legislation.
    4. 4. The president’s power didn’t seem that impressive initially, but over the decades, it has come to encompass not only military powers but also management of the economy and direction of foreign affairs.
      1. i. The president has often used the phrase “take care that the laws be faithfully executed” and taken it very elastically, thus using it broadly to do what he wants (i.e. sending federal troops to break strikes or let Blacks enter public schools).
      2. ii. The public also often looks to the president first during times of national crisis.
  5. V. The Office of the President
    1. 1. Not until 1857 did the president have a personal secretary paid by public funds; not till 1901 did he get a Secret Service bodyguard; and not until 1921 could he submit a presidential budget.
    2. 2. Today, the president has a HUGE staff that he can use but not necessarily control.
      1. i. The “rule of propinquity” says that the person in the room with the president when he makes his decision has the most influence on him; thus, the people closest to the president wield the greatest amount of power.
      2. ii. There are 3 degrees of propinquity: the White House Office, Executive Office, & the cabinet.
    3. 3. The people in the White House Office can be hired and fired by the president at will, and they can be organized by “pyramid,” “circular,” and “ad hoc” methods.
      1. i. In a pyramid structure, most assistants report through a hierarchy to a chief of staff.
      2. ii. In a circular structure, all cabinet secretaries and aides report directly to the president.
      3. iii. In an ad hoc structure, task forces, committees, and informal groups of friends and advisors deal directly with the president.
        1. a. Presidents usually mix methods when dealing with their staff.
      4. iv. There are also risks: the pyramid formula is orderly but can be misleading; the circular can be chaotic but is fair; the ad hoc is really flexible but can cut off important details/steps.
      5. v. Most presidents find that eventually, they cannot deal with all of their staff and appoint a chief of staff who leads all and can become very influential (in good ways and/or bad).
        1. a. Most senior White House staff members are long-time friends or associates, but some are experts in a certain field—one that the president happens to need advise on.
      6. vi. Who can see the president and who sees and “signs off” on important items can drastically influence and alter the eventual outcome of important policy decisions.
    4. 4. Members of the Executive Office are not as close to the president and must have their appointments approved by the Senate.
      1. i. The principle agencies of the Executive Office are: Office of Management and Budge, Central Intelligence Agency, Council of Economic Advisors, Office of Personal Management, and Office of the U.S. Trade Representative.
      2. ii. The OMB is perhaps the most important branch, since today, it manages the national budget, sees how to get better info about gov’t programs, plans ways to reorganize agencies, and reviews proposals that cabinet departments want included in the legislative program.
        1. a. Recently, the OMB has begun advocating policies, taking a step away from its old nonpartisan stance.
    5. 5. The Cabinet is supposed to get together and meet and discuss affairs and matters, but that has rarely actually been the case, and today, cabinet members are basically the leaders of 14 important gov’t departments who can advise the president when he needs it.
      1. i. The president can only appoint a small number of members of the departments represented by cabinet members, and also, cabinet members spend so much time worrying about and attending to their own department matters that they have little time to be in contact with the president, and thus, they are weak.
    6. 6. There are also other agencies that function for certain renewable terms that the president has limited authority over, called “independent agencies.”
      1. i. The president, with Senate approval, can appoint federal judges who serve for life unless impeached and convicted.
  6. VI. Who Gets Appointed
    1. 1. The president rarely knows more than a few of the people that he appoints and is lucky if more than a most of them agree with his decisions, and most cabinet members come from private business, universities, “think tanks,” foundations, law firms, labor unions, and other private sectors where they have not really worked with the president on many, if any matters.
      1. i. However, the men and women appointed to cabinet and sub-cabinet positions usually have SOME prior federal experience; they usually alternate between gov’t jobs and jobs in the private sector (usually law).
        1. a. In a parliamentary system, cabinet officers are typically full-time politicians.
      2. ii. Cabinet members used to be very powerful, but now, they are more likely to be experts in a certain field and not necessarily staunch party powers (due to weakening of political parties).
    2. 2. The president wants to appoint cabinet members who are experts in their respective fields, but he also wants to recognize various politically important groups, regions, and organizations.
      1. i. i.e. have minorities and other groups in cabinet positions too.
      2. ii. There is a rivalry between the White House staff, which sees itself as extensions of the president and his opinions, and the department heads, which see themselves as repositories of expert knowledge.
  7. VII. Presidential Character
    1. 1. Every president brings a different style to the White House, and many are judged by their personalities.
    2. 2. Dwight D. Eisenhower brought an orderly, military style to the White House—sharp, precise, deliberate.
    3. 3. John Kennedy was bold, dashing, suave, and improvising.
    4. 4. Lyndon Johnson was a master strategist who liked to do everything by himself.
    5. 5. Richard Nixon was very intelligent but sometimes ruthless and some times paranoid.
    6. 6. Jimmy Carter was an outsider to Washington who tried to do too much.
    7. 7. Ronald Reagan also an outsider, but being a former movie star, he was dashing and popular and a superb leader and communicator.
    8. 8. George Bush was very hands-on and made personal contacts with people.
    9. 9. Bill Clinton was a very effective speaker who paid attention to many details.
  8. VIII. The Power to Persuade
    1. 1. The president’s ceremonial powers do allow him to use his powers of persuasion to accomplish a lot of what he wants to and needs to do, but he must aim his powers of persuasion at his Washington, D.C. audience of fellow politicians and leaders (if they think he looks good and is a good leader, then he is), at party activists and grassroots outside of Washington (so that he at least seems to represent varied interests) and at “the public,” which is the largest and most diverse (and sometimes the most scrutinizing) group of all.
      1. i. Presidents are using prepared speeches more and more instead of impromptu remarks because they know that one wrong sentence can spell doom.
    2. 2. Of course, Congress seems to have little obvious incentive to support a president’s popularity, since their seats are secure and they don’t have to fear any party boss that might deny them of power.
      1. i. Maybe they can ride on a president’s popularity and get themselves elected because the public like the president and thus his party, but that is not really true.
      2. ii. Congressional members do have a sense that it is not wise to oppose the policies of a popular president, and Congressional members seem to rise and fall in groups.
        1. a. Plus, it seems that popular presidents get their bills passed by Congress more often.
    3. 3. Presidential popularity tends to be the highest right after an election, a period called the “honeymoon” between the public and Congress and the president, but the popularity is bound to drop eventually.
  9. IX. The Power to Say No
    1. 1. The president’s popularity may drop, but he has a huge power in the veto (which can be overridden by 2/3 majority of Congress); is ability to “say no” can be considered “executive privilege.”
    2. 2. A president can veto a bill in two ways: a veto message is a direct statement that the president sends to Congress within ten days of receiving a bill saying that he vetoes it; he can also pocket veto a bill by not signing it AND Congress has adjourned or recessed ten or less days after the bill was introduced.
      1. i. The pocket veto can only be used during certain times of the year.
    3. 3. If a bill is not signed or vetoed within ten days, and Congress is still in session, it automatically becomes law, but a pocket-vetoed bill must be resubmitted through Congress.
      1. i. In 1996, Congress passed a bill that let the president “veto” parts of a bill (line-item veto) that he didn’t like within five days of getting it and then sending it back to Congress, which could only overrule that line-item veto w/ 2/3 majority vote, but certain types of bills are exempt from this power and a federal court has ruled this law unconstitutional.
      2. ii. Less than 4% of vetoed bills have every been overruled by Congress; such overrule is rare.
    4. 4. The Constitution says nothing about whether a president must divulge private communications between himself and his main advisors, and past presidents have claimed that separation of powers means that other branches don’t have to know what goes on in his executive branch.
      1. i. Presidents have claimed executive privilege as reason for not turning over information (i.e. Nixon in Watergate), but in 1973, the Supreme Court ordered Nixon to hand over his Watergate tapes; in 1997, the Supreme Court ruled that the president could be sued by a private person.
    5. 5. Past presidents have sometimes not spent all of the money that Congress appropriated (the Constitution says that the president simply cannot spend non-appropriated money, but it says nothing using already appropriated money), but the Budget Reform Act of 1974 required the president to spend all appropriated funds unless he told Congress which funds he would not spend and Congress agreed to let him do so.
  10. X. The President’s Program
    1. 1. Once elected, a president (helped by aides) must put together a program that helps him appoint hundreds of posts, make a State of the Union address, form a complicated budget, and do other things that are duties of the president.
    2. 2. To develop policies quickly, a president will draw on interest groups (have specific plans and ideas but have narrow views), aides and campaign advisors (will test new ideas but are inexperienced), federal bureaus and agencies(know what’s feasible in terms of gov’t realities but promote own agencies, not others), and outside, academic, and other specialists and experts (have many good ideas but don’t know the details or what is feasible).
      1. i. A president can develop a program by having a policy on almost everything OR simply focus on three or four broad subjects and leave the rest to subordinates.
      2. ii. A president also has to “leak” his ideas out to the public (let them know unofficially) to see if they like them, and if they do, THEN he can commit himself to them.
    3. 3. A president has other constraints: lack of time (he has so much to do, so many people to see him, and so many jobs), an unexpected crisis (war, depression, attacks… usually unexpected), and the fact that federal gov’t and most federal programs and the federal budget can only be changed marginally.
      1. i. The result of these constraints is that the president normally has to be selective about what he wants and get the most “return” out of his choices.
      2. ii. Recently, the president has had to devote his time to two key issues: the economy and foreign affairs, and what he devotes other time to depends on his own beliefs and opinions.
    4. 4. Almost every president since Herbert Hoover has tried to re-arrange the executive branch of gov’t because the number of agencies that reported to them and the apparently messy manner in which they have grown has appalled them.
      1. i. Reorganization often solves many problems at once and is much better at getting things done than simply abolishing a program or passing a new law, and it has been done numerous times.
      2. ii. The president can reorganize his White House staff any time he wishes, but to reorganize the Executive Office or other executive agencies, he must first consult Congress.
        1. a. This usually meant showing Congress a reorganization plan that would take effect unless the House or Senate passed, within 60 days, a legislative veto that rejected it.
        2. b. Today, that’s unconstitutional, and reorganization is done through passing a law.
      3. iii. There have been many fights over reorganization, since there have been differing beliefs over what agency should do what and what department should be in charge of what other one.
        1. a. Sometimes, Congressmen don’t like who will head a new agency, or how a new agency will operate, and will fight against its creation.
      4. iv. Outsiders may think that the American president is very powerful, but actual presidents have often lamented on how “helpless” that position is; the presidency is a very hard and stressful job, but past presidents have still used it to wield great power, control, and influence.
  11. XI. Presidential Transition
    1. 1. The presidents have been re-elected have mostly either been the Founding Fathers, presidents during wartime, or presidents during especially tranquil times, but when the country was deeply divided, presidents were rarely re-elected.
    2. 2. The vice president has assumed the presidency eight times due to the death of his predecessor.
      1. i. John Tyler was the first, and when he became prez, there were questions on whether he should be president in name only or actually lead the country and do all the real, gritty actions that a president should do; he decided to do the second choice, and ever since, all VP’s who’ve assumed the presidency after a president’s midterm death have done the same.
      2. ii. However, very few VP’s have been elected to presidency (some who assumed the presidency after their predecessors died were elected to another term, though).
      3. iii. The vice president position is rather empty job that really doesn’t lead anywhere politically, but many people still have struggled for the nomination.
      4. iv. The VP’s only official task is to preside over the Senate and vote if there’s a tie, and even that job is rather boring, since ties rarely occur, so the VP is rarely there either!
    3. 3. There are two problems that deal with the VP as well: what if the president doesn’t die but becomes too ill or handicapped to act as president, and if a VP becomes a president, who’s the new VP?
      1. i. Solutions were proposed before that ranked certain Congressional members in line for succession, but the 25th Amendment most solved the dilemma by allowing the vice president to serve as “acting president” whenever the president or a majority of the cabinet members declares that the prez is unable to perform his duties to his fullest capacity and by letting a VP who becomes prez to nominate a new VP who must be approved by Congress.
        1. a. 2/3 of Congress must approve if the president disagrees w/ the VP and his cabinet over whether or not is can assume his duties or if he’s too ill.
      2. ii. The VP nomination thing has occurred twice—and in the same term—in history: when Nixon’s VP Spiro Agnew resigned amid criminal charges, Nixon chose Gerald Ford to be the new VP, and Ford rose to the presidency when Nixon resigned due to Watergate, so Ford then chose Nelson Rockefeller to be his VP; amazingly, there was little public outcry.
    4. 4. All “civil officers of the United States” can be removed through impeachment (trying a president or official) AND conviction (deciding he’s actually guilty).
      1. i. Impeachment doesn’t mean automatic removal from office; it’s simply the voting of charges by the house and the trial in the Senate, but the Senate must have 2/3 majority to convict.
      2. ii. Andrew Johnson was impeached and acquitted by only one vote; Richard Nixon probably would have been impeached had he not resigned, and Bill Clinton was impeached but also acquitted.
        1. a. Johnson’s impeachment was partisan in nature, done by people who simply didn’t like him, not because he committed any real crime.
    5. 5. Critics of the Constitution feared that presidential transition would be violent or controversial, and while their fears may have been understandable, they were proven wrong.
  12. XII. How Powerful Is the President?
    1. 1. Congress AND the president have lost power because gov’t as a whole has become more constrained by ever-growing complex issues that Washington must deal with.
    2. 2. The problems are growing ever more complicated, and the media is always scrutinizing gov’t actions.
    3. 3. Thus, presidents have acquired certain rules of thumb for dealing with their political problems:
      1. i. “Move it or lose it” – get things done early during the term, before influence wanes.
      2. ii. “Avoid details” – Have a few top priorities and leave the rest to other experts.
      3. iii. “People, not cabinets, accomplish things” – Find and closely watch capable White House subordinates who are given responsibility.
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Chapter 13 - The Bureaucracy

Intro Stuff: Bureaucracy (the real meaning) = A large, complex organization composed of appointed officials, where authority is divided among several managers and/or departments. Bureaucracies have come to be associated with “waste, confusion, red tape, and rigidity.” We blame many of our problems on “the bureaucracy.” But in actuality, many of the problems are a result of the actions of Congress, the courts, and the president.

  1. Distinctiveness of the American Bureaucracy
    1. Bureaucratic government is a part of all modern societies. However, the United States has three aspects of constitutional system and political traditions that make it distinctive.
      1. Political authority over the bureaucracy is shared among several institutions rather than placed into one set of hands. This contrasts with systems such as the British one, where the prime minister rules supreme (in theory).
      2. Most agencies of the federal government share functions with related agencies in state and local government. This contrasts with systems present in places like France, where the things like education, health, housing, etc. are centralized, with little or no local control.
      3. American institutions and traditions have given rise to an “adversary culture,” one where personal rights are given central importance. In other words, we argue more with every decision made by the government. However, in Sweden, similar decisions go largely uncontested.
    2. Also, the scope of the United States government differs from most others. Many European governments own companies that make automobiles and tobacco. Here, however, we are regulated to an extent not found in other countries. We choose regulation over ownership.
  2. The Growth of Bureaucracy
    1. The gov’t didn’t really start out as a bureaucracy. The Constitution makes no provisions for such a system.
    2. The center of power that came to be the bureaucracy was first seen in the first Congress in 1789. James Madison introduced a bill to create a Department of State to assist the Secretary of State in carrying out duties. What’s important is that the people appointed to the department were nominated by the President and approved by Senate, but they were “to be removable by the president” alone. A big debate started about whether or not the president should be given the sole power to fire subordinates.
    3. The president ended up getting this power. However, that still didn’t mean that the president controlled the bureaucracy, for Congress and Supreme Court still wielded considerable enough power to make the President think twice before doing anything rash.
    4. The Appointment of Officials
      1. Even though the bureaucracy started really, really small, the question of appointment was still bitterly fought over.
      2. The officials selected have to be considered in a bunch of fronts:
        1. political ideology: affects how laws are interpreted.
        2. personal character: affects the tone of the administration.
        3. competence: affects how well public business is discharged.
        4. party affiliation: affects how strong the political party in power is.
      3. However, presidents trying to balance the needs of ideology, character, fitness, and partisanship have rarely pleased most people.
        1. Said John Adams, “Every appointment creates one ingrate and ten enemies.”
      4. Appointments were often influenced by congressional preferences and patronage. In short, the spoils system (“Give the loyal ones rewards.”).
      5. When the Civil War came around, many new officials were appointed and the administrative weakness of the federal government was revealed. Here was seen the need for civil service reform.
      6. In time, the constitutional powers of interstate commerce, before dormant, became an important source of controversy.
    5. A Service Role
      1. From 1861 to 1901 many new agencies were created to serve, not regulate.
      2. The Interstate Commerce Commission (ICC), created in 1887, marked the time when federal government began to regulate the economy in a large way. But even then the ICC had relatively few powers.
      3. The idea that federal officials should perform primarily a service role persisted for a long time. The commitment to laissez-faire (freely competitive economy) was held. Also the Constitution said nothing about giving regulatory powers to bureaucrats. It only gave those powers to Congress. Congress couldn’t really regulate because it would be much too complex. As late as 1935, both Congress and Supreme Court felt that regulatory agencies could not make rules on its own.
      4. However, during wartime these restrictions were set aside. President Woodrow Wilson was given many regulatory powers from Congress.
      5. Though most powers ended with the war, some persisted. Federal agencies kept growing through all the wars. The argument was that the agencies, which persisted, had some connection to the war effort, and seldom did anyone desire to vote against the war effort.
      6. That caused agencies to find sometimes far-fetched excuses for additional employees. For example, the Reindeer Service in Alaska asked for more employees because reindeer were “a valued asset in military planning.”
    6. A Change in Role
      1. The bureaucracy we have now is a product of the Depression and World War II. Since then, the government has played an active role in dealing with economic and social problems.
      2. For example, World War II marked heavy use of the federal income tax to finance activities. After the war, there was no substantial tax reduction, in the belief that the gov’t should “remain ready.”
  3. The Federal Bureaucracy Today
    1. No one wants to say they increased the bureaucracy, but it has increased. Though the number of direct workers has stayed about the same, there may be as many as four people working indirectly for the government for every one person who works directly.
    2. The power of the bureaucracy can be determined by the amount of discretionary authority (the ability to act and make policies not spelled out by the law) given to appointed officials. By this measure, the federal bureaucracy has grown enormously.
    3. Congress has delegated authority to administrative agencies in three main areas:
      1. paying subsidies to particular groups (farmers, schools, hospitals, etc.).
      2. transferring money from the federal to the state and local governments (e.g. grant-in-aid programs).
      3. devising and enforcing regulations for various sectors of society and the economy.
    4. Administrative functions operate at all levels of independence, some closely scrutinized, others barely monitored. Today, many agencies have a heck of a lot of power they didn’t before. They could probably decide how much sugar is put into peppermints (an exaggeration, but not by much.).
    5. These powers must be used carefully. Generally, four factors determine the behavior of the officials in using these powers:
      1. How they are recruited and rewarded.
      2. Personal attributes (socio-economic backgrounds, political party, etc.).
      3. Job nature.
      4. Constraints from outside forces (lobbies, journalists, Mafia, etc.).
    6. Recruitment and Retention
      1. The federal civil service system was designed to recruit workers based on merit, not patronage.
      2. A system of competitive service has arisen, where officials are only appointed after passing criteria set by the Office of Personnel Management (OPM).
      3. However, many workers are hired by other means. Agencies such as the FBI can set their own criteria, and it is wrong to assume that a standardized, centralized system governs federal service.
      4. Also, the kinds of workers are changing. Blue-collar is falling, white-collar is rising.
      5. A small margin of employees is appointed on narrowly defined, alternate grounds. There are generally three kinds:
        1. Presidential appointments authorized by statue (e.g. ambassadors).
        2. “Schedule C” jobs: “confidential or policy-determining character” below cabinet posts (executive assistants, special aides, etc.)
        3. Noncareer Executive Assignments (NEA jobs) given to members deeply involved in promoting presidential programs or participating in policy-making.
      6. All these changes were embodied in the 1883 Pendleton Act, which started a steady transfer from the spoils system to the merit system. The Pendleton Act was made easier to pass because of examples such as:
        1. Public outrage over abuses of the spoils system, further accentuated by the assassination of President James Garfield by a “disappointed office seeker” a.k.a. lunatic.
        2. The fear that if Democrats came to power on a wave of anti-spoils sentiment, existing Republican officeholders would be fired.
      7. The conversion also meant that the President would no longer enjoy the privilege of hiring and firing subordinates. Good or bad?
    7. The Buddy System
      1. Another way to circumvent the merit system is by the name-request job. Basically, an agency that has already identified a person for a position submits a form describing a job to the OPM. On the same form is the name of the person who they want for the job. They can even make the job description so specific so that only that person qualifies for it.
        1. However, it does not necessarily produce poor employees. It is often used to hire people who possess special knowledge for a specific committee who don’t need to know all the other stuff to pass the civil service tests.
    8. Firing a Bureaucrat (pg. 424 has a box that explains circumventing the system for this.)
      1. The bureaucrats that are part of the civil service system and aren’t appointed by the president are, in essence, untouchable.
      2. However, people that don’t like it find ways around it: denying promotion, giving them bad jobs, meaningless work, etc.
      3. To create more flexibility for high-ranking position, the Senior Executive Service (SES) was created. It was for top-ranking managers that could be easily switched around or fired. But SES members get cash bonuses for good service, and, in case they are fired, are guaranteed positions elsewhere. But it didn’t work very well, because SES members have to approve transfers.
    9. The Agency’s Point of View
      1. Often, the staff in an agency came by name-request or specific recruiting. Therefore, an agency usually has a unified point of view, and the people working in that agency usually have never worked anywhere else. This means that the people there are experts in what they do and also means that trying to change anything is a difficult process, to say the least.
    10. Personal Attributes
      1. Critics speculate that the bureaucracy may be either more liberal or more conservative than the people it supposedly helps to govern. This is caused by the fact that, while the civil service system as a whole is a cross-section of the American society, the higher levels are dominated by middle-aged, college-educated, advantaged, white guys.
      2. Surveys say that top-level bureaucrats are generally more liberal than the average American. However, top-level bureaucrats also have a habit of going the middle path.
      3. The kind of committee that bureaucrats work for makes a difference, whether it’s activist or preservationist, etc. Generally, policy views reflect the work done.
    11. Do Bureaucrats Sabotage Their Political Bosses?
      1. Though it may seem likely that many bureaucrats, due to the difficulty of removing them, may attempt to sabotage their employers when they do not agree with their decisions, indications point to the contrary.
      2. However, this is explained using a pseudo-psychological approach. Loosely defined roles, such as voting, are highly influenced by personal attitudes, partly because of the freedom permitted. However, highly structured roles, ones closely defined by laws or other restrictions, ones that are closely monitored, or ones that are highly routine, are performed more separate from personal attitudes and usually with little sabotage.
    12. Culture and Careers
      1. The culture of an agency is formed by the implicit, unspoken understandings among fellow employees considering proper conduct.
      2. Jobs that are career enhancing are part of the culture. Jobs that are Not Career Enhancing (NCE) are not part of it.
      3. A strong culture may motivate employees to work harder, but it also prevents employees from accepting jobs and or positions “against the culture” or NCE.
    13. Constraints
      1. The biggest difference between a government agency and a private business is the greater number of constraints placed on the first.
      2. One of the biggest constraints is that Congress never gives a single job to a single agency. Thus:
        1. Action is slow.
        2. Action is inconsistent.
        3. Action is blocked rather than taken.
        4. Lower-level employees hesitate to make decisions.
        5. Citizens complain of red tape.
      3. That means the great big government is just a tad bit clumsy.
    14. Why So Many Constraints?
      1. Who put in the constraints? Apparently, we did. We, the people.
      2. We want a big bit of everything. If we wanted less red tape, then we would have to ask Congress to repeal some of the constraints.
      3. But politics actually encourages us to expect everything (efficiency, fairness, help for minorities, gender equality, etc.) all at once.
    15. Agency Allies
      1. Constraints are a useful way of gaining relationships with committees or interest groups.
      2. Iron triangle = relationship between an agency, a committee, and an interest group, usually tight and mutually advantageous. An example of client politics.
      3. However, iron triangles have declined due to the growing complexity of Congress—the fact that agencies are subject to many interests instead of just one, the fact that subcommittees bring a single committee under the control of many different legislative groups, and the fact that courts make it easy for others to interfere.
      4. So now, instead of iron triangles, we have issue networks, which is a whole bunch of things mashed together. Usually, a president, upon taking office, will recruit those members of the network most sympathetic to his view.
  4. Congressional Oversight
    1. Interest groups important to Congress are almost automatically important to agencies.
    2. This is because Congress has so much power to “supervise”:
      1. No agency may exist without congressional approval.
      2. No money is spent unless with congressional authorization.
      3. Authorized funds must also be appropriated by Congress before spent.
    3. Authorization legislation states the maximum amount of money an agency can spend on a given program.
    4. After that, the appropriation says how much may actually be spent at that time, and is usually less than the sum stated by the authorization legislation.
    5. The Appropriations Committee and Legislative Committees
      1. In the past, the Appropriations Committee was rarely challenged due to the enormous power they wielded: they had the power of “marking up” (revising), amending, and approving the budget.
      2. However, the committee has lost some of its power in three ways:
        1. Trust funds, which pay for many benefits, operate outside Appropriations.
        2. Annual authorizations mean that the legislative committees must re-authorize the budget of several agencies, and decreases the limit-setting power of Appropriations.
        3. Budget deficits during the ‘80s and early ‘90s meant that Congress often set target-spending limits without Appropriations consent.
      3. Committee clearance means certain committees may obtain the right to pass on certain agency decisions. Though not legally binding, it is nonetheless powerful and seldom ignored.
    6. The Legislative Veto
      1. The legislative veto required that executive decisions lay before Congress for a specified period before taking effect. During that time, Congress could veto the decision if a one-house or two-house were achieved. Unlike laws, the president didn’t have to sign this resolution.
      2. But Supreme Court declared that veto unconstitutional. In theory, it is no longer in existence.
      3. Yet there are still a number of laws passed after the Supreme Court decision that contain legislative vetoes, probably done through congressional influence.
    7. Congressional Investigation: As long as investigations are not solely held to expose purely personal affairs of private individuals and do not act to deprive citizens of their basic rights, Congress may hold investigations through an ability inferred from the power to legislate.
  5. Bureaucratic “Pathologies”
    1. There are five major (or frequently mentioned) problems with bureaucracies:
      1. Red tape: complex rules and procedures that must be followed to get something done.
      2. Conflict: agencies seem to be working against other agencies.
      3. Duplication: two or more agencies seem to be doing the same thing.
      4. Imperialism: when agencies grow without regard to benefit or cost.
      5. Waste: spending more than is necessary.
    2. However, there are a few excuses:
      1. Red tape: We need a way of making sure one part of the government doesn’t operate out of step with another.
      2. Conflict and duplication: Congress often wants to achieve many different, partially inconsistent goals. Or, it finds that it doesn’t know which goal it wants to achieve the most.
      3. Imperialism: When Congress is unsure of what the agencies are supposed to do, the agencies take the broadest meaning and use the largest view of its powers. Also, the vacuum left by Congress is often filled by interest groups and judges.
      4. Waste: Waste is existent, though highly exaggerated ($91 for a light bulb. Yeah. Right.). There is little incentive to lower costs, for there is no personal reward as there is in private businesses. Also, the government has red tape to go through that private firms don’t.
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Chapter 14 - The Judiciary

  1. Introduction
    1. The United States Supreme Court has become such an important branch be it can declare acts of legislation unconstitutional (called judicial review), thereby voiding them.
      1. In Britain, the Parliament is supreme, and no court can overturn laws.
    2. Judicial review is no longer really controversial, but the two ways of doing it are:
      1. Using a strict-constructionist approach, a judge uses only what is written in the Constitution in judging if a law is right or not.
      2. Using an activist approach, a judge relies on his own opinions and philosophies in addition to what is written in the Constitution.
      3. An activist judge is not necessarily liberal and a strict-constructionist judge is not necessarily conservative; liberals can be strict-constructionists and vice versa.
      4. 50 yrs ago, activists tended to be conservative and vice versa, but today, the opposite is true.
  2. The Development of Courts
    1. The Founders probably wanted the Supreme Court to have some sort of judicial review, but they never expected the Court to grow as powerful as it is today.
      1. The rise of judicial activism occurred when judges questioned the traditional view of simply finding and applying existing law (instead of doing what the judge felt right) and acted on that.
    2. In Federalist No. 78, Alexander Hamilton wrote that the Court was “least dangerous” to political rights and clearly stated that the Supreme Court was intended to decide the Constitutionality of a law, but that such a power would confine the legislature, not strengthen the courts.
    3. The Court has been shaped by the major eras of the country (1787-1865: establishing country’s legitimacy; 1865-1937: relationship b/t gov’t and econ.; 1937-present: personal liberty issues).
    4. National law is supreme and can override state law, but this was not established until two cases, Marbury v. Madison and McCulloch v. Maryland occurred.
      1. In 1803, William Marbury had been one of the midnight judges who had not received his judgeships, and when he filed suit for it, Chief Justice John Marshall feared that if he ordered James Madison to deliver the judgeship, he’d refuse, and there’d be a Constitutional crisis, so he said that the Judiciary Act of 1789 that had indirectly allowed Marbury to be able to get a judgeship was unconstitutional and was void; thus, he solved the problem AND strengthened the court’s power.
      2. When the state of Maryland tried to tax the Bank of the United States, Marshall ruled (in 1819) that it could not do that, since the federal gov’t was above the state gov’t.
    5. In 1816, the Supreme Court rejected the Virginia courts’ claims that it couldn’t review state decisions, saying that it indeed could do that because it was supreme above all.
    6. The Supreme Court also established the power to regulate interstate commerce (though the problem later turned into what exactly was interstate commerce and what wasn’t), all under John Marshall.
    7. One of the most destructive decisions from the Supreme Court, however, came when Chief Justice Roger Taney rejected Dred Scott’s claim that, since he had been taken to a free state by his master, he was thus free by saying that black slaves weren’t citizens and couldn’t become so and that the Missouri Compromise was unconstitutional.
    8. During the years when the Court was trying to decide how gov’t should treat the economy, it showed a strong through not unbending attachment to private property.
      1. After the Court adopted the view of the 14th Amendment, which stated that no state shall “deprive any person of life, liberty, or property, without due process of law,” and let companies and corporations be “persons” as well, it received numerous cases and began ruling on the constitutionality of every gov’t action towards the economy.
      2. It often upheld the use of injunctions to prevent labor strikes, struck down the federal income law, sharply limited the antitrust law, restricted the railroad rates setting powers of the Interstate Commerce Commission, prohibited the fed. gov’t from banning child labor, and other things, but it also did allow some regulatory measures to stay.
      3. At one point, the 14th and 15th Amendments were so narrowly construed that they hurt blacks rather than helped them!
    9. The Supreme Court changed its private property attachments in 1937, after the Court-Packing Controversy passed and Justice Owen Roberts began voting the opposite way on new bills.
      1. President Franklin Roosevelt had tried to pass a bill that would let him add a new justice for every justice already over the age of 70 who didn’t retire, so that he would eventually have eight out of 15 justices that supported him, but that failed.
      2. With the arrival of Earl Warren as chief justice, the Court took on its most activist period yet, passing many decisions that protected the rights and liberties of all citizens—white or colored.
    10. Recently, the Court has begun to make decisions that have allowed states to maintain some power, so that federal laws do not always naturally overrule state laws.
      1. It declared the Gun-Free Schools Zone Act unconstitutional because Congress “didn’t have the right to regulate whether a gun was carried near a school or not.”
  3. The Structure of the Federal Courts
    1. Only the Supreme Court is referred to in the Constitution, but other federal courts are not mandated.
    2. Still, Congress has created constitutional courts (which exercise powers found in Article III of the Constitution, and have their judges serve for life) that include 94 district courts and eleven courts of appeals (there’s one in Washington, D.C. too).
      1. A legislative court is set up by Congress for some special purpose, and the people who work under them (including judges) have fixed office terms and can be removed or have their salaries lowered at will, unlike employees in constitutional courts.
    3. All constitutional court judges are nominated by the president and approved by the Senate.
      1. Political ideology does play a part in selection, but not that major of one.
    4. The tradition of senatorial courtesy allows senators to control who serves in their states; the Senate won’t approve a district judge if the senior senator from the state in which he is to judge objects by either not submitted a “blue slip” or by rejected the judge on that slip.
    5. The latest presidents have tried to get more judges who support their ideas (Carter chose more blacks and women; Reagan chose more conservative, strict-constructionist ones).
      1. They have done this through the “litmus test,” where a potential judge is asked a series of questions to determine his political inclinations and then chosen or rejected based on that.
      2. Some people call that unfair, and some judges have purposely answered vaguely to counteract the “litmus test,” saying that they haven’t made up their decisions on those topics yet.
      3. The Supreme Court nominations have no senatorial courtesy traditions, so the fight is simply between the president and the Senate over who should serve or not.
      4. Senators will usually reject a judge because of nominees’ alleged hostility to civil rights, questionable financial dealings, past controversy, and/or opposing political philosophy.
        1. Of course, some senators have supported notorious judges and then lost elections.
  4. The Jurisdiction of the Federal Courts
    1. Federal courts can hear cases “arising under the Constitution, the laws of the United States, and treaties” (federal-question cases) and cases involving citizens of different states (diversity cases).
      1. The rest is supposedly left up to the state courts, but some cases can be heard by either one.
        1. If a person breaks a state and federal law, sues a person from another state for over $50,000, or robs a federally insured bank, for example.
        2. Lawyers often pick the court that will give their most desired outcome.
      2. Some people are tried under both courts (i.e. the cops that beat Rodney King were tried in a state court under criminal charges of assault and in a federal court for civil rights violations).
        1. This is because the dual sovereignty doctrine of the courts allows each level of the courts to enact laws serving its own purposes and because the right must be reserved to prosecute a criminal, even if he has the sympathies of one court.
      3. State court appeals go to the federal courts, though, as do violations of federal laws, declaring bankruptcy, and inter-state disputes.
    2. Most federal court cases begin in state courts, are appealed, and then eventually selected by the Supreme Court via a writ of certiorari.
      1. Writs of certiorari are often granted when two+ federal appeals courts have decided differently and/or there is a claim that a law violates the Constitution.
    3. The Supreme Court’s problem is that giving seeing too many cases swamps it with work, but seeing too few lets lower federal courts make final decisions on the interpretation of the Constitution and on federal laws, and since there are twelve of them, they might (and have) disagree.
  5. Getting to Court
    1. Anyone can technically get their case up to the highest federal courts, but in truth, the Supreme Court rejects over 96% of the cases it sees, and the costs of getting a case up is huge, with all the fees that must be paid, plus, settling time is often long.
    2. The cost can be cut, though, by filing a case in forma pauperis (that is, appearing as a pauper and having the case heard for free), or, if a poor person in a criminal case can’t afford a lawyer, the federal gov’t will give him one for free, or, if it’s not a criminal case, special interest groups might give a lawyer.
      1. Special interest groups often do more than just provide an attorney, they take up cases for people and support them all the way through!
    3. In Europe, a person who sues another and loses must pay the fees of both people, but in the U.S., each person pays his own fees; it’s gotten easier, though, to get the other person to pay via fee shifting, where a plaintiff can get the defendant to pay for its lawyer fees, etc… in certain kinds of cases.
      1. Usually, the fee-paying loser is usually a corporation or the fed gov’t, which can afford to pay.
    4. To sue, a person must have standing, a concept which prevents frivolous, stupid cases:
      1. There has to be a real controversy (not just a friendly bet between two people, etc…).
      2. It must be shown that the person suing was actually harmed by a practice.
      3. Just because one pays taxes doesn’t mean he can challenge the constitutionality of something.
    5. To sue the gov’t, one must have its permission (i.e. if the army tests a cannon and kills one’s cow, he can’t sue the gov’t unless the gov’t says OK) ; this is called the doctrine of sovereign immunity.
    6. Sometimes, a person can benefit from a case decision without actually having gone to court due to the fact that it was a class-action suit—it was filed not just for one person but on behalf of a whole group or race of people (i.e. Brown v. Board of Education, which led to desegregation for all blacks).
      1. Since 1960, the gov’t has made class-action lawsuits more financially rewarding for lawyers, since millions of dollars can be at stake if the case is on behalf of enough people.
      2. The Supreme Court then, in 1974, tried to limit such cases (because there was a mushrooming of them) by saying that any suit seeking monetary damages must have every member of the suit identified (that can be expensive), and thus, the number of class-action suits has drop.
    7. In general, one needs standing and resources to get a case to federal court, but recent changes have made it easier to get both.
  6. The Supreme Court in Action
    1. In an actual Supreme Court case, the nine justices hear briefs (information, facts, and statements about the case) and then hear arguments from each lawyer—usually for no more than 30 minutes.
    2. Because the U.S. gov’t is a plaintiff or defendant to about half of the cases that the Supreme Court hears, the U.S. solicitor general (the 3rd-ranking member of the Department of Justice) often appears.
      1. He approves every case the gov’t presents to the Court and decides what cases the gov’t appeals from the lower courts.
    3. Sometimes, amicus curiae may be filed as a brief from an interested but not directly affected third party or group, but the Court must first grant permission for these briefs to be filed.
    4. Justices also consult legal periodicals like the Harvard Law Review and the Yale Law Journal (thus letting outside sources influence decisions), and on Fridays, they retire to the conference room, where they secretly deliberate, with the each judge giving his opinions in order of seniority and then the judges voting in order of reverse-seniority.
      1. A majority is needed for a decision, and in ties, the lower court’s decision stands.
      2. The Court also traditionally issues an opinion explaining its rulings (if it’s short and unsigned, it’s called a per curiam opinion) in one of three forms:
        1. An opinion of the Court explains the winning side’s views.
        2. A concurring opinion explains the views of a member of the winning side who chose that side for different reasons.
        3. A dissenting opinion explains the views of the losing side.
    5. Justices often vote similarly, and there are some rather clear voting blocs that arise:
      1. In the 1970s/80s, there were often three such blocs—a liberal/activist bloc, a conservative/strict-constructionist bloc, and a swing bloc (the liberal bloc was usually the minority, but it sometimes got enough votes from the swing bloc to win its way).
      2. Today, the Court remains deeply divided, with its justices voting differently depending on the case or subject matter.
      3. Of course, justices often do agree because many cases don’t have a liberal or conservative side; besides, what should count is the quality of the judges’ reasoning, not politics.
  7. The Power of the Federal Courts
    1. While most federal court cases don’t change public policy (they’re criminal cases, etc…), those that do involve the reinterpretation of the Constitution.
    2. A perhaps more revealing measure of power than just the number of laws that have been declared unconstitutional (120) is how many times the Court changes its mind.
      1. An informal rule of decision-making has been stare decisis: “let the decision stand.”
      2. This follows the idea of precedent, which is important because without similar interpretations of laws, there’d be erratic and unpredictable behavior by the judges, and because the principle of equal justice demands that similar cases be decided in similar manners.
      3. Of course, times do change, and that could be one reason why the Court has later overruled its own decisions over 140 times since 1810.
    3. One can also measure judicial power by seeing how many cases of political question (a case to be decided by another branch of gov’t) it actually takes.
    4. The most powerful way of measuring judicial power can be found in the kinds of remedies, or an order of what is to be done to correct a situation a judge feels is wrong, that the courts will impose.
      1. Some remedies are simple (one person pays another), but others are sweeping and involve many people (like ordering the state prison system to be improved).
      2. Remedies can be based on one’s interpretation of the Constitution or of federal laws.
    5. Supporters of judicial activism say that it’s the last place where injustices in the other two branches can be corrected, while critics say that judges have no special expertise on such matters, and if they don’t always make careful, cautious decisions, they could become unelected legislators.
      1. Some say that the courts have grown powerful because there are so many lawyers, but lawyers don’t make cases, contending interests make cases, and the U.S. had more lawyers in relation to its population in 1900 than in 1970, but in 1900, the courts were weaker than in 1970.
      2. The better reason is because it has gotten much easier to get into court, so there are more cases and more decisions.
      3. Also allowing more liberal decisions are the vague language of the Constitution and of recent laws that are passed, new laws that induce litigation, and judges’ opinions and attitudes.
  8. Checks on Judicial Power
    1. Judges aren’t elected, but that doesn’t mean they have no checks; they have no police or army, so their decisions can’t be enforced unless other enforce them for the courts.
      1. Decisions are usually resisted if doing so is easy and capture and prosecution is not imminent (school segregation, no praying or Bible reading in public schools, etc…).
      2. If resistance will easily lead to prosecution, then decisions are quickly followed.
    2. Confirming different judges and impeaching them is another tool that Congress can use over judges.
      1. It can also increase/decrease the number of judges to let a president appoint judges that support him and his views or undo a Supreme Court decision on a law or amendment by changing, or rewriting that law or amendment (only the 11th, 13th-16th, and 26th Amendments have accomplished this).
      2. Congress can also decide what the entire jurisdiction of a lower court and appellate jurisdiction (hearing cases passed up from lower courts) of the Supreme Court is.
        1. Theoretically, Congress can ban the Court from hearing whatever case Congress doesn’t want it to hear.
        2. Simply the threat of this may have changed decisions sometimes.
      3. Of course, sometimes, denying the Court the right to decide on a case is tricky, because wording can be used against a legislator, and if he goes too far, then the public is against him.
    3. The courts do heed public opinion, even though their members are not elected, and they’ll keep in mind cases (*cough* Dred Scot cough) when ignoring public opinion nearly destroyed the Court’s legitimacy.
      1. Opinion can restrain and also energize the courts to do action.
    4. Public approval of the courts seems to parallel public approval of gov’t itself.
    5. Nixon and Reagan tried to create a conservative court by selecting such justices, and they somewhat succeeded, but some cases have gone against the expected.
    6. Judicial activism has basically grown because gov’t has grown, and because more and more people accept it today than in the past.
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Chapter 16 - Economic Policy

  1. Economic Health
    1. During the 1980s, people who were supposed to hate deficits voted to create more, and those who wanted tax loopholes voted to close them, but in the 1990s, tax increased (like normal).
      1. Most of these actions, however strange, were caused by public opinion.
    2. Economic realities like the general health of the nation, the level and distribution of taxes, and the amount and kind of gov’t spending heavily influence economic policy, or how the gov’t wants to work the American economy and pay for its spending.
    3. The public generally cares about what happens to it, individually, but it also cares about collective results as well, and thus forces politicians to meet both ends.
      1. Economic conditions often influence the success of incumbents, and voters are often worried about their own pocketbooks, voting Democratic if they’re worried about unemployment and Republican if they’re concerned about inflation and voting against the incumbent if they’re own families’ finances had gotten worse and vice versa.
      2. On the other hand, voters sometimes vote against incumbents if general finances have gone down, or if the economy has worsened.
      3. In both the U.S. and Europe, voters nevertheless seem to respond more to the condition of the national economy than to their own personal finances because they feel that the national economy is inter-connected, and what happens to other people could happen to them.
    4. Since the 19th century, the American gov’t has used money to affect elections, whether by giving money to faithful patrons or by increasing Social Security benefits every election year.
      1. The gov’t often cannot reduce employment, cut inflation, lower interest rates, and increase incomes just to win elections because it does not know how to do one w/o ruining the other.
      2. Politicians must make careful, long-term choices about economic policy, since it is very hard to stimulate the economy with a snap.
        1. While all politicians like to have the best economic conditions, reality makes them choose which problems to tackle first (i.e. Democrats go after unemployment first).
      3. Basically, most Democrats are more worried about unemployment than Republicans, while Republicans tend (though not as much) to worry about inflation.
  2. Economic Theories and Political Needs
    1. Policies aimed at improving the economy as a whole are examples of majoritarian politics.
    2. A healthy economy benefits almost everyone while a stagnant one helps no one, but presidents and economic policy deciders must take responsibility for whatever results that occur, since the economy is unpredictable and quite complex.
    3. There are four major theories on how to best manage the economy:
      1. Monetarism suggests that a gov’t should have a steady, predictable increase in the money supply at a rate about equal to the growth in the economy’s productivity, and beyond that, free market enterprise should operate.
      2. John Maynard Keynes, the economist who introduced Keynesianism, the gov’t must create the right balance of demand and supply, and when demand is too low, the gov’t should pump more money into the economy (spend!) and vice versa.
      3. Economic planning is liked by economists who have too little faith in a pure free market enterprise to be Keynesians or monetarists, so they suggest price and wage controls (advocated by John Kenneth Galbraith, et. al.) to control stuff during inflationary times (so there’s no upward spiral) and adopt an industrial policy where the gov’t helps invest in basic industries so that they can survive bad times.
      4. Supply-Side Tax Cuts says that the gov’t should interfere in the economy less, and tax reductions will increase the incentive to work, making total tax income higher while total tax rates lower.
    4. Conservatives generally like monetarism and supply-side tax cuts while liberals stick to Keynesian politics and socialists like economic planning; this is all due to people’s personal preferences.
    5. During Ronald Reagan’s term, a new policy nicknamed “Reaganomics” arose, combining monetarism, supply-side tax cuts, and domestic budget cutting in an effort to simultaneously reduce the size of the federal gov’t, stimulate economic growth, and increase U.S. military strength.
      1. Domestic spending plunged, military spending soared, personal income taxes were cut, and Social Security taxes were upped.
      2. Huge deficits were created, but the reason was that people, with more money in their pockets, would spend more, stimulate the economy, and thus help pay for the deficit.
  3. The Machinery of Economic Policy Making
    1. In the executive branch, there are three other important people in economic affairs: the chairman of the Council of Economic Advisors (CEA), the director of the Office of Management and Budget (OMB), and the secretary of the treasury.
    2. The CEA is supposed to be a group of impartial experts who forecast the economy.
    3. The OMB was originally the Bureau of the Budget, and it prepares estimates of the amount of spending that gov’t agencies will partake in and also (lately) analyzes budget and spending patterns.
    4. The secretary of the treasury is often drawn from or close to the world of business and finance and is expected to argue the point of view of the financial community; he estimates revenue from existing tax laws and represents the U.S. in its economic dealings with other nations.
      1. Obviously, there is a lot of pulling and shoving and compromise among these three.
      2. There are also way too many bureaus formulating economic policy, and that creates chaos.
    5. The seven members of the board of governors of the Federal Reserve System (the “Fed”) are chosen by the president for 14-year, non-renewable terms, and the Fed regulates the supply of money in the country, changing interest rates charged to banks, and buys and sells federal gov’t securities.
      1. The Fed is usually pretty independent, but a determined president can change economic policy if he really wants to.
    6. Congress is the one that approves all taxes and almost all expenditures (price & wage controls, etc…), thus making it very powerful, but it’s also fragmented, influenced by key committees.
      1. Thus, no matter what economic policy a president has, he must put it through the many agencies within the executive branch, the independent agencies like the Fed, and various committees of Congress.
    7. Most economic tendencies affect people equally, but if most people are doing well and a few people are suffering, such as the case was during the 1980s (steel and farming industries suffered), there can be a problem, and parts of the nation can be split against each other.
  4. Spending Money
    1. The gov’t must also adhere to the demands of special interest groups, not just improve the economic health of the nation with majoritarian politics, and such a case creates client and interest group politics.
    2. Most people think that gov’t overspending is the cause of a deficit, but they also want more money spent on education, homelessness combating, childcare, crime control, and many other things.
    3. Thus politicians have incentive to cut gov’t spending AND give money to certain programs.
  5. The Budget
    1. A budget is a document that details how much the gov’t will collect in taxes and spend in revenues and how these expenditures will be allocated to certain programs.
      1. Supposedly, it decides how much money there is and THEN where it will be spent on.
      2. In reality, it’s more of a list of everything that the gov’t will spend, w/o regard to how much money is actually available.
    2. Before the Congressional Budget Act of 1974, there was no established budget, and even those that were formed were sometimes ignored, but afterwards, the president submitted a budget in January, where two budget committees in the House and the Senate debated and then passed its own budget resolution that would be adopted in May, but a second one could be made in September.
      1. However, there is nothing to prevent Congress from ignoring its May resolution and just using its September one.
      2. Nevertheless, Congress is now more conscious about what it spends and how it does that.
      3. During the Reagan years, the May budget didn’t simply set a spending ceiling, it was used to make cuts in programs!
      4. The procedures used by Congress affected policies that it adopted here.
      5. In theory, if Congress voted on spending before the “public did,” it would go down, but this didn’t turn into reality that much after 1981, and the deficit eventually grew so much that even politicians eager to satisfy constituent demands worried about national economic health.
      6. Eventually, the Gramm-Rudman Balanced Budget Act called for lowering the deficits each year from 1991 to 1996, and if that didn’t happen, a sequester would occur in which across-the-board cuts would occur in all programs, except exempt programs.
    3. In 1988, George Bush said, “Read my lips, no new taxes,” but by 1990, only a tax increase would counter a sequester of close to $100 million, and new taxes were introduced; this was aimed to get the Republican White House to 1992 w/o immediate tax cuts, but it did nothing to cut the deficit.
    4. In 1993, the Bill Clinton budget claimed to eliminate the deficit over five years!
      1. The top tax rate would go from 31% to 39%; 85% of Social Security benefits would be subject to taxation, up from 50%; $56 billion in spending cuts would come from Medicare; federal gasoline tax goes up from 14.1 cents to 18.4 cents.
      2. After the fall of the Soviet Union, there were talks of a peace dividend, where defense spending would be cut since it was no longer needed (no more Cold War).
      3. Clinton eventual made compromises to get the bill passed, and many Republicans argued that there were too much taxes and too little spending cuts.
    5. In 1997, Clinton agreed to cut some spending if Republicans cut some taxes.
    6. Cutting spending is hard, because many “uncontrolled” expenditures involve signed contracts.
    7. It’s almost impossible for any president to know how by much he has cut the budget, since unexpected events can mess up previous estimates.
  6. Levying Taxes
    1. Tax policy reflects a mix of majoritarian and client politics; in the U.S., a “fair” tax law has generally been viewed as one that keeps the overall tax burden rather low, makes everyone pay something, but makes the richer pay more.
      1. The tax burden in the U.S. is lower than it is in most democratic nations.
      2. In 1986, a sweeping tax reform act closed many loopholes that people could previously use to pay less income tax (btw, a sales tax is much harder to evade).
    2. In 1913, the 16th Amendment was passed, authorizing a graduated income tax (richer people paid more; poorer people paid less), and for the next 40 years or so, rates tended to go up during wartime and down during peacetime (the top percentage, or marginal rate—how much the richest paid—went up to 94% during World War II!!!).
      1. One might think that the rich were REALLY hurt by this, but deductions, exemptions, and exclusions helped the rich preserve a LOT of their money.
      2. The eventual compromise during the first half of the 20th century was that Democrats (supported by the poor) would support loopholes if Republicans (representing the rich) would support high marginal rates.
      3. During debate over the 1986 tax reform bill, interest groups tended to cluster around certain loopholes, like certain deductions or subsidies; what resulted was low rates and smaller deductions, resulting in a loss for businesses.
    3. Majoritarian politics had resurfaced in the form of a cry for fairness, and policy entrepreneurs were able to point to real and imagined scandals to get change.
      1. Some professional economists had complained for years over the faults of the old tax code and that high rates discouraged investment.
      2. Another kind of entrepreneur, led by Jack Kemp, liked supply-side economics.
      3. Others were journalists and publicists who liked to report on “tax cheats” that were legal but rather unfair in the eyes of public opinion.
    4. These entrepreneurs obviously greatly influenced important politicians to get what they wanted, and they did, and clients groups who acted unprofessionally in fighting to keep loopholes also helped provoke final reform, and when the 1986 bill was passed, tax politics had come full circle, from a product of majoritarian politics to a caterer of client politics back to majoritarian politics.
      1. However, afterwards, more tax deductions were added, rates were increased, and people began complaining that the tax law had become so complex that the average person could no longer figure out his or her own taxes!
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Chapter 17 - Social Welfare

  1. Social Welfare in the United States
    1. There are two types of welfare programs in the United States:
      1. Programs of majoritarian politics benefit a large group of people and have no means test (income doesn’t matter; everyone gets them).
      2. Programs of client politics are given to a special group of people (i.e. the poor or some minority group) and are means tested (one must fall below a certain income to get them).
      3. In the first, everyone pays and everyone gets, but in the second, everyone pays and a few people actually get the benefits.
    2. Some of these programs are so accepted that reducing any of them (i.e. Social Security & Medicare) is nearly unheard of, and when they’re in danger, politicians scramble for ways to save them.
    3. Others, especially client-based welfare programs, can be changed or even eliminated easily.
      1. The Aid to Families with Dependent Children program started out as a way to help mothers whose husbands had been killed in World War II or in mining accidents support their children, but eventually, mothers who had no intention of marrying began to milk it for benefits, and when people began thinking that the AFDC was taken advantage of, it became in danger.
      2. Whenever a client program loses legitimacy, it’s in deep trouble (i.e. tobacco farmers).
    4. Social welfare policy is generally shaped by three views: Americans have generally taken a restrictive view of who gets gov’t aid; the U.S. has been slower than most nations to embrace the welfare state; Americans insist that states play a large role in running welfare programs.
      1. Who benefits usually means who “deserves to benefit;” and that is usually people who are unemployed or have fallen on hard times and cannot work (i.e. disability, etc…).
      2. There’s also a question of a “fair share” in which those w/ a lot of money give some to those who have a little, but in America, that is usually not the case.
    5. Americans believe that people should be self-reliant and that people who work hard get what they deserve; they are also uneasy about giving money to people, preferring to offer services instead.
    6. When Congress passed the Social Security Act in 1935, at least 22 other European nations had already done so, as did Australia and Japan
      1. The British were one clear contrast: during the early 1900s, the in-power group was focused on making welfare a top issue, and people were beginning to encourage such gov’t actions.
      2. In America, though, even the Progressives called for reform, not the introduction of new ideas.
    7. Furthermore, since the Constitution had never said anything about Congress spending money on welfare, it was not until the 1930s that a reinterpretation encouraged Congress to do so.
      1. Between 1923 and 1933, though, 30 states enacted some form of an old-age pension, though, and by 1935, all but two had adopted a “mother’s pension” given to widows who were “fit mothers” and ran “suitable homes.”
      2. Eventually, federal welfare programs used state programs as their bases.
    8. Before the Great Depression, there were relatively few welfare programs, and most of the existing ones were geared toward widows, orphans, or the elderly, but upon the election of Franklin D. Roosevelt, Congress sprang to enact emergency legislation to help out the massive unemployed.
      1. Most of them were short-term, though, and for long-term programs, FDR created the Cabinet Committee on Economic Security, which used European models and adapted them to America.
      2. Meanwhile, people like Huey Long, who proposed the “Share Our Wealth” plan, Upton Sinclair, and Dr. Francis E. Townsend, who demanded monthly $200 pensions for old people, were generating new ideas and gaining popularity.
      3. The plan that the cabinet committee came up with called for an insurance program for the unemployed and elderly (workers paid to get benefits later) and an assistance program for the blind, dependent children, and the aged, both of which would be funded by taxes.
        1. Only the poor could be helped by the assistance programs, and they had to pass a means test to determine their income and eligibility.
        2. This Social Security Act swept through Congress and was signed in August of 1935.
    9. A national health care plan was left out of the act, but people still pursued it, even other some politicians and groups like the American Medical Association disliked it, called it “socialized medicine,” and believed it to be either wrong in principle or just too expensive.
      1. The elections of 1964 brought a landslide of national health plan-favoring Democrats into Congress (especially in the Ways and Means Committee, which had opposed it with the lead by Wilbur Mills before), and eventually, a system emerged, called Medicare.
      2. It would only apply to the aged, cover hospitals, not doctors, but also gave coverage to the poor (called Medicaid) and helped the aged pay doctors bills, but it still passed.
    10. Congress left most of the implantations of the AFDC to the states, but it did increasingly pass certain regulations on the program to help single or widowed mothers raise their children.
      1. AFDC recipients could also become eligible for Food Stamps, the Earned Income Credit (cash grants to the working poor), free school meals, various forms of housing assistance, and certain other benefits, but at the same time, public opinion was growing against the program.
      2. Many people complained about different things about it, and most felt that it encouraged out-of-wedlock births, since more babies meant more money/benefits; it was cheap!!!
  2. Two Kinds of Welfare Politics
    1. A proposed programs will generally pass if the benefits are less than their costs and if political elites believe that it is legitimate, but Social Security initially gave each person who qualified more money that each person who paid actually paid.
      1. This was okay, though, since at that time, the rate was small anyway, and there were so many young people that they could offset the cost and pay for Social Security.
      2. Some people even vastly underestimated the costs, but today, the situation is different, since there are more elderly people than ever, and the number of people who can pay for Social Security and Medicare is starting to be not enough.
    2. With Social Security and Medicare, the argument was over their legitimacy, and whether they were authorized by the Constitution and/or really needed that bad that the gov’t had to pay for them.
      1. Since the creation of Social Security and Medicare, it is rare that Congress does not increase benefits, since Congressmen want to be re-elected, and what better to get votes than to give people more benefits?
    3. These days, there are less and less people to pay for Social Security, people are growing older, and health care costs have shot up, so Social Security and Medicare are now in danger of being illegitimate.
    4. Proposals that are in client politics will generally pass if the costs aren’t that great and the beneficiaries are “deserving.”
      1. The AFDC still doesn’t cost that much, but its recipients are no longer being considered “deserving,” and instead of money, people now favor a service strategy (training people to work in certain jobs and giving them skills) over an income strategy (giving them money).
    5. Some argue that welfare actually increases poverty because it’s easier and more attractive to go on it.
  3. Towards a New Welfare Politics
    1. Majoritarian politics problem: who will pay; how much will they pay? Client politics problem: who should benefit; how much should they be served?
    2. In 1981, people feared that Social Security would soon run out of money, and to solve this, eventually, a non-partisan group raised SS taxes, slightly decreased benefits, and increased the minimum age that people had to be to get benefits from 65 to 67 years old.
    3. To solve runaway Medicare costs, Congress has tried to regulate what doctors and hospitals can and cannot charge onto Medicare, but some argue that price controls won’t work.
      1. One way was to have people pay a flat fee no matter what the injury, whether it be a broken bone or a brain tumor, and hospitals could pay for more expensive operations themselves and/or pocket the money on cheaper services, depending on the situation.
        1. Many simply reduced the quality of their services, though, treating patients worse.
    4. In 1988, Congress passed the Medicare Catastrophic Coverage Act, which let the gov’t pay for all costs of any catastrophic illnesses (strokes, etc…) after a person paid a deductible, but critics never felt it helped anyone, and it was repealed 18 months later.
    5. The Medicare problem still has not been solved, since people don’t know how much funds to cut off from the hospitals, and even that won’t help, since hospitals will either lower service or charge paying customers more, and they won’t like that either.
    6. For Social Security, Congress has proposed to let part of Social Security be invested in stocks, but old people don’t like it because it’s risky; when costs go up, majoritarian politics is no longer easy.
    7. It’s easier to deal with client politics that lost legitimacy: the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 abolished the national AFDC, let states run welfare programs for the poor as they saw fit, w/o gov’t regulations (each state did get federal block grants to pay for Temporary Assistance for Needy Families, though), makes beneficiaries look for work by limiting the time of benefit getting, and denies food stamps to legal aliens and TANF for illegal aliens.
      1. TANF beneficiaries must be working within two years, and under-18 mothers can only get TANF if they live with a parent and attend school.
    8. There is a lot of argument over homeless people: liberals say there are a LOT of them, that they’re mostly victims of high housing costs or social services cuts, and that the gov’t should at least stop harassing them and at most give them shelter; conservatives say that there are few homeless people, and those that are homeless are mentally ill or drug addicts who should be sent to institutions or jailed.
      1. Most cities arrest for public disorder but not sleeping on the streets, give shelters only in cold weather, and offer but don’t require treatment to mentally ill or drug-addicted people.
    9. Many immigrants to the U.S. are illegal (usually from China, Mexico, and Haiti; usually go to California, Florida, Texas, Illinois, New Jersey, & New York), unskilled, and believed to either take away jobs from the people where legally or drain billions of dollars in benefits programs.
      1. Illegal aliens are NOT among America’s “deserving poor.”
      2. Most immigrants are neither part of the “pitiable, huddled masses” or the “job-stealing aliens,” but recent laws have cut off benefits to illegal aliens.
      3. How they will be dealt with remains to be seen.
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Chapter 18 - Civil Liberties

  1. Politics, Culture, and Civil Liberties
    1. Modern claims over violations of civil rights would have shocked the Founding Fathers, who thought that they had dictated what the federal gov’t could and couldn’t do, not what the state gov’t could and could not do.
      1. Even the added Bill of Rights was never intended to control state governments’ actions.
    2. The political system of the United States has always facilitated the actions of small groups to help them stop acts that would have imposed great burdens on them.
    3. There are three reasons to why the liberties claimed by some people ever become a big issue:
      1. There may be rights in conflict (called “interest group politics”).
      2. Passions may be inflamed by a skilled policy entrepreneur (called “entrepreneurial politics”).
      3. Due to the U.S. political culture, there are constant differences in opinions, and from time to time, one opinion is favored over another.
    4. The U.S. Constitution and the Bill of rights contain many competing rights that can conflict each other:
      1. The right by a person to a fair, unbiased trial vs. the right to broadcast whatever rumors about that person on trial.
      2. The right to publish something w/o censorship due to the “freedom of the press” guarantee from the Constitution vs. the right to “provide for the common defense” and keep information and intelligence secret, lest the wrong people hear about it and hurt the United States.
      3. Freedom of speech vs. preservation of order (i.e. saying defamatory things).
    5. Sometimes, special interest groups are on the opposite sides of a fight for certain rights and liberties.
    6. A skilled policy entrepreneur can sometimes arouse people to take action against the rights and liberties claimed y political or religious dissidents, but such action usually happens during certain times, like a war.
      1. The Sedition Act of 1798 made it a crime to write, utter, or publish “any false, scandalous, and malicious writing” with the intention of defaming a gov’t member…this during the French Revolution, and the Espionage and Sedition Acts of 1917-18 were passed to ban people from defaming the military or the war effort for World War I and prevent suspected German spies from overthrowing the gov’t.
      2. The Smith Act of 1940, the Internal Security Act of 1950, and the Communist Control Act of 1954 all banned the advocating of the violent overthrow of the gov’t.
    7. In many of these acts, there was a war or some tumultuous activity going on, and when they were passed, the Supreme Court was often called to judge the acts’ constitutionality, and the Court usually upheld the acts at that time and ruled them unconstitutional later, when it was less chaotic.
      1. Nowadays, to be found guilty of sedition, though, one usually must be proven of acting to overthrow the gov’t, not just of thinking or talking about it.
    8. In early American history, most people were white Protestants, and as a result, the prevailing views were those of the white Protestants, not the blacks, Native Americans, Catholics, or Jews, but immigration to this country brought forth a flood of new people and new ideas and opinions.
      1. Thus, more varied views means more disputes over certain rights.
      2. For example, many Jews find a gov’t building display of Jesus Christ in a manger during Christmas time to be offensive, while Christians have no problem with it; does a religious display violate the “separation of church and state” doctrine?
      3. Is mandatory bilingual education constitutionally required because certain languages are “part of the nation’s heritage”?
  2. Interpreting and Applying the First Amendment
    1. The question is what forms of expression are entitled to constitutional protection?
    2. The 1st Amendment protects freedom of expression and freedom of religion, basically.
      1. William Blackstone, in his Commentaries, expressed the traditional view of free speech and a free press, saying in 1765 that a free press is essential to a free state and that a free press must enjoy the freedom from prior restraint (censorship).
      2. The U.S. Sedition Act of 1798 imposed no prior restraint against publishers but made them liable to punishment AFTERWARDS, but at least it was a trial by jury, not by one judge.
        1. When Jefferson became president and pardoned all those convicted under the act, he wanted state governments to punish publishers, not the federal gov’t to do that.
      3. In 1919, the Espionage Act was examined when Charles T. Schenck was brought to trial for sending cards that encouraged men to resist the draft (opposing views = Congress can’t restrict speech vs. Congress should punish dangerous speech), and Schenck’s conviction was upheld by the Supreme Court via the clear-and-present-danger test: one cannot use his freedom of speech to create a “clear and present danger” that the Constitution is designed to prevent.
        1. One can’t falsely shout “fire” in a crowded theater, causing a panic, and some things that are okay to be said in peacetime are not okay during wartime.
    3. The due-process clause (“No state shall…deprive any person of life, liberty or property, without due process of law.”) might have restricted states’ rights, but for 50 years, the Supreme Court denied that this clause made the Bill of Rights applicable to the states (so they could still pass whatever sedition laws they wanted, etc…), but in 1925, when Benjamin Gitlow was convicted of violating New York’s sedition law, the Supreme Court ruled that freedom of speech and of the press were among the fundamental personal rights guaranteed by the due-process clause of the 14th Amendment.
    4. Another question was whether simply advocating the overthrow of the gov’t could be punished; the Supreme Court said it could, and that the gov’t didn’t have to wait until a revolt was about to happen if it knew that plans had been laid for one, but later it said that solid proof had to be found.
      1. Basically, during wartime or other times of crisis, personal freedoms are more restricted.
      2. During peacetime, people have freer liberties and don’t have to worry about rights as much.
    5. Similarly, even controversial groups like the Ku Klux Klan and Nazi supremacists had the right to march as long as they did not incite public violence or chaos.
  3. What is Speech?
    1. Except for those that actually incite someone to take illegal actions, most forms of speaking and writing are protected by the U.S. Constitution, except for these four:
      1. A libel is a written statement that defames the character of another person (saying it is called slander), but suing and collecting damages for libel can only be done if it is proven that the libel was false AND that harmed the person suing.
        1. Public figures find it even harder to collect damages from libel because they must prove that “actual malice” (reckless disregard for truth or falsity of the statement) was done when the libel was written.
      2. False advertising is obvious, and it can be punished if it is proven that the advertising caused a person to be harmed (physically or financially or whatever) by the thing advertised.
      3. The 1st Amendment does not protect obscenity because this is a relative idea and depends on the viewpoints of individual (what’s offensive to one may be welcome by another… i.e. cursing, pornography, racial slurs, etc…), and the Court has often upheld this view.
        1. The disputes are between those who value liberty above all and fear that any restrictions on one will lead to more on all, and those who value decency above liberty and feel that reasonable people can distinguish between offensive and serious work.
        2. The Supreme Court has basically adopted the view that localities decide for themselves if they tolerate hardcore pornography or not, but that if they don’t, they must follow some fairly strict constitutional tests.
        3. Almost any form of visual or auditory communication can be considered “speech,” even nude dancing, although in 1991, the Court held that this was barely within the protection of the 1st Amendment, so a local law banning totally nude dancing was OK.
        4. Then again, there are feminist groups who have attacked pornography on the grounds that it degrades women, but the Supreme Court has said that it does not.
        5. Thus, “zoning” regulations have been used to limit where porn or other possibly obscene things can be sold, etc… but a new problem regards the Internet, and how to control possible obscenities found in it.
      4. The Court also ruled that symbolic speech cannot be treated like real speech, or else, people would have the excuse to do all sorts of illegal things, from burning draft cards to murdering and raping people and committing arson.
        1. However, one can burn a flag, since the U.S. gov’t has no rights over the U.S. flag, as opposed to having rights to run a draft, prevent murders and rapes, etc…
  4. Who Is a Person?
    1. Corporations and companies enjoy some 1st Amendment rights, but the gov’t can place more limits on commercial than on noncommercial speech:
      1. It can place restrictions on ads for cigarettes, liquor, and gambling and can regulate advertising for some less harmful products.
    2. However, school newspapers can be censored by their schools if they use school funds to print.
    3. Basically, school-sponsored activities can be controlled as long as such controls relate to reasonable concerns, such as school mission and education.
  5. Church and State
    1. Many people falsely believe that the 1st Amendment requires a “separation between church and state,” but it actually simply has a free-exercise clause that prohibits Congress from making a law that bans the “free exercise” of religion and an establishment clause that says that Congress “shall make no law respecting an establishment of religion.”
      1. The first clause basically says that Congress (or state governments) can’t make a law that says everyone has to be of a certain religion or one that bans a certain religious activity, and even certain laws that would directly hinder a religion can be overturned.
      2. A person can practice his religious beliefs freely as long as such beliefs do not break existing law (just because a religion says to smoke pot doesn’t mean a person can still do that).
      3. Some cases are trickier, like one’s dislike of war due to his religion; in fact, the Supreme Court has even said that one cannot be drafted if he conscientiously despised war (even if he isn’t religious or does not believe in a higher being).
      4. An unemployed person can also receive benefits if he refuses to take a job that involves working on Saturdays (due to his religion), and a state cannot require people like the Amish to send their children to school past the 8th grade if their religion forbids it.
    2. It was Thomas Jefferson who wrote the second clause that basically “separated church and state.”
      1. In interpreting this ambiguous language, the Supreme Court has adopted the wall-of-separation principle, which means that the gov’t cannot be involved in religion at all.
        1. Basically, state and federal governments must be neutral toward religion.
      2. The gov’t cannot require a person to profess a belief or disbelief in or aid (a) religion(s).
      3. Busing to Christian schools was okay, however, because actual busing is a neutral activity.
      4. The Court has also tried to strike down every form of prayer in school, individual or mass.
      5. The gov’t can pay to construct parochial schools or give books to students of such schools, etc… but it can’t pay a teacher who teaches in such a school.
        1. Basically, it cannot directly contribute to the instruction of religion.
      6. The Court has basically come up with a “test” to see what kinds of involvements are constitutional: it has a secular purpose; its primary effect neither advances nor inhibits religion; it does not foster an excessive gov’t entanglement w/ religion (vague, huh?).
      7. More confusing crap: prayer in schools = bad, prayer in Congress = OK; public school chaplain = bad, armed service chaplain = OK; advance religion = bad, “In God We Trust” on coins = OK. Summarization is just not possible for the Supreme Court on this matter.
  6. Crime and Due Process
    1. With crime, the trick is not only to decide what the Constitution says & means, but also how to enforce it.
    2. There are two ways to protect people against unreasonable searches: let the evidence be introduced and used and punish the cop if it’s found that the search was unreasonable or just not introduce the controversial evidence at all (most democratic nations use the first method, the U.S. uses the second).
      1. The American method relies on the exclusionary rule, which says that evidence gathered in violation of the Constitution cannot be presented in court (this has been used to apply to unreasonable searches and to the right not to be compelled to incriminate oneself).
      2. In 1949, the Court said that the exclusionary rule did not apply to states, but in 1961, it reversed that decision in Mapp v. Ohio.
    3. To search a home, now, a search warrant must be issued by a judge who is persuaded that there is probable cause (a good reason) that a crime has been committed and evidence that would prove that crime would be found at the location that the search warrant says.
      1. The police can search a building if the person consents to a search; a person and things in plain view and things or places under his immediate control can be searched if he’s arrested.
      2. A person’s body has the ultimate protection from unreasonable searches, followed by his home (motor homes excluded) and then his car.
      3. These rights only protect a person from being searched by the gov’t, not by private citizens.
    4. While private companies can order drug tests at will, the federal gov’t must have a concern for public safety or national security if it wishes to order people to undergo drug/AIDs tests, etc…
    5. Originally, the ban on being forced to give evidence against oneself was intended to prevent the use of torture or “third degree” police tactics to extract confessions, but after the Miranda case, the Court ruled that a person also had be given his “Miranda rights,” the right to remain silent, the right to a lawyer, the right to have a lawyer present during the issuing of statements, etc…
      1. Btw, this doesn’t apply to confessions given in prison what turns out to be undercover officers.
    6. The courts have since begun to decide many cases in ways that retained the exclusionary rule but gave officers greater freedom and by incorporating the “good-faith exception” would include evidence gather even if the search warrant was defective for a minor reason (typo, wrong forum, etc…).
    7. “Overriding considerations of public safety” could justify questioning a person w/o reading his rights.
    8. Evidence cannot be excluded if it would “inevitably” been found.
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Chapter 19 - Civil Rights

  1. The Black Predicament
    1. The issue of civil rights, or the freedoms and liberties that should be given to people no matter their race, ethnicity, lifestyles, or beliefs, has been around for hundreds of years.
      1. The questionable ways of classifying people are called suspect classifications and involve race, gender, and ethnicity.
    2. Even though they account for more than 12% of the nation’s population, blacks could not until recently vote, attend integrated schools, ride in front seats of buses, or buy homes in white neighborhoods in many parts of the country, basically because not enough people demanded that such rights for them be enforced, and many people (whites) felt threatened or detested blacks’ presence.
      1. In the Deep South, where black were the majority, the minority whites feared the competition for jobs, land, public service, and living space, and they were simply racist, and this led to many lynchings and violence against blacks.
      2. Not only were blacks oppressed, they either had no means to rise up against such oppression or organize to gain support.
      3. Little was done, despite public shock at such events because lynchings were local crimes (not federal) and most public attitudes were either apathetic or against black rights.
    3. At a political disadvantage, 1960s black civil rights protesters found that they would either have to gain new allies or move the policy-making arena to a place where the opposition was not as advantaged.
      1. Partly by accident and by plan, they followed both routes, publicizing their cause to many Americans and also carefully securing Congressional action in Congress and the federal courts.
      2. After initial successes (getting Blacks the right AND the means to vote), the civil rights movements turned from fundamental human rights to more of manpower development, economic progress, and the housing and neighborhood improvement.
  2. The Campaign in the Courts
    1. The 14th Amendment, if read broadly, seemed to guarantee equal rights for all when it said that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
      1. This could also permit some forms of segregation, though, as was later allowed w/ schooling.
      2. The Supreme Court said that it was illegal to have all-white juries, but that segregation in hotels was perfectly okay, and later, the case of Plessy v. Ferguson effectively legalized racial segregation with the “separate but equal” doctrine.
        1. The 14th Amendment required political and legal but NOT social equality.
    2. Three years after Plessy v. Ferguson, the Court applied this to schools as well with Cumming v. Richmond Country Board of Education.
      1. However, the National Association of the Advancement of Colored People was formed in 1909 in part to try to change the Court’s decision on this and advance black civil rights.
        1. W.E.B. Du Bois was one of its leaders and the editor of the magazine The Crisis.
      2. Its strategy was to get the Court to declare unconstitutional laws that created schools that were separate and obviously unequal, then schools that were separate but not-so-obviously unequal, and then to declare that separate was NOT equal.
      3. In 1938, the Supreme Court ordered an all-white law school in Missouri to admit Lloyd Gaines because there was no other law school for Blacks in the area.
        1. Same with Ada Lois Sipuel in Oklahoma, even though a black law school had been planned and was to be built later.
        2. For education to be equal, it had to be equally available.
      4. The second step was met in 1950 Meman Sweatt and George McLaurin were admitted to white schools but required to study in roped off sections of the colleges (2 separate cases), and the Supreme Court decided that these cases were unconstitutional.
      5. Finally, on May 17, 1954, in Brown v. Board of Education, Chief Justice Earl Warren declared that the “separate but equal” doctrine was inherently not equal and thus unconstitutional.
    3. The Court left enforcement of desegregation up to the local federal courts, but the implementation of this proceeded at a snail’s pace in the South, with over 100 members of Congress signing a “Southern Manifesto” that called the decision an “abuse of judicial power” and vowed to reverse the ruling.
      1. However, use of armed National Guard members eventually foiled resistance, and by 1970, only 14% of southern black schoolchildren still attended all-black schools.
      2. To justify its ruling, the Supreme court relied on social science studies that indicated that segregation made blacks feel inferior and was detrimental, not on the Constitution!
        1. This is because the Court realized that the Founding Fathers may NOT have meant to say that segregation was wrong.
    4. A new question arose: did schools simply have to allow enrollment to anyone, or did they have to MAKE their schools integrated and diverse?
      1. De jure segregation (segregation by law) was definitely now illegal, but was de facto segregation (segregation by choice, as in predominantly black communities, etc…)?
      2. In 1968, the Supreme Court declared a plan that allowed every pupil go to a school of his or her choice but still let all of the white children stay at the all-white school and 85% of the blacks choose to stay at the all-black school unconstitutional because it didn’t achieve the ultimate mean, which seemed to require actual mixing of races, not just its opportunity.
    5. The case of Swann v. Charlotte-Mecklenburg Board of Education pretty much decided guidelines for all later cases regarding school segregation:
      1. To violate the Constitution, a school must have intended to discriminate.
      2. All-white or all-black schools in a district with a history of segregation imply discriminatory intent.
      3. Schools must actually be mixed, so racial quotas of students and teachers, new district lines, and court-ordered busing are okay.
      4. Not every school must reflect the social composition of the school system as a whole.
    6. Intercity/country busing would only be required, though, if it was shown that both the city and the suburban schools/districts had previously practiced segregation.
      1. Most people oppose this type of busing, and Congress has often been torn on both sides.
      2. Sometimes, it has contradicted itself and taken both sides.
  3. The Campaign in Congress
    1. Here, the first problem was to convince the people that civil rights was needed and that something should be done, and it was solved by dramatizing the problem to pull at the consciences of whites (show violent lynchings or show confrontations b/t blacks and whites {i.e. protests and sit-ins} where the whites horribly treated the blacks {i.e. sprayed them with huge hoses}).
      1. Blacks were also mobilized to register to vote to show their power at the polls.
      2. Boycotts were especially effective, and Martin Luther King, Jr. led the first one after Rosa Parks had refused to give up her seat on a bus to a white man.
      3. Early demonstrations were based on nonviolent civil disobedience (i.e. NO RIOTS).
        1. However, the growing anger of young blacks could not be controlled, and from 1964-68, there were summers of racial violence in the North and the South.
        2. Many whites said that such protests hurt the black cause more than it helped.
        3. Slowly, though, support for integration (etc…) grew, despite House and Senate committees being dominated by Southern Democrats and conservative Republicans.
      4. Violent reactions by whites to blacks, such as Eugene “Bull” Connor’s unleashing of police dogs and fire hoses on blacks were powerfully portrayed on TV, and protests like the “March on Washington” generated widespread publicity
    2. The assassination of John. F. Kennedy shocked many people who thought it was for his liberal views, and in 1964, Northern Democrats were elected by the handful, giving the power to pass a strong civil rights bill that was passed during the term of Lyndon B. Johnson.
      1. The passage of a 1964 act was the most far-reaching one of all, and it passed despite much resistance and an eight-week-long filibuster!!!
      2. Nowadays, partly due to the growing political strength of blacks, few civil rights bills fail.
    3. Civil rights also apply to crime (when lots of black drug dealers were arrested, blacks claimed discrimination and racial profiling, but the Supreme Court upended such a protest).
  4. Women and Equal Rights
    1. In contrast to the Black Movement, which was against a policy that explicitly tried to subordinate them, the Women’s Movement was against a policy that supposedly protected them.
    2. The women’s rights movement, which resurfaced after the black movement, gained much action from Congress, and gained many rights.
      1. The Supreme Court has come up with two standards in deciding whether or not the Constitution bars all, some, or no sexual discrimination:
        1. The reasonableness standard says that some different treatment is reasonable and not arbitrary (i.e. applying statutory rape laws to men but not women).
        2. The strict scrutiny standard says that some methods of drawing distinctions between groups (i.e. treating blacks and whites differently) are inherently suspect and bad.
        3. For the women’s movement, the standard was somewhere between the two.
    3. The Court has also ruled sexual discrimination to be illegal in government AND private action.
    4. Here’s more illegal discrimination:
      1. A state cannot set different ages for men and women to become adults or buy beer, nor can women be barred from jobs by certain height and weight requirements.
      2. Mandatory pregnancy leaves are illegal; girls cannot be barred from Little League baseball; business and service clubs cannot bare women from membership; employers must pay monthly retirement benefits to men and women equally; and high schools must pay women coaches the same amount they pay male coaches.
    5. Differences based on sex that are okay:
      1. Since men and women are not “similarly suited” with respect to sexual relations, females don’t have to be punished for statutory rape; all-boy/girl schools are okay; states can give property tax exemptions to widows but not widowers; women can be navy officers longer than men w/o being promoted.
    6. In 1996, the Court ruled that women could be admitted to Virginia Military Institute.
    7. The case of Rostker v. Goldberg ruled that women can be exempt from the draft, but not men.
    8. The Equal Rights Amendment at first seemed sure to pass, as it sailed through the House and Congress and many initial states easily ratified, but it soon stalled and some states rescinded their ratifications.
      1. Eventually, time expired (even after an extension) and it failed.
      2. Since over ¾ of the legislatures had to approve, the odds were against it that it would pass, and since it was controversial AND many women themselves opposed it, many legislatures were reluctant to take a stand on this issue.
        1. Issues: Women = open to being drafted? No more max hours limits? Etc…
    9. Abortion quickly became a flaming hot topic, but in 1973, the case of Roe v. Wade essentially legalized abortion for everyone, no matter what the consequences (except during the third trimester).
      1. Critics of the ruling maintained that life began at conception, and these anti-abortionists became “pro-life” while their opponents were “pro-choice.”
      2. The Hyde Amendment barred the use of federal funds for abortion, unless the life of the mother was at stake.
      3. Roe v. Wade has been affirmed ever since it was ruled upon, and new federal judge appointments have not even nullified it.
  5. Women and the Economy
    1. There have long been two groups of feminists: those who want total equal rights (and wanted the ERA to pass as the ultimate victory) and those who feel that the economic status of women was more important than the ERA, since its effects are more immediate.
    2. It’s illegal to discriminate at work based on sex, but many women are still paid lower than men, and single pregnant women sometimes must quit their jobs because there are no maternity leave provisions.
      1. Women’s groups have lobbied for government-funded day care (acted upon in 1984) that would allow working women to work easily, child support enforcement (passed in 1988 as part of a larger welfare plan) that would withhold paychecks of men and women who didn’t pay child support, pregnancy leave that would guarantee a women’s job to stay when she left to give birth, and comparative worth that would pay men and women equally for equal work.
      2. This comparative worth issue is most controversial, since there can be men who are plumbers who earn more than equally paid female nurses.
        1. “Worth” is measured by experts who rank jobs based on difficulty.
        2. Neither the Supreme Court nor Congress has definitely spoken on this question.
  6. Affirmative Action
    1. To ensure that a school or a job actually has mixes of different races and genders, affirmative action can be used to get more minorities into the desired place.
      1. This has been used lately to make every institution reflect the cultural/ethnical diversity of the nation, even at the sacrifice of job/school quality.
    2. To give blacks and women preferential treatment over other groups like whites is also wrong, a concept called reverse discrimination that has been used by whites to upend blacks.
      1. It’s basically against affirmative action and simply wants optional, not forced diversification.
      2. These people want equality of opportunity.
    3. The “target” or “quota” system can be used to get a certain number of people (women, blacks, etc…) into a position in whatever institution.
      1. The Supreme Court has made many conflicting decisions over affirmative action, sometimes favoring it and sometimes not.
      2. A few standards have seemed to emerge:
        1. Quota systems are subject to “strict scrutiny” and must have “justification.”
        2. Quotas can’t be used unless it’s shown that they’re needed to fix a discrimination.
        3. Actual practices of discrimination must actually be identified and verified.
        4. Quotas that are created by federal law will be given greater deference.
        5. It may be easier to justify a voluntary preference system than a law-ordered one.
        6. Special preferences can be given to hiring workers, but not to laying them off.
    4. There is compensatory action that can help disadvantaged people catch up, usually by giving them extra education, training, or services… that many people also support.
      1. Polls say that if affirmative action is defined as “helping” people, the public will like it, but if it’s defined by “suing quotas,” the public will oppose it, generally.
      2. One of the most important recent Supreme Court decision on this regards a small construction company named Adarand that lost a bid to build guard rails along Colorado highways because it did not have enough minorities, but the Court sent it back to Colorado for a new trial.
    5. Any racial discrimination must be subject to strict scrutiny, even if it’s supposed to help, not hurt, and this means it must serve a compelling gov’t interest and be narrowly tailored and to serve that interest.
  7. Gays and the Supreme Court
    1. The Supreme Court decided by a 5-4 vote that there was no constitutional reason to prevent a state from passing a law that barred homosexual relations/actions b/t two consenting people.
    2. Oddly, a state can pass a laws banning homosexual activities, but it cannot pass a law preventing the cities within that state from reversing that ban.
    3. The situation for civil rights for homosexuals remains unclear; in 1993, President Bill Clinton instituted the policy of “don’t ask, don’t tell” in the military, and the Supreme Court has yet to speak authoritatively on that subject.
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Chapter 20 - Foreign Policy

  1. Kinds of Foreign Policy
    1. In the United States, Congress declares war, and such restrictions can disadvantage the U.S. in the realm of foreign policy, but some say that some presidents have gone too far in the past.
      1. The major questions in foreign policy remain: how great are the president’s powers, what role should Congress play, and how important are the public and interest groups?
    2. The decision to go to war, the signing of alliances with European nations, and the negotiation of nuclear test ban treaties are examples of foreign policy that fall under majoritarian politics.
      1. The president is usually the powerful figure supported by the public.
    3. Foreign policy decisions, such as the adjustment of tariff rates, could reflect interest group politics too.
      1. Raising the tariff on Japanese-produced steel helps American steel makers but hurts those that used to purchase Japanese steel.
    4. Examples in client politics can occur when, say, America provides aid to U.S. corporations doing business abroad; another example is the U.S. involvement in Israel, since lots of Jews favor it.
      1. In client or interest group politics, Congress plays a much larger role, and it can also be the forum where clashing opinions are expressed and criticism is laced.
      2. Congress often seeks to expand it foreign policy power during times of controversy, especially if it is the president’s fault!
  2. The Constitutional and Legal Context
    1. The president is commander in chief of the armed forces, appoints ambassadors, and negotiates treaties, but Congress authorizes and appropriates money for armed forces, approves ambassadors, and ratifies treaties; thus, foreign policy can become very sticky.
      1. Yet, most people think that the president is in charge of foreign affairs, and in many cases, he has asserted the right to send troops abroad for a war, plus, the State Department, the Central Intelligence Agency, and the National Security Agency are almost totally presidential agencies.
      2. The president has signed over 7000 executive agreements with other countries that didn’t require Congressional ratification, as opposed to the 1000 treaties that Congress has passed.
    2. The president tends to get more Congressional approval on foreign matters than domestic matters.
    3. Here are examples of presidents who have been very strong in foreign policy matters:
      1. 1801: Thomas Jefferson sends the navy to deal w/ the Barbary pirates.
      2. 1845: James K. Polk sends troops into Mexico to defend newly-acquired Texas.
      3. 1861: Abraham Lincoln blockaded Southern ports and declared martial law.
      4. 1940: Franklin D. Roosevelt sent 50 destroyers to Britain to use against Germany, even though the U.S. was technically at peace.
      5. 1950: Harry S. Truman sent troops to South Korea to repulse North Korea.
      6. 1960s: John F. Kennedy and Lyndon Johnson send troops to Vietnam w/o declaring war.
      7. 1989-90: George Bush sends troops to depose Panamanian dictator Manuel Noriega and into Saudi Arabia to defend Kuwait against invading Iraq.
    4. Yet, there have been times, like during the two World Wars, when the president could not do much.
      1. Leaders of other Democratic nations often have greater freedom than the president.
    5. One’s opinion of a president being too weak or strong also depends on one’s support of his policies.
    6. BTW, states have very little say in foreign policies; most of that is up to the president and Congress.
    7. The Supreme Court has also often supported the president when he has made drastic measures during crises, such as when Lincoln acted questionably during the Civil War, when F.D.R. interned the Japanese during WWII, and when J.F.K. and L.B.J. sent troops to Vietnam during the Vietnam War.
    8. Congress does have certain checks on the president, but they’re political, not Constitutional:
      1. Limitations on the president’s ability to give military or economic aid to other countries.
      2. The War Powers Act, which, when passed in 1973, said that a president must report to Congress within 48 hours the sending of troops into hostilities, that Congress must approve of a continuation of hostility within 60 days after troops are sent and that the president must withdraw troops if Congress doesn’t continue to allow troops being placed there, and that Congress can passed an unvetoable concurrent resolution directing the removing of U.S. troops that the president MUST obey.
        1. Part of this act was struck down when the Supreme Court banned the legislative veto, but other parts have not been tested in court, and no president has acknowledged the Constitutionality of this act.
      3. Usually, though, Congress supports the president during times of war or during quick attacks.
      4. The House and Senate Intelligence Committees must be kept known of all covert activities.
  3. The Machinery of Foreign Policy
    1. Foreign policy used to be almost completely taken care of by the Secretary of State, but ever since World War II, the president and numerous agencies have taken larger roles in directing it.
      1. The Defense Department, CIA, and Departments of Agriculture, Commerce, and Labor have mission abroad, and today, foreign policy is simply too big of a job for one person to handle.
      2. The president thus hires a staff (part of the National Security Council) to coordinate foreign policy for him and give him balanced accounts of matters.
        1. Controversial matters will almost always become public, though.
    2. Each side of a group that participates in foreign policy often roots for itself and is most optimistic when it can run things.
  4. Foreign Policy and Public Opinion
    1. Before WWII, most people opposed U.S. involvement in international affairs, but afterwards, the public saw how important it was for the U.S. to take the reigns of foreign policy.
      1. This occurred during WWII because the war was practically unopposed, was very successful, had avenged an attack on U.S. soil, and had put the U.S. at the top of the world powers.
      2. Before, most people, Congress included, supported a pacifist, isolationist, non-interventionist policy, but the Japanese attack on Pearl Harbor changed all of that, resulting in near-universal support for the war and active involvement in post-war world affairs (i.e. United Nations).
      3. This persisted until the horror of the Vietnam War quelled that former enthusiasm.
    2. The public usually seems to support the president more after major foreign policy events; even after the Bay of Pigs fiasco, when J.F.K. accepted responsibility for the mistakes, his popularity rose!
      1. However, although a president receives support just after a major international incident, if that incident drags on and stalemates, he will lose support (i.e. Vietnam), so presidents do not always eagerly welcome major international events to approach them.
      2. Interestingly, while the public thinks more bitterly about Vietnam than about Korea, public opinion was the same for both; it was the elite’s opinion that okayed Korea but not Vietnam.
      3. Basically, for presidents, either fight popular, successful battles or engage in short ones.
    3. The general public is usually less informed and will tend to support successful campaigns and not support failing efforts.
      1. The political elite, however, is more volatile and moralistic (in Vietnam, while average citizens didn’t like the U.S. being so defensive, the elite didn’t like the U.S. being so offensive).
      2. The leaders have a more liberal and internationalist outlook than the general public, which favors protecting local interest and American citizens.
  5. Cleavages Among Foreign Policy Elites
    1. Since public opinion on foreign policy is mushy and permissive, the opinion of political elites is very important.
      1. The political elite consists of those people with administrative positions in the foreign policy field and the members and staffs of the key congressional committees concerned with foreign affairs and various private organizations that help shape elite opinion, as well as the influential columnists and editorial writers of the national press.
    2. The beliefs of such elites can be called worldviews, comprehensive mental pictures of the major issues facing the United States today.
      1. One of the most influential worldviews was written by George F. Kennan and basically led to the massive arms race against the Soviet Union in the Cold War.
      2. A predominant worldview is important because it prevails over other views.
    3. There have been three general worldviews since the 1920s: isolationism, which referred to the U.S.’s ignorance of world affairs as a result of its unhappy experiences during World War I; antiappeasement (also called containment) which was the result of World War II, after Adolf Hitler nearly took over Europe after being repeatedly appeased, and basically killed isolationism (especially the Pearl Harbor bombing); and disengagement, which resulted from the bad Vietnam experience and the new younger political elite that was rising up and desired a less active involvement in world affairs.
      1. Vietnam continues to color discussions of foreign policy, and every active step into international hostilities “could turn into another Vietnam,” critics say.
  6. The Beginning of a New Era
    1. After the Soviet Union fell, a new era began, but as the U.S.S.R. was breaking up, antiappeasement folks were saying that the Soviet Union was still dangerous, since it had lost member states as a result of economic conditions, not because of philosophical changes, while disengagement-favoring elites held that since Europe was now safe from attack, U.S. forces could be reduced, and Moscow WAS changing.
      1. After Russian president Boris Yeltsin successfully broke up a coup that had captured Mikhail Gorbachev, he became a hero, felled the Soviet Union, and ultimately turned Russia completely into a democratic state.
    2. Ever since the fall of the Soviet Union, foreign policy may have become harder, since before, it was basically anti-Soviet Union, and today, there are threats that there may be more coups in Russia that can reclaim power and turn Russia Communist again; that fighting within and among the remnants of the Soviet empire (i.e. Bosnia and Serbia) could draw other countries in; that ancient antagonism in the Middle East could explode; that nuclear weapons can explode; and that China could rise to be a threat.
      1. How the U.S. reacts to such threats depends on the political elite, some of which say that the U.S. shouldn’t be the “world’s policeman,” others of which say the U.S. is the only power strong enough to prevent the rise of regional aggressors.
    3. The United Nations has played a large role in settling conflicts among member nations, and now that it is no longer dominated by a conflict between the United States and the Soviet Union, it can act more certainly without appearing to break its neutrality.
      1. U.N. missions (like the one in Kuwait) have become more diverse and unopposed by the Big Five, and U.N. Peacekeeping Missions have also become more numerous.
    4. Some people want the U.S. to work through the U.N. while others don’t want U.S. policy controlled by other nations.
      1. Liberals like the U.S. to use the U.N.; conservatives favor acting w/o U.N. authority or controls.
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Chapter 21 - Military Policy

  1. I. The Structure of Defense Decision Making
    1. 1. There have been different perceptions of the military, ranging from brilliant to idiotic.
    2. 2. One view of the military holds it as a vital function of the federal gov’t, operating under majoritarian politics, while another holds it as a gigantic confused system that exposes innocent men and women to unnecessary hazards to satisfy client politics.
      1. i. According to the first view, everyone pays for protection provided for everybody; after World War II, the U.S. grew a large standing army because it recognized world threats.
      2. ii. The second view maintains that only the generals, admirals, big corporations, and the members of Congress whose districts get fat defense contracts are the only winners, and that the military-industrial complex, or the supposedly unified political bloc consisting of the Defense Department and industries that build military weapons, had too big of shares.
    3. 3. Citizens regularly desire to control the army (not the other way around), and the National Security Act of 1947, which created the Department of Defense, headed by a secretary of defense who must be a civilian, helped to ensure this want.
      1. i. Under the secretary of defense are the secretaries of the army, navy, and air force (also civilians), which basically maintain the “housekeeping” functions of the various armed forces.
      2. ii. The four branches of the armed services cannot merge, thus preventing them from coming together and growing too politically powerful, and the result is desired competition.
        1. a. The navy and air force have argued over building aircraft carriers and fighter jets.
      3. iii. Congress didn’t want the armed forces to be unified, but being too autonomous was not good either, so in 1986, it passed the Goldwater-Nichols Act, which increased the powers of the officers but left the 1947 structure pretty much intact, revised, of course.
    4. 4. The Joint Chiefs of Staff is a committee of the uniformed heads of the four military services (army, navy, air force, Marine Corps), a chairman, and a nonvoting vice chairman, and while it has no command authority over troops, it is heavily involved in national defense planning.
      1. i. The Joint Staff assists the JCS and plans for various military contingencies, and after 1986, it was more unified and less divided among the four branches.
    5. 5. There are eight Unified Commands and two “specified commands” that control forces in various parts of the world and handle Special Forces (army Rangers or navy Seals), and after 1986, they became more unified and more powerful also.
    6. 6. A civilian secretary in charge of purchasing, auditing, congressional relations, and public affairs, and a senior military officer who oversees discipline and training of forces head each military service.
    7. 7. The president is commander in chief, and the chain of command goes down to the secretary of defense and then other various commands (civilians are in charge to prevent army coups, etc…).
      1. i. The quick victory in the 1990-91 Persian Gulf War may be a sign that the 1986 reform law was successful and effective.
  2. II. The Defense Budget
    1. 1. How big the defense budget is reflects majoritarian politics; how it is divided reflects client politics.
    2. 2. Before WWII, America didn’t maintain large armed forces during peacetime; those came only during war.
      1. i. After the war, though, defense spending didn’t return to pre-war levels, and during the 1950s, defense spending soared.
      2. ii. America did not completely disarm because of its containment policy to keep Communist U.S.S.R. in check; instead, it built up a military system designed to aid Western Europe in case of a Soviet invasion and help allies resist smaller uprisings or invasions.
      3. iii. Public opinion has generally favored lowering defense spending, especially between active conflicts, but fear of the Soviet Union usually made this unlikely until the U.S.S.R. fell in 1991.
      4. iv. With the fall of the Soviets, liberals now argue that defense should be cut to give aid to other programs, but conservatives say the world is still dangerous and defense should not dip.
    3. 3. Operation Desert Storm postponed but didn’t end the debate over military spending, although it did show the world was still a dangerous place and the U.S. had to defend it.
      1. i. Because America won so swiftly and convincingly, though, some people felt the U.S. was invincible and should rely on “smart weapons” only.
    4. 4. The defense budget is the easiest to be cut from, though, and many presidents looking for money to put on other programs usually look toward defense first; even Bush began to cut defense money.
      1. i. Of course, cutting defense too much means putting the workers who build the submarines, planes, and other military equipment and weapons, etc… out of business.
      2. ii. There is still debate that the defense budge is being cut too fast or not fast enough, though.
    5. 5. Every branch of the military does not want cuts in its branch only, so the president is more successful getting an across-the-board cut on all the branches.
      1. i. Generally, the JCS favors plans that benefit all but not those that hurt all, and helping some and hurting others almost never happens.
      2. ii. The major questions usually involve what items to add on a services existing budget, not which budget to cut so that another can have a rise, and the expensive weapon systems, like the B-1 and B-2 bombers, the MX missile, the Trident nuclear sub, and the M1 tank are heavily debated by the White House, Pentagon, Congress, and various interest groups.
        1. a. Strategic, economic, and political factors all come forth during such debates.
    6. 6. During World War II, Congress typically agreed with everyone, but afterwards, it tended to disagree with the president, all the while expanding its power to affect certain military decisions.
      1. i. Since the Vietnam War, Congress has been heavily involved in almost all decisions concerning new weapon systems.
      2. ii. The debate over the strategic defense initiative (a.k.a. “Star Wars”) reflected both majoritarian and client politics and discussed the system’s cost, likely successes, and deterrence of war.
      3. iii. Also, some traditional defense contractors worried that SDI wouldn’t be as profitable for them.
  3. III. What Do We Buy for Our Money?
    1. 1. We buy people (soldiers, etc…), hardware (bombers to hammers), and “readiness” (training, supply, munitions, fuel, and food).
    2. 2. The size of the armed forces has been shrinking, even though Congress abolished the draft (first used in WWII) and replaced it with the all-volunteer force, although more and more women have become recruits (they were banned from “combat roles” until 1993).
      1. i. Congress still must be consulted if women are to be in front-line forces; on the policy of homosexuals in the military, President Bill Clinton settled on the “don’t ask, don’t tell” policy.
    3. 3. People hear about cost overruns almost every single time the Pentagon buys a new submarine, airplane, or missile, where actual costs are far greater than estimated costs, but these happen because:
      1. i. It’s hard to know how much something that’s never been built will cost.
      2. ii. People who want to persuade Congress to build a new whatever underestimate; it’s better.
      3. iii. The Pentagon officials who decide what kind of new plane to buy want the best one, which is more expensive; asking for everything is often called gold plating.
      4. iv. Many new weapons are purchased from a single contractor who controls all, including price.
      5. v. Congress often stretches out the number of years that it will buy weapons, thus driving up prices buy ordering a lot one year and less in other years.
        1. a. Some of these problems are being dealt with, btw.
    4. 4. The “$435 hammer” is a myth that grew out of a misunderstood accounting procedure that basically made everything cost the same, so there were a lot of “under-priced” items too.
      1. i. The problem here is that some basic supplies become so custom-made that they’re rip-offs.
    5. 5. Training and readiness are the easiest things to cut, and thus, they have very low priorities, even though common sense would hold otherwise; this could actually end up screwing us over…
    6. 6. At one time, the opening/closing of military bases was all client politics, which mean that most were opened and few were closed (base in one’s district = more $$$), and in 1988, Congress finally figured out that no base would close unless the system was changed, so it created the Commission on Base Realignment and Closure, consisting of private citizens who would consider recommendations from the secretary of defense.
      1. i. This basically recommended which bases to close, and Congress, powerless to pick which bases to protect, finally began closing more military bases.
  4. IV. Congress versus the Executive
    1. 1. During WWII and shortly after, Congress was relatively passive in defense spending matters, but ever since the Vietnam War, it has been very involved by asserting its interest in defense (micromanaging).
      1. i. In an era of budget deficits, Congressmen are attracted to large standing peacetime armies, and they are very interested in all defense decisions, since they are almost veto-proof, and lots of pet projects can be attached to them.
      2. ii. This is where a Congressman has the best chance to do something good for his/her district by attaching a beneficial program to a defense program!
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Introduction to Political Science, 4th Edition

Below are the US Government and Politics chapter outlines for the Introduction to Political Science, 4th Edition textbook.

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Chapter 1 - The World of Politics: Countries and Concepts

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Chapter 2 - Political Science Yesterday and Today

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Chapter 3 – The Modern State

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Chapter 4 – Modern States and Forms of Government

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Chapter 5 - Contemporary Forms of Government

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Chapter 6 - Political Culture: People and Politics

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Chapter 7 - Political Culture: Democratic and Authoritarian

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Chapter 8 - Contemporary Ideologies and Philosophies

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Chapter 9 - Contemporary Ideologies and Philosophies: Democratic and Authoritarian

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Chapter 10 - Constitutional Frameworks

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Chapter 11 - Constitutional Frameworks: Democratic and Authoritarian

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Chapter 12 - Design of Central Government Institutions: Leadership, Executives, and Legislatures

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Chapter 13 - Design of Central Government Institutions: Democratic and Authoritarian

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Chapter 15 - Political Parties and Interest Groups

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Chapter 16 - Political Parties and Interest Groups: Democratic and Authoritarian

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Chapter 18 - Elections and Voting Behaviour: Democratic and Authoritarian

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Glossary

An online dictionary of terms you will need to know for the AP US Government and Politics. These court casesvocabulary terms, along with the AP US Government and Politics outlines, political parties, political timelines, biographies, case briefs, and important documents will help you prepare for the AP US Gov and Politics exam.


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Biographies

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Political Parties

Information on political parties that have had an influence on US Government and Politics. These political party notes, along with the AP US Government and Politics outlines, vocabulary terms, political timelines, biographies, case briefs, and important documents will help you prepare for the AP US Gov and Politics exam.

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American Independent Party

Timeframe: 1968-2008

George Wallace announced on February 8, 1968 that he would run for president as the candidate of the American Independent Party; shortly afterward, he found a running mate, General Curtis E. LeMay, former Air Force chief of staff. His appeal was to racist Democrats in the South where many democratic candidates supported him. Outside the South various rightist groups helps, but it was his appeal to the dissatisfied that threatened to make serious inroads to the old party strength.

He offered an antifederal government, pro-state rights and a law-and-order platform with racism inside the wrapper. He derided intellectuals who he called "pointed heads," beatniks, the Supreme Court, bureaucrats, school busing, "national lbieral parties," pollsters, and the national news media. The party polled 10 million votes, or 13.5% of the total national vote, the highest percentage for a third party since 1924.

In 1972, with Rep. John Schmitz (R-Calif.) heading the ticket, the party received 1,080,670 votes. The remnants of the Wallace movement split in 1976; Lester Maddox (American Independent) and Thomas Anderson (American) polled 170,000 and 160,000 votes. At the present, the American Independent party still exists in some states, as California, where it is under the coalition of the U. S. Taxpayers Party at the present day.

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American Party

Timeframe: 1849 - 1924

The Free soil party, a political party organized in 1848 on a platform opposing the extension of slavery, was rooted in the growing conflict between proslavery and antislavery forces in the United States. The conflict was intensified by the acquisition of new territories from Mexico and the ensuing argument whether or not slavery would be permitted into those territories. The party evolved from antislavery and otherwise discontented elements in the Democratic and Whig parties. It was eclipsed in the early 1850's by the new Republican Party, which incorporated free soil goals.

American Party is the name of several political in United States history. The first established American party—also called the Know-Nothing party was founded in New York City in 1849 as a secret patriotic organization under the name of the Order of the Star Spangled Banner.

Know-Nothing Movement, a nativist political movement in the United States in the 1850's. It was organized to oppose the great wave of immigrants who entered the United States after 1846. Know-Nothings claimed that the immigrants—who were principally Irish and Roman Catholic threatened to destroy the American experiment. The Roman Catholic church, they charged, was subservient to a foreign prince (the pope), it was growing in power, and it potentially could exert political control over a large group of people. Such nativist sentiments had long existed among many Americans, but they had never before been expressed in such powerful form.

In several Northern states as early as the 1840's there were local nativist parties that drew support from the Democratic and Whig parties. By the early 1850's there was a trend to organize nationally against the presumed immigrant threat. The old parties, the nativists said, had not confronted the danger. The Democrats, it was charged, were supported by the aliens; the party needed their votes and catered to their whims. The Whigs appeared helpless before them.

Originally, nativist party members had worked through a number of secret societies, clandestinely throwing their support on election day with powerful effect to sympathetic candidates. Saying that they knew nothing about such activities, the nativists wreaked havoc with their votes in 1854 in the existing party system. They won sweeping victories at the state and congressional levels. They attracted many Northern Whigs to their point of view along with an important number of Democrats. Southern Whigs also joined because of growing sectional tensions caused by the reintroduction of the slavery issue into national politics in 1854. For a time it seemed as if the Know-Nothings would be the main opposition party in the United States. Publicly backing Millard Fillmore as a presidential candidate in 1856, they won more than 21% of the popular vote and eight electoral votes.

Their platform was inspired by the fear and resentment of native Protestants at the flood of the Roman Catholic immigrants from Europe, and chiefly Ireland, who, on obtaining naturalization, voted themselves into political office in large cities. Their state and national platforms demanded that immigration be limited, that politics be "purified" by limiting officeholding to native-born Americans, and that a 21-year wait be imposed before an immigrant could become a citizen and vote. They also sought to limit the sale of liquor, to restrict public-school teaching to Protestants, and to have the Protestant version of the Bible read daily in classrooms.

Despite their strength and appeal, the Know-Nothings were already in decline as a national party by 1856. Beset by differences over the slavery issue, many members joined the Republican Party, which seemed sympathetic to much of their nativism and offered additional appeals on other important issues. Know-Nothing parties remained strong in a number of Northern states in the late 1850's, but the party was spent as a national force before the election of 1860.

Essentially, the party’s tenets were those of the American Republican Party founded a few years earlier which had subsequently changed its name to the Native American Party. Among other parties so named was one organized in Philadelphia in 1887. At the convention held in Washington, D.C., on August 14, 1888 it nominated presidential candidates. The party platform advocated 14-year residence for naturalization, exclusion of socialists, anarchists and other supposedly dangerous persons, free schools, a strong navy and coastal defense, continued separation of church and state, and enforcement of the Monroe doctrine. Its candidate, James L. Curtis of New York, recieved only 1,591 votes at the November election. In the 1924 elections a similarly named party sought Ku Klux Klan support for its candidates, Gilbert O. Nations for president and C.H. Randall for vice president, nominated at Columbus, Ohio on June 3. This party also gained a negligible fraction of the vote.

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Anti-Masonic Party

Timeframe: 1827 - 1836

The Anti-Masonic party was founded in 1827-28, chiefly as a result of the mysterious disappearance of Willam Morgan of Batavia, New York, a Freemason, who was planning to publish a book which revealed the secrets of the order. Morgan, an iternant worker, was arrested in 1826 and charged with stealing and indebtedness, apparently as pretext for seizing him. He was convicted and jailed, reportedly kidnapped shortly afterward. This incident touched off an Anti-masonic movement.

Although secret societies in general were frowned upon by early 19th century Americans, the Freemasons long continued exempt from criticism, perhaps because George Washington and other statesmen and soldiers of the Revolutionary period had been Masons. Indeed, in the first quarter of the 19th century membership is a Masonic lodge was almost a necessity for political preferment. In 1826, general approval of Masonry suffered a sudden, dramatic reversal as the Morgan incidend came to an end.

It was popularly believed, although never proved, that fellow Masons had murdered Morgan. Masonry in New York received a nearly mortal blow, membership dwindling in the decade 1826-1836 from 20,000 to 3,000.

Opponents of Freemasonry, including sections of the press, churches, and antislavery elements, joined together in the condemnation of the order. Thurlow Weed, publisher of the Rochester Telegraph and the Anti-Masonic Inquirer, led the press attack on Free-masonry and endorsed anti-Masonic candidates for New York State offices in the election of 1827. When fifteen of these candidates were elected to the state Assembly, an anti-Masonic party formed in 1828 and held its first convention.

The Anti-Masonic Party, formed in New York in 1828, reflected the widespread hostility toward Masons holding public office. Thurlow Weed in 1828 established in Rochester, N.Y., his Anti-Masonic Enquirer and two years later obtained financial backing for his Albany Evening Journal, which became the chief party organ. There was a rapid proliferation of anti-Masonic papers, especially in the Eastern states. By 1832 there were 46 in New York and 55 in Pennsylvania.

The Anti-Masonic Party was the first party to hold a nominating convention and the first to announce a platform. On Sept. 26, 1831, convening in Baltimore, it nominated William Wirt of Maryland for the presidency and Amos Ellmaker of Pennsylvania for the vice presidency. The political effect of the entrance, for the first time, of a third party into a United States presidential election was to draw support from Henry Clay and to help President Andrew Jackson (who was a Mason) win reelection by a wide margin. Vermont gave the party seven electoral votes and elected an Anti-Masonic governor, William A. Palmer. The party also gained members in Pennsylvania, Massachusetts, Connecticut, Rhode Island, New Jersey, and Ohio.

After the elections of 1836, however, the Anti-Masonic party declined. Together with the National Republican Party, it eventually was absorbed into the new Whig Party. It did win a considerable amount of seats in the 23rd congress and survived until 1834 when several prominent leaders founded the Whig Party or switched to the Democratic Party.

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Constitutional Union Party

Timeframe: 1860 - 1860

The Free soil party, a political party organized in 1848 on a platform opposing the extension of slavery, was rooted in the growing conflict between proslavery and antislavery forces in the United States. The conflict was intensified by the acquisition of new territories from Mexico and the ensuing argument whether or not slavery would be permitted into those territories. The party evolved from antislavery and otherwise discontented elements in the Democratic and Whig parties. It was eclipsed in the early 1850's by the new Republican Party, which incorporated free soil goals.

The Constitutional Union Party was a short lived political party formed chiefly of the remnants of the American Party and the old-line southern wing of the Whig Party, organized for the election of 1860. Persuaded that the agitation over the slavery question could lead only to the disruption of the Union, its founders presented no platform other than a vague appeal for adherence to the Constitution, the Union, and the laws of the United States.

Meeting in Baltimore in May 1860, the party had its founding convention, and nominated John Bell of Tennessee for president and Edward Everett of Massachusetts for vice president. The formation of the party was prompted by the desire to muster popular sentiment in favor of the Union and against southern secession. The platform adopted by the party advocated support for "the Constitution of the country, the union of the States, and the enforcement of the laws," but took no stand on the slavery issue.

At the convention, where it was called "National Union" in the invitations, John Bell was selected over Sam Houston of Texas, who was the favorite of the American contingent, and Edward Everett was selected for the vice presidential nomination, which he did not want

In the North the Bell movement attracted remnants of the "Americans" and old Whigs. The failure of Fillmore in 1856 and the new-found conservatism of the Republicans caused many former Whigs such as Thomas Ewing of Ohio to support "Lincoln, the Whig" and the Whig policies in the Republican platform.

In the November election the Constitutional Union party found its greatest strength among conservatives in the border states, where the effects of civil conflict were especially feared, although the ticket was supported throughout the nation. The party carried Virginia, Kentucky, and Tennessee.

Bell trailed the Republican candidate, Abraham Lincoln, and the two Democratic nominees, Stephen A. Douglas and John C. Breckinridge, receiving 591,658 popular votes (only 12.6% of the total). He carried the states of Virginia, Kentucky, and Tennessee with 39 electoral votes. Leaders of the party, in the ensuing months, called for reconciliation of the sections through a compromise of the slavery issue, but without success.

With the coming of the Civil War the Constitutional Union Party disappeared from the political scene, as the party was dissolved.

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Democratic Party

Timeframe: 1834 - 1834

In the 1830s, under the starkly new leadership of Andrew Jackson and Martin Van Buren, the Democratic party developed the characteristics it retained until the end of the century. It was willing to use national power in foreign affairs when American interests were threatened, but in economic and social policy it stressed the responsibility to act cautiously. Democrats argued that the federal government should do nothing the states could do for themselves, leaving everything in control to the smallest denominator. Jackson, when president, acted to reinforce a coalition, and built the foundations of the party.

In the presidential elections of 1824, the former war hero Andrew Jackson, despite receiving the largest number of popular votes, had lost the election to the House of Representatives. Rejecting "King Caucus" the Jacksonians were soon joined by Senator Martin Van Buren leader of New York’s political machine. Thus the Jacksonians built an alliance between those on the West and Eastern city organizations.

Thus the major source of the party’s cohesion was its strong organization, which enabled it to fight in elections effectively and shape government decisions. The Democratic organization, with its local, district, and statewide committees, conventions, and rallies, spread everywhere to promote the party and principles, drawing up lists of voters. Jackson had to stradle Western demands for internal improvements and Northeastern objections to large federal expenditures, Northeastern demands for the protective tariff and Southern demands for tariff reduction, and Calhoun’s view that any state could nullify a national law.

Calhouns followers, not intent to drop the issue, called a special state nullification convention to proclaim the federal tariffs of 1828 and 1832 null and void within the jurisdiction of South Carolina. However, Jackson responded with a proclamation declaring the federal government sovereign and indivisible, thus denying that a state could refuse to obey the law. He received from Congress a force bill that empowered him to use armed forces. Southern Democrats began to split between pro-Calhoun nullifiers and pro-Jackson unionists. Problems erupted with the slavery issue when it came to the annexation of Texas.

Van Buren’s administration hedged on Jackson’s unionist view by agreeing in part to a Calhoun sponsored resolution which said that a state had jurisdiction over slavery within its borders. However, slavery still remained an issue. Democrats spillet into two camps, the "barnburners" and the "hunkers." The issue divided local as well as national Democrats; party leaders as Lewis Cass and Stephen A. Douglas supported "squatter sovereignty". However, this did not please Southern Democrats. The result was electoral disaster, as many northern Democrats, seeking to punish their leaders, joined the emerging Republicans. These defections cost the party northern support.

After the Southern Democrats seceded from the party and the nation, new factional groupings emerged along East-West, war-peace, and mercantile-agrarian lines. National chairman August Belmont of New York led the "War Democrats" in support of Lincoln’s conduct of the war and "sound money programs." Representative Clement L. Vallandigham of Ohio became the spokesman for the "Peace Democrats" who criticized Lincoln’s conduct of the war. The Democrats, in 1864 succeeded to nominating George B. McClellan, a Civil War general, for president and giving him a peace platform to run on. President Lincoln in the mean time recruited Governor Andrew Johnson of Tenesee, a war Democrat, for his vice-presidential nominee.

The Republicans charged the Democrats for disloyalty, as they opposed the draft, social changes and government encroachment, and made it an effective campaign slogan for the rest of the century. The tactic, known as "waving the bloody shirt" always hurt the Democrats in close elections until powerful emotional memories faded. They did not regain control of either house of Congress until 1874, and the Presidency until 1884. As the minority party, Democrats became absorbed in the problems of postwar inflation and agricultural depression. Factional interests debated "hard" versus "soft" currency and credit policies. After a stalemate, Horatio Symour agreed to a "soft money" platform while he was a "hard money" leader. From this election emerged Samuel J. Tilden.

Without a leader, the Democrats turned to endorse the 1872 Liberal Republican nominee, who had defected from Grant’s administration. The nominee turned out to be Horace Greeley. Within two years, Tilden became the governor, and in the next election ran as the Democratic nominee. Though he lost, Tilden was an instrumental factor in the winning candidacy of Grover Cleveland.

Cleveland returned the Democrats to control of the White House after twenty-four years of Republican rules. He oversized federal patronage to distribute. Around this time, party fationalism got out of hand, as three groups fought for control in an increasingly harsh atmosphere. One bloc comprised the traditional Democrats behind New York’s Grover Cleveland; they still espoused the conventional policies of limited government activities. A second group consisted of the urban political machines, which won the support of immigrants by helping them adjust to conditions in the country. The third faction was made up of the groups in the South and the West reacting against the industrial economy. Currency and tariff policies became the major issues of the Cleveland era, complicated by a rising output of silver mines, and the need to establish a balance between silver and gold currencies.

Cleveland struck hard for tariff reduction, but was opposed by Democratic protectionists. Angry farmers wanted a shift of government intervention towards there behalf, but were strongly resisted by traditionalists. They provoked a revolt and found William Jennings Bryan a presidential candidate who overthrew Cleveland. William Jennings Bryan led the free silver cause and was supported as well by the Peoples’ Party. The silverites dominated the national convention, and the gold delegates refrained from voting. Bryan endeavored to forge an alliance out of agrarian discontent in the South and Midwest.

At the beginning of the 20th century the Democrats’ minority among voters remained central to their interest. However, a Progressive split in the Republican party helped elect Woodrow Wilson twice. Wilson conceived his party leadership as a parliamentary role, shaping his approach to his legislative program, which he promoted vigorously and successfully, and his patronage and other organizational needs of his party. The Great War, popular at first, backfired against the Wilson administration when large numbers of German-Americans and Irish-Americans protested with their votes against involvement on the English side. The national convention in 1924 was stalemated between the urban-ethnic wing and the older Bryanite-southern groups.

Problems generated in the 18th Amendment set the "wets" against "drys." The South closed ranks to deatlock the national convention of 1920. By 1924, "dry" Wilson, and "wet" Al Smith were the leaders of two factions in the party. In 1928, the nomination of Irish Catholic Al Smith broke the solid South, part of which went Republican for the first time ever in reaction to the social and cultural values represented by Smith. Nevertheless, the first Catholic to be nominated, he raised the Democratic turnout by a substantial percentage, particularly in large cities.

In the mid-20th century, the basic character of the Democratic appeal began to change in a gradual and then rapid manner. In the 1930s and 1940s, the Democrats became a party of vigorous government intervention in the economy and on social issues, willing to regulate and redistribute wealth to protect those least able to help themselves. Urban political machines brought to the party a commitment to social welfare legislation to help immigrant constituents.

The election came at a time of a grave national economic crisis; a disenfranchised public looked to the Republicans as abandoning their interests while the Hoover presidency spent money on private interests. Franklin D. Roosevelt brought the Democratic message to the White House and solidified and expanded the new Democratic commitment to the poor ethnic constituencies in city districts. Increasingly, under Democratic leadership, the government expanded its role in social welfare and economic regulation. Traditional Democrats surged at the polls and the party won over new groups, such as the blacks who had previously gone Republican. The Result was a New Deal coalition which lasted in a dominant role for more than 30 years.

World War II witnessed a new factionalism, as the South prepared to reassert itself. Labor unions now had potent vote getting capacity and urban Democratic machines were attempting to modernize themselves. Roosevelt acquiesced to Southern pressures by withholding support for Vice President Wallace, and instead giving the nomination to Harry S. Truman, who had gained credibility and prominence through investigations of defense spending.

Truman had become president within a year, upon Roosevelt’s death. The reawakening of memories of the New Deal and the depression President Truman’s campaign helped bring him back for a second term. The Republican Congress, seeking to limit union activity, passed the Taft-Hartley Act over Truman’s veto, gaining Truman support of union members. Truman also appointed the Committee on Civil Rights to develop race-relations, but it so inflamed the South that Democratic regulars in Southern states supported a Dixiecrat ticked led by Wallace.

At the next national convention, ideological New Dealers fought to establish a loyalty pledge that would bind delegates to the convention’s choices. Despite efforts to avoid a candidacy, Governor Adlai E. Stevenson of Illinois was the compromise choice over the sectional candidacy of Richard B. Russel of Georgia and Sen. Estes Kefauver of Tennessee. The Republicans were victorious with their election of Dwight D. Eisenhower. Stevenson however made efforts to improve party organization and serve as an active spokesman. At the grassroots level, urban machines were working to incorporate new constituents into the party.

The Democrats regained power with the election of John F. Kennedy in 1960 and were able to pass much vigorous legislation. Kennedy’s victory demonstrated that Catholicism need not be the handicap that it was for Al Smith. The Kennedy-Johnson campaign conducted a thoroughly united campaign that brought a narrow victory.

The 1960 election also brought a further breakup of the one-party solid South, as Kennedy’s New Frontier program included new protections for civil rights in the South and for bringing blacks into the ranks of the Democratic party. Robert F. Kennedy had a major responsibility for the implementation of civil rights legislation and registration. Overseas, the Castro regime of Cuba defeated an American-sponsored invasion by anti-Castro exiles at the Bay of Pigs. Kennedy also increased Communist pressure on South Vietnam by sending military aid.

The Vietnam War provoked many to challenge it on its anti-Communist foreign policy. At the same time, the revolt of the youth against the draft and on matters of personal behavior and discipline contributed a strong challenge; at the Democratic National Convention in Chicago in 1968, the police culminated in street battles with groups of protesters.

Many anti-war Democrats turned to the candidacy of Eugene McCarthy and Robert Kennedy, as Lyndon Johnson announced that he would not seek renomination. New nominating rules, inspired by the restlessness in the party, led to the nomination of George McGovern. His campaign ended in overwhelming defeat, but the party bounced back after the excesses of Watergate and the tapering off of the war induced fervor.

Former governor Jimmy Carter of Georgia swept the primaries and succeeded in unseating President Gerald Ford in a close contest in which labor, blacks, and the South joined to bring a Southerner to the presidency. The clash of social values, and changing economic issues shifted the center of gravity within the party and continued to drive many away. Issues such as inflation gravely hurt the party. Political parties at this time were in general decline, as fewer voters remained loyal to them.

The Democrats, with a ticket of the former vice president Walter Mondale were defeated in the 1984 elections by a greater margin than in 1980, where Carter ran for reelection. The Democrats lost more than a dozen seats in the House, and the Republicans maintained control of the Senate. In the midterm elections of 1986, the Democrats won control of the Senate and gained modestly in the House.

Although in 1988, the Democratic nominee for president, Governor Dukakis of Massachusetts had chosen Senator Lloyd Bentsen of Texas as his running mate, the South and West carried the Republicans to victory. However, the Democrats strengthened their hold in the House and Senate.

In 1992, after twelve years of Presidential rule by the Republican parties, Governor Bill Clinton of Arkansas was able to regain the Presidency for the party after winning over President George Bush, blamed for an economic downturn, and Ross Perot. With the country in a recession, the Democrats succeeded in rallying the public around a call for change and a commitment to domestic jobs programs. Bill Clinton was able to pull off a reelection in 1996, though his presidency was plagued with scandals and campaign finance problems. Apathetic voters failed to pay attention to campaign, and missing the major issues, they handed the President reelection. However, the 1994 midterm elections brought a stunning defeat to the Democrats as the Republicans gained control over both hoses of Congress. Democratic support in the South had eroded, but it showed dissatisfaction with Democratic rule nationwide.

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Democratic-Republican Party

Timeframe: 1794 - 1826

During the 1780s, sharp conflicts marked American politics. Since the establishment of the Constitution in 1789, the unanimous election of George Washington, and recommendation for a Bill of Rights, there was a shaper national consensus and conflicts soon developed over the new policies to be developed in the government. In 1790 through 1791, Alexander Hamilton as secretary of the treasury proposed a sweeping fiscal program which included funding and "assumption" by the Federal government of the Revolutionary War debts of the old Confederation and of the states, incorporation of a central national bank, tariffs to promote manufactures, and internal excise taxes. The purpose was to establish the new government, allying itself with powerful mercantile and financial interests.

Adherents to these policies became known as federalists. An opposition to Federalist policies began to emerge by 1791 and became the Republican Party. It found a power base among small farmers, producers, and traders, many Southern plantation owners and some urban artisans. Weak in New England, the party showed some strength in the Middle Atlantic States and in the South. The chief leaders, Thomas Jefferson and James Madison, were supported by the poet-journalist Philip Freneau in his National Gazette. It was a propaganda instrument which served as an important organizing agency. Other leaders included Albert Gallatin and James Monroe. Though the Jeffersonian party sought mass support it developed as a "cadre" party.

Initial policy orientations reflected the perspectives of the party’s followers, including opposition to Hamilton’s economic proposals, demands for the government responsible to popular majorities, demands for the federal government to operate with a narrow construction of the Constitution, and the denial of the national bank, emphasis on states rights as opposed to centralized government, and emphasis on personal and political liberties, shown in the Kentucky and Virginia Resolutions which condemned the Alien and Sedition Acts.

The party held the support of the agrarian freeholding rural America with industry and merchandising as partners. However, there was no consensus on republican constitutional government and property rights. In foreign policy, they favored France over Britain and sharply criticized Jay’s Treaty.

When Aaron Burr and Jefferson led in electoral votes, the Democratic-Republicans came into power, leading what is called the Revolution of 1800. The electoral system made no provision for separate votes for president and vice president and a contest in the House resulted in Jefferson’s eventual succession to presidency. The Democratic-Republicans won a clear Senate majority and a two-to-one majority in the House.

The increasing acceptance of the principles of the party over Federalist principles brought into tradition the notion of a democratic republic where the elimination of property and taxpaying limits of voting led to universal suffrage. The Jefferson coalition was soon enlarged leading to easy victories for the Virginian presidents Jefferson, Madison and Monroe. The party always had a congressional majority, sometimes overwhelming, and there were more Democratic-republican judges. In 1820, Monroe came within one vote of unanimous election in the electoral college, and thus the nation entered into what was called "The Era of Good Feelings."

Important leaders during this period were Albert Gallatin, John Quincy Adams, and John Taylor, who distributed treatises for the party. The party was also growing with prominent figures like Henry Clay. The policies of the party began in a Jeffersonian direction, but in the Louisiana Purchase, Jefferson was forced to diverge from strict constitutional construction, and was faced by John Marshall in the Supreme Court.

The Democratic-Republican party, during the Era of Good Feelings, became a mere label, as partisanship died down. When it reemerged, Andrew Jackson led the Democratic party which split off, leaving the rest in the National Republican Party.

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Federalist Party

Timeframe: 1794 - 1823

The Federalist Party was born out of the controversy over adoption of the proposed Federal Constitution in 1787-1788, before the American party system itself had been conceived. A well-defined Federalist party did not exist before 1794. After Washington's inauguration in 1789, debate arose in Congress and the cabinet over the proposals of Secretary of the Treasury Alexander Hamilton, subsequently enacted into law, that the national government assume state debts, fund the national debt at par value, and charter a national bank. The opposition to Hamilton rallied around Secretary of State Thomas Jefferson and Congressman James Madison.

Hamilton pushed through schemes for paying the foreign debt, restoring national credit, and assuming state debts. A United States bank and postal system soon followed, as well as a protective tariff and bounty system to develop manufactures and agriculture. The effortless crushing of the Whiskey Rebellion in 1794 gave ample evidence of the new national strength.

In the meantime, the refusal of the Federalists to form an alliance with France had fused the Democrats and the Republicans, the two opposition groups to which most of the Anti-federalists belonged. Thomas Jefferson organized and James Madison joined the new Democratic-Republican Party. Not until these congressional debates over Jay's Treaty of 1794 did two parties emerge clearly: the Federalist party led by Hamilton and the Democratic-Republican party of Madison and Jefferson From then on, the Federalists championed commercial and diplomatic harmony with Britain, domestic stability and order, and strong national government under powerful executive and judicial branches.

The most influential of the Federalists besides Hamilton were John Adams and John Jay, and Fisher Ames, Roger Sherman, Jonathan Trumbull, Rufus King, John Marshall, and the members of the "Essex Junto".

By the end of his second term Washington had become closely identified with the Federalists. Washington's Farewell Address of 1796, prepared in association with Hamilton, may be read as a basic text of Federalism. Washington's vice president, John Adams, was elected president as a Federalist in 1796. Adams retained Washington's cabinet officers and sought to continue his predecessor's policies. He prosecuted an undeclared naval war with France, and after the Federalists had gained control of Congress, he supported the Alien and Sedition Acts of 1798. But Adams met increasing opposition within his own party from the Hamilton faction, especially over his military priorities.

When, as much to undercut mounting Democratic-Republican opposition as to end the war, Adams opened negotiations with France in 1799 and reorganized the cabinet under his own control, the Hamiltonians broke with him. His actions probably enhanced the Federalist party's position in the presidential election of 1800 but not enough to defeat Jefferson.

The party was irreparably split. In the waning days of his presidency Adams was able to conclude a peace with France and to appoint moderate Federalist John Marshall as chief justice. Long after the party was dead, Marshall preserved its principles from the bench.

Finding themselves in the opposition, the Federalists at last created a well-disciplined system of state party organizations and adopted the trappings of democracy in order to lure the voters. Concentrated primarily in the Northeast, they also assumed more of the aspect of a sectional minority. Neglecting ideological consistency and turning against their previous commitment to strong national power, they opposed Jefferson's popular Louisiana Purchase of 1803 as too costly and destructive of Northern influence. As a result, they continued to lose power at the national level, carrying only Connecticut, Delaware, and part of Maryland against Jefferson in 1804.

Strong opposition of Jefferson’s Embargo Act, however, reinforced the Federalists. In 1808 they carried every New England state except Vermont, and also won in Delaware, in parts of Maryland, and in North Carolina. Moreover, the War of 1812 proved so unpopular in the North that in the elections that year, New York and New Jersey also voted Federalist, along with the remainder of Maryland. This resurgence was only temporary, however, for when the war ended, the northern commercial sections withdrew their support.

Meanwhile, many of the party’s old leaders were gone, leaving Rufus King and Charles C. Pinckney leading the party. Other Federalist leaders, as a result of the Hartford Convention of 1814 had been driven from public life.

In 1816, the Federalists carried only Massachusetts, Connecticut and Delaware, and by 1820 when they failed to have a national candidate, they ceased as a national party. Locally, Federalists managed to retain control in Connecticut and Delaware until after 1820 and in Massachusetts until 1823. The party also lingered for some time in Maryland and North Carolina.

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Free-Soil Party

Timeframe: 1848 - 1854

The Free soil party, a political party organized in 1848 on a platform opposing the extension of slavery, was rooted in the growing conflict between proslavery and antislavery forces in the United States. The conflict was intensified by the acquisition of new territories from Mexico and the ensuing argument whether or not slavery would be permitted into those territories. The party evolved from antislavery and otherwise discontented elements in the Democratic and Whig parties. It was eclipsed in the early 1850's by the new Republican Party, which incorporated free soil goals.

Free soil became a political movement and slogan in the 1840's. Abolitionists in the North had already stirred antislavery sentiment, and government plans for annexing Texas created fears that this territory might enter the Union cut up into as many as six slave states. These fears were reflected in the Wilmot Proviso of 1846. The achievement of the small abolitionist Liberty party in defeating Henry Clay's presidential aspirations in 1844 demonstrated that political abolitionism could be effective.

The refusal of the two parties, Whig and Democrat, to endorse principles of the provio convinced the opposition groups of the need for a new party. The major groups involved in the organization of the Free Soil party at a convention in Buffalo, New York, were the abolitionist Liberty Party, the antislavery Whigs, and a radical faction of the New York Democrats, the Barnburners, who had broken with the state party when it came under control of the conservative Hunkers.

Led by Salmon P. Chase and John P. Hale, free-soilers, abolitionists, and others convened in Buffalo, N.Y., in August 1848 to set up a broadly based party. Among those present were discontented New York Democrats known as Barnburners," headed by former President Martin van Buren, who became the convention's presidential nominee.

The Free soil convention nominated Martin van Buren and Charles Francis Adams as candidates for president and vice-president, respectively, adopting a platform opposed to the extension of slavery and calling for a homestead law and a tariff for revenue only. The slogan of the party ws "free soil, free speech, free labor, and free men." Van Buren polled 291,616 votes in November; more important, the Free Soil party elected fourteen congressmen and two senators. The Compromise of 1850 created more ardent free-soilers, who were outraged by its fugitive slave provision and were generally fearful of the expansion of slavery westward. Such increasing partisanship, however, did not help the Free Soil party itself. Hale, its presidential candidate in 1852, polled only 156,297 votes.

By 1854 the crisis over slavery in the territories had reached proportions beyond the resources of the party, and free-soilers flocked to the Republican party. The passage of the Kansas-Nebraska Act and the duel over whether Kansas was to be a free or a slave state turned the North irrevocably toward free soil. Finally, the Dred Scott Case of 1857, in which the U.S. Supreme Court ruled, in effect, that slavery could not be constitutionally restricted to the Southern states, made abolitionists out of most free-soilers and laid the ground for a final confrontation with the slaveholders. Louis Filler Antioch College

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Greenback-Labor Party

Timeframe: 1878 - 1884

The greenback idea came up again in March, 1875, when a national convention met at Cleveland to organize a new party. This was soon followed by a nominating convention at Indianapolis in May, 1876, which named Peter Cooper President. Its platform included the repeal of the Resumption Act of 1875 and issuance of legal tender notes convertible into government bonds with an interest rate not to exceed one cent a day per hundred dollars. Peter Cooper was a well known philanthropist and did not lead much of a campaign.

In the next two years, the party grew rapidly and Labor Reformers had greatly aided the cause and a conference at Toledo in February, 1878, arranged a farmer-labor partnership under the name "National" party, but it became better known as the Greenback Labor Party. In fall elections the third party won a million votes and fifteen members of Congress. The Greenbacks sought labor support which called for an issuance of the greenback and a bimetallistic money policy. The labor groups desired Greenback support for a reduction of working hours, establishment of a labor bureau and a curtailment of Chinese immigration.

In the following year, economic conditions in the nation improved and interest in politics among farmers and workers decreased. At the national convention in Chicago on June 9, 1889 agrarian and labor delegates, including members of a Socialist Labor party composed their differences and adopted a platform.

The convention named for President General James B. Weaver of Iowa, who was a Civil War veteran and a former Republican, elected to Congress in the Greenback wave of 1878. B.J. Chambers of Texas was named for Vice President. Weaver made an active campaign, speaking in all parts of the country and giving a leadership that it needed to dispel the impression it was a refuge for radicals. The return of prosperity and the success of the Resumption Act however removed agrarian and labor discontent. In the election they received only 308,578 votes, but eight Greenback Labor candidates were elected to Congress. In the ensuing years the party continued to decline. Its last national campaign was for the 1884 elections where it ran Civil War general Benjamin Butler, winning 175,370 votes.

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Libertarian Party

Timeframe: 1971 - 1971

The Libertarian Party was founded in 1971, on December 11th, in the home of David Nolan. Dissillusioned Republicans, Democrats, and political newcomers hoped to create an alternative to the old parties, standing on firm principles of individual freedoms and a commitment to government non-intervention. The first national convention was later held in Denver, Colorado. John Hospers, a philosophy professor at the University of Southern California, was nominated as the presidential candidate, and the vice presidential candidate was Tonie Nathan. She became the first woman in United States history to recieve an electoral vote.

The next national convention, in New York city, nominated Roger MacBride and David Bergland on the presidential ticket; they were able to recieve ballot status in 32 states but still only recieved a little amount of popular vote--common for third parties facing the system set up in laws by the two established political parties. Two years later, Ed Clark, a Libertarian candidate for Governor of California, recieved 5% of the vote, and Randolph of Alaska became the first Libertarian legislator.

By 1980, the Libertarian party had recieved ballot status in all 50 states, and the party made their most impressive showing, and were at this time first considered as a political force, albeit one through ideology rather than political presence. The campaign by Ed Clark ran extensive television advertisements, offering the public a look at what the libertarian party had to offer. The next election, the Libertarian party made significant headway; the Louisiana congressional candidate James Agnew recieved 23% of the vote, and the Alaskan gubernatorial candidate Randolph recieved 13% of the vote. The Libertarian party continued to grow in a slow, painful process. Former Congressman Ron Paul of the Republican Party left to join the Libertarian party.

A decade later, in 1990, Libertarian congressional candidates were able to recieve up to about twenty percent of the vote, but would still not be able to win. Yet, the Libertarian party was proud that the Libertarian candidates for Senate recieved over one million votes, the highest total for a nationally organized party since 1914. However, this was greatly dwarfed in 1996, when in every race, candidates of the newly formed Reform Party came in third place, ahead of every Libertarian candidate in the race.

In 1996, the Libertarian party ran Harry Browne as their presidential candidate, with running mate Jo Jorgeson. This year, the Libertarian party recieved the most press coverage, as did all third political parties, who gained significantly higher visibility since the founding of the Reform Party by Ross Perot. The Libertarian candidate, along with other third party candidates were allowed to speak on Larry King Live and in third party debates, being shut out from the televised presidential debates. Yet, this increased visibility was not enough, and the Libertarians still recieved less than one percent of the presidential vote nationwide. Libertarians at this time were dissilusioned by the fact that they were overshadowed by the new Reform Party, and many people with Libertarianistic positions joined the Reform Party instead of them, who were increasingly called by the media, a "fringe group."

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Liberty Party

Timeframe: 1840 - 1848

The Liberty Party was the first antislavery party, grown out of a split in the ranks of the American Anti-Slavery Society between followers of William Lloyd Garrison’s radical program and a conservative group which held that abolitionist aims could be best obtained by orthodox political means.

The leading initiators of the anti-Garrison movement and the new party were the New York philanthropists Gerrit Smith, Arthur Tappan, and Judge William Jay, and the Ohio antislavery stalwart, Salmon P. Chase. At a state convention in Warsaw, New York on November 13, 1839, James G. Birney, an abolitionist crusader and one-time Alabama slave-holder, was tentatively nominated the Liberty Party’s candidacy for president, with Francis J. Lemoyne for vice president.

At a national convention in Albany, New York, on April 1, 1840, delegates from six states confirmed the nominations, officially adopted the party name, and declared abolition of slavery to be the single plank in its platform.

In the ensuing 1840 national elections, the Liberty party candidates polled only around seven thousand votes, but thereafter the party nominated candidates for local elections and gained strength. Since 1840 the Liberty party had gained recruits and newspaper support and was becoming a threat to the two major parties in close northern states, where it aimed to swing the balance of power. Birney was nominated again in November 1844 and ran with Thomas Morris, this time polling 62,300 votes, which could have secured the election of Henry Clay, but tipped it in favor of James K. Polk. When Texas became a major issue, the Liberty party was in a difficult position; a heavy third party vote might reduce the Whig vote and elect Polk over Clay, committed against Texas. Birney had accepted a Democratic nomination for the Michigan legislature, making it seem as if there was a Liberty-Democratic bargain to defeat Clay. Birney attempted to explain it in terms of local issues, but that hurt his candidacy. The party was also hurt by a forged letter, appearing in Whig newspapers, where Birney promised not to agitate the slavery issue.

In 1848, although the Liberty party had nominated John P. Hale and Leicester King, the party leaders urged the members to vote for candidates of the newly organized Free Soil party instead. Chase presided over Buffalo, New York for the convention of the Free Soil Party on August 9, 1848, which led to the demise of the short lived Liberty party. As such, Hale withdrew his candidacy.

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National Republican Party

Timeframe: 1828 - 1836

While Jackson was establishing control over the Democratic Party, the opposition, assuming the name National Republican began to form. In the campaign of 1828, these opposing groups had no official names. Both were Democratic-Republicans and were distinguished by such designations as "administration" and "opposition" or Adams men and Jackson men. About 1830 the term "National Republican" began to be used by the Clay following thus combining the old party name with the adjective which suggested its policies.

The new National Republican group was having its troubles; the Adams-Clay group had never been effectively organized into a party, and after the defeat in 1828 it lapsed into the status of a discredited minority with little strength outside of New England, and only portions of the mid Atlantic states and the Ohio valley could be regarded as fighting ground. National leadership was supplied by the Senate, where Clay joined Webster in 1831. The National Intelligencer was at the center of the opposition, edited by Joseph Gales and William W. Seaton. Soon after Henry Clay had seized upon the Maysville veto, his presidential campaign was underway.

Public meeting halls were filled with his speeches where he reiterated his devotion to the "American System" and criticized the administration and was ready to go before the country with the same policies Adams had favored and the same economic appeal.

The National Republicans took issue with the leading policies and acts of Jackson, as they remained committed to the protective tariff, federal support for internal improvements, the recognition of the Supreme Court on Constitutional questions and the importance of the balance of power given by the Senate. They vigorously attacked Jackson for his spoils system and for his handling of relations with Great Britain with regard to the Maine boundary and West India trade. But the campaign did not turn on these points as other movements such as the Antimasons sprung up. Wirt, the Antimason nominee, probably would have withdrawn had the National Republicans and Antimasons been able to unite later on one man.

The leaders of the National Republican party, such as Henry Clay and Daniel Webster, would later united in the next elections of 1836 to form an opposition Whig party to attack Jackson’s presidency.

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People's Party

Timeframe: 1891 - 1908

A product of the Populist movement, which had ignited the Agrarian west for decades previously, the People’s Party was the successor of the Greenback-Labor party which was formed in the 1880s. One of its chief organizers was the journalist Ignatius Donnelly who was the leader of the Farmer’s Alliance. Aggrieved farmers furnished the driving force and most of the votes; labor’s role was significant but only secondary.

A small group in the Southern Alliance called a convention, which met at Cincinnati on May 19, 1891, with fourteen hundred delegates present including labor representatives. Few Southerners came, for sentiment that the South was against a third party because of successes with the Democratic party. The convention formed the People’s party, but called a conference at St. Louis to secure the cooperation of farmer, labor, and other liberal groups. The conference in St. Louis adopted a platform, the nominating convention set for Omaha in July.

The platform that was adopted called for the free coinage of silver and the issuance of large amounts of paper currency as inflationary measures that it hoped would ease the financial burdens of the nation’s debt-ridden farmers. Its other demands included abolishing the national banking system, nationalizing the railroads, instituting a graduated income tax, electing senators by popular vote, and people participating in the government by means of a referendum. Two thirds of the platform was a bitter indictment of the American economic system and a condemnation of the two parties. Supplementary resolutions, not regarded as part of the platform, declared for the Australian ballot, further restriction of undesirable immigration and contract labor, rigid enforcement of the eight-hour law, abolition of the Pinkerton detective system, adoption of initiative, referendum, and recall, limitation of the Presidency to one term, and an end to subsidies.

In 1892, the party nominated James Baird Weaver for the presidency, over a choice of Colonel Polk, Walter Gresham, and Senator James Kyle. The spirit of the convention carried into the West, but not so much in the South, as Southern Alliance men refused to leave the Democratic party. With the Democrats taking a lot of their issues, Weaver lost but received more than a million votes and 22 electoral ones, and several Populist candidates made it to Congress. In the West, a coalition with the Democrats on electoral tickets resulted in a victory of five and a number of state and Congressional successes.

However, the next election gave the Populists a hard choice, as the Democrats under William Jennings Bryan stole much of their thunder. They managed to win control of the Democratic convention in St. Louis and secured Bryan’s nomination, who they supported and endorsed for the presidency, becoming "Popocrats." After Bryan was defeated, the People’s party split over the issue of continued alliance with the Democrats. In 1900 the Democrats renominated Bryan and the anti-Democrats nominated Wharton Barker. They reunited in 1904, but then its influence was declining and ceased to exist by 1908.

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Progressive Party

Timeframe: 1912 - 1952

The Progressive Party was the name used to designate several political organizations in the United States, associating with the presidential campaigns of Theodore Roosevelt, Robert La Follette, and Henry Wallace.

The Progressive Party, first known colloquially as the Bull Moose party, was founded after a bitter fight for the Republican presidential nomination between William H. Taft, Robert La Follette and Theodore Roosevelt. Roosevelt, a dynamic leader of the Progressive Movement, soon grew impatient with Taft’s relatively cautious approaches to reform. Taft’s dismissal of Gifford Pinchot as chief forester angered Roosevelt, who was an ardent conservationist. At the Republican convention in June 1912, most La Follette supporters switched to Roosevelt, but the nomination went to Taft because Taft controlled the party machinery.

Roosevelt, incensed at Taft’s conservative bent, formed the Progressive party, saying he was as fit as a bull moose. His platform called for tariff reform, stricter regulation of industrial combinations, women’s suffrage, prohibition of child labor, and other reforms. Many liberal Republicans went to the new party which nominated Roosevelt for president and Hiram W. Johnson for vice president. Although the Progressives greatly outpolled Republicans in the election the net result was a victory for the Democratic candidate, Woodrow Wilson. Progressive candidates for state and local offices did poorly, and the party dissapeared in 1916 when Roosevelt returned to the Republican Party.

In 1924, a liberal coalition, frustrated by conservative domination of both parties, formed the League of Progressive Political Action, popularly called the Progressive party. Robert La Follette, nominally a Republican, decided to run for president on his own. Fearing that a formal party organization would be infiltrated by Communists, he ran as an independent, but later accepted the nomination of the Progressive party. Senator Burton K. Wheeler was nominated for vice-president. The party advocated government ownership of public utilities and labor reforms such as collective bargaining. It also supported farm-relief measures, lower taxes for persons with moderate incomes, and other such laws. His candidacy was thus supported by the Socialist Party.

LaFollette received 17% of the popular vote but only carried Wisconsin. In 1934, LaFollette’s sons organized a Progressive Party in Wisconsin, after being defeated for nomination as a Republican. Under the Progressive ticket, the LaFollettes scored many victories, but disappeared in 1946.

A third Progressive party was formed in 1948 by dissident Democrats, most of whom had been prominent in developing the New Deal program. With former vice-president Henry Wallace and Tugwell among their leaders, Wallace was nominated for the party’s presidential nominee. Charging that both major parties advocated policies that would lead to economic crisis and a war with the Soviet Union, they favored high-level international conferences. They advocated rights for all minority and political groups, curbs on the power of monopolies, and anti-inflation measures such as price and rent controls, and the repeal of the Taft-Hartley Law.

He expected support from blacks, intellectuals and other groups that admired his militant liberalism. However, the support of the Communist Party damaged the Progressives, as the Democrats and Republicans attacked them as Communist-dominated. The progressives maintained their right to accept support from any group backing their program. Wallace only received 2.4% of the vote. In 1950 the party was further weakened when it denounced U.S. entry into the Korean War, and Wallace left the party. They disappeared after the 1952 election.

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Reform Party

Timeframe: 1995 - 1995

The previous election year, in 1992, Ross Perot ran on an independent ticket, where he discovered overwhelming pockets of potential support from those disenchanted by the two established political parties. On September 25, 1995 Ross Perot announced on Larry King Live that he was determined to help form a new political party, in order to give those who supported him in 1992 a voice in future elections. Polls showed that nearly two out of every three voters wanted a new political party, including half of all Republicans and Democrats.

Soon thousands of concerned Americans began petitioning their state governments. Depending on state laws, the goal was to either form a new political party in each state or to place candidates on the November 5th ballot. The response from the public was unexpectedly in favor of starting the Reform Party. For example, in California, which had the earliest deadline in the nation, the requirement to put the Reform Party on the ballot was to get 89,007 voters to switch their party affiliation and join the Reform Party. It was not believed that the Reform Party could accomplish this goal, as it had never been done before. In only twenty days, more than 124,000 California voters joined the Reform Party. In North Carolina, more than 166,000 voters signed petitions. This was 100,000 signatures more than the 51,904 signatures the state required. In Texas, where 61,540 signatures were required, more than 161,000 voters signed on. In Florida, more than 110,000 voters signed Reform Party petitions even though only 65,596 signatures were required.

However, in trying to get ballot status in many states, the Reform Party had found need to challenge state laws to ensure the process is open and fair to all Reform Party candidates. For example, in Arkansas the Reform Party won an historic legal battle, becoming the first new party to be recognized by the state in more than twenty years. After the Arkansas Supreme Court denied the Reform Party ballot access for the election of officials at all levels of government, U.S. Federal District Court Judge George Howard ruled from the bench that Arkansas’ conflicting state laws were unconstitutional. Judge Howard granted the Arkansas Reform Party full ballot access and ordered the state to pay all costs for blocking the voters’ right of freedom of association.

Following the 1992 elections, candidates from both established political parties looked for ways to attract the "Perot voters"—now the "Reform Party voters." In the coming elections, there was much speculation about whom would make a try for the Reform Party presidential ticket in 1996. Richard Lamm, a former governor of Colorado, and party of a group of independents dubbed by the media as the "secret seven" who intended to try to make runs for independent candidacies, was first to declare his intent of running with his running mate, Ed Zschau. Richard Lamm had first shown interest in the party when he made a keynote speech at the party’s California convention earlier.

Ross Perot soon after entered the race as well, while Richard Lamm appealed to Reform Party voters to "pass the torch." Ross Perot easily won in a landslide, but Richard Lamm continued to press claims of unfair treatment in the primary process. Ross Perot chose Pat Choate, a prominent economist and protectionist, as his running mate. This time around, many more liberal voters stayed away from the Reform Party, calling its anti-NAFTA stance "right-wing." In all, Ross Perot lost support, as voters figured that he would not win the election. During this time, Pat Buchanan, a prominent Republican candidate, called Ross Perot and the Reform Party a "mortal threat the Republican Party."

During the election and in the aftermath, leaders of the Reform Party fought against an internal splinter group, called the "Shaumberg Group," after the city where they had a convention, who tried to wrest control of the party away by petitioning the FEC. However, the FEC decided that the Shaumberg group was only a small minority in the Reform Party, and refused. The Shaumberg group did succeed in alienating more voters from the Reform Party, who did not know what to make of the internal brawls in the party.

Reform Party grassroots efforts continued to mount in the fifty states in which the party established itself. However, attempts to reach voters by the media were quickly blocked by others. When Ross Perot, in 1997, attempted to buy air time for an infocommercial regarding campaign finance reform, the networks rejected him. During the previous campaign, Ross Perot was also shut out from the presidential debates, unlike the election before that when he did not have a party ticket.

The same year, many prominent members of the established political parties, fed up with the corruption and irresponsibility already imbued in the political system, stated potential support for the Reform Party. Representative James Traficant, a Democrat, stated on Washington Journal on the C-SPAN network that Ross Perot was right all along, and that since the two parties were alike, a third political party was needed. Traficant later released a press release that he would be the keynote speaker at the Reform Party of California convention. Others, such as former congressman David Boren, who had refused the offer of being Ross Perot’s running mate during the election to preserve his position at the university at which he worked, showed interest in the Reform Party.

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Republican Party

Timeframe: 1884 - 1884

The Republican Party had been created, seizing the opening given to them by the passage of the Kansas-Nebraska Act, which invalidated the Missouri Compromise by splitting the Missouri territory into free-soil and slave states. Many northern Whigs, who had no power or national party began to cooperate with the "Anti-Nebraska" Democrats to form the Free-Soil Party. They began to organize a new party in 1854, building on the name Republican, reviving the old term employed by the Jeffersionians. They emphasized absolute opposition to the expansion of slavery into any new territory. In the coming elections, they cooperated with the northern Know-Nothings, most of whom were former Whigs, as the anti-Catholic nativism would add to an appealing platform of the new party.

Together, the Republicans and Know-Nothings won a majority of seats in the House of Representatives in 1854, and became a threat to the ideas put out by the Democrats. In 1856, they nominated John C. Freemont for the Presidency, with the slogan "Free soil, free labor, free speech, free men, Frémont." He won about a third of the popular vote, and the Republican party began to grow, although alienating potential supporters by his failure to oppose immigration.

As tensions mounted over the slavery issue, more anti-slavery Republicans began to run for office and be elected, even with the risks involved with taking this stance. Republican Sen. Charles Sumner of Massachusetts experienced this danger firsthand. In May 1856, he delivered a passionate anti-slavery speech in which he made critical remarks about several pro-slavery senators, including Andrew F. Butler of South Carolina. Sumner infuriated Rep. Preston S. Brooks, the son of one of Butler's cousins, who felt his family honor had been insulted. Two days later, Brooks walked into the Senate and beat Sumner unconscious with a cane. This incident electrified the nation and helped to galvanize Northern opinion against the South; Southern opinion hailed Brooks as a hero. But Sumner stood by his principles, and after a three-year, painful convalescence, he returned to the Senate to continue his struggle against slavery.

In 1860, their candidate, Lincoln, was elected to the presidency; the southern states reacting by seceding from the Union, and the country was plunged into a civil war. The Civil War and the Reconstruction period following the war gave the Republican Party a solid core of strength and permanence. Because of connections of the Democrats to the south, fully exploited and created by the Republican Party’s propaganda, Republicans controlled most elective offices in the northern states during the war, and for a generation afterward the used this patriotic fervor to denounce Democrats as traitors. This was an effective campaign tactic; in "waving the bloody shirt" against the South and the Democrats, Republicans were united being the crusade of the Civil War.

Although this was true, the Republican party was also troubled by internal dissension. In the 1860s, moderate and radical Republicans debated bitterly over war aims, and the aims of the Reconstruction period. The moderates agreed with the radicals on the abolition of slavery, but rejected the attempt to reshape the South’s social and economic structure and imposing racial equality. President Lincoln was able to play one faction against another, and after his death the party continued until the radicals’ failure to oust President Johnson from office. Then, the party began to nominate increasingly moderate candidates.

Republicans tried to appeal to the South by appealing to Whig groups there to join with newly enfranchised blacks; arguing that they had a common belief in the need for a strong government action in society. Their efforts were ineffective due to massive racist campaigns by the southern Democrats, intimidating all voters in the South. The Republican support for black rights waned when those in the party percieved that this issue was costing the party the needed votes, but this did not help gain support in the South.

Meanwhile, Republicans continued being elected to the White House. In 1868, Civil War hero Ulysses S. Grant won the presidency easily and was re-elected in 1872. Although he seemed a bit bewildered by the transition from the military life of a general to being president, under Grant the Republican commitment to sound money policies continued, and the Department of Justice and the Weather Bureau were established.

But, embracing a tradition established by George Washington, which had gone on record opposing a third term for any president, and being plagued by scandals in his administration, President Grant did not run for re-election in 1876. Factionalism continued to divide the party. Prohibitionists and those who wished to exclude foreigners, demanded heavy emphasis on their concerns and were not enthusiastic about the party’s other commitments. At the same time, another group, the Liberal Republicans, disgusted by corruption in the Grant administration, fought against the party’s unwillingness to do anything about it. The party bosses, needing money to run the campaigns, resisted the reformers.

Instead, in one of the most bitterly disputed elections in American history, Republican Rutherford B. Hayes won the presidency by the margin of one electoral vote. After the election, cooperation between the White House and the Democratic-controlled House of Representatives was nearly impossible. Nevertheless, Hayes managed to keep his campaign promises. He cautiously withdrew federal troops from the South to allow them to shake off the psychological yoke of being a conquered land, took measures to reverse the myriad inequalities suffered by women in that period and adopted the merit system within the civil service.

The Republicans won five of seven elections between 1868 and 1892, but had popular majorities in only three of them. The Republicans’ ability to draw on rural, small-town, and western voters was counterbalanced by the Democrats’ solid core in the South and among urban immigrants. The defection of the mugwumps, a reform faction that refused to back James G. Blaine, the presidential candidate in 1884, helped the Democrats win the presidency for the first time in thirty years. At the 1880 convention, an intense political battle split Republicans into three hostile camps, which included administration supporters, Conkling's "Stalwarts" and the "Half-breeds" which stood between them.

The party’s platform, despite resistance from some Republican leaders, increasingly emphasized the promotion of industrial values, and Republican policy aided the emerging, highly sophisticated economy. At the same time, Republicans were often openly hostile to the new waves of eastern European and Irish immigrants that were transforming the nation’s cities. Republican state platforms advocated government intervention to prohibit or limit liquor consumption and to shape school curricula in order to promote certain Protestant and American values posed by the immigrants who were tied to the Democratic party.

During the 1890s, both major parties were hurt by the rise of agrarian protest, but infighting proved most divisive among the Democrats, their collapse at the polls following in 1896. Increased voter strength made the Republicans a majority party in the country for a generation. However, party factionalism continued, and beginning in the 1890s, a group of Republicans known as the progressives sought to balance the party’s commitment to the industrial elite with the use of federal power to correct some of the worst excesses of the monopolies and rusts that dominated the Republican Party.

Theodore Roosevelt, who had promoted progressive measures when in office, later became the presidential candidate of the Progressive Party. Roosevelt selected Taft as his successor, who, once elected, angered both liberals and conservatives within his party.

The entry into World War I raised some new issues that once again led to divide the Republican Party. Though most Republicans in Congress supported the ongoing war measures, they eventually split over plans for signing the charter of the League of Nations, incorporated into the Treaty of Versailles. Many Republicans were also upset because President Wilson excluded Republicans from negotiating the treaty and said that only Democrats in the Congress would allow victory in war. As progressivism and war waned, Republicans were able to reunite and thus once again become a majority party. The 1920 platform pledged the party to serve as the guardian of prosperity by such measures as raising tariffs, restricting immigration, and aiding farmers. The presidential nomination went to Warren G. Harding, and he swept every region outside the South. The Harding administration was swept by corruption, and his successor was Calvin Coolidge, pledged to Puritanical ideals.

The Great Depression, which began during the administration of Herbert Hoover, led to destroy America’s belief in the dream of unlimited prosperity, and thus lost its faith in the Republican Party, who had led them into the depression. The disastrous economic collapse and extraordinary high employment following the crash made a mockery of Republican claims. The Hoover administration had a slow and limited response to the problems, making it ineffective and seemed to be indifferent to the people.

At the loss of the Republicans next election, one faction of the Republican party was behind Hoover, who issued blanket indictments of the New Deal, supported by Eastern businessmen, Recognizing the New Deal’s popularity, Republicans in Congress sought new leaders and principles, nominating Landon for President. The new Republican platform endorsed New Deal objectives but condemned some of its methods, including deficit spending. At the next election, they nominated Wendell Willkie, an internationalist who was even closer to the values expressed by the New Deal; in fact, the C.I.O supported him and Lewis said that if Willkie did not win, he would resign as head.

In response to their losses, the Republicans sought a way to build their national following, first turning to condemning deficit spending techniques and New Deal policy. Republicans, isolationist, now began to take a stricter anti-Communist line in their rhetoric. Party leaders argued that they represented a family oriented America, and this played a part in the popularity of Republican senator Joseph McCarthy’s crusade against Communist subversion in the 1850s. In 1950, Senator McCarthy charged that the State department was infested with Communists, and this gave the Republicans their best issue since the Depression. However, when he attacked the Army, this issue died down and be became disgraced.

A split still remained between conservative and moderate republicans; the former led by Taft continued to oppose the New Deal, while the others did not play on the issue. The moderates looked towards General Dwight D. Eisenhower, who had helped win the passing war, to carry their standard in the 1952 elections. Eisenhower won twice with smashing victories; his popularity intensified when he attended a conference in Geneva. Disliking political management, Eisenhower did little to build the party, and continued Democratic policies.

Yet another split between conservatives and liberals weakened the Republican party during the course of the next decade. Nelson A. Rockefeller, governor of New York, emerged as a spokesman for the party liberals. Senator Barry Goldwater, on the other hand, was a representative of the conservatives. The conservatives thereafter controlled the party machinery and increasingly impressed their stamp on the party’s principles and actions, working hard to recruit influence in the South and among urban, ethnic groups.

When new leaders failed to bridge the gulf between conservatives and liberals in the GOP, Richard Nixon helped lead a unified party to a narrow victory in the 1968 race against Hubert Humphrey and George Wallace. Nixon was the first President since 1848 to take office with both houses of Congress controlled by the opposition; he later won re-election. His administration, which started out as a strong reaction against radicalism, became identified after 1972 with the Watergate scandal, which eventually led Nixon to his resignation under the threat of impeachment, leaving Gerald Ford in power.

A temporary Democratic resurgence followed with the election of Jimmy Carter in 1976, but the conservative tide returned when the Republican candidate Ronald Reagan won an overwhelming victory in the next elections. The Republicans regained control of the Senate but did not achieve to gain a majority in the House. In the midterm elections of 1986, Republicans lost control of the Senate and more ground in the House as well; this pattern repeated in 1986. As president, Reagan wasa backed by a coalition of Republicans and conservative Democrats in Congress, and embarked on a program which sought to increase the nation’s military strength and curtail many of the social welfare programs in the previous administration.

Although Vice president Bush won the presidential election for the Republicans, the party lost ground in both houses of Congress. President Bush laid a solid groundwork for U.S. policy in such critical areas as nuclear disarmament, free trade, the Middle East peace process and the future of NATO. Relying on his illustrious military experience, he brought together an unprecedented coalition to maintain the forces of law in the Persian Gulf region. In the wake of Operation Desert Storm, President Bush's popularity soared to record levels. As a result of his leadership after the war, a delegation from Israel sat face to face with Palestinians for the first time in thousands of years.

The gradual erosion in Republican party strength in Congress was matched by a loss at the head of the ticket, and for the first time in 12 years, Democrats controlled both branches of government. The Republicans retained the same number of seats in the Senate and gained nine seats in the House. However, the 1994 election brought a dramatic reversal as the Republican Party gained control over both houses of Congress for the first time since 1954. The Republicans stormed in, in what was termed as the "Republican Revolution," as Representative Newt Gingrich laid forth their new "Contract with America", a list of conservative proposals which helped shape the agenda.

However, 1996 marked defeat again as Senator Bob Dole embarked on a failed Presidential campaign. The Democrats painted the Republican party as maligned, trying to destroy social security and other entitlement programs, often referring to the enemy as "Dole-Gingrich." After the election, Republicans in the party began to split, disappointed at a turn in Gingrich’s leadership to one which held more appeasement to Democratic proposals.

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Socialist Party

Timeframe: 1901 - 1901

The industrial conditions in the United States, the constantly changing frontier, and the lack of class stratification had prevented the development of a strong socialist movement in the United States. However, in the late 1860’s and early 1790s, a number of branches of the First International were formed in the East, and on July 4, 1874, a Social Democratic Workingmen’s Party of North America was organized with a rather indefinite Socialist platform, becoming in 1877 the Socialist Labor Party.

The Socialist Labor Party showed much activity during the next two decades, but the attempt of its leader, Daniel De Leon, to impose too rigid a discipline upon its membership and his bitter opposition to leaders of organized labor led to a split in the party. The dissident group, under Morris Hillquit and others, joined in 1900 with the midwestern Socialists in nominating Eugene Victor Debs for president.

This was followed by a Unity Conference in 1901 at a convention in Indianapolis in 1901. The two merging groups were the Social Democratic Party of Eugene Victor Debs and the "Kangaroo" wing of the older Socialist Labor Party. The Socialist Democratic had been organized in 1898 by veterans of the Pullman strike of the American Railway Union, led by Debs, and was largely composed of American-born workers.

From the beginning the Socialist Party was the ecumenical organization for American radicals, including Marxists of various kinds, Christian socialists, Zionist and anti-Zionist Jewish socialists, foreign-language speaking sections, single-taxers and virtually every variety of American radical. On the divisive issue of "reform vs. revolution" the Socialist Party from the beginning adopted a compromise formula, producing platforms calling for revolutionary change but also making "immediate demands" of a reformist nature. A perennially unresolved issue was whether revolutionary change could come about without violence; there were always pacifists and evolutionists in the Party as well as those opposed to both those views. The Socialist Party historically stressed cooperatives as much as labor unions, and included the concepts of revolution by education and of "building the new society within the shell of the old."

The Socialist Party aimed to become a major party; in the years prior to World War I it elected two Members of Congress, over 70 mayors, innumerable state legislators and city councilors. Its membership topped 100,000, and its Presidential candidate, Eugene Debs, received close to a million votes in 1912 and again in 1920. But as with any ideologically mixed organization, it was forever in internal disputes.

An early disagreement was over the Industrial Workers of the World, which Debs and De Leon had helped create as a competitor to the American Federation of Labor. Some Socialists supported the IWW, while others considered "dual unionism" to be fatal to the solidarity of the labor movement and supported the Socialist faction in the AFL led by Max Hayes. In 1916, Eugene Debs refused to run again for a candidacy, so by referendum, Allan L. Benson was chosen as the Socialist nominee for presidency.

During the First World War the American Socialist Party was one of the very few parties in the international socialist movement to maintain its opposition to the war, and many Socialists were imprisoned, including Debs himself. In 1919 there was a major split in the Party, when those who accepted Lenin's demand for unconditional allegiance to the Third International left, to form the Communist Party and the Communist Labor Party. However, the two parties later merged.

The Socialist Party did not run a Presidential candidate in 1924, but joined the American Federation of Labor in support of the independent campaign of the progressive Senator Robert La Follette of Wisconsin, hoping to build a permanent Farmer-Labor Party. In 1928 the Socialist Party revived as an independent electoral entity under the leadership of Norman Thomas, an opponent of World War I and a founder of the American Civil Liberties Union.

In 1932 the impact of the Great Depression resulted in revived support for the Socialist Party, and 896,000 votes were cast for the Party's Presidential candidate, Norman Thomas. But by 1936 the left-liberal policies of the New Deal took a severe toll. In that year David Dubinsky and other socialist union leaders in New York called on their membership to vote for Roosevelt, and formed the Social Democratic Federation to promote socialism within the ranks of the liberal/labor wing of the Democratic Party. The Socialist Party's vote in 1936 dropped to 185,000, little more than 20% of that of 1932. The outbreak of the war against Fascism and the wartime prosperity further weakened all parties on the left.

The Socialist Party was down to about 2,000 members after the war, and had more or less withdrawn from electoral action in the face of the increasingly restrictive ballot-access laws passed by state legislatures around the country. In 1956 the Socialist Party and the Social Democratic Federation reunited, under pressure from the Socialist International. A right-wing group in the SDF opposed the merger, and established the Democratic Socialist Federation.

As of 1957 the SP-SDF was pervaded by a strong sense that the time had arrived to start over and rebuild a major radical party in America. The Independent Socialist League was a Trotskyite splinter group founded and led by Max Shachtman, with about 400 members. In 1958 the ISL dissolved, and its members joined the SP-SDF. This ended any hope of further mergers, since Shachtman's intention was to attain control of the Socialist Party. Almost at once a faction fight erupted over the concept of "realignment." Shachtman and his lieutenant, Michael Harrington, argued that what America needed wasn't a third party, but a meaningful second party.

The realignment supporters said that in sixty years the Socialist Party had failed to bring labor into the Party, and in fact kept losing their labor sympathizers (such as the Reuther brothers) because they saw they could do more within the Democratic Party. It was also argued that in view of restricted ballot access the Democratic primaries were a better forum for electoral activity than Socialist candidacies. But the basic argument was an appeal to traditional Marxism: Labor is the motor for social change, labor will not come to the Socialist Party, therefore the Socialist Party must go to labor - which means going into the Democratic Party.

There is no doubt that the realignment strategy was successful within its own terms. Former SP labor people like A. Philip Randolph rejoined the Party, and many new people of this type were recruited during this period. But to many Socialists, realignment in practice turned out to be something they could not stomach. The realignment strategy focused on getting hold of power, and Socialist politics is concerned not only with winning power within the status quo but also with redistributing it to build a new society. Furthermore, the result of the strategy was often to tone down everything that distinguished Socialists from liberals, and "where labor is" turned out to be not at the left of the Democratic Party but at the center, in alliance with the big city machines.

At the 1968 Socialist Party Convention the Shachtman-Harrington Caucus held a clear majority, though a slim one, and voted down resolutions demanding American withdrawal from Vietnam and urging independent political action. They passed a resolution endorsing Hubert Humphrey - a resolution which Norman Thomas, who had less than six months to live, opposed as best he could from his hospital bed, pleading in vain with the membership to reject it. They elected a clear majority of the Party's National Committee, and installed their own supporters as National Secretary and Editor of the Party paper.

At the riotous Democratic Party Convention in Chicago in 1968, Realignment Socialists were present as delegates, and Bayard Rustin, having lost his old pacifist and radical orientation, served in effect as a black floor manager for Humphrey. At the same time, many Debs Caucus members were in the streets with the demonstrators.

By 1970, with Michael Harrington as National Chairman under Max Shachtman's leadership, the Socialist Party was showing a growing tendency toward democratic centralism in practice. Nevertheless, Harrington maintained contacts with the liberal wing of the peace movement and he and his personal followers formed yet a third caucus, the Coalition Caucus, to pursue the realignment strategy within the more liberal sectors of the Democratic Party and the labor leadership.

In March of 1972 a Unity Convention was held, to finalize the merger of the Socialist Party with the Democratic Socialist Federation. The tightly disciplined Unity Caucus, as the Shachtmanite wing now styled themselves, were by now suspicious of Harrington, and succeeded in pushing through the Convention a constitutional amendment providing for a "troika" in the Chairmanship. The "troika" was made up of Harrington, Charles Zimmerman of the DSF, and the aging former civil rights leader Bayard Rustin. A resolution opposing the Vietnam war, which was supported by six Party Locals and by both the Debs Caucus and the Coalition Caucus, failed.

At the end of 1972 the Socialist Party, now completely under control of the right wing, changed its name to Social Democrats USA. This lit the fuse for the disaffiliation of many of the states and locals within the Debs Caucus, and for many resignations. Early in 1973 the Socialist Party of Wisconsin, with the support of the California and Illinois Parties, called a "National Convention of the Socialist Party," to be held Memorial Day weekend in Milwaukee The Debs Caucus had recently organized a Union for Democratic Socialism, as an "umbrella" organization of both members and non-members of the Socialist Party, and the UDS now made plans for a major conference on "The Future of Democratic Socialism in America" to be held at the same time. The resulting body voted to reconstitute the Socialist

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Whig Party

Timeframe: 1836 - 1852

The Whig Party formed in the opposition of President Andrew Jackson and constituencies in the Democratic Party, united only by this opposition. The anti-Jackson groups drew upon the political history of two revolutions, the American and 17th century English, for their name. In both cases, the opposition had called themselves Whigs; this time they united against "King Andrew."

The National Republican party was the precursor to the Whigs, and Jackson’s inauguration in 1829 began the period of opposition and prepared the ground for a coalition of political forces which formed the Whig Party. Henry Clay of Kentucky, and Daniel Webster of Massachusetts because the party’s leading figures. The different leaders of the party clashed in their views; Webster was more of a nationalist than Clay. However, both men encouraged a program of tariff protection, federally sponsored communication projects and other internal improvements, continuation of the national bank, and a conservative public land sales policy. This was fully described in Clay’s "American System." The program had strong appeal to merchants and manufacturers practicing interstate commerce. Clay made the President’s veto of a bank recharter a key issue, but Jackson handily won reelection.

John C. Calhoun broke his alliance with Jackson and joined the Whigs when he realized that he would not be the next Democratic president. Calhoun’s supporters, widened with the nullification crisis, were lead to the Whig party. Another source of recruits was the Anti-Masonic party, strong in New York and Pennsylvania, leading many influencing politicians as William Seward and Thaddeus Stevens into the party.

In 1840, The Whig ticket consisted of William H. Harrison for president and John Tyler for vice-president. They ran a "Log Cabin" campaign which was the first to use major political propaganda and electioneering. The Whigs won, but Harrison died one month in office, and with him the future of the Whig cohesion. John Tyler, who had been a Jacksonian Democrat, acceded to the presidency, and embittered the Whigs by vetoing the bills which they had meant to restore the rechartering of the Bank of the United States. Most of Tyler’s cabinet resigned in protest, and his membership in the party was withdrawn.

In 1844, the Whig Party nominated Clay for president. Clay refused to take a definite stand on the Texas annexation issue, provoking northern abolitionists, who opposed its admission as a slave state, to support the Liberty party candidate. The Whig split ensured a victory for the Democrat Polk. Once the Mexican War had been declared, controversy over admitting or excluding slavery from territory gained in the war further splintered the party. Antislavery Whigs, known as Conscience Whigs opposed the Cotton Whigs in the pro-slavery states.

Despite this dissension, the Whigs won the presidency in 1848 under Zachary Taylor. With disunion threatening, Clay and Webster tried to compromise the main points of sectional friciton. President Taylor blocked their moves, and his death on July 9 made Millard Fillmore the president. Webster, now Fillmore’s secretary of state, wanted to capture the presidency in 1852 on the Union movement. However, both major paries accepted the Compromise of 1850 and the Whigs reverted to nominate Winfield Scott. Later that year, Clay and Webster died. The Whig Party never recovered from the death of their two great figures.

Its call for moderation and Union became more ineffective as the Civil war neared. Southern Whigs thought the Democrats more receptive to their interests, concerned with slaveholding rights. Northern Whigs had already moved to the Free Soil Party, which had been formed earlier. The rise of the Republican and the American parties furthered the Whig downfall, as they defected to those parties. The former Whig president, Fillmore, accepted the American nomination, and the Whigs endorsed him.

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Case Briefs

Here you find court case briefs relating AP US Government and Politics. These court cases, along with the AP US Government and Politics outlines, vocabulary terms, political parties, political timelines, biographies, and important documents will help you prepare for the AP US Gov and Politics exam. These case briefs were written by Roger Martin of USD. You can find other law resources at his site: http://people.qualcomm.com/rmartin/outlines.html

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Abrams v. United States

1. Abrams v. United States, (1919)

2. Facts: ∆’s produced and distributed leaflets that were pro-revolution in Russia, and urged the U.S. factory workers to strike, so that arms and munitions being produced for WWII would not be used against the revolutionaries in Russia.

3. Procedural Posture: The ∆s were charged with violation of a section of the Espionage Act which prohibited advocating the “curtailment of production of ordnance and ammunition, necessary to the production of the war.”

4. Issue: Whether the government may criminalize the speech presented here.

5. Holding: Yes.

6. Majority Reasoning: Based on Schenk, this speech is clearly prohibitable. Even though their primary purpose was pro-Russian, it had an anti-American effect by urging strikes.

7. Dissent Reasoning: [Holmes] The ∆s did not intend to interfere with the war against Germany. There was not clear and present danger present because the leaflet was silly and posed no immediate danger to the U.S. government. Free speech is necessary because it is the “marketplace of ideas” that generates what the truth really is. The suppression of free speech should only be permitted when necessary to immediately save the country.

 

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Adamson and California

1. Adamson v. California, (1947)

2. Facts: Adamson was convicted of murder. During the trial, the state had commented to the jury on his failure to take the stand.

3. Procedural Posture: Adamson claimed that the conviction violated the 14th amendment because the state’s comment amounted to a violation of the 5th amendment’s self-incrimination privilege in a federal proceeding.

4. Issue: Whether a state’s comment at a state criminal trial on the failure of a defendant to take the stand at trial is a violation of the defendant’s 5th amendment privilege against self-incrimination.

5. Holding: No.

6. ∏ Argument: The 14th amendment incorporates the 5th amendment’s privilege against self-incrimination and applies it to the states in the same way that the 5th amendment applies directly to the federal government.

7. Majority Reasoning: Although the 14th amendment’s due process clause guarantees a right to a “fair trial” in a state criminal trial, there is no ground under Palko to make the self-incrimination privilege one of the “fundamental” rights that is incorporated in the 14th amendment and applied to the states.

8. Dissent Reasoning: [Black] felt that the full incorporation of the bill of rights into the 14th amendment was the “original purpose” of the 14th amendment and the intent of the amendment’s framers. The history demonstrates that both those in favor of and against the amendment thought that it was powerful to forbid the states from depriving a citizen of the protections afforded by the bill of rights. The process of Twining to expand or contract the applicability of the bill of rights through the 14th amendment as needed by “natural law” was more power than the court was granted by the constitution. Also, the “selective application” process of Palko was inconsistent with the historical purpose.

9. Concurrence Reasoning: [Frankfurter] argued that the 14th amendment’s due process clause has “independent potency” apart from the bill of rights. It does not represent shorthand for the first 8 amendments. However, in determining which clauses in the first eight amendments are incorporated and which are not, the judicial interpretation of which are “fundamental” is too subjective. The relevant question is whether the ciminal proceedings deprived the accused of the due process of law.

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Adarand Constructors, Inc. v. Peña

1. Adarand Constructors, Inc. v. Peña, (1995)

2. Facts: Adarand is a highway construction firm that submitted the lowest bid on a subcontract. A minority-owned construction firm also bid, and won the contract because the general contractor was given bonus money under federal statutes for awarding the subcontract to a firm controlled by “economically ans socially disadvantaged” persons.

3. Procedural Posture: Adarand lost by summary judgment in both the District Court and the Court of Appeals. Both courts felt that the recent Supreme Court rulings in Fullilove and Metro Broadacasting, which applied a level of “intermediate scrutiny” to federal affirmative action (benign racial classifications), were controlling.

4. Issue: What is the proper standard of review for federal racial classifications.

5. Holding: Strict scrutiny. There are three general propositions with respect to governmental racial classifications, 1) skepticism (racial classifications are inherently suspect, invoking strict scrutiny), 2) consistency (the standard of review does not depend on which race is benefitted and which is discriminated against), and 3) congruence (equal protection under the 5th amendment is the same as that under the 14th amendment).

6. Majority Reasoning: The history of equal protection jurisprudence must be traced to determine the proper course. In Bolling v. Sharpe, the court stated that the phrase: “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” carries no less force in the federal context. Secondly, in Croson, the court announced that the strict scrutiny standard applied to any racial classification under the 14th amendment. Although some other cases have been more split (i.e. Bakke, and Wygant), the same themes are echoed there. Metro Broadcasting, which used intermediate scrutiny for the federal government, was a departure from stare decisis, and is therefore overruled to the extent that it is inconsistent with this opinion. All racial classifications require strict scrutiny in order to determine whether the supposedly “benign” purpose is valid, otherwise we risk making the same mistake as in Korematsu.

7. Concurrence Reasoning: [Scalia] felt that a racial classification could never serve a “compelling interest” [and thus never pass strict scrutiny] because that only fosters racial hatred, even when done for the most beneficial reasons. The Constitution protects individuals, not groups, and there are no debtor and creditor races. [Thomas] wrote separately to disagree with the dissent’s premise that there is “a racial paternalism exception to the principle of equal protection.”

8. Dissent Reasoning: [Stevens] Remedial-based race classifications are distinguishable from race discrimination and should be afforded a more intermediate standard of review consistent with Fullilove and Metro Broadcasting. It is wrong to have “consistency” between the standard of review for discriminatory and benign racial classifications because the first is a “No Trespassing” sign, where the second is a welcome mat. Furthermore, there is solid justification for treating the 5th and 14th amendments as affording different levels of protection, namely that Congressional deliberations about a matter should be accorded far greater deference than those of a State or municipality. Lastly, the stigma of affirmative action is surely less than that of discrimination.

 

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Bailey v. Drexel Furniture

1. Bailey v. Drexel Furniture, (1922)

2. Facts: After the Court held that regulation of child labor was unconstitutional if its basis was the Commerce Power (Hammer v. Dagenhart), Congress passed the Child Labor Tax Law of 1919 which imposed a federal excise tax of 10% of the annual net profits of any employer who exceeded the age or working hours limitations provided. It was almost identical to the Act declared unconstitutional in Hammer, but it rested on the taxing power instead.

3. Procedural Posture: Drexel brought this action for refund in the District Court after paying $6,000 under the tax, and won. The IRS appealed.

4. Issue: Whether Congress may impose a tax on industries as a means of regulating child labor, under the pretext of the taxing power.

5. Holding: No.

6. ∏ Argument: The Act is a regulation of the employment of child labor internal to the states, which is an exclusively state function under the 10th amendment.

7. ∆ Argument: The Act is a mere excise tax levied by the Congress under its broad power of taxation under the Constitution. The court has already gone so far un upholding taxing statutes that it is bound by precedent to uphold this one as well.

8. Majority Reasoning: The Act, on its face, appears to be a penalty enacted under the pretext of a tax. It provides a heavy burden for departure from a detailed and specific course of conduct. It is imposed without regard to the severity or proportion of the violation of the child labor provisions. It also requires a mens rea in that the violator knowingly depart from the standards. Thus, it clearly looks like a penalty. To allow it merely because it has the magic word “tax” would be to break down all constitutional limitations on Congress’ power to interfere with state activities, because then any subject of federal concern could be regulated by the taxing power. Even though some taxes have an incidental penalty-like action, this one is primarily a penalty. This case is the same as Hammer. Also, the previous authority relied upon by the government is distinguishable because it involved taxes that were not enacted under a pretext.

 

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Barron v. Mayor & City Council of Baltimore

1. Barron v. Mayor & City Council of Baltimore, (1833)

2. Facts: Barron was a wharf owner. The city of Baltimore, in an effort to construct some streets, diverted part of the flow of some streams feeding the Baltimore harbor. This caused sandbars to form around Barron’s wharf, making it too shallow for most ships to do business there.

3. Procedural Posture: Barron sued the city for taking his property “for public use, without just compensation” under the 5th Amendment. The trial court awarded him damages, but the court of appeals reversed.

4. Issue: Whether the guarantee in the 5th Amendment that private property shall not be taken “for public use, without just compensation” is applicable to state governments as well as the federal government.

5. Holding: No.

6. Majority Reasoning: Marshall felt the answer was easy. The historical context of the framing of the constitution implied that the general guarantees in the Bill of Rights only applied to the federal government and not state governments. The purpose of the constitution was to ordain and establish a federal government, not state governments. Thus, any limitations on that power should be construed as applying to the federal government, since states have their own constitutions. The structure of the constitution shows that there was a plain line drawn between the powers and limitations of the federal and state governments, and so if the framers meant for these limitations to apply to states, they could have made such intent clear. The bill of rights itself was a guarantee against the encroachment of federal government. That is where the fear resided. There was no need for security against local governments, and so none was asked for.

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Bernal v. Fainter

1. Bernal v. Fainter, (1984)

2. Facts: Texas had a state law barring aliens from becoming notaries public.

3. Issue: Whether the bar was a violation of equal protection.

4. Holding: Yes.

5. Reasoning: Generally, alienage is a suspect classification, which can only pass strict scrutiny if there are compelling state interests and the classification is the least restrictive means available. The only narrow exception was the Dougall case, where the exclusion is from the state’s “governmental function” or “political function.” To determine this exception, a two-part test is used. First, the classification must not be too under- or over-inclusive. Second, the exclusion must only apply to “persons holding state elective or important nonelective executive, legislative and judicial positions,” i.e. those that “participate directly in the formulation, execution, or review of broad public policy.” This is a very narrow exception. Notaries public do not fall within the “political function” exception, because their duties are “clerical and ministerial” rather than the exercise of broad discretion or policy.

6. Notes: Federal restrictions on aliens were addressed in Hampton v. Mow Sun Wong (invalidating a federal bar on aliens holding competitive civil service positions), and Mathews v. Diaz, (upholding a restriction on alien eligibility for federal Medicare conditioned on (a) admission for permanent residence, and (b) continuous residence in the U.S. for five years.)

1. Foley v. Connelie, (1978); pg. 682, briefed 2/7/96

 

 

2. Facts: New York had a law barring aliens from becoming state troopers.

 

 

3. Issue: Whether the law barring aliens from becoming state troopers was a violation of equal protection.

 

 

4. Holding: No.

 

 

5. Reasoning: Dougall carved out an exception to the strict scrutiny for alienage-based state classifications - i.e., where the power the state is exercising is clearly within its “governmental function” or “political function.” Otherwise, there would be no benefit to citizenship. Thus, in these cases, rational relationship is the appropriate standard. Since police officers exercise a very broad discretion in enforcement of laws, it would be as anomolous to say that a citizen could be exposed to the broad discretion of a non-citzen police officer as it would be to say that judges and juries can be made up of aliens. Thus, citizenship bears a rational relationship to law enforcement.

 

 

6. Notes: In Amach v. Norwick, the court applied the Dougall exception and Foley to hold that a state may refuse to employ teachers who are eligible for naturalization, but refuse it, stating that less demanding scrutiny is required where aliens are excluded from “state functions” that were part of the state’s “governmental function.”

 

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Board of Education of Oklahoma City Public Schools v. Dowell

1. Board of Education of Oklahoma City Public Schools v. Dowell, (1991)

2. Facts: Oklahoma City had been ordered to desegregate its schools, and in 1972, the court ordered mandatory busing to integrate the schools. The busing plan was successful in integrating the schools, and so in 1977, the court entered an order terminating its jurisdiction to enforce remedies. In 1984, the school board voted to institute a neighborhood (non-bussed) school system for K-4 students.

3. Procedural Posture: A motion was made to “re-open” the case, and the district court denied it. The court of appeals reversed, and the Supreme Court reversed the court of appeals.

4. Issue: Whether a federal court has the power to terminate its jurisdiction over enforcing remedies after a reasonable time has passed in which the school district has complied with the remedies.

5. Holding: Yes.

6. Majority Reasoning: The federal court must give way to the concern for the autonomy of the local control of the school board after the remedy has been given effect. This does not mean that the court must take for face value that the board promises not to return to segregative practices. However, the court must recognize that the composition and motives of the school board change over time, and must determine whether there will be a good faith effort to continue the desegregation in the future, unsupervised. Even if the court is wrong, the equal protection clause still exists, and a new action may be brought if the school board violates it.

7. Dissent Reasoning: [Marshall] felt that 13 years of compliance after 65 years of forced segregation was not enough. The remedy should be in effect until the effects of the prior segregation are fully eliminated.

 

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Board of Regents v. Roth

1. Board of Regents v. Roth, (1972)

2. Facts: Roth was a non-tenured college professor hired to teach for one year at a state university. During that year he made comments against the university officials. He was not rehired for the next year, and no reason was given. State law provided that no reason need be given. Most teachers would be rehired.

3. Procedural Posture: Roth brought an action for violation of his first amendment rights (being fired for making criticisms) and for a violation of his 14th amendment procedural due process guarantee (for being fired from a position of status without a hearing or a reason). The District Court granted summary judgment for Roth on the procedural due process claim, and the court of appeals affirmed.

4. Issue: Whether Roth had a constitutional right to a statement of reasons and a hearing.

5. Holding: No.

6. Majority Reasoning: The 14th amendment protections apply only to “liberty” and “property.” Although Roth’s employment was important, it does not fall under the nature of “liberty” or “property.” The failure to rehire Roth was only one employment prospect for one year, and it did not damage his reputation (or it may have been found to be protected “liberty” under Wisconsin v. Constantineau). He was still free to seek other work. Roth has not shown that his failure to be rehired was based on his critcisms. It is also not a property interest because Roth, by his employment contract, does not have any legitimate entitlement to the employment.

7. Dissent Reasoning: [Marshall] There are cases holding that the state governments are restrained by the constitution from acting arbitrarily with respect to government employment. Every citizen who applies for a government job is entitled to it unless the government can establish a reason for denying the employment. Otherwise, the people’s faith in the government is undermined by apparently arbitrary decisions.

8. Notes: Contrast Perry v. Sindermann, in which the court held that the plaintiff was entitled to a full trial court hearing on the first amendment issue (government can not deny rehire for criticism). Also, even if the teacher did not have formal tenure, if there was an unwritten practice among the administration to rehire, there still could be a deprivation of property. In Paul v. Davis, the court [Rehnquist] held that mere defamation is not a violation of “liberty” (reputation is not a liberty interest per se), unless it is accompanied by some more tangible interest such as employment. Thus, a person labeled a “shoplifter” by local police did not have any constitutional protection from the defamation, only a remedy in tort law. However, in Vitek v. Jones, a state prisoner was found to have a liberty interest in not being involuntarily transferred to a mental institution if his condition could be adequately treated in the prison. An “objective expectation” based on the state law and normal official practice was created, and it could not be violated without a hearing. The liberty interest can arise not only from the 14th amendment due process clause, but also from state law itself. In determining what sort of a hearing is required to satisfy due process, the court [Powell] held in Mathews v. Eldridge, that “due process is flexible and calls for such procedural protections as the particular situation demands.” The balancing approach was taken which considered 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of such interest throught the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and 3) the government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

 

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Bowers v. Hardwick

1. Bowers v. Hardwick, (1986)

2. Facts: Respondent was charged with violating a Georgia sodomy law by having homsexual relations with another adult man in his own bedroom.

3. Procedural Posture: Respondent seeks to challenge the constitutionality of the sodomy statute. The Court of Appeals held that the law violated the mans fundamental rights because his homosexuality is a private and intimate association that is beyond the reach of state regulation.

4. Issue: Whether the statute is consitutional under the due process clause of the 14th amendment.

5. Holding: Yes.

6. Majority Reasoning: There is no constitutional right to protection from state proscription of all private sexual conduct between consenting adults. According to the Palko standard, in order for a non-Bill of Rights individual right to be constitionally protected, it must be one that is “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” A similar standard is those that are “deeply rooted in this Nation’s history and tradition.” Sodomy meets neither of these standards. The court refuses to expand substantive due process in this area, and defers to the states.

7. Dissent Reasoning: This is not a case about a fundamental right to sodomy. It is a case about the right to be left alone. The right of an individual to conduct intimate relationships in the intimacy of his or her own home is at the heart of the Constitution’s protection of privacy.

 

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Bowsher v. Synar

1. Bowsher v. Synar, (1986)

2. Facts: The Gramm-Rudman-Hollings Act established maximum annual permissible deficits designed to reduce the federal deficit to zero by 1991. If needed to keep the deficit within the maximum, the Act required the OMB and the CBO to make recommendations to the Comptroller General as to the budget reductions necessary in each program. The Comptroller General office was created by the budget and accounting office, in an act that required nomination by the President, but removal [for cause] by a Congressional resolution, subject to presidential veto.

3. Procedural Posture: The act establishing the Comptroller General office was challenged as being a violation of the separation of powers because it gave Congress the power to remove an official having executive powers.

4. Issue: Whether the act establishin the Comptroller General’s office is unconstitutional as a violation of separation of powers.

5. Holding: Yes.

6. Majority Reasoning: Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. To permit an officer controlled by congress to execute the laws would be, in essence, to permit a congressional veto of the kind struck down in Chadha. The Comptroller is an executive officer because of his duties. The scope of the reasons allowable for his removal are broader than that allowed for impeachment, which is only for “treason, bribery, or other high crimes and misdemeanors.” Even though it may be a small chance of removal in practice, the Comptroller is not sufficiently free from congressional influence. Thus, the fallback provisions of the Act, wherein Congress itself makes the ultimate budget decisions by joint resolution, must be activated.

7. Dissent Reasoning: [White] The removal by Congress of the Comptroller is of such minimal practical significance that it presents no threat to the scheme of separation of powers. It requires 2/3 approval by both houses to override a presidential veto of the Comptroller’s removal.

 

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Brown v. Board of Education (Brown I)

1. Brown v. Board of Education (Brown I), (1954)

2. Facts: Brown was a black child who was denied admission to public schools in her community because of her race. She was not denied access to schools for blacks set up under the “separate but equal” doctrine of Plessey.

3. Procedural Posture: Class action brought on the behalf of all black students in the U.S..

4. Issue: Whether the racial classifications in public school admissions are a violation of equal protection, notwithstanding the “separate but equal” doctrine of Plessey.

5. Holding: Yes.

6. Reasoning: There is no conclusive evidence that the framers of the 14th amendment had any idea, or desire, one way or the other to prevent blacks from attending public schools alongside whites. Regardless of whether two separate schools may be called “equal” with respect to the “tangible” factors of buildings, curricula, qualifications of teachers, etc, by definition they can not be equal with respect to the intangible factors of the ability to take advantage of the environment of the school. In practice, separation of the races promotes the idea of inferiority of the minority race. It generates a feeling of inferiority among the minority race which affects their motivation and eagerness to learn. In public education, separate but equal has no place, and is a denial of equal protection.

7. Notes: On the same day that Brown was decided under the 14th amendment, Bolling v. Sharpe was decided under the 5th amendment with respect to the District of Columbia (federal schools). Although there is no “equal protection” clause in the 5th amendment, the due process clause of the 5th amendment affords similar protection with regard to classifications based on race. “Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on [Black] children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of due process.”

 

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Burton v. Wilmington Parking Authority

1. Burton v. Wilmington Parking Authority, (1961)

2. Facts: A state-operated parking building had a restaurant facility which it leased to a privately-owned business. The restaurant had a policy of discriminating against blacks, and refused to serve Burton solely because he was black.

3. Procedural Posture: Burton brought an action against the owner of the restaurant and the state for violation of equal protection. The state supreme court held that the restaurant was acting in a purely private capacity under the lease, and that its action was not that of the lessor, and therefore not state action.

4. Issue: Whether a private restaurant that is leased as a part of a state-owned public facility may discriminate on the basis of race if there is a sufficient conncetion or nexus between the tenant restaurant and the state owned public facility.

5. Holding: No.

6. Reasoning: The restaurant and the parking garage are inseparably interdependent. The restaurant relies on the presence of parking for its customers, and the parking garage relies on the rent from the restaurant for operating costs. Thus, the state has made itself a party to the discrimination by failing to exercise its power to stop it by writing such terms into the lease. The nexus here is so close that the discrimination can not be considered to be purely private in nature, but rather the state is involved “to some significant extent” with the discrimination.

7. Notes: In Moose Lodge v. Irvis, the Court refused to extend Burton to the case of state licensing, rejecting a state action challenge to a private club’s discrimination, solely on the ground that the private club held a state liquor license. Also, in CBS v. Democratic National Comm., the Court refused to find that refusal of editorial advertisments was state action, solely on the ground that CBS was granted a broadcast license.

 

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CTS Corp. v. Dynamics Corp. of Am.

1. CTS Corp. v. Dynamics Corp. of Am., (1987)

2. Facts: Indiana passed a corporate takeover law which stated that should any party acquire a controlling interest in the number of shares he held, he could only acquire voting rights on those shares to the extent approved by a majority vote of the prior disinterested stockholders.

3. Procedural Posture: The lower court held that the law was unconsitutional as being a hindrance to tender offers, and thus an interstate commerce burden.

4. Issue: Whether the Indiana law is unconstitutional as being in conflict with the dormant Commerce Clause.

5. Holding: No.

6. ∆ Argument: Tender offers should generally be favored because they represent a shifting of property rights to their highest value use. Also, the state of Indiana has no interest in protecting non-resident shareholders.

7. Majority Reasoning: A state has the fundamental right ot pass laws concerning the regulation of corporations it establishes. They are only unconsitutional if they discriminate against interstate commerce. Since this law has the same effect on interstate commerce as well as intrastate commerce, meaning that all shareholders and tender offers are treated the same regardless of locality, then it does not discriminate. The state regulation of corporations necessarily has some effect on interstate commerce, since the shares are traded internationally. However, there is stability in knowing that the corporation is subject to one set of regulations - that of its home state.

8. Concurrence Reasoning: [Scalia] stated that there was no consitutional basis for any balancing test when determining whether a local interest outweighs a federal interest. Whether the burden on commerce imposed by a statute is excessive in relation to its benefit is a question for the legislature, not the judiciary.

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Calder v. Bull

1. Calder v. Bull, (1798)

2. Facts: There was a dispute over a will. A probate court decree had refused to approve a will. The persons who were the beneficiaries of that will had the judgment set aside and a new hearing was granted, at which the will was approved. There was a Connecticut law that allowed the probate court to be set aside.

3. Procedural Posture: The persons who would have inherited the property if the will was void brought an action to declare the law setting aside their initial favorable judgment as violating the ex-post facto clause.

4. Issue: Whether the Connecticut law was valid.

5. Holding: Yes.

6. Reasoning: [Chase] reasoned that there were fundamental liberty reasons why the law was sound. The purposes for which the constitution was written was to give effect to a “social compact” wherein the government was established to protect the natural and preexisting rights of the citizens. The nature of these rights determines the limits of the legislative power to infrnge on these rights. The government can not have the power to enact leglislation that violates the natural laws of civilized society that it was established to protect, even if such natural right is not explicitly mentioned in the constitution. An example is this case, the government can not violate the right of an antecedent lawful private contract or the right of private property.

7. Dissent Reasoning: [Iredell] stated that the citizens had framed their constitution to define the precise boundaries of the leglislative power. Thus, if the legislature violates this power, its act is certainly void. However, if the legislature passes a law within its consitutional boundaries, the judiciary does not have the power to use subjective determinations of what is “contrary to natural law” to strike it down.

 

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Chaplinski v. New Hampshire

1. Chaplinski v. New Hampshire, (1942)

2. Facts: ∆ was a jehovah’s witness, who upon being escorted away from a public disturbance that he had created, told an officer that he was “damned facist” and a “damned racketeer.”

3. Procedural Posture: ∆ was convicted under a statute which prohibited speech that were “likely to cause an average addressee to fight.”

4. Issue: Whether words “plainly likely to cause a breach of the peace by the addressee” are protected by the First Amendment.

5. Holding: No.

6. Reasoning: The right of free speech is not absolute at all times. These are “fighting words” which by their very nature tend to inflict injury or tend to incite an immediate breach of the peace. They are not an essential part of the expositionof ideas that were meant to be protected by the First amendment. Also, lewd, obscene, profane, and libelous words are not protected.

7. Notes: The lewd, obscene, profane, and libelous speech has been protected to some degree since Chaplinski. However, “fighting words” survives to a limited extent as an exception to free speech. However, in Gooding v. Wilson, (1972), the court held 4-3 that a statute that was so broadly written that it covered speech “not plainly likely to cause a breach of the peace by the addressee” was unconstitutional on its face. Thus, the court is not likely to broaden the scope of the Chaplinski holding.

 

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Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

1. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993)

2. Facts: Members of the church practice the Santeria religion which practices animal sacrifices for various occasions. Sometimes the animal is then eaten, sometimes it is not. Outrage in the community over the animal sacrifices led the city council to ban all animal sacrifices which were not for the purpose of food.

3. Procedural Posture: The district court found for the city, and the court of appeals affirmed.

4. Issue: Whether a city may enact laws specifically prohibiting the practice of certain religious rituals when such laws are directed against a particular religion.

5. Holding: No.

6. Reasoning: A law which is specifically directed at regulating the practice of a specific religion will be subjected to “the most rigorous of scrutiny,” unless it is both neutral and generally applicable (Smith). The law here is very underinclusive, because the city’s stated purpose of promoting public health would be better served if they also regulated disposal of animals killed by hunters, as well as disposal of restaurant food, and the killing of pests. Since the city failed to enact such other laws, its purpose could not be compelling.

 

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Cleburne v. Cleburne Living Center, Inc.

1. Cleburne v. Cleburne Living Center, Inc., (1985)

2. Facts: A texas city denied a special use permit to a person who intended to build a 200-person home for the mentally retarded. A city ordinance gave the city the power to require a special use permit for homes for mentally retarded persons, but not for other classifications, such as boarding houses, sanitariums, nursing homes, etc. The city’s rationale was that the neighboring property owners did not want it, a junior high school was across the street, it was located on a 500 year flood plain, and there would be a lot of people living there.

3. Procedural Posture: The lower court struck it down under the “intermediate” level of review, stating that it did not “substantially” furhter an “important governmental interest.”

4. Issue: Whether the ordinance requiring a special use permit hearing for establishment of mentally retarded care homes violates equal protection, and under what standard.

5. Holding: Yes. Rational basis.

6. Majority Reasoning: [White] The general rule for equal protection is rational basis. The mentally retarded are not a class that require heightened scrutiny because they are 1. not a homogenous group, 2. they are specially protected in many ways by the legislature, and 3. most laws concerning the mentally retarded are likely to be beneficial and not based on prejudice. However, here the law appears to be motivated only by prejudice. The negative attitudes of the surrounding property owners are not a valid basis for discrimination. Also, there are no other distinguishing characteristics that are inherent to the retarded people that would require that they be treated differently with regard to the location of the home, or its size. Clearly, if other homes, such as those for the insane, or convalescent, are allowed in the same area, the law is not even rationally related to the city’s objectives because it is substantially underinclusive.

7. Concurrence Reasoning: [Stevens] felt that putting a name on the standard of review to be used was inappropriate because there is just a single continuum of standards. In some cases, certain characteristics are relevant, and in others, they are not. The court merely needs to ask what the purpose of the law is, and what the characteristics of the group are that justify the disparate treatment. [Marshall] felt that the standard should have been a heightened level of review, because of the tradition of discrimination, and the characteristic of mental retardation is often used as a proxy for reduced capacity. The majority should have admitted that it was using heightened scrutiny because this law would probably pass the extremely deferential rational basis standard of Lee Optical (i.e. “reform may take one step at a time” allows the city to require the special use permits for mentally retarded persons but not for other similar classes).

8. Notes: In James v. Valtierra, Justice Black’s majority opinion rejected an equal protection challenge to a California constitutional requirement that “no low rent housing project shall hereafter be developed by any state public body” without prior approval in local referendum. Even though the law had the practical effect of disadvantaging low-income persons, the law passed the rational basis standard. Marshall vigorously dissented stating that the law was on its face invidious discrimination against the poor, as suspect class which demanded exacting scrutiny.

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Cooley v. Board of Wardens of The Port of Philadelphia

1. Cooley v. Board of Wardens of The Port of Philadelphia, (1851)

2. Facts: A Pennsylvania law of 1803 required ships entering or leaving Philadelphia harbor to hire a local pilot. For failure to comply, Cooley was fined. The proceeds from the fines went to a fund used to support retired pilots and their dependents. Also, a 1789 congressional statute stated that all previous piloting laws were expressly adopted, and the states had the right to enact further similar laws until Congress saw fit to enact laws in this area.

3. Procedural Posture: Cooley sued for the penalty, claiming that the law was unconsitutional as being in conflict with the dormant Commerce power.

4. Issue: Whether the law was unconsitutional as being in conflict with the dormant Commerce power.

5. Holding: No.

6. Majority Reasoning: The regulation of pilots is regulation of navigation, and thus regulation of commerce. The 1789 Act, although it expressly adopts existing piloting laws, can not grant any more power to the states than does the constitution. Thus, if the commerce power is exclusive in this area, the Act is inoperative and the local law is unconstitutional. However, since the field of commerce is so diverse, it requires laws of varying scope. Some facets of interstate commerce require uniform national laws by their very nature. Others require purely local legislation to meet diverse needs. Those that require uniform national laws must be said to be exclusively regulated by Congress, thus barring any state action in that area even when the commerce power is dormant. However, in this case, there is a manifested intent of congress to leave this area of commerce to local regulation. Thus, this is an example where the commerce power can coexist between the state and federal government if the federal government has not actuall passed a law in that area. The determinative factor of whether a state law is repugnant to the constitution in the face of the dormant commerce power is the “subject” of the regulation, not the “purpose” behind it.

 

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Craig v. Boren

1. Craig v. Boren, (1976)

2. Facts: A Oklahoma statute provides for a minimum age to purchase 3.5% beer differently for males than for females. For females, the age is 18, but for males, the age is 21. The state has statistics that, if valid, tend to show that more males in the 18-20 range than females in the 18-20 range are arrested for drunk driving. Thus, their rationale for the rule is that it is a necessary protection of public safety.

3. Procedural Posture: Unknown.

4. Issue: Whether the law violates the equal protection clause, i.e. whether the difference between males and females with respect to the purchase of 3.2% beer does not justify the differential treatment by the Oklahoma statute.

5. Holding: Yes.

6. Majority Reasoning: Reed and Fornteiro stand for the proposition that classification by gender must serve “important governmental objectives” and must be “substantially related” to the achievement of those objectives. The purpose of increasing traffic safety is certainly “important” and valid. However, there relationship between the classification and the objective is not sufficiently “substantial.” The statistical evidence presented is statistically invalid because it rests on too many assumptions which have not been proven. Also, even given their correctness, they do not justify differential treatment because of their close results. There is an inherent difficulty (i.e. too many uncontrollable variables) in using statistical evidence to make broad social classifications.

7. Concurrence Reasoning: [Powell] felt that the announcement of the new intermediate standard was not necessary because the case was easily decidable on the “fair and substantial” relation standard of Reed. [Stevens] objected to the classification because it was based on an “accident of birth,” and because it is easily circumvented (i.e. the female can buy the alcohol). It also punishes the 100% of the male population between 18-20 when the statistics only show that 2% need punishment.

8. Dissent Reasoning: [Rehnquist] felt that the new standard was without authority, and also that the previous cases were not on point because they involved women seeking relief (as the discriminated party), rather than men. The justification for Reed was that women were a discrete and insular class. Men have no such problem. Thus, this should only be given the “rational basis” test. The legislature has not been irrational or arbitrary in their actions because they were acting on the best statistical information they had.

 

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Cruzan v. Director, MO. Dept. of Health

1. Cruzan v. Director, MO. Dept. of Health, (1990)

2. Facts: Cruzan was rendered a vegetable by a car accident in 1983. She was kept alive by life support equipment that gave her nourishment through a tube. Her parents sought to have her removed from the life support equipment. A Missouri statute allowed a responsible party to pull the plug only if there was “clear and convincing evidence” of the patient’s intent. The only evidence of Cruzan’s intent was statements to former roomates that she would not want to live if she were a “vegetable.”

3. Procedural Posture: The trial court found that Cruzan’s intent was “clear and convincing” and ordered the hospital to remove the life support equipment. The state supreme court reversed.

4. Issue: Whether the state statute requiring the high evidentiary standard of “clear and convincing evidence” in a right to die case is constitutional under the 14th amendment substantive due process “liberty” interest.

5. Holding: Yes.

6. Majority Resaoning: There exists a right to refuse medical treatment under the liberty interest. This right does extend to an incompetent person who is in a vegetative state. However, the person’s constitutional rights must be determined by balancing his liberty interest against the relevant state interests. The state has a strong and unqualified interest in the preservation of human life. The evidentiary standard of “clear and convincing evidence” is not unconstitutional because it puts the burden of error on those who seek termination of life. If the state is wrong, then the person continues to live, awaiting changes in the law or in medical science which may change the error. If the party is wrong, the error can not be corrected. This statute is similar to the standard required for regular wills.

7. Concurrence Reasoning: [O’Connor] reasoned that the court only decided whether the standard of “clear and convincing” evidence was constitutional under these facts. The court has not yet made the more challenging decision of crafting appropriate procedures for determining when the surrogate should be allowed to make decisions for the incompetent. That question will be left for now to the “laboratory” of the states. [Scalia] felt that the court had no business in this field at all. There was no constitutional basis for the right to die, and the court was no better able to determine the correct balance of state and individual interests than was the state citizenry. The safeguard against violation of individual constitutional rights is the Equal Protection Clause which requires that the same laws apply to the democratic majority as are applied to any individual.

8. Dissent Reasoning: [Brennan] felt that the evidentiary burden of “clear and convincing” evidence was an impermissible burden on the individual’s right to refuse medical treatment. Since a fundamental right was at issue, the proper standard should have been a form of strict scrutiny. The state statute could only be upheld if it is closely tailored to effectuate only those interests which are legitimate. Here, the state interest could not outweigh that of the individual. [Stevens} felt likewise that the state interest could never outweigh that of the individual.

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Dennis v. United States

1. Dennis v. United States, (1951)

2. Facts: ∆s were members of the Communist Party, and generated pro-revolution materials in violation of the Smith Act. The communist party was believed to pose a significant danger because it advocated violent overthrow o the government.

3. Procedural Posture: ∆’s were convicted of conspiring to advocate the overthrow of the government based on their writings.

4. Issue: Whether the government may criminalize speech which poses a clear and present danger to the government.

5. Holding: Yes.

6. Majority Reasoning: The “clear and present danger” test does not require that the government wait until overthrow is imminent. It only need determine that there are persons advocating the overthrow of the government by force and violence. It does not matter that the government not actually be in any danger of overthrow due to its size and strength, the gov’t still has a substantial interest in putting down dangerous threats. Judge Learned Hand’s test is proper: “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Also, it is not a question of fact for the jury, the existence of sufficient danger is a question of law for the judge.

7. Concurrence Reasoning: [Frankfurter] The clear and present danger test is vague dogma. A better approach is to balance the interests of the government against the interests of free speech and the individual. It is not for the courts to determine the proper balance, Congress has already done so by passing the act.

 

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Dolan v. City of Tigard

1. Dolan v. City of Tigard, (1994)

2. Facts: Dolan owned a hardware store set on an upaved lot downtown in the City of Tigard. Adjacent to her property was a stream which flooded often, causing damage to the downtown area. Dolan wished to get a permit to enlarge her store and pave the lot for parking. A city planning commission had developed regulations for managing the heavy traffic and flooding in the downtown area by requiring local business owners to donate a portion of their land adjacent to the stream as an unimproved greenbelt and a paved section along their land as a bicycle/pedestrian route if they wished to get improvement permits. The local legislature had justified the regulations based on findings that more paving would cause more run-off (thus requiring the greenbelt), and more development would cause more traffic (thus requiring the bicycle/pedestrian path).

3. Procedural Posture: Dolan brought an action against the city claiming that the conditional grant of a portion of her land in return for approval of her building permit was an unconstitutional taking. The lower courts found that the city’s dedication requirements were “reasonably related” to the public interest in water and traffic management, and so the cost should be borne by Dolan for the management of the increased water flow and traffic that her development would bring.

4. Issue: Whether the local dedication requirement is sufficiently connected to the purpose for the taking, i.e. water and traffic managment.

5. Holding: No.

6. Majority Reasoning: One of the principle purposes of the takings clause is to bar the government from forcing individuals to bear public burdens which, in all fairness, should be borne by the public as a whole. Thus, under the doctrine of “unconstitutional conditions” the city may not require an individual to give up her 5th amendment right of just compensation in exchange for a government granted benefit where the property sought has little or no relationship to the benefit. Although there is a nexus between preventing flooding and limiting development along the sides of the creek, it is not a sufficiently close nexus to justify an uncompensated taking. There must be a “reasonable relationship” or a “rough proportionality” between the flooding and the city’s taking of the land. The required dedication must be related both in nature and extent to the impact of the proposed development. Although there is a need to have an adjacent greenway, it is not necessary that the city own the property itself. Also, the bicycle/pedestrian walkway is not sufficiently justified by statistics shown by the city, who has the burden of proof here.

7. Dissent Reasoning: [Stevens] The burden of proof should not lie with the city. A statute should be given the presumption of constitutionality, putting the burden on the challenger to show that it is not constitutional. Furthermore, the taking must be viewed from the entirety of the value of the property. A commercial developer views these exactions as a business regulation, and a cost of doing business. They should not be invalidated unless they are sufficient to deter the owner from proceeding with his planned development.

 

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Duncan v. Louisiana

1. Duncan v. Louisiana, (1968)

2. Facts: Duncan was convicted of simple battery, which in Louisiana was a misdemeanor punishable by 2 years imprisonment and a $300 fine.

3. Procedural Posture: Duncan sought trial by jury, but the Louisiana constitution grants jury trials only in capital punishment or hard labor cases, so the trial judge denied the request.

4. Issue: Whether the federal constitution guarantees the right to a trial by jury under the 6th amendment, through the 14th amendment in a state criminal trial where a sentence as long as 2 years may be imposed.

5. Holding: Yes. The 14th amendment guarantees a right of jury trial in all criminal cases which, were they to be tried in a federal court, would come within the 6th amendment’s guarantee.

6. ∏ Argument: The 14th amendment makes the jury trial guarantee of the 6th amendment applicable to the states in cases where a sentence as long as 2 years may be imposed.

7. ∆ Argument: The constitution imposes no duty on a state to guarantee a trial by jury in a state criminal trial, regardless of the severity of the punishment available. If the trial by jury is guaranteed in state criminal cases, it will cast doubt on the integrity of every trial conducted without a jury. Also, if due process is deemed to include trial by jury, then all past interpretations of the 6th amendment in the federal courts (such as a 12-man jury) would then become applicable to states, infringing on their ability to experiment.

8. Majority Reasoning: The test for whether a bill of rights right is incorporated to the states by the 14th amendment is whether that right is a “fundamental” right. Although there were prior cases stating in dicta that a right to a trial by jury was not fundamental to a fair trial, those cases are rejected as being wrong. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Although there are other countries that have fair criminal justice systems, but use no juries, ours is not one of them. The supporting framework of our criminal justice system relies upon juries for fairness. It is true that there are some criminal cases that may be tried without a jury, however, this is not one of them.

9. Concurrence Reasoning: [Black] expressed that he is glad that selective incorporation has worked since Adamson to incorporate most of the Bill of Rights guarantees. He goes on to restate his arguments in support of total incorporation. Namely that the “privileges and immunities” clause of the 14th amendment serves to totally incorporate the Bill of Rights because “what more precious privilege can there be that the privilege to claim the protections of our great Bill of Rights.” He criticizes Harlan’s dissent as being too subjective a definition of due process.

10. Dissent Reasoning: [Harlan] stated that the due process clause of the 14th amendment requires that state procedures be “fundamentally fair” in all respects, but it does not require jury trials in criminal cases. The historical evidence demonstrates that the framers of the 14th amendment did not think that they were “incorporating” the bill of rights. The proper analysis should be a “gradual process of judicial inclusion and exclusion” to ascertain those “immutable principles of free government.” It is improper for the majority to simply incorporate the jury trial clause “jot-for-jot” with all of its associated baggage of federal judicial interpretation. Each case must be analyzed to see whether it was a fair one.

11. Notes: In Benton v. Maryland, the court held that the “double jeopardy” clause was a “fundamental” ideal and is applicable to the states. Since then, as a result of selective incorporation, almost all criminal process guarantees are applicable to the states. In Wolf v. Colorado the court incorporated only the “core” of the 4th amendment, but not the case law interpreting it in federal courts. However, later in Mapp v. Ohio, the court changed its mind, and incorporation thereafter meant not only incorporating the “core” of the bill of rights guarantee, but applying every detail of the contours of the guarantee as delineated in judicial interpretations (the baggage). In Williams v. Florida, the court held that a 12 man jury was not necessary, because the function of the jury was fairness, and less than 12 men could still be fair. In Apodaca v. Oregon, the court stated that the verdict did not have to be unanimous, for the same reasons. Lastly, in Burch v. Louisiana, the court stated that a 6 man non-unanimous jury was unconsitutional, thus putting a limit on the relaxations of Williams and Apodaca.

 

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Edmonson v. Leesville Concrete Co.

1. Edmonson v. Leesville Concrete Co., (1991)

2. Facts: Race-based peremptory challenge of a civil juror.

3. Procedural Posture: Alleged violation of 14th amendment.

4. Issue: Whether race based peremptory challenges by a private citizen in a civil case violate the 14th amendment equal protection under the state action doctrine.

5. Holding: Yes.

6. Majority Reasoning: [Kennedy] The claimed constitutional deprivation here results from the exercise of a right having its source in state authority. There are several guidelines illustrated by the previous cases, 1. the extent to which an actor relies on governmental assistance and benefits [Burton], 2. whether the actor is performing a traditional governmental function [Marsh], and 3. whether the injury caused is aggravated in a unique way by the incidents of governmental authority [Shelley]. This case meets all three of the guidelines because the discrimination is occuring in a judicial proceeding, during the selection of a jury, which is a unique governmental entity bound by race neutrality.

7. Dissent Reasoning: [O’Connor] It is necessary after Jackson v. Metro Edison, for a showing that the government was involved in the specific decision challenged. Here all of the government action is preliminary to the use of a peremptory challenge, it does not constitute participation in the challenge itself. Trials are adversarial proceedings in which attorneys act on behalf of private clients, not the government. [Scalia] felt that there was no consitutional basis for the holding and it was just evidence of the majority’s hostility to race-based judgments.

8. Notes: In Lebron v. National Railroad Passenger Corp., (1995), the Court [Scalia] held that Amtrak was an “agency or instrumentality of the United States” [since the U.S. had created the corporation and reserved the power to appoint members of its board] and therefore was bound by the first amendment to prohibit content-based restrictions on the leasing of billboards for political purposes.

 

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Employment Div. Ore. Dept. of Human Res. v. Smith

1. Employment Div. Ore. Dept. of Human Res. v. Smith, (1990)

2. Facts: Oregon law prohibits the knowing use of the drug peyote. Members of the Native American Church use the drug in ritual ceremonies for religious purposes. When religious members were fired from their jobs for using peyote, the unemployment division refused to pay them unemployment benefits because they had been fired for work related misconduct.

3. Procedural Posture: Oregon Supreme court held that the law as applied here was an unconstitutional infringment on free exercise, reasoning that the state interest in preserving the unemployment fund was outweighed by the burden on free exercise. The Supreme Court granted cert.

4. Issue: Whether a state may pass a general and neutral ban on all of the use of a particular drug, even though the general ban may burden the exercise of a particular religion.

5. Holding: Yes.

6. Majority Reasoning: The proper standard for a neutral and generally applicable law is not strict scrutiny, or any type of balancing. The government’s ability to enforce generally applicable prohibitions can not depend on measuring the effects on a particular religion. To make an individual’s obligation to obey such a lw contingent upon whether the state’s interest is “compelling” is to allow the individual to become a law unto himself. Use of strict scrutiny in this context will dilute it for other contexts.

7. Concurrence Reasoning: [O’Connor] Strict scrutiny is the proper test.

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Ex Parte McCardle

1. Ex Parte McCardle, (1869)

2. Facts: McCardle was a newspaper publisher in the post-civil war south. He was imprisoned for sedition.

3. Procedural Posture: McCardle brought a habeus corpus act under an Act of Congress of 1867 which authorized the federal courts to grant habeus corpus to anyone restrained “in violation of the Constitution”, and gave the Supreme Court appellate jurisdiction over such actions. However, before it was ruled upon on the merits by the Supreme Court, Congress passed another Act, expressly revoking the appellate jurisdiction for these types of actions that it had previously granted in 1867.

4. Issue: Whether Congress can take away the jurisdiction of the Supreme Court as to habeus corpus acts, which jurisdiction was granted in the 1867 Act.

5. Holding: Yes.

6. ∏ Argument: The appellate jurisdiction of the Supreme Court is derived from Article III, Section 2 of the constitution, not from acts of Congress.

7. Majority Reasoning: It is true that the appellate jurisdiction is granted by the constitution, but in the same article, it is made expressly subject to “such exceptions and under such regulations as Congress shall make.” Thus, Congress has the power to expand and limit the scope of the appellate jurisdiction of the Supreme Court. Quite simply, Congress was acting clearly within its power in both granting and then repealing the specific jurisdiction to review habeus corpus cases from the Circuit Courts pursuant to the Act of 1867. The Act of 1868 does not affect the appellate jurisdiction with regard to any other cases.

 

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Flast v. Cohen

1. Flast v. Cohen, (1968)

2. Facts: Taxpayers disagreed with the congressional spending in subsidizing religious private schools, claiming that it violated the establishment clause.

3. Procedural Posture: The taxpayers brought an action challenging the spending act as unconsitutional under the establishment clause, and the lower court dismissed under Fronthingham.

4. Issue: Whether a taxpayer has standing when he alleges that the congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.

5. Holding: Yes.

6. Majority Reasoning: The standard is lower when a taxpayer attacks a federal statute on the grounds that it violates the establishment and free exercise clauses of the first amdendment. Frothingham does not serve as an absolute bar to actions by taxpayers, only as authority for exercise of discretion and self-restraint. The court is not a forum for a taxpayer to air generalized grievances about the conduct of government. If the taxpayer has a personal stake in the outcome of the controversy, and the parties have adverse legal interests, then there is standing if the taxpayer can show nexus between the status asserted and the claim sought to be adjudicated. That nexus exists where there is a specific constitutional limitation imposed on the taxing and spending power of the Congress.

7. Dissent Reasoning: [Harlan] The court should not grant access to taxpayers on its own in the absence of permission by Congress. “Public actions” should only be brought under the authority of Congressional statute.

8. Notes: In U.S. v. Richardson, the court held that a taxpayer did not have standing to challenge the non-publication of CIA expenditures, on the ground that there was no allegation that the funds were being spent in violation of a specific constitutional limitation on Congress’ spending power. Also, in Schlesinger v. Reservists to Stop the War, the court refused to recognize standing of the challengers because their injury was not “concrete” enough.

 

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Foley v. Connelie

1. Foley v. Connelie, (1978)

2. Facts: New York had a law barring aliens from becoming state troopers.

3. Issue: Whether the law barring aliens from becoming state troopers was a violation of equal protection.

4. Holding: No.

5. Reasoning: Dougall carved out an exception to the strict scrutiny for alienage-based state classifications - i.e., where the power the state is exercising is clearly within its “governmental function” or “political function.” Otherwise, there would be no benefit to citizenship. Thus, in these cases, rational relationship is the appropriate standard. Since police officers exercise a very broad discretion in enforcement of laws, it would be as anomolous to say that a citizen could be exposed to the broad discretion of a non-citzen police officer as it would be to say that judges and juries can be made up of aliens. Thus, citizenship bears a rational relationship to law enforcement.

6. Notes: In Amach v. Norwick, the court applied the Dougall exception and Foley to hold that a state may refuse to employ teachers who are eligible for naturalization, but refuse it, stating that less demanding scrutiny is required where aliens are excluded from “state functions” that were part of the state’s “governmental function.”

 

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Freeman v. Pitts

1. Freeman v. Pitts, (1992)

2. Facts: The school board in DeKalb, Ga., had been forcibly integrated from 1969 to 1986. However, instead of becoming more racially integrated, the school district became less racially integrated, due to the demographic change in the area (more blacks) rather than any intentional resistance to desegregation.

3. Procedural Posture: The school board moved to have the remedial order dismissed, and the district court found that it had been complied with in part, but that many areas needed continued supervision. Thus, the district court withdrew from supervision of the areas that it deemed appropriate. The school board still sought total dismissal, and the court of appeals upheld the district court’s holding that some remedial measures were still needed, except that it reversed with respect to the holding that the court could partially dismiss.

4. Issue: Whether the district court has the power to withdraw from supervision of certain facets of a desegregation plan if there are other facets that still require supervision in order to accomplish a “unitary” school system.

5. Holding: Yes.

6. Majority Reasoning: The court may change its remedies to fit the violations. Due to the strong interest a local school district has in self-determination, the court exceeds its remedial powers when it continues supervision of programs that no longer alleviate the initial constitutional violation. This withdrawal may proceed in incremental stages, especially where it is found that the contributing factor to the re-segregation is a change in demographics which is beyond the control of the school board.

7. Concurrence Reasoning: [Scalia] proposed that the time had come to resolve what the court was going to do about terminating the temporary remedial measures, and reinstating the traditional principles of law which require proof of intent and causation. [Souter] indicated that it was possible that the school system’s policies contributed to the change in demographics, in which case, the remedial measures should remain in place. [Blackmun] agreed with Souter and was in favor of remanding the case for the school district to try to prove that the racially identifiable schools are in no way the result of past segregation.

8. Notes: In United States v. Fordice, the court held that the state had an affirmative obligation to dismantle the dual-standard university system as well as the elementary and secondary schools. Regardless of whether an independent and legitimate purpose now existed for the policies that were intentionally discriminatory in the past, they must be dismantled. Note that Justice Thomas felt that there may be a “sound educational justification” for preserving the predominantly black colleges that had done so much for blacks during the years of segregation. In Missouri v. Jenkins (1995), the court again stated that the lower court had exceeded its judicial power, this time in attempting to make one of the local schools spend a considerable amount of money to make it a “magnet school” in order to counteract the effects of white flight. Notably, Justice Thomas again stated that separate education by choice for blacks was not by definition inferior. The equal protection clause only protects from intentional discrimination by the state, not from imagined inferiorities of black educational establishments assumed by social science data studies.

 

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Frontiero v. Richardson

1. Frontiero v. Richardson, (1973)

2. Facts: The military had a practice of automatically allowing a dependence for wives, but females had to show that their husband was actually a dependent before getting dependent benefits. The government rationale was that since most women’s husbands are not dependent, but most men’s wives were, it was administratively convenient to put the burden on the wife of showing dependence.

3. Procedural Posture: Unknown.

4. Issue: Whether the practice violates the equal protection clause.

5. Holding: Yes.

6. Majority Reasoning: Sex is a suspect class. The nation has a long history of using the physical differences of the sexes, and the traditional dominance of men in society, to discriminate against women arbitrarily. Even people of different races were given more equality than women, and race has been made a suspect class. Since the sex characteristic frequently bears no relationship to the ability to perform or contribute, it deserves strict scrutiny. No law which has its basis in administrative convenience can withstand strict scrutiny.

7. Concurrence Reasoning: [Powell] stated that it was unnecessary in this case to characterize sex as a suspect classification because it could be easily decided on the authority of Reed. Also, the equal rights amendment was still pending, and this would represent a judicial pre-emption of the legislative function.

 

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Frothingham v. Mellon

1. Frothingham v. Mellon, (1923)

2. Facts: A federal taxpayer disagreed with the Treasury expenditures in a Congressional Act. She felt that it exceeded the general power of the Congress and thereby invade the province of the states under the 10th amendment.

3. Procedural Posture: The taxpayer filed suit challenging the act under the theory that as a taxpayer, she would have property taken without due process, because the expenditure would result in an increase, generally, in her taxes.

4. Issue: Whether a single federal taxpayer has standing to sue the federal government to prevent expenditures if her only injury is an anticipated increase in taxes.

5. Holding: No.

6. Reasoning: The taxpayer’s interest in the treasury money is shared with millions of others and is too small to determine. There are too many uncertain and fluctuating factors to determine the effect this act might have on one person’s taxes. Furthermore, to decide this case, where there is no controversy, would be to assume a position of review of the governmental acts of another co-equal department, an authority which the court does not possess.

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Garcia v. San Antonio Metro. Transit Auth.

1. Garcia v. San Antonio Metro. Transit Auth., (1985)

2. Facts: Garcia was a bus driver who worked overtime hours. Under the FLSA, the ∆, SAMTA, was required to pay a certain wage and comply with certain overtime standards. However, four months after the Supreme Court’s ruling in National League of Cities, that the FLSA did not apply to state government agencies “in areas of traditional government functions,” SAMTA notified its employees that the decision relieved it of its overtime obligations under the FLSA because a municipal public mass-transit system was traditionally a local government function, and therefore immune from FLSA.

3. Procedural Posture: Garcia sued for his overtime pay under the FLSA. The District Court found that a municipal operation of a mass transit system was a traditional government function, and thus under National League of Cities, is exempt from the FLSA wage and overtime obligations.

4. Issue: Whether Congress has the power, under the Commerce Clause, to regulate activities and functions that are “traditionally” an “integral” part of state government operations.

5. Holding: Yes. The fundamental limitation that the constitutional scheme imposes on Congress’ power under the commerce clause to protect “states as states” from intrusion by federal regulation is a procedural one to be found in the political process - states’ and citizens’ participation in federal governmental action.

6. Majority Reasoning: The test of National League of Cities [also the third prong of the test in Hodel], that Congress may not interfere with “traditional” state government functions, is unworkable. There is no meaningful way to determine what is a “traditional” or “integral” part of a state government’s function, and what is not. Such an approach has led to artificial results since its enactment. History is not a viable grounds for a determination because this prevents meaningful change when necessary, as well as being fairly arbitrary. Furthermore, it requires the unelected judiciary to review legislative decisions based on which policies it likes and dislikes. [This argument goes contrary to Marbury.] If Congress has a particular power, it does not matter whether it interferes with the laws of the states. To find limits on the commerce power, the constitution itself must be examined. Since there are no express limits, the constitution suggests that the structure of the federal government itself is the process by which it is regulated; i.e. by state representatives to the federal government. The states’ interests are best protected by their own representation in the federal government. Since the FLSA is a lesser burden on the states than many other Acts, it is evidence of the political pressures on the federal government to protect states’ rights. Thus, National League of Cities is overruled.

7. Dissent Reasoning: [Powell] reasoned that the majority rendered the 10th amendment [reservation of power to the states] meaningless. The “balancing test” of National League of Cities was best designed to protect the states while allowing the Congress proper power. The majority also failed to explain how the states’ role in the electoral process protects them in their capacity as states themselves. The fact that Congress does not generally exceed its constitutional limits to reach state activities does not make judicial review any less necessary on those occasions that it does. The States’ rights are a matter of congressional law, not legislative grace. Congress has passed increasingly more legislation of this type, while at the same time losing ground with its local constituents. This poses a danger for future stability of the federal government because it undermines the constitutional balance of power between the federal government and the states. Furthermore, it is clerks and aids who normally draft legislation, not the Senators themselves. Thus, the drafters are even one more step removed from the constituents who best know how to govern their local agencies. Since the FLSA is so economically intrusive, it clearly violates the “balance” established by National League of Cities.

8. Dissent Reasoning : [O’Connor] felt that the majority had backed down from the fight for states’ rights just when the states needed help from the Supreme Court. There is now a risk that Congress will gradually erase the diffusion of power between state and nation on which the Framers relied. Such a fear is not unwarranted given the amount of similar legislative activity in the last 30 years. The proper test should be weighing the states’ rights as a “relevant consideration” in determining the constitutionality of uses of the commerce power.

 

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Geduldig v. Aiello, (1974)

1. Geduldig v. Aiello, (1974)

2. Facts: California had a disability insurance plan that did not cover pregnancy.

3. Procedural Posture: Unknown.

4. Issue: Whether failing to provide disability insurance for pregnancy is a violation of equal protection.

5. Holding: No.

6. Majority Reasoning: The classification was not based on gender, as such. Thus, the rational basis standard is applicable. Although California has chosen to provide disability insurance, it has not chosen to pass on the expense of pregnancy to the whole state of employees. Under equal protection, the state can choose to do things one at a time. The state has a legitimate interest in keeping the cost of insurance down. There is no invidious discrimination here because the lawmakers have divided the state into two classifications, pregnant females, and non-pregnant persons. As such, both males and females are benefitted.

7. Dissent Reasoning: Dissimilar treatment of men and women based on physical characteristics tied to one sex is sex discrimination. Thus, the standard should have been the strict scrutiny of Frontiero. The state’s interest in preserving the fiscal integrity of the insurance program can nt render the states’ use of a suspect classification constitutional.

8. Notes: In Caban v. Mohammed, the court invalidated a New York law granting the mother but not the father of an illegitimate child the right to block the child’s adoption by withholding consent, by using the “intermediate” sex discrimination standard. The classifications were overbroad generalizations based on stereotypes of unwed mothers being closer to children than their fathers, and did not further the state’s interest in promoting adoption. However, the dissent [Stewart] stated that men and women were not similarly situated here, and so there was no equal protection violation. Also, in Parham v. Hughes, Stewart made the same analysis (in the majority this time) to reject a sex discrimination suit on a Georgia law that did not allow an illegitimate father the bring a wrongful death action for the death of his illegitimate child, reasoning that mothers and fathers of illegitimate children are not similarly situated.

 

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Gibbons v. Ogden, Part II

1. Gibbons v. Ogden, Part II (1824)

2. Facts: See above Part I.

3. Procedural Posture: See above Part I.

4. Issue: Whether a state has the right to pass laws which affect interstate commerce concurrently with that of Congress.

5. Holding: No.

6. ∏ Argument: The states may severally exercise the same power to regulate commerce within their respective jurisdictions as Congress has with regard to interstate commerce. The states possessed this right before the Constitution, and so it is reserved to them under the 10th amendment to the extent that Congress has not acted on it.

7. ∆ Argument: The full power to regulate interstate commerce rests with Congress. Thus, there is no residual power left to the states because the grant of the whole power is inconsistent with the existence of a residual power. The words “to regulate” require the grant of the full power.

8. Majority Reasoning: Marshall reasoned that a Congressional power could, in some cases, be concurrently exercised by the states. For example, the power to tax was shared by both Congress and the states. However, the power to regulate interstate commerce could not be shared because it is by its very nature, unsharable. The states still have the power to pass “police” laws, such as inspection and quarantine laws and the like which act upon a good in preparation for interstate shipment, but this is quite different from having the power to pass laws which actually regulate interstate commerce. Although the devices by which the power is exercised may appear to be the same between Congress and the states, that does not mean that the power is the same. Even if a state law encroaches upon a commerce area that the Congress has left untouched, the action necessarily interferes with Congress’ commerce power if it regulates interstate commerce. Thus, it is immaterial whether the state law was passed for local “police” purposes if it conflicts with Congress’ ability to exercise the commerce power. The law here is then unconstitutional under the Supremacy Clause.

 

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Goesaert v. Cleary

1. Goesaert v. Cleary, (1948)

2. Facts: A Michigan state law provided that no women could obtain a bartender’s license unless she was the wife or daughter of the male owner.

3. Procedural Posture: Challenged under equal protection.

4. Issue: Whether the law violates equal protection; i.e. whether women have a constitutionally protected right to choose to bea bartender.

5. Holding: No.

6. Reasoning: [Frankfurter] Michigan could ban all women from being bartenders if it wished. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards. Since there may be a reasonable and valid desire in the legislature to protect female bartenders, the court can not second-guess the legislature and decide that the real purpose here was for male bartenders to monopolize the industry.

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Goldberg v. Kelly

1. Goldberg v. Kelly, (1970)

2. Facts: A welfare recipient’s benefits were terminated without an evidentiary hearing.

3. Issue: Whether 14th amendment procedural due process required that a welfare recipient be afforded “an evidentiary hearing before the termination of benefits.”

4. Holding: Yes.

5. Majority Reasoning: [Brennan] Welfare benefits are a matter of statutory entitlement. They are not mere charity but a means to promote the general welfare. Thus, termination of benefits without a hearing may deprive an eligible recipient of his “liberty” and “property”.

6. Notes: In Bell v. Burson, a driver’s license was held to be an entitlement under state law, and so a state could not suspend a driver’s license without a hearing to determine fault in an accident.

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Graham v. Richardson

1. Graham v. Richardson, (1971)

2. Facts: A state law prohibited aliens from receiving welfare. The state justfication was their interest in preserving the minimal welfare resources for their own citizens.

3. Procedural Posture: Unknown.

4. Issue: Whether denial of welfare benefits to aliens is a violation of equal protection.

5. Holding: Yes.

6. Majority Reasoning: Classifications based on alienage are inherently suspect. Aliens are a prime example of a “discrete and insular” class. [But see Rehnquist’s dissent stating that alienage is not an immutable characteristic]. Also, the federal government has the supreme power to regulate the conduct of aliens - i.e. immigration, naturalization, and conduct before naturalization. Thus, there is an overriding federal interest in preempting this field.

7. Notes: In In Re Griffiths, the court struck down a Conn. law providing that only U.S. citizens could practice law there; and in Sugarman v. Dougall, struck down a New York law providing that only citizens could hold permanent civil service positions. However, Justice Blackmun added that the state does have some power, in an appropriate situation, to require citizenship as a prerequisite for office.

 

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Green v. County School Board

1. Green v. County School Board, (1968)

2. Facts: A small school district had a racially desegregated population, but the “freedom of choice” rule had done very little to promote desegregation of the schools. No whites had gone to the predominantly black school, and few blacks were attending the white school.

3. Issue: Whether the freedom of choice plan was an adequate compliance with the desegregation mandates of Brown II.

4. Holding: No.

5. Reasoning: The racial identification of the schools between white and black had remained completely intact. The goal of Brown was to transition to a single, non-racial school system. Clearly, the school board here has not acheived that goal. There has been too much delay in the implementation of Brown II remedies, and it is up to the school board to take more aggressive action. Freedom of choice is unacceptable because its practical effect is to maintain the status quo.

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Gregory v. Ashcroft

1. Gregory v. Ashcroft, (1991)

2. Facts: Missouri has a state constitutional provision that provides for the mandatory requirement of judges when they reach age 70. The Age Discrimination in Employment Act prohibits an employer from discharging an individual over the age of 40 for reasons of age. However, the Act expressly excludes from the definition of “employee” any “person elected to public office” or any “appointee on the policymaking level.” Judges in Missouri are first appointed by the Governor and then re-elected.

3. Procedural Posture: Unknown.

4. Issue: Whether the Age Discrimination in Employment Act may be applied to the mandatory retirement of Missouri judges.

5. Holding: No.

6. ∏ Argument: Missouri argued that the judges fell into the exception of the Act as being either elected or policymaking persons, and therefore exempt.

7. Majority Reasoning: Because of the delicate balance of federal vs. state power, and especially in light of the serious intrusion it would be into state power if the federal government were able to regulate the ages of their public officials, O’Connor held that Congress would be taken to have encroached on state power in this context only if there was a “plain statement” to that effect. This was necessary to preserve the Framer’s “dual sovereignty” notion of the power of the states being commensurate with the power of the federal government. Especially since the Court, in Garcia, had left protection of states’ rights primarily to the political process of elections, we must be absolutely certain that Congress intended such an exercise so that the Commerce Power is kept in check. Since the ADEA’s exclusion of most public officials is ambiguous, the Court would not interpret Congressional intent as being plain enough to effect such a broad exercise of power.

8. Concurrence Reasoning: The majority’s “plain statement” rule is “unwise”, “infeasible”, and “unnecessary to the proper resolution of this case.” It deviates from the standard set forth in Garcia, and there is no reason to think that the rationale of Garcia would be inapplicable here. However, there is no reason to consider this question, because as a matter of simple statutory construction, Missouri judges are exempted as “elected” or “policymaking” officials.

 

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Griggs v. Duke Power Co.

1. Griggs v. Duke Power Co., (1971)

2. Facts: A company had an employment screening procedure that required the applicants to take a general intelligence test and have a high school diploma. The practical effect was that fewer blacks were being hired, and the standards were not shown to have a predictive affect on job performance.

3. Issue: Whether, in a Title VII case, the giving of general intelligence tests and requiring a high school diploma for employment are violations of equal protection if the practical result is to statistically exclude more blacks than whites, and the tests do not have a demonstrated predictive affect on job performance.

4. Holding: Yes.

5. Reasoning: Artificial and unnecessary barriers to employment operate invidiously to discriminate against blacks. The motive of good or bad intent does not change the fact that the practical affect of the employment standards was discrimination against blacks. Congress intended to prevent the consequences of racially biased employment screens, not just the motivation behind them.

6. Notes: In Wards Cove Packing Co. v. Atonio, the court held that mere statistical data alone was not enough to show discriminatory effect of policies. The burden was on the plaintiff to show that qualified individuals were being discriminated against, and that the source of the unequal representation of races in the work force was due to the particular policy in issue, and not to other causes that are beyond the control of the employer. However, the dissent stated that the majority position would make it too difficult for legitimate claims to overcome the burden of proof. However, in Jefferson v. Hackney, the court rejected a de-facto challenge to a state welfare benefit calculation law (granting less “need” to AFDC recipients), stating that just because there were “naked statistics” showing more minorities in AFDC rather than other welfare programs, did not mean that the law violated the 14th amendment.

 

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Griswold v. Connecticut

1. Griswold v. Connecticut, (1965)

2. Facts: Griswold was the executive director of planned parenthood. He was convicted under a Connecticut statute that made it a crime to assist our counsel someone for the purpose of preventing conception.

3. Procedural Posture: The state appellate courts affirmed.

4. Issue: Whether the Connecticut law is a constitutional exercise of the state’s police power in view of the substantive due process of the 14th amendment.

5. Holding: No.

6. Majority Reasoning: The court distanced itself from Lochner, stating that they do not sit as a “super-legislature” to determine the wisdom and need of laws that touch economic or social conditions. However, this law operates directly on the intimate relationship between husband and wife. Although there are rights that are not specifically mentioned in the Bill of Rights, the court has held that they nevertheless are constitutionally protected. For instance the right to choice in education (Pierce v. Society of Sisters, Meyer v. Nebraska). These rights were derived from the 1st amendment right of free speech, which was held to include the freedom of thought and to teach. Without those peripheral rights, the express rights would be less secure. Thus, the 1st amendment has a “penumbra” (shadow) where “privacy is protected from governmental intrusion.” Likewise, the 3rd amendment prohibition against quartering of soldiers, and the 4th amendment prohibition of search and seizure, and the 5th amendment self-incrimination clause, all have a penumbra of privacy. The 9th amendment guarantees that the bill of rights is not to be construed as exclusive of other rights retained byt he people. This present case lies within the zone of privacy created by these guarantees.

7. Concurrence Reasoning: [Goldberg] The due process clause of the 14th amendment does not incorporate all of the Bill of Rights, but it does protect “liberty,” which is those personal rights which are fundamental, such as marital privacy. The 9th amendment itself, although it is not an independent source of rights incorporated by the 14th amendment, lends strong support. The entire fabric of the Constitution and the traditions it represents demonstrate that the marital right of privacy is of the same fundamental importance as the rights specifically enumerated. Where there is such a fundamental right being infringed, the state must show a “compelling” interest, not merely “rational relation.” The law here is an extremely bad means-ends fit because the state interest in preventing extra-marital relationships is not furthered by criminalizing contraception. [Harlan] felt that the proper analysis was whether this statute infringed on the due process clause of the 14th amendment because it violated basic values “implicit in the concept of ordered liberty” like Palko. The liberty here is so fundamental that it must be subjected to “strict scrutiny.”

8. Dissent Reasoning: [Black] felt that the word “privacy” was being substituted for “liberty”, thus he was afraid that the specific guarantees of the bill of rights were being too broadened. The government has a right to invade privacy unless prohibited by some constitutional provision. Broadening these guarantees has the danger of diluting them because the concept of “privacy” can be easily narrowed or broadened according to judicial subjectiveness. The court’s analysis here is too much like Lochner in its attempt to find a “natural law” basis for constitutional protections not found in the bill of rights.

9. Notes: 1. Although Justice Douglas disavows Lochner as a guide and instead relies on “penumbras” of the enumerated constitutional rights, Lochner’s “liberty of contract” could possible also be found in a “penumbra” of the contracts clause, thus there is not a significant distinction. 2. It is also unclear as to what the scope of the Griswold right of privacy is. It is probably narrower than a private “autonomy” of choice. In Eisenstadt v. Baird, the court took a further step in overturning a statute that prohibited the distribution of contraceptives (not just the “use”, as was the case in Griswold), even by unmarried couples (not just “married” couples as was the case in Griswold), thus broadening the scope of the right of privacy to include the right of an individual to be free from governmental regulation of birth choices. 3. Griswold does not reveal at what point a liberty becomes so fundamental as to deserve “strict scrutiny” rather than just “rational relation.”

 

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Heart of Atlanta Motel v. United States

1. Heart of Atlanta Motel v. United States, (1964)

2. Facts: The hotel had 216 rooms and was located within ready access to two interstate highways. It advertised in national media, and was a center for conventions of out of state guests. The hotel refused to rent rooms to African Americans.

3. Procedural Posture: The hotel brought a declaratory judgment action attacking the constitutionality of Title II of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race in places of “public accommodation,” and which grounded its authority primarily in the commerce power. The District Court upheld the Act, and the Hotel appealed.

4. Issue: Whether application of Title II of the Civil Rights Act of 1964 to a motel which serves interstate customers is within the constitutional power of Congress under the Commerce Clause.

5. Holding: Yes. “The determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is ‘commerce which concerns more States than one’ and has a real and substantial relation to the national interest.”

6. ∏ Argument: Congress did not have the power to legislate against moral wrongs under the guise of the Commerce Power. Even if they did, the operation of a motel is purely local in character, and thus does not affect interstate commerce.

7. ∆ Argument: Discrimination by hotels has a significant effect on interstate commerce by deterring African Americans to travel.

8. Majority Reasoning: There is ample evidence in the Congressional record that discrimination by places of public accommodation impair African-Americans’ ability to travel, thus affecting interstate commerce. Thus, the Act passed the test of “commerce which concerns more States than one,” and discrimination had a substantial relation to the national interest. The court then listed several examples of factual scenarios where the Congress had legitimately exercised the commerce power to police activities which were both immoral and had an adverse affect on interstate commerce. “That Congress was legislating against moral wrongs...rendered its enactments no less valid.” Furthermore, “if it is interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze.” Thus, the commerce power encompasses the regulation of local activities that have an affect on interstate commerce.

 

 

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Houston E. & W. Texas Ry. Co. v. United States (The Shreveport Rate Case)

1. Houston E. & W. Texas Ry. Co. v. United States (The Shreveport Rate Case), (1914)

2. Facts: The railroad had rail lines both within Texas, and between Texas and Louisiana. As an incentive to promote Texas suppliers to sell to Texas manufacturers, the railroad maintained lower rates for traffic within the state of Texas, while charging disproportionately high rates for traffic to Louisiana.

3. Procedural Posture: The Interstate Commerce Commission (ICC) set rates for the transportation of goods from Texas to Louisiana, and ordered the railroad to end its discriminatory practice of maintaining lower rates for traffic within the state. The railroad challenged that order, appealing to the Supreme Court.

4. Issue: Whether Congress, through the ICC, has the power to set the intra-state railroad cargo rates of a carrier that has both intra-state and inter-state lines, if such intra-state rates represent an unjust discrimination against inter-state commerce.

5. Holding: Yes. “Whenever the interstate and intrastate transactions of carriers are so related that the government of one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority.”

6. ∏ Argument: Congress has not power to regulate the intra-state rates.

7. ∆ Argument: Congress has the power to regulate intra-state rates if they affect interstate commerce.

8. Majority Reasoning: Congressional authority extends to interstate carriers as instruments of interstate commerce. This necessarily includes the right to control all of their operations that have a “close and substantial” affect on interstate commerce. The fact that the carrier has intra-state business as well does not diminish Congress’ power to regulate the interstate portion by preventing injury to it. Otherwise, the commerce power would have no bite among carriers with both lines. Furthermore, Congress had the power to affect the intrastate lines in other areas, such as safety because it also had an interstate commerce component. Thus, Congress has the power to foster and protect interstate commerce, and to take all measures necessary and appropriate to that end, although intrastate transactions may be thereby controlled.

9. Notes: The “current of commerce” notion has also been invoked as a practical consideration to allow Congress to regulate portions of interstate commerce that appear to be solely intrastate. In Stafford v. Wallace, the Supreme Court held that individual purchases by middlemen of meat destined for the cities was a part of the “current of commerce.” The purchase by the middlemen was local to the state that they were in, but they were simply a part of a greater flow of meat from the West to the East. The many transactions, viewed as a whole, represented interstate commerce on a major scale. If the middlemen were unregulated, their actions could become an obstacle to free trade.

 

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INS v. Chadha

1. INS v. Chadha, (1983)

2. Facts: A section of the Immigration and Nationality Act provides that the Attoryney General could suspend the deportation of a deportable alien if the alien met specified conditions and would suffer “extreme hardship” if deported. However, the act also had a provision which provided for legislative veto by one house if the Congress disagreed with the Attorney general’s decisions as to any particular alien. Chadha was an Indian whose education was not yet complete, but whose Visa had run out.

3. Procedural Posture: The Court of Appeals found that the provision was unconstitutional as a violation of separation of powers.

4. Issue: Whether the one house legislative veto provision in the act was unconstitutional as a violation of separation of powers since it did not provide for bicameral support or presentation to the President.

5. Holding: Yes.

6. Majority Reasoning: [Burger] The fact that a given law is efficient will not save it if it is contrary to the constitution. The constitution is very explicit about its grant of powers among the executive and legislative branches. The framers were very clear that it was paramount that the legislative power require bicameral support and presentation to the President (except for some minor exceptions not relevant here). The act is primarily legislative in nature. Although it delegates some broad legislative authority to the executive branch, it is no less legislative. As such, it requires bicameral support and presentment.

7. Concurrence Reasoning: [Powell] felt that Congress was acting in a judicial role in providing for judicial-type review of the actions of the executive branch.

8. Dissent Reasoning: [White] felt the majority opinion was too broad because it read on all legislative vetoes, which weren’t implicated by the present fact situation. The power to exercise legislative veto is not the power to write new law without bicameral support or presidential consideration. The veto must be authorized by statute and may only negative what an Executive deparment agency has proposed.

 

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Kahn v. Shevin

1. Kahn v. Shevin, (1974)

2. Facts: A state property tax exemption existed for widows, but not for widowers.

3. Procedural Posture: Unknown.

4. Issue: Whether the “benign” gender classification in favor of women promoted by the state statute is a violation of equal protection, and under what standard should the court scrutinize it.

5. Holding: No. Rational basis.

6. Reasoning: The law was easily sustainable because it rested upon some ground of difference having a “fair and substantial relation” to the subject of the legislation. Laws designed to rectify the effects of past discrimination against women are justifiable.

7. Dissent Reasoning: [Brennan] urged “close judicial scrutiny” of even benign gender classifications. Although the law served a “compelling governmental interest,” the classification was not narrow enough to effect that interest alone. Less drastic means were available to remedy the history of discrimination, i.e. the state could have limited the exemption to only those widows who needed it.

8. Notes: In Orr v. Orr, by applying intermediate scrutiny, the court struck down laws which authorized the Alabama courts to impose alimony obligations on husbands but not wives. Since alimony hearings were already being conducted, they could also be used to determine the wife’s obligations, if any. The law was based on prohibited stereotypes. However, in Califano v. Webster, also under intermediate scrutiny, the court upheld a benign gender classification that allowed women to discard three more of the lower-paying employment years than men when determining social security benefits, as a legitimate way of redressing the past effects of discrimination against women in their wages. However, in Schlesinger v. Ballard, the court upheld a difference in promotional standards between male and female Naval Officers, stating that the male and femal officers were not similarly situated. In Weinberger v. Wiesenfeld, the court invalidated a social security provision that paid death benefits to the widow and children in case of the father’s death, but only to the children in case of the mother’s death, finding that it actually discriminated against women by providing them less post-death benefits than a similarly situated male. Similarly, in Califano v. Goldfarb, the court struck down a similar statute that required the widower to show that he got at least half of his support from his deceased wife in order to obtain her death benefits.

 

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Katzenbach v. McClung

1. Katzenbach v. McClung, (1964)

2. Facts: Ollie’s BBQ was a family-owned restaurant in Birmingham that seated 220 customers and was located on a state highway near an interstate highway. The restaurant received about $70,000 of food, mostly meat, in interstate commerce annually. However, it refused to serve African Americans inside its dining facility. They could only order take-out.

3. Procedural Posture: The restaurant brought this action [a sister action to Heart of Atlanta] to challenge the constitutionality of Title II of the Civil Rights Act as it related to restaurants. The District Court found that the Act provided no basis for relating the operations of a local restaurant to interstate commerce, and thus issued an injunction restraining the Act from being enforced against the restaurant, concluding that it would lose substantial business.

4. Issue: Whether such part of Title II of the Civil Rights Act that prohibits discrimination on the basis of race in restaurants which serve interstate travelers or which serve food a substantial portion of which has moved in interstate commerce is constitutional.

5. Holding: Yes.

6. ∏ Argument: There is no basis for believing that racial discrimination in local restaurants has any affect on interstate commerce. Congress has merely created a conclusive presumption that it does, without making formal findings in the record that support such an assertion. The government should be required to show the connection to interstate commerce on a case-by-case basis. The volume of food served at Ollie’s BBQ prohibits such a finding.

7. ∆ Argument: Racial discrimination in restaurants has an affect on interstate commerce because it deters African Americans from traveling, thus reducing business overall.

8. Majority Reasoning: Although there were no formal findings made by Congress, the testimony contained ample evidence to support a finding that racial discrimination in restaurants had an adverse affect on interstate commerce. For instance, by deterring travel by African Americans, the whole business climate suffers for lack of customers. Also, discrimination puts an artificial restriction on the free flow of goods. The wide unrest over the discrimination has a depressant effect on local businesses making new investment and expansion unfavorable in such a depressed business climate. Following Wickard, local activities can be said to have a substantial effect on interstate commerce when viewed in “aggregation.” Racial discrimination is not merely a local problem. As an “aggregation” it is a nationwide problem. Thus, it exercises a substantial economic effect on interstate commerce. The lack of formal findings to that effect were not fatal to the Act because there existed enough evidence to conclude that Congress had a rational basis for “finding a chosen regulatory scheme necessary to the protection of commerce.” The Court needed to do no further examination to second-guess Congress’ judgment in the light of such evidence.

9. Concurrence Reasoning: Douglas was reluctant to base his opinion entirely on the Commerce Clause because he felt that the human rights issue at stake was more consequential than the commerce clause could justify. Thus, he would also support the reasoning under the equal protection clause of the fourteenth amendment because it seemed a much more appropriate grounds for anti-discrimination protection.

10. Notes: Five years later in Daniel v. Paul, Justice Black was the sole dissenter against application of Title II of the Civil Rights Act to the Lake Nixon Club in Arkansas. The club had a snack bar that refused to serve African Americans, and a substantial portion of the food served at the snack bar had traveled in interstate commerce. However, Black felt that the Act would be justifiable if based on the Fourteenth Amendment, but he did not feel that there was an adequate relationship between this snack bar and interstate commerce. He was afraid that this finding would stretch the commerce power to regulate any “remote country place of recreation in every nook and cranny of every precinct and county” everywhere.

 

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Kelley v. Johnson

1. Kelley v. Johnson, (1976)

2. Facts: Kelley was a police officer who wanted to wear his hair in a length and style contrary to local police standards.

3. Procedural Posture: Kelley brought an action to invalidate the local regulation. The lower courts sustained the attack, requiring the police department to establish a “genuine public need” for the regulation.

4. Issue: Whether a regulation of police officer’s personal appearance is constitutional.

5. Holding: Yes.

6. Majority Reasoning: Rehnquist applied a much more deferential standard of review ot the regulation - “rationality.” The liberty interest of personal appearance is distinguishable from that involved in Roe. Even if ther 14th amendment protected a liberty interest in personal appearance, it is outweighed under the rationality standard by the public interest in maintaining police officers readily recognizable to the public by providing uniform standards of appearance. Although a like regulation of the general public might be too intrusive, Kelley was not a “member of the citizenry at large.”

7. Dissent Reasoning: The dissent reasoned that the regulation did not pass even the rational relation standard because an individual’s personal appearance is central to personal autonomy and integrity.

 

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Korematsu v. United States

1. Korematsu v. United States, (1944)

2. Facts: Shortly after the bombing of Pearl Harbor, the president issued an order allowing the military commanders to exclude persons of Japanese ancestry from areas identified as military areas.

3. Procedural Posture: Korematsu was convicted of violating the exclusionary laws.

4. Issue: Whether classification and exclusion based on Japanese ancestry during the WWII was a violation of equal protection.

5. Holding: No.

6. Majority Reasoning: All legal restrictions that curtail the civil rights of a single racial group are immediately suspect, triggering the “most rigid scrutiny.” There must be a “pressing public necessity” for the classification. Here, it was impossible to segregate out the loyal from the disloyal persons, so exclusion of the whole class was justified due to the public dangers involved. The Congress has given the power to the military to make these military based decisions. They are not based on racism.

7. Dissent Reasoning: [Murphy] Contended the the racial classification was not even rationally related to the end of protecting from invasion because it was over inclusive. It is an unreasonable assumption that all persons of Japanese ancestry have the capacity to engage in espionage. The Army had the more effective alternative, which would accord with due process, to hold individual loyalty hearings to determine who was a risk. [Jackson] felt that the decision was even more onerous. A military commander may breach the constitution temporarily every now and then, but for the Supreme Court to rationalize it is to make racism part of the Constitutional doctrine, ready to be used in the future by anyone who can show military expediency.

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Levy v. Louisiana

1. Levy v. Louisiana, (1968)

2. Facts: A state law prohibited unacknowleged illegitimate children the right to recover for the wrongful death of their mother. The state justification was administrative simplification of proceedings by relying on “formal papers.”

3. Issue: Whether the law violated equal protection.

4. Holding: Yes.

5. Majority Reasoning: [Douglas] The test is rational basis, but the court has been extremely sensitive when it comes to basic civil rights. There is no reason that the tortfeasor should go unpunished just because the mother had illegitimate children rather than legitimate ones. It is invidious to discriminate against the illegitimate child when his characteristics have no relation whatsoever to the nature of the harm inflicted on the mother.

6. Dissent Reasoning: [Harlan] The interest that one person has in another’s life is inherently intractable. Thus, the state may justifiably and rationally define eligible wrongful death plaintiffs in terms of their legal, rather than biological relation to the deceased.

7. Notes: Three years later in Labine v. Vincent, the court distinguished Levy, and upheld a law, under the rational basis test, that subordinated the intestate succession rights of an acknowleged illegitimate child to those of other relatives of the parent. However, the court followed Levy in Weber where the death benefits from a workmen’s compensation law could not be subordinated to the claims of legitimate children. In Matthew v. Lucas the court upheld a social security benefits law which made benefits harder to get for surviving illegitimate children, distinguishing all prior illegitimacy cases, and stating that illegitimacy was not “an obvious badge” like race or sex.

 

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Lochner v. New York

1. Lochner v. New York, (1905)

2. Facts: Lochner was convicted under a New York law prohibiting bakery employees from working more than 10 hours per day or 20 hours per week.

3. Procedural Posture: Lochner borught this action to attack the New York bakery labor law.

4. Issue: Whether the New York law was a constitutional regulation of health and safety of a workplace under state police power.

5. Holding: No.

6. ∆ Arguments: The state has an interest in the health and safety of both the bakery workers as well as the quality of the bread that they make. Thus, these laws were passed under a valid exercise of the state’s police power.

7. Majority Reasoning: The statute necessarily employs with the right of contract between the employer and employee. Thus, the power of the state to police the “liberty” of the individual to contract, which is protected by the 14th amendment (See Allgeyer), must be balanced against the state’s interest. There is a limit on the police power of the states. Thus, the question is whether this law is a reasonable exercise of the police power or an arbitrary interference with the right of personal liberty to contract as he sees fit. There is no reasonable right to interfere with the liberty to contract by determining the hours of a baker. This law does not involve safety of the baker, who in contrast to a miner is as a class intelligent, is not threatened by his power to negotiate hours of employment. The state’s justification for this law under health and safety is a pretext because the public interest is not sufficiently affected by this act. There is no demonstrable causal link between labor hours of a baker and the quality of his product or his own health.

8. Dissent Reasoning: [Harlan] felt that the people of New York had decided that the health of an average man is endangered if he works more than 60 hours per week. Whether or not this is wise is not a question for the court to inquire. The only question for the court is whether the means devised by the state are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health of bakers. Common experience tells us that there is a logical relationship. There is abundant evidence that the workplace of a baker is hazardous to his health. Clearly, this is not a plain invasion of rights secured by “fundamental law.”

9. Notes: Lochner is criticized as being an overly broad interpreteation of the word “liberty” in the 14th amendment. At common law, liberty meant freedom from physical restraint, and it did not include “freedom of contract” as held in Lochner. Also, Lochner seemed to read the terms “property” and “due process” very broadly to cover contractual rights.

 

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Loving v. Virginia

1. Loving v. Virginia, (1967)

2. Facts: A Virgina statute prohibits interracial marriages between whites and blacks. The appellants are an interracial couple who went to D.C. to get married and then returned to Virginia.

3. Procedural Posture: Appellants were convicted, but the trial judge suspended their sentence for 25 years on the condition that they leave Virginia and not return together for 25 years.

4. Issue: Whether forbidding interracial marriages is a violation of the equal protection clause.

5. Holding: Yes.

6. ∆ Argument: The meaning of equal protection is that state penal laws must apply equally to whites as well as blacks in the sense that each member is punished equally. The intent of the framers of the 14th amendment does not show that they intended to make miscegenation laws unconstitutional.

7. Majority Reasoning: This law is based on the promotion of white supremacy, and the purity of the white race. There is no support in the historical context for the proposition that equal protection meant only that penal laws must apply equally to both races. The racial classification here triggers the “most rigid scrutiny”, meaning that they must be shown to be necessary to the accomplishment of some permissible state objective. There is no legitimate purpose here. Restricting the freedom to marry based on racial classifications violates the central meaning of equal protection.

8 Concurrence Reasoning: [Stewart] “ it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.”

 

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Lucas v. South Carolina Coastal Council

1. Lucas v. South Carolina Coastal Council, (1992)

2. Facts: Lucas bought some beachfront property in 1986 for $975,000, intending to build single-family residences on it. At the time he bought is, a coastal zone management statute was in effect which regulated the use of certain “critical areas” in the beachfront areas, but Lucas’ property was not a “critical area.” However, in 1988, the state passed another beachfront management act which completely forbade construction seaward of a “baseline” marked by the highest points of erosion in the last 40 years. Unfortunately, Lucas property was seaward of the baseline, and so he could not build his residential houses on it.

3. Procedural Posture: Lucas brought an action for compensation, claiming that regardless of whether the legislature had acted legitimately in furtherance of some police power objective, he was entitled to compensation. The trial court agreed, finding that the statute deprived Lucas of “any reasonable economic use of the lots...rendering them valueless.” The Supreme Court of Carolina reversed, finding that when a regulation respecting the use of property is designed “to prevent serious public harm”, no compensation is owing regardless of the regulations effect on the property’s value.

4. Issue: Whether the 1988 beachfront management statute was a taking under the 5th amendment, thereby entitling Lucas to compensation.

5. Holding: Yes.

6. Majority Reasoning: [Scalia] first rejected the contention that since the state had amended the statute to provide for special permits, that Lucas was still able to apply for this permit, thus making the action “un-ripe.” Even if he won a special permit, there is still a “temporary” taking until he does. There are two discrete categories of regulatory action that are compensable without looking at the particular facts - 1) physical “invasion” of property, and 2) denying all economically beneficial or productive use of land. Regulations that leave the owner of land without economically beneficial or productive options for its use carry with the the heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. However, “harm preventing” and “benefit conferring” definitions can be made as support of either side of the controversy. It is not critical that the legislature have found the regulation to be “harm-preventing.” The appropriate inquiry is whether the regulation deprives the owner of the land of rights that were part of his legal title; i.e. that were not a nuisance or proscribed under normally property law. All total regulatory takings of land must be compensated unless the use would be a common-law nuisance anyway. Here, the land use was lawful, and it can not be said that there was some “implied limitation” on Lucas’ use of the land for residential houses.

7. Concurrence Reasoning: [Kennedy] reasoned that land is bought and sold all the time with knowledge that it is subject to the state’s power to regulate. Where there is a taking alleged from regulations which deprive property of all value, the test must be whether the deprivation is contrary to reasonable, investment-backed expectations.

8. Dissent Reasoning: [Blackmun] reasoned that there was no significant taking here, and certainly not a total deprivation of economic value. The court has unwisely gone against the precedent that the state has the power to prevent any use of its property that it finds harmful, and that the state statute is entitled to a presumption of constitutionality. The state made findings tjat this was to prevent harm, and the court can not simply disregard them. Also, the new rule that the court fashions - “deprivation of all econaomically feasible use” itself cannot be determined objectively. Finally, the court’s exception for nuisance is confusing.

9. Dissent Reasoning: [Stevens] The court has unwisely departed from the precedent of Mahon which required a look at the individual facts in each case. The question of a taking is one of degree, and so requiring the dimunition in value of the land to be total is too rigid and too narrow. The generation of a general proposition that “total regulatory takings must be compensated” as a categorical rule is an unwise approach to takings cases.

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Marbury v. Madison

1. Marbury v. Madison, (1803)

2. Facts: Marbury was one of the famous “midnight judges” whose commission had been signed by the Secretary of State (Marshall), but had not been delivered before the morning that Jefferson took office.

3. Procedural Posture: Marbury went directly to the Supreme Court to compel Jefferson’s Secretary of State (Madison) to deliver their commissions.

4. Issue: Whether the Supreme Court has the power to review the legislative acts of the Congress to determine their constitutionality.

5. Holding: Yes.

6. Majority Reasoning: Marshall stated that Marbury had a right to his commission once it was signed. Further, Section 13 of the Judiciary Act of 1789 gave the supreme court the right to issue a writ of mandamus against persons holding office. Thus, it would appear that Marbury has a remedy. However, Article III Section 2 of the Constitution states that the supreme court shall have original jurisdiction in cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party,” and “in all other cases,...shall have appellate jurisdiction.” Since a writ of mandamus is an original action, Section 13 of the Judiciary Act must be contrary to the constitution, because it allows the Supreme Court to hear cases of original jurisdiction for persons besides ministers, consuls and ambassadors, etc. If the constitution is the supreme will of the people to limit government, then the legislature can not alter it at will. Thus, the legislature can not be allowed to pass laws repugnant to the constitution. Since it is the Supreme Court’s role to interpret laws and resolve conflicts between competing laws, and the Constitution is the supreme law of the land, then the Supreme Court has the power to interpret the Constitution and decide if a law passed conflicts with it.

 

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Marsh v. Alabama

1. Marsh v. Alabama, (1946)

2. Facts: Marsh, a jehovah’s witness, was convicted of trespassing when she passed out religious fliers in the company-owned town of Chicksaw against the corporate owner’s permission.

3. Procedural Posture: Marsh challenged the conviction under the 1st amendment right to free speech, and the corporation defended on the ground that the owner of private property has a privacy interest in excluding persons and behavior that he does not desire.

4. Issue: Whether the conviction violates the 1st amendment, even though the town is privately owned.

5. Holding: Yes.

6. Reasoning: The company town was only different from other towns in that the title was privately owned. The owner, for his own advantage, had opened up his property for use by the public in general, and thus his rights are limited by the constitutional rights of those who use the property. Since these facilities are built and operated primarily to benefit the public, and since their operation is “essentially a public function,” it is subject to state regulation. Here the activity was sufficiently state-like to balance the interests of the owner against the constitutional rights of the user.

7. Notes: Marsh was eventually limited to its facts because of the difficulty in maintaining the argument that a private property owner was serving a sufficiently public function. However, it served as an alternate grounds for the decision in Evans v. Newton, in which a privately owned park was forbidden to exercise racial discrimination since the “service rendered by a private park of this character is municipal in nature.” In Jackson v. Metro Edison, the Court refused to extend the public function doctrine to the actions of a privately owned utility licensed and regulated by a state public utilities commission. Rehnquist noted that there was no state action present, even though the utility was state regulated, because utility provision was not a function traditionally exclusively reserved to the state. Also, the Court rejected a state action attack in Flagg Bros., Inc. v. Brooks, holding that a warehouseman’s proposed sale of goods entrusted to him for storage to satisfy a warehouseman’s lien under the UCC did not constitute state action.

1. Shelley v. Kraemer, (1948); pg. 899, briefed 4/6/96

2. Facts: A 1911 covenant signed by the private property owners in a residential neighborhood to exclude blacks and asians for 50 years. Petitioners are blacks who purchased houses from white owners despite the racial covenant.

3. Procedural Posture: The respondents brought a successful state action to enforce the covenant.

4. Issue: Whether private property covenants that would violate the 14th amendment if enacted as law are nevertheless void under the 14th amendment if enacted by private persons and enforced by the state.

5. Holding: Yes.

6. Reasoning: Although the covenants would not be violative of equal protection if they were solely private in nature, here there is more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. State action refers to all exertions of state power.

7. Notes: In Barrows v. Jackson, the Court used Shelley to block enforcement of a restrictive racial covenant by instituting a suit for damages [rather than absolute exclusion as was the case in Shelley]. However, in Evans v. Abney, the Court refused to extend Shelley to cover the case where a park had been willed in trust to the city for operation as “whites only.” The court rested its decision on the fact that the trust was void for inability to give effect to the donor’s intent, and thus the property reverted to the donor’s heirs. However, in Pennsylvania v. Board of Trusts, the Court held that a board of trustees made up of government officials could not constitutionally exclude blacks from a college that was donated in trust under the condition that it be white only, and that substituting private trustees for the government officials was no more constitutional. In Bell v. Maryland, the court split 3-3 on whether Shelley should apply to prevent enforcement of trespassing laws to prosecute black sit-in protestors when the private owner of the restaurant personally discriminated against black patrons.

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Martin v. Hunter’s Lessee

1. Martin v. Hunter’s Lessee, (1816)

2. Facts: Fairfax, a British loyalist, owned land in Virginia. A Virginia state law provided for the seizure of Fairfax’s lands prior to 1783. Virginia granted the land to Hunter. Martin was the inheritor of the land from Fairfax. Martin claimed that the Peace Treaty of 1783 and the Jay Treaty of 1794 protected the land from seizure.

3. Procedural Posture: The Virginia court, in the original case, found for Hunter The Supreme Court reversed, ordering the Virginia court to enter judgment for Martin under the authority granted by Section 25 of the Judiciary Act which gave the Supreme Court the power to review final decisions of the highest state courts rejecting claims based on federal law. The Virginia state court refused to comply with the order, claiming that Section 25 was unconstitutional, and the Supreme Court had no constitutional right to review the final decisions of the state courts. The case is again being reviewed by the Supreme Court.

4. Issue: Whether Section 25 of the Judiciary Act of 1789 is constitutionally valid, giving the Supreme Court the right to review the final decisions of state courts rejecting claims based on federal law.

5. Holding: Yes.

6. ∏ Argument: Without Supreme Court review of state court decisions, there will be no other mode by which Congress can extend the judicial power of the United States to cases of federal cognizance which arise in the state courts, resulting in non-uniformity of decisions among states.

7. ∆ Argument: The constitution does not provide explicitly for Supreme Court review of state court decisions. Since it must have been foreseen by the drafters that conflicts would arise, the omission is evidence that the framers felt that such a powerful tribunal would produce evils greater than those of the occasional collisions which it would be designed to remedy. Thus, once an action is brought in state court, the federal court’s sole remedy is to shift it to a lower federal court before it gets to the final court of the state, or simply to advise the high state court that they have improperly interpreted the constitution. The states are dually sovereign with the federal government, and not subject to the laws of Congress which limit their sovereignty.

8. Majority Reasoning: In Article III, the Supreme Court is given the judicial power which “shall extend to all cases.” Thus, it is the nature of the case and not the court of origin that determines whether the Supreme Court has appellate jurisdiction. The Supreme Court appellate power is not limited only to cases that come up through the lower federal courts. Also, the Constitution was designed to operate upon the states themselves, and not just the persons within the states. Thus, the states themselves are not equal sovereigns with the federal government, but rather subject to its law-making capability. Furthermore, even if the state courts do not abuse the power of the constitution, they are likely to rule differently on it from state to state. Thus, the need for uniformity in decisions requires an ultimate single court of last resort which exercises review over all states. Lastly, there is substantial historical evidence that the framers intended Supreme Court review of state court decisions, as well as several previous cases which do so.

 

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Massachusetts Bd. of Retirement v. Murgia

1. Massachusetts Bd. of Retirement v. Murgia, (1976)

2. Facts: Mass. had a law that provided for mandatory retirement of police officers upon reaching age 50. The stated purpose was the protection of the public by assuring that police officers are physically fit.

3. Procedural Posture: Unknown.

4. Issue: Whether classification of police officers by age is a violation of the equal protection clause.

5. Holding: No.

6. Majority Reasoning: Age is not a suspect classification for police officers, and so strict scrutiny is not triggered. Thus, the more relaxed rational basis test will be applied. Classification by age is not perfect in deciding who is physically fit to be a police officer, but perfection is not required. Age bears a rational relationship to fitness, and so the law is valid. The fact that the state does not use individual testing instead of an across-the-board mandatory retirement does not make the law irrational, only imperfect.

7. Dissent Reasoning: [Marshall] felt that the two-tier approach was too rigid because it forced the court to choose rational relationship test too often when the cases did not arise to the level of strict scrutiny. A sliding scale approach would be better, which focuses on the relative interests of the persons being discriminated against, and the legislature’s purpose.

8. Notes: In Vance v. Bradley, the court was deferential to the legislature in upholding mandatory retirement of Foreign Service personnel at age 60. Even though the classification was both under-inclusive and over-inclusive, the court stated that the burden was on the challenger to show that the legislative facts on which the classification is based could not reasonably be believed to be true by the legislature.

 

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McCulloch v. Maryland

1. McCulloch v. Maryland, (1819)

2. Facts: In 1816, Congress chartered the Second Bank of the United States, which became active in Maryland. In 1818, the Maryland legislature passed an Act to tax any bank not chartered by the Legislature of Maryland, thus taxing the U.S. Bank. The law provided for private remedies against the bank operators, of which, one was McCulloch.

3. Procedural Posture: The trial court entered judgment on the basis of an agreed statement of facts (that the U.S. Bank was not chartered by the Maryland legislature), and the Maryland Court of Appeal affirmed. An appeal was taken by writ of error to the Supreme Court.

4. Issue: 1) Whether Congress has the power to incorporate a bank; and 2) Whether the state of Maryland may, without violating the constitution, tax the U.S. Bank.

5. Holding: 1) Yes. 2) No.

6. ∏ Argument: Although Congress does not have the enumerated power to incorporate a bank, such power is implied by the “necessary and proper” language of Article I Section 8.

7. ∆ Argument: Congress not only does not have the enumerated power to incorporate a bank, but furthermore only has the powers that the states, as independent sovereigns, give to it. This is evidenced by the “necessary and proper” language which should be construed to be a limit on Congressional power, implying only strict necessity.

8. Majority Reasoning: Marshall first noted that the Congressional power established by the Constitution originates from the people, not the states. Article II should be read in light of the previous Articles of Confederation, which were unworkable because of their strict limitations on express Congressional power. The Constitution, by nature, must be general in order to adapt to unforeseen circumstances. Thus, there must be some implied powers to allow Congress to exercise the broad range of express powers given as means to ends. The language “necessary and proper” should be construed to mean “convenient, or useful, or essential” not as things that are absolutely necessary, otherwise the word “proper” would be superfluous, and there would be no need to include the word “absolutely” in the enumeration of powers to the states. The “necessary and proper” language is included among the power of Congress, not the limitations, and so should be read as enlarging the scope of Congress’ powers. All means which are appropriate and plainly adapted to the exercise of enumerated powers are constitutional, not just those that are strictly necessary. As to whether Maryland could tax the federal bank, the power to tax something is the power to destroy it. Since the states are necessarily inferior to the federal government, the states do not have the power to “destroy” (by taxing) the federal government. The people did not design to make their federal government dependent on the states.

 

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Michigan v. Long

1. Michigan v. Long (1983)

2. Facts: Long was arrested, and alleged that his search and seizure rights had been violated.

3. Procedural Posture: The Michigan State Supreme Court ruled that the police search did violated the Fourth Amendment and the Michigan Constitution’s own search and seizure laws.

4. Issue: Whether the Supreme Court has jurisdiction to review state court judgments which concern federal issues, and which are not clearly based on an adequate and independent state law grounds.

5. Holding: Yes. If the state court decision does not] indicate clearly and expressly by means of a “plain statement” that it is alternatively based on bona fide separate, adequate, and independent grounds the Supreme Court has appellate jurisdiction to review the state court ruling.

6. Majority Reasoning: O’Connor stated that the Court must assume that there are no adequate grounds when it is not clear from the opinion that there were, and the opinion appears to rest primarily on federal law. It was necessary out of respect for the independence of state courts that the presumption of adequate state grounds go against the states so as to promote clarity, thus avoiding excessive remands and advisory opinions. This promotes uniformity in the states interpretation of federal law.

7. Dissent Reasoning: Stevens stated that it would be better to give the presumption for adequate state grounds to the state, because of historical concerns of judicial restraint. The Supreme Court should not be involved unless there is a reason to vindicate the federal rights of a party. A presumption against independent state grounds would have the Court expounding their understanding

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Milliken v. Bradley

1. Milliken v. Bradley, (1974)

2. Facts: A particular urban school district in Detroit was found to have de jure segregation. There were other school districts in the suburban areas.

3. Procedural Posture: The lower court found that the appropriate remedy would be interdistrict in nature, including busing of suburban outlying school districts. They based this holding on the notion that school district lines were a matter of political convenience, and may not be used by the state to deny constitutional rights.

4. Issue: Whether the remedy for unconstitutional de jure segregation found in a particular public school district may include busing the suburban school districts also.

5. Holding: No.

6. Majority Reasoning: The scope of the lower court’s remedy exceeded the scope of the constitutional violation. The remedy must not be interdistrict if the violation was not interdistrict. Since only one particular school district was found to have de jure segregation, it was the only district to which remedies were appropriate. There was no finding that the other school districts contributed to the segregation.

7. Dissent Reasoning: [Marshall] The decision of the majority emasculates the equal protection. Where de jure segregation is found, it is the duty of the court to eliminate it “root and branch” which requires the greatest degree of actual desegregation. There is no reason why the drawing of the school district lines should sheild the state. [White] stated that the result is that the state can sheild itself from constitutional attack by vesting more power in its individual school districts. The majority’s plan will result in even more white flight.

8. Notes: However, in Hills v. Gautreaux, in deciding that the court could validly take remedial measures against HUD beyond the city boundaries, the court stated that nothing in Miliken suggests a per se rule that federal courts lack the power to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occured. In Missouri v. Jenkins, the court held that the remedy of directly imposing taxes on a school district’s resident in order to finance the desgregation was beyond the limit of their power unless no other alternative existed. However, the court could allow the school district to impose its own taxes, and enjoin any state laws that would prohibit such a levy. In Spallone v. United States, the court held that personal contempt orders against city council members for refusing to implement a desegregation plan could not be upheld, although contempt orders against the city itself were permissible.

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Mills v. Habluetzel

1. Mills v. Habluetzel, (1982)

2. Facts: A Texas law required that a paternity suit to identify the natural father of an illegitimate child for the purpose of obtaining child support must be brought before the child was one year old. The nominal state purpose was to prevent fraudulent claims later in life by the children.

3. Issue: Whether the law violated equal protection.

4. Holding: Yes.

5. Majority Reasoning: [Rehnquist]The support opportunity provided by the state [i.e. benefits depend on a paternity hearing] must be more than illusory. The law must bear a “substantial relationship to a legitimate state interest.” The period for ascertaining the fatherhood of the child must be sufficiently long to permit those who have an interest in the child to bring an action on their behalf despite the personal difficulties that may surround the birth of a child outside of wedlock. Also, the time limit set does not have a rational relationship to the state purpose of preventing fraudulent claims.

6. Concurrence Reasoning: [O’Connor] feared that the majority opinion might be read as approving an arbitrarily longer time limit (such as four years). Thus, she stated that the practical considerations that existed within the first year, which served to make the one year statute of limitations invalid, may also exist for longer periods, which would make them also invalid.

7. Notes: The court struck down a two-year limit on paternity suits in Clark v. Jeter. Finally, in Clark v. Jeter, Justice O’Connor stated that the “intermediate” level of scrutiny is applicable to illegitimacy [“substantially related to an important governmental objective”], and struck down a 6-year limit on bringing paternity actions because it was not “substantially related” to the state interest in avoiding the litigation of stale or fraudulent claims.

 

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Mississippi Univ. for Women v. Hogan

1. Mississippi Univ. for Women v. Hogan, (1982)

2. Facts: A state-sponsored Mississippi college was all female, and had an all female nursing school. Hogan was a man who lived in the college community, was a registered nurse, and desired to attend the school to pursue a degree. The school denied his request, and permitted him only to attend the classes on an audit basis. The state’s justification was that the school compensated for discrimination against women, and was “educational affirmative action.”

3. Procedural Posture: Unknown.

4. Issue: Whether the college’s policy of excluding males is a violation of equal protection.

5. Holding: Yes.

6. Majority Reasoning: [O’Connor] stated that the heightened level of scrutiny applied in Craig was applicable here. The fact that it discriminated against males and not females did not matter. The standard was that “important governmental objectives” must be legitimate, and the classification must be “substantially related to the acheivement of those objectives.” If the state objectives are based on sexual stereotypes, they are illegitimate. Here, there was no sexual discrimination to protect against, because the nursing profession was 90%+ women. Also, the classification was not substantially related to the purpose, because the presence of male students on an auditing basis, whether they got credit or not, changed the “environment” of the school, so it was not necessary to withhold credit for males in order to accomplish the school’s educational goals.

7. Dissent Reasoning: [Powell] The rational basis test should have been applied here because there was no sex discrimination. It is only an additional choice for women, not a denial of choice for men. There are distinct advantages to segregation of sexes in higher education, and this simply represents the consensual choice of the participants.

 

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Missouri v. Holland

1. Missouri v. Holland, (1920)

2. Facts: There were migratory birds in the northern United States that transited between the U.S. and Canada. These birds had a beneficial effect on the ecosystem by controlling the insect population, as well as being a food supply. However, the birds were being over-hunted. The U.S. and Great Britain entered into a treaty to protect the birds by delineating hunting seasons. Pursuant to the treaty, the Migratory Bird Treaty Act of 1918 was passed by Congress to give effect to the U.S. side of the treaty.

3. Procedural Posture: The state of Missouri brought this action to prevent an U.S. game warden from enforcing the Act on the grounds that it violated the 10th amendment, arguing that Congress did not have to power to pass the Act without the treaty, and thus should not be able to pass the Act under the treaty because if the Act, standing alone, is in violation of the 10th amendment, then the treaty is as well.

4. Issue: Whether Congress may properly pass an Act that regulates hunting seasons for migratory birds if that Act regulates in traditionally state-controlled areas.

5. Holding: Yes.

6. Majority Reasoning: Article II, § 2 expressly delegates the power of Congress to make treaties. Furthermore, Article IV declares that treaties made under the authority of the United States are the “supreme law of the land.” If the treaty is valid, then it is clearly a necessary and proper action to carry out the treaty-making power in this case. The treaty-making power derives from the authority of the United States, as an “organism” itself. It does not matter that Congress might not have the power to pass the Act not in pursuance of a treaty, because Congress does have the power to make treaties, and the Act is a necessary and proper means to give effect to the treaty. Since the birds are important, and they transit back and forth between the countries, the United States has the power to make a treaty concerning their protection and the treaty is valid. Since the treaty is valid, the Act is valid as being necessary and proper to give effect to a valid treaty.

7. Notes: In the 1950’s fear that any Constitutional limitation on Congress’ power could be overriden by the broad effect given by Holmes to the treaty power in Holland led to a proposed constitutional amendment called the “Bricker Amendment” which stated that “A provision of a treaty which conflicts with this Constitution shall not be of any force or effect,” and “A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.” However, in Reid v. Covert, these fears were put to rest by Justice Black when he stated that no agreement can “confer power on the Congress...which is free from the restraints of the Constitution.” and that Holland should be read as standing for the proposition that the 10th amendment is no barrier to the United States’ power to make treaties because the states had delegated their rights as to treaties to the federal government. Although there is no explicit power in the Constitution for the Congress, independent of the treaty power, to pass laws concerning foreign affairs, it is generally regarded as implied by the fact that the United States’ power to interact with other countries must lay in some body, and it rests most appropriately in Congress who has the power to make all other federal laws.

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Morrison v. Olson

1. Morrison v. Olson, (1988)

2. Facts: The Ethics in Government Act of 1978 provided that The Attorney General may ask for the appointment of a special counsel by a Special division of three Circuit Judges in order to investigate and prosecute high-ranking government officials for violations of federal crimes. Once appointed, the Special counsel can only be removed by the Attorney General personally (not the president) and only for “good cause” (not at will).

3. Procedural Posture: A group of persons moved to quash subpoenas issued by the Special counsel, claiming that the Act was unconsitutional as a violation of separation of powers.

4. Issue: Whether the Act is was unconsitutional as a violation of separation of powers because it limits the President’s authority to remove an executive officer.

5. Holding: No.

6. Majority Reasoning: The special counsel, due to the limited tenure, duration, and duties of her office, is an “inferior officer” for Appointment clause purposes. As such, her appointment may be vested by congress in the courts. The court has never held that the Constitution prevents Congress from imposing limitations on the President’s power to remove al executive officials simply because they wield “executive” power. The power to vest appointment in other departments implies the power to limit and regulate removal. The imposition of a “good cause” standard is not unduly limiting. The president’s need to control the Special Counsel is not so central to the functioning of the executive branch as to require as a matter of constitutional law that the special counsel be terminable at will by the President. This case does not involve a usurpation of executive power by Congress. The attorney general still has the power to refuse to ask for appointment of a special counsel.

7. Dissent Reasoning: [Scalia] The framers of the constitution intentionally vested all of the executive power in the president. As such, any person executing purely executive power must be under the exclusive control of the President, and thus terminable at will. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. The majority has replaced a constitutional requirement with an unprincipled “balancing test” having no guidance.

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New York Times Co. v. Sullivan

1. New York Times Co. v. Sullivan, (1964)

2. Facts: Sullivan is a police commissioner. A group supporting Martin Luther King Jr bought a full-page ad in the New York Times, which implied that Sullivan was behind some oppressive tactics being used against blacks in Alabama, and which contained factual discrepancies.

3. Procedural Posture: Sullivan won general damages under an Alabama statute which made “libel per se” if the words spoken “tend to injure a person in his reputation,” the only defense being truth.

4. Issue: Whether a statute that allows civil damages for defamation of a public official by statements criticizing his official conduct is constitutional if it does not require that the statements be made with “actual malice” - that is, with knowlegde that they are false, or with reckless disregard for their truth.

5. Holding: No.

6. Reasoning: The first amendment must protect unintentional false statements against public officials if it is to have the “breathing space” that it needs to operate freely. The fear of libel awards is likely to make a person censor himself, or to make the newspaper refuse to print the statement unless the declarant guarantees that it is free from error. Also, public officials are required to have a thick skin. The “actual malice” requirement is not met here.

 

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New York v. United States

1. New York v. United States, (1992)

2. Facts: In 1985, Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985, which was intended to solve a national problem of the disposal of low-level radioactive waste by providing a procedure for states to either group together into regional compacts, each dumping their waste into a single site in one of the compact states, or find their own waste disposal area. The Act had three provisions: 1) monetary incentives which allowed site states to charge increasingly higher surcharges to non-pact states for disposal of their waste, part of which surcharges would be refunded to the states by the Secretary of Energy if they complied with a timeline for finding their own disposal sites, 2) access incentives which allowed site states to deny access to non-pact states after a few years, and 3) a “take-title” provision which required the delinquent states to take possession and title of the radioactive waste and assume liability for it if they remained delinquent to the end. New York decided to dispose of its own waste, and did not join a regional pact. However, the state had problems locating the site within its borders because the local citizens did not want it.

3. Procedural Posture: The state of New York brought this action to seek a declaratory judgment that the Act was inconsistent with the Tenth Amendment and the Guarantee Clause of Article IV.

4. Issue: Whether Congress may direct or otherwise compel a State to regulate a particular private field in a particular way.

5. Holding: No.

6. ∏ Argument: The 10th amendment forbids Congress from directly regulating the states to compel them to carry out federal regulation in this private field. Although they unquestionably have the power under the Commerce Clause to regulate the generators of the waste, they do not have the power to compel the states to directly regulate the waste generators in a particular manner. The Act “commandeers the legislative processes of the states.” Furthermore, the second part of the act which provides for monetary incentives is beyond Congress’ spending power. Lastly, the Act violates the Guarantee Clause because it attempts to undermine the states’ own republican form of government.

7. ∆ Argument: The Constitution’s prohibition of convressional directives to state governments can be overcome where the federal interest is sufficiently important to justify state submission. Also, the Constitution does, in some circumstances, permit federal directives to state governments. Lastly, the Constitution envisions a role for Congress as an arbiter of state disputes.

8. Majority Reasoning: The Tenth Amendment is a truism that simply directs the court to examine what are the internal limitations to the powers granted to Congress in Article I. So the court must examine the Commerce Power, the Spending Power, and the Supremacy Clause. The basic premise is that under Hodel, Congress may not simply “commandeer” the state governmental processes. Nothing in the Constitution implies that Congress has the ability to require states to govern by federal coercion. This premise is supported by looking at the Framer’s intent when they chose the structure that the Congress would exercise its power directly over individuals rather than over states as intermediaries. Although Congress can motivate or encourage states to regulate in a certain way by making federal assistance conditional or by giving them the choice between doing it themselves or having the federal government do it for them by preemption, it can not directly compel. This enables state governments to be directly responsive and accountable to the local electorate. Where the federal government compels regulation, the state officials take the brunt, while the federal officials remain insulated, thus reducing accountability in the political process. Construing the Act in a light most favorable to the United States, the “take title” provision is still clearly beyond Congress’ power because Congress neither has the power to force states to take title to the waste (thereby subsidizing the generators) nor does it have the power to compel regulation. That there is a very strong federal interest in controlling waste does not allow Congress to go beyond the Constitution. Even if New York state itself agreed to the bargain, the state is powerless to waive the Constitutional limits on Congressional power because the Constitution is for the protection of individuals. The other parts of the Act are Constitutional because neither monetary incentives nor access denials can reasonably be said to deny a State a republican form of government.

9. Concurrence/Dissent Reasoning: [White] reasoned that the majority had taken the Act out of its historical context and its contractual setting. The states, including New York, got together to reach their own agreement on how the radioactive waste crisis should be handled. They did not seek federal pre-emption, but rather federal sanction of their pact under Article I, Section 10 which states that “no state shall, without the consent of Congress,...enter into any agreement or Compact with another State.” Thus New York should be estopped from asserting the unconstitutionality of a bargain that it had derived substantial benefit from.

 

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Nixon v. Fitzgerald

1. Nixon v. Fitzgerald, (1982)

2. Facts: Fitzgerald lost his management position with the Department of the Air Force after “blowing the whistle” on significant budgetary overruns on the building of a military transport plane.

3. Procedural Posture: Fitzgerald sued the President and several of his officials for damages, alleging violation of his First Amendment and other statutory rights due to his firing.

4. Issue: Whether the President is entitled to absolute immunity from damages liability predicated on his official acts.

5. Holding: Yes.

6. Majority Reasoning: [Powell] The absolute [rather than qualified] immunity is required due to the unique position of the Presidency. The President must not be diverted from a proper exercise of discretion for fear of being subject to a lawsuit for private damages. The President is required to make decisions every day that would “arouse the most intense feelings,” and so must enjoy absolute immunity for his official acts. There may be cases where the Congress could take some affirmative action to subject the President to personal jurisdiction, but the court would have to weigh the constitutional weight of the interests to be served with the danger of intrusion on the authority and function of the Executive Branch. There are other ways to keep the President from abusing power, namely the press, impeachment, re-election, and personal reputation.

7. Dissent Reasoning: [White] Attaching absolute immunity to the office of the President, rather than to particular activities that the President might perform places the President above the law. The scope of immunity should be determined by the function, not the office, and the dismissal of employees does not fall under a constitutionally assigned executive function which would be substantially impaired by the possibility of a private action for damages.

8. Notes: In Harlow v. Fitzgerald, the court refused to extend blanket immunity to the top Nixon aids involved in the same conspiracy as charged in the above case. Qualified immunity was the proper standard, unless perhaps the aid was entrusted with “discretionary authority in such sensitive areas as national security or foriegn policy.” However, the court refused to give the Attorney General absolute immunity even while engaged in actions related to national security in Mitchell v. Forsyth.

 

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Nixon v. United States

1. Nixon v. United States, (1993)

2. Facts: Nixon was a Federal Circuit Court judge who was accused of taking gifts from a prominent local businessman in return for asking a local DA to halt the prosecution of the businessman’s son.

3. Procedural Posture: The House adopted three articles of impeachment, and then the Senate, subsequent to its own impeachment rules, appointed a subcommittee to hear the evidence. The subcommittee then summarized the facts and findings for the entire Senate, and open arguments were held on the floor, which culminated in the required 2/3 vote to convict. Nixon appeals on the grounds that the power to “try” impeachments in the Constitution requires a full judicial proceeding where the entire Senate hears all of the evidence.

4. Issue: Whether the Senate procedural rule allowing for a subcommittee to hear and summarize the evidence violates the Impeachment clause which provides that the “Senate shall have the sole Power to try all Impeachments.”

5. Holding: No. This is not a justiciable question, it is a political question.

6. Majority Reasoning: [Rehnquist] A controversy is non-justiciable, i.e. it involves a political question, where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standars for resolving it.” Here, the power to “try” an impeachment is a broad power that precludes any manageable standards. Also, since the Senate has the “sole” power to try impeachments, it must be able to function without interference in these proceedings. Judicial review of the Senate’s trial would introduce risks of violation of checks and balances, because it would make the Judicial Branch the final reviewing authority of the “important constitutional check” placed on them by the Framers.

7. Concurrence Reasoning: [White] This is a justiciable question, and may be judicially managed fairly.

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Pacific Gas & Elec. Co. v. State Energy Comm’n.

1. Pacific Gas & Elec. Co. v. State Energy Comm’n., (1983)

2. Facts: A California law imposed a moratorium on the certification of nuclear energy plants until a state agency found that there existed a demonstrated means for disposal of high-level radioactive waste generated by the nuclear power plants. There was evidence in the State legislative record that the law was passed for economical reasons, such as regulating the price of electricity, because an increase in the number of nuclear power plants without an increase in radioactive disposal capacity could result in the shutdown of existing plants and the subsequent instability of electricity prices.

3. Procedural Posture: P.G.&E. brought an action for declaratory judgment against the law, claiming that it was preemted by the federal Atomic Energy Act of 1954. The District Court granted relief, the Court of Appeal reversed, and P.G.&E. appealed to the Supreme Court.

4. Issue: Whether the California statutory moratorium on the certification of nuclear power plants is preemted by the Atomic Energy Act of 1954.

5. Holding: No.

6. ∏ Argument: 1. The state law is preempted because it regulates construction of nuclear plants based on safety reasons. Since the AEA’s primary function is exclusive federal safety regulation, there is no room here for the state to regulate. 2. The statute conflicts with actual decisions made by Congress and the NRC. 3. The statute frustrates the AEA’s goal of the development of nuclear technology.

7. ∆ Argument: Although safety regulation of nuclear plants is forbidden, a state may completely prohibit new construction until its safety concerns are satisfied by the federal government.

8. Majority Reasoning: Historically, the federal government has taken efforts to ensure that nuclear power is developed and operated safely, while leaving police regulations of the economics of electricity generated by nuclear energy to the states themselves. This is evidenced by the AEA’s own language when it states that nothing in it is to be construed as affecting the authority of any local government to regulate the “generation, sale or transmission of electric power produced through the use of nuclear facilities.” Thus, the federal government has explicitly left this power to the states; it is not impliedly preempted by the mere existence of the AEA. However, the federal goverment, by the AEA, has exclusively retained the right to regulate nuclear safety, and so the state has no power to regulate in that specific area. Since there is legislative history evidence that the law was passed as primarily an economic, and not a safety matter, the court accepted California’s representation that they were not attempting to regulate safety. Even though the Congress and the NRC have recently passed legislation that it is safe and permissible to continue to certify new power plants, the state is in no way compelled to do so. Thus, compliance with both the federal and state statutes are possible here, and so the statute is not expressly preempted. Lastly, the even though the AEA’s purpose was to promote the safe development and use of nuclear energy, that was not to be accomplished at all costs. So the statute is not impliedly preempted as being an obstruction of a Congressional purpose.

9. Notes: In Rice v. Santa Fe Elevator Corp., (1947), Justice Douglas stated that the test in whether a local law was preempted was the intent of Congress. In areas that were traditionally state-regulated, any action by Congress was presumed not to preempt unless it was the “clear and manifest purpose of Congress.” There were three ways to divine this purpose: 1. If the federal scheme of regulation was so pervasive as to infer that Congress left no room for state regulation, 2. Where the federal interest is so dominant that it outweighs the state interests, and 3. The state law produces a result inconsistent with the federal objective. Note the similarity between this analysis of preemption by actual legislation, and the Cooley “balancing” analysis with regard to the dormant commerce clause. In Campbell v. Hussey (1961), Justice Douglas’ plurality opinion struck down a local Georgia statute requiring that tobacco that was grown (locally) according to federal regulations be marked with a white tag (tobacco grown out-of-state in Carolina was to be marked with a blue tag). He rejected the argument that the Georgia statute was constitutional because it merely “supplemented” the federal regulations. In this case the question of preemption did not need actual conflict between the federal and state law, because one could draw an inference from the structure of the federal regulation scheme that there was no room for state augmentation. [See point 1 in Rice, above.] Compare this result with the commerce clause rejection under the rationale of local discrimination in the Washington Apple case. However, in Florida Lime & Avocado Growers, Inc. v. Paul, the court distinguished Campbell by stating that there was neither an actual nor presumed conflict based on the federal regulatory design.

 

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Palko v. Connecticut

1. Palko v. Connecticut, (1937)

2. Facts: Palko was convicted of second-degree murder. The state of Connecticut appealed his conviction, seeking a higher degree conviction. This was made possible by the state’s local statute that allowed the state to appeal criminal convictions, as well as the defendant. The second-degree murder conviction was set aside, and he was retried and convicted of first degree murder.

3. Procedural Posture: Palko brought an action to declare the procedural statute unconstitutional as a violation of his 5th amendment guarantee against double jeopardy.

4. Issue: Whether the action of the state in this case amounted to double jeopardy prohibited by the 5th amendment.

5. Holding: No.

6. ∏ Argument: The retrial violated the 5th amendment, and whatever is forbidded by the 5th amendment is also forbidden by the 14th. Moreover, whatever would have been forbidden to the federal government in the bill of rights is now forbidden to the states by operation of the 14th amendment.

7. Majority Reasoning: There is no such general rule that the 14th amendment incorporates the bill of rights and applies all of its provisions to the states. Certain rights, such as that of a grand jury indictment and trial by jury are important, but have not been applied to the states through the 14th amendment because they are not “fundamental.” The rights that are absorbed by the 14th amendment are those which are indespensible to freedom and liberty, such as freedom of thought and speech. In this particular case, the particular procedure used by the state was not so harsh as to prevent the fair administration of criminal justice. The state has a right to prosecute a case against a criminal until it ends in a decision that is free from substantial legal error.

 

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Palmore v. Sidoti

1. Palmore v. Sidoti, (1984)

2. Facts: A divorced white woman was awarded custody of her child until she remarried a black man.

3. Procedural Posture: The trial court awarded custody to the father based on the idea that it was in the best interest of the child to protect the child from the discrimination and prejudice that would accompany her remaining with her mother in an interracial family.

4. Issue: Whether racial classifications are a constitutional justification for the removal of an infant child from her mother.

5. Holding: No.

6. Majority Reasoning: Racial classifications trigger strict scrutiny. The classification must be justified by a compelling governmental interest and must be necessary to accomplish a legitimate purpose. Here, the state interest in protecting a child is substantial. It is true that racial discrimination does exist. However, the existence of private prejudices can not be tolerated by the Constitution, and so are never a justification for racial classifications.

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Pennsylvania Coal Co. v. Mahon

1. Pennsylvania Coal Co. v. Mahon, (1922)

2. Facts: The coal company deeded the surface land above a mine to Mahon’s predecessors in title. The deed expressly reserves the right to remove all of the coal udner the land, and puts the risk of loss of the surface property on the grantee. However, a local statute forbids the mining of coal in such a way as to harm a structure used as a dwelling.

3. Procedural Posture: Mahon brings an action in equity to enjoin the coal company from mining under his house in such a way as to weaken its support.

4. Issue: Whether the local statute is a valid exercise of the state’s police power, or is an unconstitutional taking under the 5th amendment as incorporated through the 14th amendment and applied to the states.

5. Holding: Unconstitutional taking.

6. Majority Reasoning: The question of whether a regulation is a valid exercise of the police power or an unconstitutional taking depends on the particular facts. The property being protected here is private property belonging to a single citizen, in which there is no public nuisance if it is destroyed. The law is not justified as a protection of personal safety. The contract itself provided notice of the risks, and the grantee still contracted. Since coal rights are worthless if the coal can not be mined, preventing their mining is a taking because it is tantamount to destroying it. If the police power of the states is allowed to abridge the contract rights of parties, it will continue until private property disappears completely. In general, while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking. The loss should not fall on the coal company who provided for this very risk contractually. If the state wants more protection for its citizens, it can pay for it.

7. Dissent Reasoning: A restriction imposed to protect the public health, safety or morals from danger is not a taking. The restriction here is merely the prohibition of a noxious use. Just because a few private citizens are enriched does not make the law non-public. If the mining were to set free noxious gas, there would be no question that the state could prohibit it for the safety of the citizens, without paying the miner.

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Perez v. United States

1. Perez v. United States, (1971)

2. Facts: Perez was a loan shark. He was convicted under Title II of the Consumer Credit Protection Act which was a federal law prohibiting extortionate loan activities. The Act was passed by Congress pursuant to findings that 1) organized crime is interstate in nature, and 2) a substantial part of the income for organized crime is generated by extortionate loan activities, thus, loan sharking is an instrumentality of interstate commerce, even where individual transactions are purely intrastate in nature.

3. Procedural Posture: Perez challenged his conviction on the grounds that the Act was unconstitutional as being an impermissible exercise of the commerce power by Congress.

4. Issue: Whether Title II of the Consumer Credit Protection Act, as construed and applied to Perez, is a permissible exercise by Congress of its powers under the Commerce Clause.

5. Holding: Yes.

6. ∏ Argument: The Act is unconstitutional because it exceeds the limits of the commerce power contemplated by the framers of the Constitution. It infringes on the States’ police power of their own intrastate crime activities. Loan sharking is a local activity, not an interstate activity.

7. ∆ Argument: Since loan sharking is a substantial revenue generator for organized crime, and organized crime is a nationwide problem that uses interstate commerce as a conduit to conduct illegal transactions, loan sharking affects interstate commerce and is thus able to be regulated by Congress. The States are not able to deal with this problem individually, the federal government needs to provide tools to deal with the problem on a nation-wide level.

8. Majority Reasoning: The majority accepted Congress’ findings on the relationship between loan sharking and organized crime, and the effect of organized crime on interstate commerce. They stated that the commerce clause reaches protection of the instrumentalities of interstate commerce, which included the policing of organized crime. Citing to Darby, the court reasoned that it was permissible for Congress to regulate a class of activities without proof that the particular intrastate activity that was thereby controlled had an effect on commerce. It was proper to consider the “total incidence” that the class of activities had on commerce, rather than to try to carve out exceptions for individual occurrences of the activity that were not proven to be directly related to commerce. Even if individual transactions of loan sharking were completely local in nature, as a whole, they comprised a threat to interstate commerce because of their relation to the interstate activities of organized crime.

9. Dissent Reasoning: Conviction for loan sharking under the federal law should require proof that the individual was actually involved in interstate activities. Otherwise, a purely local problem would be regulated by the federal government, contrary to the States’ police power. Loan sharking is only a national problem in the sense that all crime is a national problem. There is no distinguishing factor about loan-sharking that lends itself to being a threat to interstate commerce per se.

 

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Personnel Administrator of Mass. v. Feeney

1. Personnel Administrator of Mass. v. Feeney, (1979)

2. Facts: Mass. had a state law which gave an “absolute lifetime” preference to veterans over non-veterans for civil service positions. The veterans in Mass. were 98% male and 2% female. In effect, the law gave statistically significant preferences to males.

3. Issue: Whether the law, which is facially neutral, is nevertheless a violation of equal protection given its disparate impact on men vs. women.

4. Holding: No.

5. Majority Reasoning: Davis stands for the principle that the 14th amendment “guarantees equal laws, not equal results.” Clearly, this law is facially neutral. Although it has a disparate affect on women, that is the result of the traditional military roles of men and women, which is not on trial here. Also, many men are disadvantaged by this law as well. It is not a pretext for discrimination against women, but rather against non-veterans, a significant portion of whom are men.

6. Concurrence Reasoning: [Stevens] stated that the statistics show clearly that there are about 2 million men disadvantaged by this preference, and only about 3 million women. When taken in combination with other evidence, this difference does not support a finding that the law was intended to benefit males as a class.

7. Dissent Reasoning: [Marshall] felt that the law was purposeful discrimination because the legislators were presumed to have intended the natural and probable consequences of the law - discrimination against women. There is clear evidence from the legislative history that the legislature understood the impact against women, and took steps to make sure that women could still qualify for the lower-paying jobs.

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Planned Parenthood of S.W. Penn. v. Casey

1. Planned Parenthood of S.W. Penn. v. Casey, (1992)

2. Facts: A Penn. statute had five questioned requirements regarding an abortion: 1) informed consent of the woman, 2) 24 hour waiting period after receiving information, 3) informed consent of one parent for minors, 4) notification of the husband, and 5) reporting requirements for abortion facilities.

3. Procedural Posture: An action for declaratory and injunctive relief prior to the statute taking effect. The District Court held all provisions as unconstitutional on their face, and entered a permanent injunction. The Court of Appeals affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement.

4. Issue: What is the appropriate standard to use in determining whether a statute regulating abortion is unconstitutional.

5. Holding: “Unduly burdensome.” “An undue burden exists, and therefore a provision of the law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

6. Majority Reasoning: [O’Connor] First, the essential holding in Roe is reaffirmed. The essential holding is 1) a woman has a constitutional right to choose to have an abortion before viability without undue interference from the state, 2) the state has a power to restrict abortions after viability, and 3) the state has legitimate interests in both the health of the mother and the life of the fetus from conception. The constitutional protection comes from the “liberty” of the due process clause of the 14th amendment, which is a source of substantive rights beyond the Bill of Rights. It is not time to overrule Roe. Stare Decisis requires reaffirmation. Roe is not “unworkable”, society relies on it, it is not outdated, it is not entirely based on improper factual assumptions, and to overrule it would undermine the principled legitimacy of the Court in the eyes of the people. However, the trimester framework adopted by Roe is rejected as being unnecessary to adequately protect the woman’s right to choose. It misconceives the nature of the woman’s interest, and it undervalues the State’s interest in potential life. Only where state regulation imposes an “undue burden” on a woman’s ability to choose before viability is the statute unconsitutional. The informed consent requirement is constitutional (partially overruling Akron I, and Thornburgh), because it furthers the states legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating consequences, that her decision was not fully informed. The doctor should be required to provide information as in other medical procedures. The 24 hour waiting period, although burdensome, is not an undue burden. Informed consent of minor’s parents is not an undue burden because the minors will benefit from the consultation with their parents. However, the spousal notification is an undue burden because a significant number of women will be deterred from abortion for fear of their safety as surely as if the state had prohibited it altogether. The reporting requirement, although not related to the state’s interest in informed consent, does relate to health and is a vital element of medical research and health regulation.

7. Concurrence/Dissent Reasoning: [Stevens] felt that serious question arose with respect to the state’s attempt to pursuade the woman to choose childbirth over abortion. The provision of pro-life information at the critical point of decision is an unconsitutional invasion of the woman’s right to choose. Also, the 24 hour waiting period, in practice, serves to wear down a woman’s ability to get an abortion, without a showing that it is necessary or helpful. The waiting period appears to rest on the assumption that a woman is incapable of making a rational decision in less than 24 hours.

8. Concurrence/Dissent Reasoning: [Blackmun] still fully supported all of the implications of Roe. He was concerned that there was only 1 vote necessary to overrule Roe, and that he wsa getting old and stepping down soon. The Roe framework is more administrable and far less manipulable thatn the “undue burden” standard. The strictest of scrutiny should be applied to this case, and under that view, each of the provisions should be struck down. Also, the fundamental rights protected by Roe are too precious to be left to an election.

9. Concurrence/Dissent Reasoning: [Rehnquist] believed that Roe was incorrectly decided, and should be overruled. Overruling Roe would be entirely consistent with stare decisis because it misinterpreted the cases it purported to be based on. The majority’s arguments on stare decisis are conculsory and unconvincing. The majority’s new “undue burden” standard is a new standard which represents an unjustified compromise. The correct standard here should be whether the statute rationally furthers any legitimate state interest. In each provision, it does and so should be entirely upheld.

10. Concurrence/Dissent Reasoning: [Scalia] felt that the right of a woman to choose an abortion finds no protection by the constitution. The matter is one for the people and the legislature to decide. The proper issue is not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense, it is whether it is a liberty protected by the constitution. It is not. The constitution says absolutely nothing about it and the longstanding traditions of American society have permitted it to be legally proscribed. Roe was “plainly wrong.” The courts should “get out of this area, where we have no right to be.”

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Plaut v. Spendthrift Farm, Inc

1. Plaut v. Spendthrift Farm, Inc. (1995)

2. Facts: A Securities Act violation was committed. After Supreme Court dismissal of the first action for being brought outside of the statute of limitations, Congress passed a new section 27A to the Securities Exchange Act, extending the statute of limitations in these cases, as well as providing for the “reinstatement” of causes of action that had been dismissed on statute of limitations grounds during the time of pendency of the first action in this case, thus re-opening the case.

3. Procedural Posture: In the first action, the Supreme Court dismissed the case for being brought outside of the statute of limitations (which it has prescribed in the Rules). Congress’ enactment of new section 27A reinstated the action.

4. Issue: Whether Congress can reinstate a case that has been previously dismissed on statute of limitations grounds.

5. Holding: No.

6. ∏ Argument: Congress has the power under Article III to modify the appellate jurisdiction of the Supreme Court, which includes statutorily reinstating a class of cases.

7. ∆ Argument: Congress’ power does not include reinstatement of previously decided cases under new laws.

8. Majority Reasoning: Scalia stated that Article III not only gives the federal judiciary the power to rule on cases, but to decide them, subject only to review by superior courts in the Article III hierarchy. “When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than ‘reverse a determination once made, in a particular case.’” Such power is clearly contrary to what the framers contemplated in the separation of powers. It did not matter that the statute was with reference to a general class of cases, and not ostensibly to a particular case, if it gave the Congress the power to reinstate a case, it necessarily interfered with the outcome of a particular case.

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Plyler v. Doe

1. Plyler v. Doe, (1982)

2. Facts: Texas had a law denying benefits to schools to teach undocumented illegal school age children, and allowing these schools to deny admission to those students as well.

3. Procedural Posture: The lower courts held that the exclusion of the children from free public education violated equal protection.

4. Issue: Whether the exclusion of the non-documented illegal immigrant children from free public education violates equal protection.

5. Holding: Yes.

6. Majority Reasoning: Illegal immigrant children are entitled to 14th amendment protection. Although the right to free public education is not fundamental, and illegal aliens are not a suspect class, the children are not able to control their status, and should not be held accountable for the actions of their parents. By depriving the children of the education, the law forecloses any means by which that child may elevate himself into a functioning member of society. As such, the law must further some substantial goal of the State [intermediate level of review]. There appear to be no federal level objectives in denying these children education. The state’s justification of preserving scarce resources for legitimate citizens is not rationally served because employment, not education, is the dominant reason for illegal immigration. The state’s justification that undocumented children are unlikely to remain in the U.S. and become citizens is not supported by any proof.

7. Dissent Reasoning: The court is overstepping its bounds in finding a non-fundamental right, and a non-suspect class, to require special judicial scrutiny. Their reasoning is wholly result-oriented, and against precedent. The proper measure of review is rational basis. It is not irrational for a state to exclude illegitimate children from school in order to save costs. However, this is a choice for the legislature.

 

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Railway Express Agency v. New York

1. Railway Express Agency v. New York, (1949)

2. Facts: Railway operates a fleet of trucks, on which it sells advertising. The city of New York has an ordinance that forbids the sale of advertisements on the side of trucks. The city’s justification for the ordinance was that advertisement on the street is a public safety and traffic hazard.

3. Procedural Posture: Railway was convicted and appealed on equal protection grounds.

4. Issue: Whether the banning of advertisements on the sides of trucks for hire, while allowing advertisements related to the owner of the truck’s own business, violates the equal protection clause of the 14th amendment.

5. Holding: No.

6. ∏ Argument: The advertisements on the sides of hired truck are no more dangerous than those on the sides of a non-hired truck. Thus, it provides unequal protection because the classification does not bear a rational relationship to the purpose of the law.

7. ∆ Argument: Even though it does not eliminate vehicular advertising, it does eliminate advertising for hire, and to that extent cuts down on the hazard sought to be controlled.

8. Majority Reasoning: The local authorities have their own reasons for drawing the classification as they do. If they feel that the advertising for hire presents a greater hazard than those who advertise their own business, then the court can not second guess the wisdom of their judgment. The classification has a relation to the purpose of safety, and does not result in the kind of discrimination from which the equal protection clause affords protection [doesn’t apply to economic protection]. It is not a requirement that all evils of the same genus be eradicated or none at all.

9. Concurrence Reasoning: [Jackson] was concerned that when government chooses to eliminate only part of a problem, there is a greater danger that they are acting arbitrarily. Banning advertising altogether would bring more close scrutiny than only banning ads for hire, thus it is more likely that there is some arbitrariness in the classification. The court has often announced that the classification must have an appropriate relation to the purpose. Here, the classification can only be viewed as relating to the purpose if one assumes that tolerating advertising for hire is undesirable since advertising is a danger. Still, it is not the court’s job to second guess the legislature for this type of economic regulation.

 

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Reed v. Reed

1. Reed v. Reed, (1971)

2. Facts: Idaho had a law designating men to be the administrators of estates, and not women. The state’s reasoning was that it prevented a burden on the probate courts of having to decide each case based on a hearing on the merits of whether the petitioning woman or petitioning man was better suited to be the administrator.

3. Procedural Posture: The state courts had sustained the law as a legitimate means of reducing the burden on the courts.

4. Issue: Whether the law is in violation of equal protection.

5. Holding: Yes.

6. Reasoning: [Burger] applied a mere rational basis standard to strike down the law. He refused to find that sex was suspect classification. Although the reduction of the burden on the probate courts was a legitimate end, the classification was a completely arbitrary method of acheiving that end. The equal protection clause was meant to prevent exactly this kind of a arbirary means-ends relationship.

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Regents of Univ. of Cal. v. Bakke

1. Regents of Univ. of Cal. v. Bakke, (1978)

2. Facts: Bakke was an applicant to the U.C. Davis Medical School, which had two separate admissions programs - one for whites, and one for minorities. They had a 16% minorities quota system. Bakke was not admitted, but minorities with significantly lower qualifications were admitted.

3. Procedural Posture: Bakke filed suit in the lower court under Title VI of the civil rights act and equal protection. The trial court held that the university could not take race into account, but refused to order Bakke’s admission claiming that he had failed his burden of proof that he would have been admitted but for the existence of special admissions. The Cal. Supreme Court applied strict scrutiny to strike it down, holding that there were less intrusive means of furthering the important state interest in having minority physicians, and ordered Bakke admitted.

4. Issue: Whether the U.C. Davis admissions program is a violation of equal protection because it discriminates intentionally against whites.

5. Holding: Yes.

6. Majority Reasoning: The fact that this is discrimination against whites (and thus benign against minorities) does not change the court’s obligation to use strict scrutiny, because this is still a racial classification. Any classification based upon race must be necessary to accomplish a substantial state interest. A classification which intentionally disadvantages one race in order to grant other races an advantage is unconstitutional in the absence of specific findings of a constitutional violation [de jure]. The constitution forbids discrimination for its own sake. The state has a legitimate interest in eliminating and correcting for discrimination. However, there has been no finding of any constitutional violation which would give rise to a requirement for a remedy. The state’s interest in promoting diversity in education is also legitimate. However, race may only be one factor in the determination of diversity among otherwise qualified applicants. There are other characteristics besides race that promote diversity. Since the white students may only compete for certain seats, and the minorities are free to compete for every seat, solely because of race, this practice violates the equal protection clause because there are less burdensome alternatives available, such as aggressive recruiting.

7. Concurrence Reasoning: [Brennan] The majority is correct in stating that race may be considered in admissions. Strict scrutiny is applicable here, but this admissions process passes it. Sometimes the white majority is required to bear the burden of societal discrimination in the remedying of past discrimination. To hold that there must be finding of actual constitutional violations as a prerequisite to race-conscious remedial actions would discourage voluntary compliance. The purpose of the University’s policy is to overcome the effects of prior segregation. It compensates applicants who would have been more admittable but for the existence of societal discrimination. Once admitted, they are judged by the same standards as the other students. [Marshall] It is unnecessary in the 20th century for individual blacks to demonstrate that they were discriminated against, given the long history of state-sponsored, legal discrimination. [Stevens] The issue of whether race could ever be used as a factor in the determination of admissions was not before this court. This was not a class action, but an individual action. The only admissions policy before the court was that of U.C. Davis.

 

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Richmond v. J.A. Coroson Co.

1. Richmond v. J.A. Coroson Co., (1989)

2. Facts: Richmond instituted a 30% minority set-aside program for all city construction projects. A particular contractor was the lowest bidder for a city project, but he had not complied with the set-aside provision, and so his bid was refused.

3. Procedural Posture: The District Court found that the set-aside program was a legitimate remedy for past discrimination. The court of appeals applied strict scrutiny and reversed, and the Supreme Court affirmed.

4. Issue: Whether the Richmond set-aside program is a violation of equal protection.

5. Holding: Yes.

6. Majority Reasoning: The city of Richmond does not have the power to institute a “benign” or compensatory program that discriminates against whites beyond the limits of the 14th amendment. This is overt racial discrimination, and must be subjected to strict scrutiny. Here, the city has only provided general assertions that there has been discrimination against minorities in contracting, or that such discrimination has been a cause of their under-representation. The absence of minorities firms may be attributable to many other reasons, and it is speculation to assume that it was the product of intentional discrimination. If the city desires to use suspect classifications, it can not merely rest upon generalizations, because racial classifications are generally harmful to both sides. Past societal discrimination is not sufficient to justify racial quotas, and thus there is not a compelling state interest in providing a quota. Also, the racial classification of minorities is over-inclusive because it includes Eskimos and Aleuts. It cuts against the city’s declared remedial purpose that these groups are included given that there is certainly no evidence of any discrimination against them.

7. Dissent Reasoning: [Marshall] The city should be able to have the power to correct for past wrongs without having to shoulder the enormous administrative burden of proving that there was past discrimination that led to the effects.

 

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Roe v. Wade

1. Roe v. Wade, (1973)

2. Facts: Roe was a single pregant woman representing a class action suit against a Texas abortion law that made it a crime to “procure an abortion” except “by medical advice for the purpose of saving the life of the mother.”

3. Procedural Posture: The district court held the law unconstitutional under the 9th amendment.

4. Issue: Whether the Texas anti-abortion law is constitutional.

5. Holding: No.

6. ∏ Argument: The woman’s right to end her pregnancy is absolute based on the considerable pyschological, physical and economic impact that it has on her to bear an unwanted child. This absolute right bars any state imposition of criminal penalties for that choice.

7. ∆ Argument: The state’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest which overrides any right of privacy of the mother. The fetus is a “person” within the meaning of the 14th amendment, and is thereby protected directly by the constitution.

8. Majority Reasoning: Although the constitution does not explicitly mention the right of privacy, the court has held that it exists. (Griswold, Meyer). This right is limited to personal rights that are “fundamental.” The right of privacy is broad enough to cover a woman’s decision to terminate her pregnancy. This right is fundamental but this right is not absolute. Although the fetus is not a “person” under the 14th amendment, a state has an interest in safeguarding health of the mother and in the protection of “potential life.” Where there is an attempted regulation of a fundamental right, the state interest must be “compelling.” With respect to the interest in the health of the mother, the state’s interest becomes “compelling” at the end of the first trimester because it becomes significantly more unsafe to perform an abortion after the first trimester. With respect to the interest in the potential life, the “compelling” point is at the viability of the fetus; when it becomes capable of meaningful life outside the mother’s womb - about 7 months. Measured against these standards, the Texas law sweeps too broadly into areas that it does not yet have a “compelling” interest, thus it is an unconstitutional invasion of privacy. Thus, the abortion is left to the woman’s discretion during the first trimester, it may be regulated in ways that are reasonably related to maternal health after the first trimester and before viability, and may be prohibited after viability.

9. Concurrence Reasoning: [Stewart] The “liberty” protected by the due process clause of the 14th amendment covers more than just the freedoms named in the bill of rights. It is a source of protection of “fundamental” substantive rights that can only be infringed upon by a state law that passes the “strict scrutiny” test. The state interests in this case are not compelling enough to support the broad anti-abortion law. [Douglas] gave three meanings of the word “liberty” as used in the 14th amendment. 1) “autonomous control over the development and expression of one’s intellect, interests, tastes, and personality (absolute rights protected by the 1st amendment); 2) “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children (“fundamental” rights subject to some control by the state), and 3) “freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll or loaf.” (“fundamental”, but subject to regulation on a showing of a “compelling state interest”).

10. Dissent Reasoning: [White] The constitution does not guarantee that the mother’s right to abortion is absolute before viability. The constitution does not balance the “whim” of the mother who does not have a compelling reason for abortion, over the life of the fetus. The majority’s opinion announces this new constitutional right too broadly, removing the state’s legislature’s power to weigh the impacts of abortion on both sides. [Rehnquist] There is not a right of “privacy” involved in this case. The right of abortion is not “so rooted in the traditions and conscious of our people as to be ranked fundamental.”There is only “liberty” guaranteed by the 14th amendment, which is subject to infringment with due process. The standard should be basic “rational relation.” Again, the court goes too far in judging the wisdom of the statute as was the case in Lochner. Breaking the term up into stages and outlining possible regulations that the state may impose on each is usurping the legislative role, not interpreting the 14th amendment.

11. Notes: 2. Blackmun states that he need not resolve when life begins, yet he still draws a line for when the potentiality of human life is “compelling.” The existence of the disagreement as to when life begins does not support the Court drawing an arbitrary line, in fact it substitutes the arbitrary line of the court for the arbitrary line of the state legislature. 3. Roe is perhaps more subjective than Lochner. In Lochner, the invalidations rested either on an illegitimate purpose, or a bad means-ends fit. In contrast, Roe simply states that the state interest is not important (“compelling”) enough. 8. Justice O’Connor’s dissent in Akron advocated a substantial change in the Court’s approach to abortion cases. She felt that the “stages” of pregnancy were too arbitrary and subject to differing interpretation based on the differing medical technology available at the time. Rather than the strict scrutiny/trimester approach of Roe, she advocated that an abortion regulation “is not unconsitutional unless it unduly burdens the right to seek an abortion.” If the law is “unduly brudensome” then it should be subjected to strict scrutiny, but not before. In Thornburgh, the same “undue burden” theme was raised by the O’Connor. Also, Justice White felt that the Roe decision and its progeny went too far by legislating requirements that were not fairly read into the Consitution, usurping the power of the people from overruling through corrective legislation. In Akron II, the court struck down a statute requiring the provision of information to the aborting mother, such as alternatives available and the probable date of viability of the fetus, as being a significant obstacle to the woman’s ability to get an abortion, and not related to the state’s interest in protecting the health of the mother and potential life of the baby.

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San Antonio School Dist. v. Rodriguez

1. San Antonio School Dist. v. Rodriguez, (1973)

2. Facts: Texas had a system of financing public education by allowing the local school boards the power to levy higher property taxes in their districts to pay for school upgrades. However, the state had a minimum educational standard level which applied to all schools. In urban San Antonio, there were disparities between the qualities of the school districts because the affluent children attended better school (paid for through local taxes) than the hispanic children, because the hispanic neighborhoods could not pay higher property taxes.

3. Procedural Posture: The District Court, exercising strict scrutiny, held that the Texas schme violated equal protection.

4. Issue: Whether the Texas system impinges on any fundamental right (i.e. is quality public education a fundamental right), thereby requiring strict scrutiny.

5. Holding: No.

6. Majority Reasoning: There is no reason to give quality of education the level of fundamental right for equal protection purposes. First, not all poor people live in the poorest school districts, and do not have the traditional indicia of suspectness (i.e. “immutable” characteristics - poor people can improve their financial situation). Second, the students have not been denied all public education, they is just not as much money being spent on them (and there has been no correlation shown between money and quality of education, or that the minimum standard of the state funding guarantee is insufficient to provide meaningful education). Equal protection does not require precisely equal advantages. Although education is important because it leads to informed voters and effective free speech, it is not explicitly or implicitly constitutionally protected. Lastly, the appropriate standard here is rational basis, and the Texas scheme passes.

7. Dissent Reasoning: [Marshall] Even if education is not a “fundamental” right, the court should apply higher level scrutiny than “rational basis.” Many fundamental rights are simply closely enough tied to explicitly protected rights that they must be protected to give the explicit rights any meaning. The local school district wealth bears no relation to the Texas state interest in providing educational opportunity to the students by vesting power in the local school districts to tax. Since the amount of revenue depends largely on the physical amount of property located within the district, a factor over which voters have no control, the means is not related to the ends.

 

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Schenck v. United States

1. Schenck v. United States, (1919)

2. Facts: ∆s had written and sent anti-draft propoganda to men who had been drafted.

3. Procedural Posture: ∆’s were charged with conspiracy to violate the Espionage Act, which made it a crime to willfully obstruct the recruiting or enlistment of servicemen.

4. Issue: Whether the government may criminalize speech that poses a “clear and present danger” to the U.S. government.

5. Holding: Yes.

6. Reasoning: The character of every act depends on the circumstances which surround it. When a nation is at war, many things that are said may be dangerous to the country, that would not otherwise be dangerous in peacetime. Thus, the first amendment protection of speech is not so broad as to cover all speech. A person who cries “fire” in a crowded theater would not be protected by the first amendment.

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Shapiro v. Thompson

1. Shapiro v. Thompson, (1969)

2. Facts: The District of Columbia had a federal statute, [and Penn. and Conn. both had state statutes] which required that an indigent family be present in the state for at least one year before being eligible for welfare benefits.

3. Procedural Posture: The lower courts invalidated the statutes on violation of equal protection grounds.

4. Issue: Whether the statutes violate equal protection.

5. Holding: Yes.

6. Majority Reasoning: The statute divides the indigent population into two similar classes, residents > 1 yr. and residents < 1yr. The first class is granted and the second denied welfare benefits based on this arbitrary distinction, even though these are the very means that the families subsist for their food, shelter and other necessities of life. The state makes several justifications that are constitutionally impermissible objectives: 1. deterring people from entering the state is an unconstitutional burden on the fundamental right to travel, even if it is only to deter them from obtaining larger benefits, and 2. distinguishing between whether the person has made significant past contributions to the community is impermissible because it would theoretically preclude any state protection. Also, the permissible objectives forwarded are not sufficiently “compelling” to justify the burden on the fundamental right to travel: 1. there is no evidence that the waiting period promotes budget predictibility, 2. that it is administratively efficient will not withstand scrutiny, 3. there are less drastic means available to guard against fraud, and 4. it does not promote employment because that logic would require that those over one-year residents also have a waiting period.

7. Dissent Reasoning: [Harlan] Apparently the majority has expanded the list of “suspect” classifications unwisely. If the right to travel is fundamental [which it is] then it does not require special constitutional protection under equal protection, and should be treated under the 14th amendment’s due process clause. Thus, the proper question should be whether the governmental interests served by the residence requirements outweigh the burden imposed by the right to travel. Here, they do. The court should not sit as a “super legislature” to second guess the priorities of the state governments.

8. Notes: In Memorial Hospital v. Maricopa County, (1974), the court reexamined and relied on Shapiro in invalidating an Ariz. requirement of a year’s residence in a county as a condition to an indigent’s receiving free non-emergency hospitalization or medical care. The court stated that the essential holding in Shapiro was that strict scrutiny was required when the residency requirements were “penalties” on the right to travel, and that depended in turn on whether the subject of the statute was “a basic necessity of life.” Since medical care is clearly a basic necessity, and the residency requirement is a penalty on that, the statute is unconstitutional because it does not support a “compelling” state interest. However, in Sosna v. Iowa, (1975), the court upheld a state statute requiring one-year residency before bringing a divorce action against a non-resident. The majority distinguished Maricopa County on the basis that the law only postponed the plaintiff’s right [to court access], in contrast to the Maricopa statute which irretrievably foreclosed the indigent’s rights. In Zobel v. Williams, (1982), the court struck down (under equal protection) an Alaska law distributing the income from its natural resources to adult citizens in varying amounts depending on the length of residence. Justice O’Connor’s concurrence based the result on the privileges and immunities clause [because she felt that there was nothing invidious or irrational about rewarding longevity].

 

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Slaughter-House Cases

1. Slaughter-House Cases, (1873)

2. Facts: A Louisiana law of 1869 created a state corporation for the slaughtering of livestock. The corporation was given exclusive power to slaughter livestock, and all other private slaughterhouses were required to close. Independent butchers could use the corporations facilities for a charge, but could not conduct independent operations.

3. Procedural Posture: The butchers not included in the monopoly claimed that the law deprived them of their right to “exercise their trade” and challenged it under the 13th and 14th amendments. The highest state court sustained the law.

4. Issue: Whether the 13th and 14th amendments guarantee federal protection of individual rights of all citizens of the United States against discrimination by their own state governments.

5. Holding: No.

6. Majority Reasoning: The states have the proper police power to limit slaughter house operations for the health and safety of their residents. The meaning of the 13th and 14th amendments must be derived from the historical context of the problems they were designed to remedy, namely African slavery. The Congress, after the end of the Civil War, sought to strenghten the freedom of the former slaves by passing these amendments. The word “servitudes” in the 13th amendment refers to “personal servitudes” not property rights, because of the qualifying word “involuntary.” The purpose of the 13th amendment was thus to etch freedom for slaves into the constitution so that it later would not be questioned or avoided. The 14th amendment was a further step needed to protect former slaves from the “black codes.” The 15th amendment must be grouped in with the 13th and 14th, and it was specifically for black suffrage. These three amendments were ratified to counteract the specific evils of discrimination against former slaves. They did not create any further guarantees of privileges that did not already exist. Specifically, they only were meant to guarantee federal privileges, not state priviliges, whatever they may be. The “priviliges and immunities” clause did not create additional rights, it merely required states to apply its laws equally to non-state residents as well as state residents.

7. Dissent Reasoning: [Field] stated that the privileges and immunities referred to in the 14th amendment included the right to pursue lawful employment. The clause in article 4, section 2 did for the protection of citizens of one state against discrimination by another state, what the 14th amendment does for the protection of every citizen against discrimination by his own state against him. [Bradley] felt that since the language of the 14th amendment was general in nature, and did not claim to protect only blacks, that it was meant to secure fundamental rights of any citizen against discrimination by his state.

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South Carolina State Hwy. Dept. v. Barnwell Bros.

1. South Carolina State Hwy. Dept. v. Barnwell Bros., (1938)

2. Facts: A 1933 South Carolina law prohibited trucks that were more than 90 inches wide or had a gross weight of over 20,000 pounds from travelling on South Carolina highways. About 85% to 90% of the nations trucks exceeded these limits. The law was passed to preserve the highways from damage.

3. Procedural Posture: The trial court found that substantial burdens were put on interstate commerce by this law, and that it was an unreasonable means of protecting the highways because it was tied to gross weight instead of axle weight.

4. Issue: Whether the South Carolina law is unconstitutional as an impermissible conflict with the dormant commerce power.

5. Holding: No.

6. Majority Reasoning: There are matters of local state concern, the regulation of which unavoidably involves some regulation of interstate commerce, but which, because of their local character and diversity, may not be fully dealt with by congress. A state has an adequate local interest in preserving its highways. Thus, it can pass local laws to regulate the size of shipping on those highways. The fact that this necessarily affects interstate commerce is immaterial because, so long as the law does not discriminate, which this one does not, the power is reserved to the states to regulate. It is not the judicial function to determine whether the standard is the best approach or not, but only to determine whether it is without a rational basis.

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Southern Pacific Co. v. Arizona

1. Southern Pacific Co. v. Arizona, (1945)

2. Facts: The Arizona Train Limit Law of 1912 prohibited operating railroad trains of more than a prescribed length. Reducing the length of the trains was said to increase safety because of less “slack action” which caused trains to behave uncontrollably. However, the length limit required the train operators to run about 30% more trains, and cost Southern Pacific about a million dollars/year in extra costs. About 95% of all rail traffic in Arizona was interstate, and so it affected train operations from Texas to California.

3. Procedural Posture: In 1940, Arizona sued Sourthern Pacific for the statutory penalties for violating the law. The trial court found the law to be an unconstitutional burden on interstate commerce, and further found that it was not justified by local safety concerns because the increase in safety by reducing the slack action was offset by the decrease in safety of more trains. The state supreme court reversed, concluding that a state police law, based on safety, could not be overturned even though it had a substantial effect on interstate commerce.

4. Issue: Whether the total effect of the state law as a safety measure in reducing accidents is too small to outweigh the national interest in keeping interstate commerce free of burdens where a uniform national regulation is needed.

5. Holding: Yes.

6. Majority Reasoning: The general rule is that the states do not have the authority to substantially impede the free flow of commerce where the need for national uniformity in laws demand that the regulation be done at the national level. However, this case lies between the two extremes of clearly needing national regulation, and clearly needing a local police measure. Thus, it calls for a balancing of the state and federal interests. The findings show that the increase in safety is small if at all. Also, if the length of trains is to be regulated, it must be done uniformly for efficiency. Since the Arizona Law is a substantial burden on commerce where a need for uniformity exists, and does not have an adequate police justification, it is unconstitutional.

7. Dissent Reasoning: [Black] thought that the balancing test was best left to the legislature and not the judiciary. [Douglas] felt that the state legislation was adequately tied to safety and thus entitled to a presumption of validity.

 

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Steward Machine Co. v. Davis

1. Steward Machine Co. v. Davis, (1937)

2. Facts: Title IX of the Social Security Act imposed a payroll tax on employers, but granted a credit of up to 90% of the tax for contributions to a state unemployment fund if such fund was certified by the federal government as meeting the requirements of the Act. One of the provisions of the Act required the states to immediately pay over the funds to the federal government who would hold them in trust.

3. Procedural Posture: Steward sought a refund of the taxes they had paid under this Act.

4. Issue: Whether Congress has the power to encourage the states to accept federally approved unemployment programs by providing tax credits to employers in that state if the programs are adopted.

5. Holding: yes.

6. ∏ Argument: The aim of the law is to conscript the state legilatures by the use of economic pressure. Thus, it is unconstitutional as infringing upon the soveriegnty of the states.

7. ∆ Argument: The statute was designed to enable the states to cooperate with the federal government in the solving of a national problem. It does not coerce state governments because it is optional.

8. Majority Reasoning: Cardozo explained that the unemployment problem was nationwide and was not relieved by the action (or inaction) of the states. Thus, the action of the federal government was clearly for the general welfare. Congress was capable of determining what was in the best interest of the national welfare in this case. There was not coercion, but merely motivation or temptation. To argue that coercion was the same as economic motivation would be to “plunge the law into endless diffifulties” because the distinction between what was coercion and what was not would be impossible. Congress has the power to tax and to condition the tax on the compliance of the states, as long as the subject matter of the tax is related to the scope of national policy and power. The Child Labor Law case is distinguishable because in that case, the pretext was clearly visible. In this case, the tax credit would be lawful on its own. It is not crippled by the fact that it is tied to conditional performance by the states.

 

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Strauder v. West Virginia

1. Strauder v. West Virginia, (1880)

2. Facts: A black defendant was tried by a jury of all white males. A State law provided that only white males could sit on a jury.

3. Procedural Posture: The defendant tried unsuccessfully to remove to federal court, and was convicted.

4. Issue: Whether the state law prohibiting non-white males from sitting on a jury was a violation of equal protection.

5. Holding: Yes.

6. Majority Reasoning: The purpose of the equal protection clause was to provide protection for the civil rights of blacks. This law clearly discriminates against blacks. Furthermore, any classification of jurors by race would be unconsitutional, whether it be nationality based or otherwise. That is not to say that the state may not prescribe qualification for its jurors, it just may not do so with respect to race. [But age, sex, and education was okay. This is the first exercise of racial protection under the equal protection clause.]

 

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Swann v. Charlotte-Mecklenburg Board of Education

1. Swann v. Charlotte-Mecklenburg Board of Education, (1971)

2. Facts: In Charlotte, N.C., the school in a metorpolitan area was not becoming racially desegregated, and so the lower court instituted a busing plan, and a grouping plan to affirmatively integrate the schools to represent the underlying racial representation in the population.

3. Issue: Whether the district court had the constitutional authority to force integration in the schools.

4. Holding: Yes.

5. Reasoning: The court may excercise broad equitable remedial powers when there is a constitutional violation, as there was here. The mathematical ratio proposed by the lower court of 71% to 29% is not a rigid requirement, but it is a starting point and well within the courts power to use mathematical ratios to ensure desegregation in practice. The transfer arrangement is also valid, given that the students are provided free transportation and that room is made for them at the target school. Even though this will be inconvenient and appear bizzare, it is necessary in the short term to overcome years of building infrastructure designed to support segregation. Thus, pairing and grouping is valid. Lastly, the use of school buses is widely practiced and may be employed as a means of forcing integration.

 

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The Prize Cases

1. The Prize Cases, (1863)

2. Facts: The civil war had not yet been declared a war, but Congress had passed several resolutions giving the President some limited powers to take action against the seceding states. The President instituted a naval blockade and seized several ships.

3. Procedural Posture: The seizures were challenged as unconstitutional.

4. Issue: Whether the President had the authority, given the circumstances, to initiate a naval blockade in the absence of an express declaration of war by the Congress.

5. Holding: Yes.

6. Reasoning: Congress does not have the power to declare war against a domestic state. However, the President, as the chief executive, has the statutory power to supress insurrection, and to see that the laws are carried out. In fact, he has the obligation to protect the union. It is the President’s decision whether force is necessary when it is authorized. In any event, the Congress subsequently passed laws retroactively granting the power, without admitting that it did not exist.

7. Dissent Reasoning: The Congress alone has the power to declare war, and the naval blockade was war-like force. There is no difference between a civil war or a public war. Also, the subsequent grant by Congress was an ex post facto law.

8. Notes: Before the Iraq war, President Bush sent massive amounts of U.S. troops to Saudi Arabia, relying on his constitutional powers as Commander in Chief, and denied the efficacy of the War Powers resolution. Debate ensued as to whether the President had the power to take action towards starting a war without Congressional declaration of war or statutory grant of power. In Dullum v. Bush, 54 members of Congress sued to prevent the President from initiating an offensive attack without first seeking the approval of the Congress, claiming that it was a justiciable, and not merely a political question. However, as the Jan 15th deadline approached, Congress voted to authorize Presidential use of force and the issue became moot. In 1967, the Fulbright committee issued a report recounting the expanding assertion of power of the Presidency, and recommending that Congress reassert its constitutional authority over the use of the armed forces by using joint resolutions that specifically grant definite and limited power rather than merely express approval for indefinite actions to be taken by the President. After that, Congress also used its purse string powers to cut off funding for american armed forces involvement in Cambodia.

 

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The Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer)

1. The Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), (1952)

2. Facts: In the latter part of the Korean war, labor disputes led to a threatened strike by the steel workers. President Truman issued an executive order directing the Secretary of Commerce to seize the steel mills and keep them running. The Secretary issued orders to the presidents of the steel companies, directing them to keep the mills open. The next morning, the President sent a message to Congress reporting his action and promising to abide by their decision either way. Congress took no action. However, there was evidence that Congress disapproved of allowing the President to exercise such power because a few years prior, they removed a clause from the Taft-Hartley act that would have given the President power to seize an industry in case of national emergency.

3. Procedural Posture: The trial court issued a preliminary injunction restraining the Secretary from continuing possession. The court of appeals stayed the injunction. The Supreme Court accepted the case promptly due to the importance of the subject matter.

4. Issue: Whether the president had the power under these circumstances to seize the steel mills of the country.

5. Holding: No.

6. Majority Reasoning: There is no express power in the Constitution supporting the president’s actions. The government claims that the power should be implied from the aggregate of the presidential powers under the Constitution. However, the order can not be sustained under the power of the Commander in Chief of the armed forces because that power is reserved for military commanders in the theater of war and is not broad enough to cover the situation here. This is a job for the nation’s lawmakers, not the military authorities. Also, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. Congress has the exclusive constitutional power to make laws necessary and proper to carry out the powers vested by the constitution in any officer thereof. Thus, this order is unconstitutional.

7. Concurrence Reasoning: [Frankfurter] felt that the situation was more complicated and flexible. However, in view of the Taft-Hartley act, congress has expressed its will to withhold this power from the president in cases like this. In effect, the Congress has said, “ask for seizure power from us if you feel it is needed in a specific situation.” [Jackson] felt that the presidential powers were not fixed, but rather fluctuate, depending on their congruence with Congress. There are three categories: 1. where the president is acting pursuant to an express or implied authorization of Congress - broadest powers, limited only by the Constitution, 2. where the president is acting in the face of Congressional silence - more narrow powers limited by the “zone of twilight” where there may be overlap with congressional powers, and 3. where the president is acting in opposition to Congress - most narrow powers, supported only by his expressly granted constitutional powers, and then still limited by any overlap Congress may have [Congress’ will is dominant in case of overlap]. This order falls into the third category, and since there is no express authority, it must fall, even when it may be otherwise justified by “emergency.”

8. Dissent Reasoning: The president has some power under the constitution to meet a critical situation in the absence of express statutory authorization. Looking at history (particularly WWII), there were several instances when the president made similar orders. The fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history.

 

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U.S. Term Limits, Inc. v. Thornton

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

2. Facts: Arkansas, by popular vote, adopted a State constitutional amendment that prohibited the eligibility of candidates for placing their name on the ballot for re-election if they have already served 2 terms (in the U.S. Senate) or 3 terms (in the U.S. House).

3. Procedural Posture: The lower courts found that the amendment violated the federal constitution.

4. Issue: Whether the states may prescribe additional qualifications for candidates who are otherwise eligible under the federal constitution to have their name placed on the congressional ballot.

5. Holding: No.

6. Majority Reasoning: [Stevens] There is overwhelming historical evidence that it was the intent of the Framers that the qualifications set forth in the Constitution for membership in the House and Senate be the exclusive requirements. It is fundamental that the people be able to choose who is to represent them, not the states. In Powell, the court held that the House of Representatives has no authority to exclude any person, duly elected by his constituents, who meets all of the requirements for membership expressly prescribed in the Constitution. This reasoning applies to the power of States to prescribe additional qualifications as well. The power to add additional qualifications is not within the original powers of the states, and thus not preserved by the 10th amendment. Also, even if it were and original power, it has been divested by the constitution. Only an amendment to the federal constitution can change the framework of the election process so drastically.

7. Dissent Reasoning: [Thomas] Nothing in the Constitution deprives the people of each state to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The states do enjoy reserved powers over the selection of their congressional representatives.

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United Building & Constr. Trades v. Camden

1. United Building & Constr. Trades v. Camden, (1984)

2. Facts: The city of Camden N.J. passed a municipal ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents.

3. Procedural Posture: π challenged the constitutionality of that ordinance under the Privileges and Immunities clause. The state supreme court of New Jersey rejected the attack on the grounds that the ordinance discriminates on the basis of municipal residency and not state residency, and thus declined to broaden the interpretation of the privileges and immunities clause beyond the literal language in the constitution.

4. Issue: Whether the Camden ordinance is constitutional under the privileges and immunities clause.

5. Holding: No.

6. ∆ Argument: The clause does not apply to a municipal ordinance. By its own language, it applies only to state laws which discriminate based on state residency. This ordinance discriminates equally against state residents and non-state residents as long as they are non-Camden residents. Even if it does apply to municipal ordinances, in this case the law is necessary to counteract grave social and economic ills, of which the out-of-city employees are a primary cause. Because they “live off of” Camden without residing in Camden, these out-of-city employees promote “middle-class flight” from Camden, resulting in a depleted tax base.

7. Majority Reasoning: First, the privileges and immunities clause does apply to strictly municipal ordinances because what would be unconstitutional if done by the state can be no more readily accomplished by the city acting under the authority of the state. Also, a person who lives out of state will be just as discriminated against regardless of whether the ordinance also discriminates against other state residents. The out-of-state resident has no chance to remedy the law by participating in the local political process. Determination of validity must therefore proceed under the two-step process. First, whether the ordinance burdens a “fundamental” privilege or immunity protected by the clause, and second, whether there is a good balancing reason for allowing it anyway. Although a Commerce Clause analysis can distinguish between cities acting as regulators (conflict with the dormant Commerce Clause) and cities acting as participants (no conflict), the privileges and immunities clause imposes a direct restraint on the local legislature without regard to whether they are acting as a participant. Clearly, the opportunity to seek employment with private employers, whether or not they work “for the city”, is a fundamental right protected by the clause. As to whether the law is nontheless justified, it can only discriminate against out-of-city residents who are shown to “constitute a peculiar source of the evil at which the statute is aimed.” Here, there are no findings as to whether the out-of-city residents are an “evil” with regard to Camden’s law, thus the case must be remanded for trial and specific findings to that extent.

8. Dissent Reasoning: The privileges and immunities clause has long been interpreted as applying only to state laws that discriminate against out-of-state residents. The majority cites no historical basis for broadening its scope. Furthermore, the out-of-state resident’s interests are adequately protected by the voters who are not residents of Camden, but still residents of New Jersey.

9. Notes: In Supreme Ct. of New Hampshire v. Piper (1985), the court struck down a state law prohibiting non-state residents from being admitted to the state bar under the privileges and immunities clause. The court found that Piper’s claim involved a “privilege” because the practice of law is “important to the national economy.” The court also found that there was no substantial justification for the difference in treatment between state residents and others. In Edwards v. California (1941); the court struck down the anti-Okie law which forbade bringing indigent persons into the state. The majority opinion relied entirely on the commerce clause, but a concurrence by Douglas stated that the privileges and immunities clause was a better rationale because the right of mobility of persons is more fundamental than that of products.

 

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United States v. Bass

1. United States v. Bass, (1971)

2. Facts: A man was convicted of possession of a firearm in violation of a provision of the Omnibus Crime Control and Safe Streets Act of 1968 which applied to any felon “who receives, possesses, or transports in interstate commerce or affecting commerce, any firearm.”

3. Procedural Posture: There had been no showing that the defendant’s firearms were commerce-related, but the lower court convicted anyway.

4. Issue: Whether the Omnibus Crime Control and Safe Streets Act of 1968 applied to merely the possession or receiving of firearms without a nexus to interstate commerce demonstrated.

5. Holding: No.

6. ∏ Argument: The commerce limitations in the law applied only to “transports” and that possession and receipt were punishable without a showing that there was a nexus with commerce.

7. ∆ Argument: The interpretation by the government is unconstitutional because it reaches into purely intrastate activities which have no relations to interstate commerce.

8. Majority Reasoning: Since the statute was criminal in nature, such a broad reading as the government asserted would be too intrusive to the police powers of the states. In the absence of clear direction of Congressional intent to do so, the court would not construe the statute so broadly as to not require a showing of nexus with commerce.

9. Notes: In Scarborough v. United States, the government came prepared to show that the firearm in question had once moved in interstate commerce, but did not provide a strong link that the person convicted was involved in any way in interstate commerce or got the firearms after his felony conviction. Nevertheless, the Supreme Court found that the showing was “sufficient to satisfy the statutorily required nexus between the possession of the firearms by a convicted felon and commerce.”

 

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United States v. Butler

1. United States v. Butler, (1936)

2. Facts: Butler was a processor of cotton. In 1933, the Congress passed the Agricultural Adjustment Act as one of the New Deal measures intended to raise agricultural prices by limiting farm production. In return for limiting their production, the government would give the farmers a subsidy that was raised by taxing the processing stage of the agriculture.

3. Procedural Posture: Butler attacked the tax on the grounds that it was an integral part of an unconstitutional program to control agricultural production.

4. Issue: Whether the Act was a valid exercise of the power to spend for the general welfare.

5. Holding: No.

6. ∆ Argument: Congress has the right to tax and spend to “provide for the general welfare.” This phrase should be liberally construed to cover anything conducive to the national welfare. The decision as to what is conducive to the national welfare is the function of Congress alone, unreviewable by the courts, and this Act was for the “general welfare.” Furthermore, it is not coercive, because it provides for voluntary compliance through payment of benefits.

7. Majority Reasoning: Looking to the framer’s intent, the Court accepted Hamilton’s view that Congress has a substantive power to tax and to spend, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. However, the Court did not reach the determination of whether the Act was for the general welfare, because it invades the rights reserved to the states. The attempt by congress to regulate the production of agriculture is unconstitutional, thus any laws passed as a means to this unconstitutional end are enacted under a pretext. The taxing power can not be used to interfere with the states’ rights, so the spending power should not either. The Act is coercive, because it does not provide the farmers with a practical choice, since their non-compliance would result in their financial ruin. Furthermore, the power of Congress to contract with individuals is limited by whether its federal power reaches the subject matter of the contract. In this case, the federal power does not reach so far.

8. Dissent: The court should only be concerned with the power to enact statutes, not their wisdom. The court here may be overstepping its bounds by trying to pass judgment on the policy of the law, not its consitutionality. The coercion argument is unconvincing because Congress must be able to have the power to condition funding on proper use of the funding, otherwise, its broad powers would be defeated.

 

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United States v. Curtiss-Wright Export Corp.

1. United States v. Curtiss-Wright Export Corp., (1936)

2. Facts: Congress passed a joint resolution authorizing the President to embargo Bolivia and Paraguay who were fighting in Chaco. Curtiss-Wright was indicted for conspiracy to violate the embargo.

3. Procedural Posture: Curtiss-Wright challenged the resolution as being an unconstitutional delegation of legislative power to the President. The lower court sustained the challenge.

4. Issue: Whether the resolution is unconstitutional as a delegation of legislative power to the President.

5. Holding: No.

6. Reasoning: The resolution may have been unconstitutional if it related solely to internal domestic powers, where the President’s power is more constitutionally limited. However, the origin and nature of the President’s domestic and foreign powers is very different. The President’s foreign power is not dependent solely upon the affirmative grants of the constitution. The President has the power to negotiate treaties, and is the representative of the U.S. in international relations. He is in a better position than Congress to handle foreign affairs because he is privy to classified information. Thus, it is unwise to narrowly limit the President’s foreign power.

7. Notes: The War Powers resolution of 1973 now provides that Congress shall be consulted beforehand “in every possible instance” when the President is introducing troops into situations where hostilities are imminent. Afterwards, he must report within 48 hours the reasons and constitutional or statutory basis for his action, and any other information that Congress may request. Also, he must continue to consult with the Congress on a periodic basis. Then, if Congress does not declare war, or otherwise granted statutory power, the President must remove the troops within 60 days, or immediately if directed by Congress.

 

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United States v. Darby

1. United States v. Darby, (1941)

2. Facts: Darby was a Georgia lumber manufacturer who hired labor at less than the minimum wage prescribed in the Fair Labor Standards Act of 1938. He was indicted on violating this Act, which sought to regulate the hours and wages of employees by prohibiting the sale of the product in interstate commerce.

3. Procedural Posture: Darby challenged the indictment, and the lower District Court quashed it, holding that it was unconstitutional because it sought to regulate “local” manufacturing activities.

4. Issue: Whether Congress has the power to prohibit shipments of product that are manufactured by employees who are paid less than a prescribed minimum wage and required to work more than a prescribed maximum number of hours.

5. Holding: Yes.

6. ∏ Argument: The Congress only has the power to regulate prohibit the shipment of products which are “bad” in themselves, such as toxic or stolen articles. This prohibition is motivated by the regulation of local wages, the control of which has been reserved to the states as police power, and so is trampling on the states’ rights.

7. ∆ Argument: In its power to regulate interstate commerce, Congress has the implied power to exclude from commerce any articles which it perceives to be injurious to the public health and welfare.

8. Majority Reasoning: The fact that the state has not regulated this type of activity does not preclude the federal government from doing so; its powers are not limited by the inaction of the state. The motive and purpose behind a regulation are legislative concerns, and as long as the power is not exercised beyond the contemplation of the constitution, Congress is free to use the commerce power to implement public policy. Hammer v. Dagenhart, which limited Congress’ power to regulate only those objects which were themselves harmful, is overruled. The test for whether Congress can regulate an activity under the commerce power is whether the activity has a “substantial effect on the commerce or the exercise of the Congressional power over it.” Congress may choose the means necessary to achieve this end, even if it necessarily involves the control of intrastate actions.

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United States v. E.C. Knight & Co

1. United States v. E.C. Knight & Co., (1895)

2. Facts: Knight acquired the stock of several other sugar manufacturing companies, to control about 98% of the nation’s sugar refining capacity.

3. Procedural Posture: The government brought a civil action under the Sherman Act, which provided for penalties for “restraint of trade or commerce among the several states,” to set aside the acquisition. The lower court dismissed the action, and the government appealed to the Supreme Court.

4. Issue: Whether Congress had the power, under the commerce clause, to regulate the monopolization of the means of manufacturing a good.

5. Holding: No.

6. ∏ Argument: A monopoly of manufacture restrains the free trade or commerce among the states, and thus is contrary to the Sherman Act. Congress has the power to regulate the monopolization of manufacture because it restrains free trade among the states.

7. ∆ Argument: A monopolization of manufacture is not possible. Even if it were, such power to control it would necessarily extend to all use of raw materials, and thus is beyond what the Sherman Act contemplates.

8. Majority Reasoning: If monopolization of manufacture could exist, it could only have an indirect effect on interstate commerce. There is a difference between “manufacture” and “commerce”, namely that commerce succeeds manufacture. Thus, controlling manufacture only indirectly controls commerce. Congress does not have the power to control manufacture because that would be too intrusive a power, necessarily applying to all production of raw materials that could be manufactured into a higher product and then subject to commercial interstate transactions. Allowing the power to be construed this broadly would leave no powers for the states to exercise pursuant to the tenth amendment. All local commerce would then be subject to federal control. Thus, the distinction must be made between activities that have a “direct” affect on commerce, which Congress can control, and those which have merely and “indirect” or incidental affect on commerce, which the states are left to control.

 

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United States v. Five Gambling Devices

1. United States v. Five Gambling Devices, (1953)

2. Facts: This case involved three companion proceedings arising from a statute that prohibited the shipment of gambling machines in interstate commerce. The statute required the registration and reporting of all gambling machines sold, by all manufacturers and dealers in gambling devices, not just those that had some nexus to interstate commerce.

3. Procedural Posture: The lower courts found the statutory interpretation unconstitutional.

4. Issue: Whether the statute requiring the registration of all gambling devices by all manufacturers and dealers was a permissible exercise of the commerce power when it was interpreted to apply to purely intrastate transactions.

5. Holding: No.

6. ∏ Argument: The statute should be applied according to its literal terms without any showing that any individual activity be shown to have an actual effect on interstate commerce. To have an effective regulation of those gambling machine related activities that do have a relationship to interstate commerce, it is necessary to require reporting of all intrastate transactions.

7. ∆ Argument: The statute is unconstitutional because it regulates purely intrastate transactions that can not be shown to have any nexus to interstate commerce.

8. Majority Reasoning: No precedent of the Court has upheld the power of Congress to enact legislation which penalizes failure to report information concerning acts that have not been shown to be related to interstate commerce. Although the Darby “bootstrap” theory, which allows a class of activities to be regulated even though it is over-inclusive, is applicable under its own facts, the present case is distinguishable on its facts. However, the traditional limitations of the federal system do not go against the lower courts findings. There is no unmistakable intent of Congress to apply the act to the police powers normally reserved for the states.

 

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United States v. Kahriger

1. United States v. Kahriger, (1953)

2. Facts: The Revenue Act of 1951 contained a 10% occupational tax on persons engaged in the business of accepting wagers (professional interstate gamblers). It also required these persons to keep a list of the names, and addresses of all employees for public inspection at any time by any state county or municipal agency. In the discussions in the Congressional record, there was evidence that one of the primary purposes was to tax these professional gamblers out of existence.

3. Procedural Posture: The lower court found this provision beyond the taxing power of the Congress.

4. Issue: Whether Congress has the power, under the taxing power, to enact a tax on a particular profession if the tax also has a regulatory effect which appears to infringe on the states’ police power under the 10th amendment.

5. Holding: Yes.

6. ∏ Argument: The legislative history indicating a congressional motive to suppress wagering indicates that this is a tax passed under a pretext of revenue generation and thus is not a proper exercise of the taxing power. The sole purpose of the law is to penalize gamblers. The revenue generation pretext is evidenced by the small amount of revenue actually generated. Furthermore, a the law requires the gamblers to record and present upon demand the names and addresses of their employees, which is clearly an attempt to regulate this occupation.

7. Majority Reasoning: A federal excise tax is not invalid merely because it discourages or deters the activities taxed. Nor is it invalid because the revenue generated is negligible. If a tax produces revenue, and unless there are penalty provisions extraneous to any tax need, the courts are without authority to limit the exercise of the taxing power. This tax is not a penalty, therefore it is valid. The registration requirement simply aids in the collection of the tax.

 

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United States v. Klein

1. United States v. Klein, (1872)

2. Facts: Klein was pardoned by the president for aiding in the civil war rebellion. A statute existed that would allow persons who did not aid in the rebellion to recover land seized from them in the Reconstruction. Previous case law had held that a presidential pardon was conclusive proof that a person had not committed the crime.

3. Procedural Posture: A new statute was enacted by Congress while the Klein case was pending appeal, reversing the previous tradition of a pardon being proof of non-participation, and in fact making it conclusive proof of actual participation. In addition, the statute purported to remove federal court jurisdiction for all such claims arising from pardons.

4. Issue: Whether Congress has the constitutional power to enact a statute which limits the jurisdiction of the federal courts, particularly the Supreme Court, when, by limiting said jurisdiction would dictate the outcome of a particular case.

5. Holding: No.

6. ∏ Argument: Congress has the power under Article III to limit the appellate jurisdiction of the federal courts because of the specific language “with such exceptions...as the Congress shall make.”

7. ∆ Argument: Congress does not have the power to dictate the outcome of any particular case because such would be contrary to the separation of powers structure of the Constitution.

8. Majority Reasoning: The statute removing jurisdiction in this instance was unconstitutional because it was only “a means to an end,” to affect the outcome of this particular case. Dismissing the appeal would allow Congress to prescribe the judgments of the Supreme Court directly. The statute prescribed how the court should decide an issue of fact, and it denied effect to a Presidential Pardon, thus violating the separation of powers.

 

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United States v. Lopez

1. United States v. Lopez, (1995)

2. Facts: Lopez was a high school senior in San Antonio who was caught with a .38 caliber handgun and five bullets on school grounds.

3. Procedural Posture: Lopez was charged with violation of § 922(q) of the Gun-Free School Zones Act of 1990, which made it a federal offense “for any individual knowingly to possess a firearm at a...school zone.” The District Court convicted him on a bench trial and sentenced him to six months’ imprisonment. The Court of Appeal for the 5th district reversed the conviction on the grounds that the law was unconstitutional as being beyond the power of Congress to legislate control over local public schools, and the Supreme Court granted cert.

4. Issue: Whether § 922(q) of the Gun-Free School Zones Act is unconstitutional as being beyond the power of Congress to legislate control over local public schools.

5. Holding: Yes.

6. ∏ Argument: § 922(q) is valid because possession of a firearm in a school zone “substantially affects” [see Shreveport] interstate commerce because it results in violent crime which affects the economy in two ways: first, it results in increased costs to the taxpayers, second, it deters people from traveling to areas that are perceived to be unsafe. Also, the presence of guns in school is a substantial threat to the learning environment, which results in a less educated population, and therefore a less productive economy.

7. ∆ Argument: The Gun-Free School Zones Act is unconstitutional as being beyond the power of Congress to legislate control over local public schools.

8. Majority Reasoning: § 922(q) is a criminal statute that has no observable relationship to “commerce” or any sort of economic enterprise, regardless of how broadly those terms are defined. Deterring the presence of guns on school grounds is not part of a larger regulatory scheme to control commerce that would otherwise be undermined if not viewed in the “aggregate.” Furthermore, it contains no test by which the firearm in question could be rationally linked to interstate commerce. Although the lack of formal Congressional findings to this extent are not fatal, their absence fails to save the statute from the otherwise plain observation that it is not commerce-related. To accept the government’s position that it guns at schools do have a substantial effect on commerce because they adversely affect the economy would be to give virtually unlimited power to Congress to regulate any activity that has a social cost. Additionally, such a position would allow Congress to provide federally mandated school curriculums, and regulate each and every aspect of local schools. This is too broad a reading of the commerce power.

9. Concurrence Reasoning: [Kennedy, O’Connor] Such a broad reading of the commerce power would violate the theory of federalism in which the states perform their role as laboratories for the experimentation with various means of local regulation.

10. Concurrence Reasoning: [Thomas] In future cases, the Court should take the opportunity to fashion jurisprudence that more accurately reflects the intent of the Framers with respect to the commerce power. The “substantial effect” test is far too broad in light of the historical evidence of the Framers’ intent.

11. Dissent Reasoning: [Souter] The Court was wrong to second-guess the rational basis for Congress’ enactment of this Act based on the commerce clause. As a matter of judicial restraint, the Court should defer judgment to the legislature when it appears that there is a rational basis for the Act.

12. Dissent Reasoning: [Breyer] The economic reality is that the quality of education has a “substantial effect” on interstate commerce because it affects the individual citizen’s ability to compete in the global marketplace.

 

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United States v. Nixon (The Nixon Tapes Case)

1. United States v. Nixon (The Nixon Tapes Case), (1974)

2. Facts: Several of Nixon’s top aids were indicted in a criminal conspiracy proceeding in relation to the Watergate burglary.

3. Procedural Posture: The District Court, acting on motion of the special prosecutor, ordered that the President produce taped conversations with the aids in order to determine who was involved to what extent. The President refused to comply with the subpoena duces tecum, invoking executive privilege. The District Court rejected his privilege, and the President appealed. While the case was before the Court of Appeals, the Supreme Court granted cert. before judgment.

4. Issue: Whether an assertion of Presidential privilege as to subpoenaed materials for use in a criminal trial is valid when it is based solely on the general interest in confidentiality of Presidential communications.

5. Holding: No.

6. Reasoning: The President does not have the power to determine the scope of his own privilege. Thus, this is a jusiticialbe question. It is the function of the court to say what the law is, and thus separation of powers [Marbury] supports judicial review of executive privilege. Although the executive privilege is broad in scope, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The interests of the Presidential privilege must be weighed against the interests of criminal justice. Since, the Presidential interest is low in this case [because these are not national security related matters], and the interests of the criminal justice system are high, the executive privilege must yield to the need for evidence in the pending criminal trial.

 

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Warth v. Seldin

1. Warth v. Seldin, (1975)

2. Facts: πs are minority citizens and associations of Rochester, NY. ∆s are members of the zoning commission of Penfield, a city adjacent to Rochester that has allegedly discriminatory zoning laws, preventing the building of low and moderate income housing.

3. Procedural Posture: The lower courts dismissed the case for lack of standing.

4. Issue: Whether the πs had standing.

5. Holding: No.

6. Majority Reasoning: The πs must show that they have suffered some concrete injury or threatened injury from allegedly illegal action to satisfy the consitutional requirements of cases and controversies of Art. III. Also, the πs must show that their grievance is not just a generalized one of a large class, and that they are not bringing an action on behalf of a third party. The πs must also show that a favorable ruling would provide actual relief, not just speculative relief. Here, none of the minority citizens has alleged facts that show an actual injury, they are merely representatives of a larger class. None of them has ever lived, or alleged that they would live in Penfield were the zoning laws different. Also, they have not show that a favorable ruling would allow them to get the housing they need. The various organizations fail standing for the same reasons.

7. Dissent Reasoning: [Brennan] The court views each separate π as if it were bringing a separate lawsuit, rather than seeing that their allegations are intertwined to be sufficient to overcome a motion to dismiss for lack of standing. One can not expect the πs to have enough knowlege, prior to discovery, to allege specific enough facts that the majority requires.

8. Notes: In Northeastern Florida Chapeter General Contractors of America v. City of Jacksonville (1993), the court distinguished Warth and made it clear that the “concreteness” of the πs planned conduct was an important factor in the determination of standing. Here, the contractors actually did bid on the contracts awarded to the minorities, and could allege facts showing that they would have received the contracts if not for the set-aside clause.

 

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Washington v. Davis

1. Washington v. Davis, (1976)

2. Facts: The D.C. police department administers an entrance examination which tests reading and writing communication skills. The test was developed by the U.S. Civil Service Commission, and is the same test used generally throughout the civil service. Statistically, more blacks than whites failed the test.

3. Procedural Posture: The district court found that the test was not discriminatory merely because of the effect. However, the court of appeals applied Griggs (which was applicable to Title VII cases), to invalidate it solely on its disparate statistical effect.

4. Issue: Whether the D.C. police department employment exam is a violation of equal protection due to its de facto effect of more blacks failing than whites.

5. Holding: No.

6. Majority Reasoning: A facially neutral statute or policy can still be discriminatory in effect. The invidious discriminatory purpose behind it may be inferred from the totality of the relevant facts, including the statistical evidence that it bears more heavily on one race rather than another. Nevertheless, a law does not violate equal protection simply because it may affect a greater proportion of one race than another. The D.C. police department has the legitimate interest of setting minimum standards for its police officers. That blacks did not score as well as whites does not demonstrate racial discrimination. Also, there is also evidence that the police department actively and aggressively recruits black officers, so there is no inference of racially discriminative motive. The more rigorous standard of Griggs (requiring the defendant to “validate” the requirements) is only applicable to Title VII cases, not 14th or 5th amendment equal protection.

7. Concurrence Reasoning: [Stevens] felt that bare statistics may be probative enough in some situations to demonstrate racial discrimination (such as in Yick Wo) without more. But here, the statistics were not probative enough because the D.C. police only represented a small sample of those taking the test.

8. Notes: In Arlington Heights v. Metropolitan Housing Corp., the court reaffirmed Davis, holding that although the “ultimate effect” of a law may be racially discriminatory, it will not violate equal protection absent “proof of racially discriminatory intent or purpose.” “Subjects of proper inquiry” to determine intent would be the history leading up to the enactment of the law, whether the statistical effect was grossly lopsided (as in Yick Wo), and departures from normal procedural sequence. Even if an improper motivation can be shown, the city could still provide evidence that the law would be sustainable on otherwise valid grounds.

 

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Wengler v. Druggists Mutual Ins. Co.

1. Wengler v. Druggists Mutual Ins. Co., (1980)

2. Facts: Wengler’s wife died in a job related accident. He sought to collect worker’s compensation for her death. However, a state law required that the widower not be able to collect for worker’s compensation for his wife’s death unless he could show that he was physically disabled or dependent on his wife’s salary. Wengler did not fit either of these qualifications.

3. Procedural Posture: Wengler brought an action challenging the state law on equal protection grounds. The state court rejected the challenge, holding that the substantive difference in the economic standing of working men and women justifies the advantage that the law gives to the widow.

4. Issue: Whether the law is a violation of equal protection, even though it presumably gives widows a benefit.

5. Holding: Yes.

6. Reasoning: The law here is a discrimination against both living women, and surviving men. In both cases, it deprives the parties of the benefits they would get as (or from) a similarly situated male. Thus, under intermediate scrutiny, although having enough resources to provide for needy spouses is an important governmental objective, the classification used is not substantially related to the accomplishment of this objective. The state could either pay benefits to both spouses without a showing, or require a showing from both spouses. However, the difference in treatment here appears to be solely based on the stereotypical assumption that the widower will not need the assistance in most cases. As such, it appears to be only for administrative convenience. Although administrative convenience may properly withstand heightened scrutiny in some contexts, it does not in this case.

 

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Wickard v. Filburn

1. Wickard v. Filburn, (1942)

2. Facts: Filburn was a farmer who grew wheat both for sale and for his own use. Under the Agricultural Adjustment Act of 1938, Filburn was fined for producing too much wheat for his own consumption.

3. Procedural Posture: Filburn sought enjoinder of the fine, and sued the Secretary of Agriculture, Wickard. The lower court granted the injunction on other grounds, and Wickard appealed.

4. Issue: Whether Congress has the power to regulate the production of wheat for consumption by the farmer, apart from the sale of such wheat commercially.

5. Holding: Yes.

6. ∏ Argument: The Congress does not have the power under the commerce clause to regulate the production and consumption of wheat because these activities are local in character and, at most, have an indirect effect on interstate commerce.

7. ∆ Argument: The statute does not regulate production or consumption of wheat, but only marketing; and even if it goes beyond marketing, it is “necessary and proper” in this case.

8. Majority Reasoning: The court discarded the “direct-indirect” approach of Gibbons v. Ogden for a more encompassing approach. Whether an activity had a local is only one of the facts upon which a decision should be based. The test should be based on whether the activity has a “substantial economic effect” on interstate commerce. The consumption of homegrown wheat causes extreme volatility in the national market because it is so variable. Although the effect of one farmer may trivial, he is part of a nationwide market, where the overall effect is not trivial. Since this activity has a substantial economic effect on the interstate wheat market, Congress has the power to regulate it.

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Wilson v. Black Bird Creek Marsh Co.

1. Wilson v. Black Bird Creek Marsh Co., (1829)

2. Facts: The ∆ company was authorized by Delaware law to put a dam across Black Bird creek, which was a navigable waterway flowing into the Delaware river. π crashed through the dam, and was successfully sued by the ∆ company for damages.

3. Procedural Posture: Wilson brought this action to invalidate the Delaware law as being in conflict with Congress’ power under the commerce clause to regulate interstate commerce, which was conducted on the Creek.

4. Issue: Whether the Delaware law authorizing the ∆ to dam up the navigable waterway was constitutional.

5. Holding: Yes.

6. Majority Reasoning: Marshall reasoned that the power to increase the value of the surrounding property, as well as the health of the inhabitants was well within the power of the states as long as it did not conflict with the powers of the federal government. But since Congress had passed no acts over this creek, the repugnancy of the Delaware law must be measured wholly according to its repugnancy to the dormant commerce power. In this case, the Delaware law can not be considered as repugnant to the dormant commerce power.

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Woods v. Miller Co.

1. Woods v. Miller Co., (1948)

2. Facts: The Housing and Rent Act of 1947 was passed under the authority of the war power to regulate the rents of houses in post-WWII America. As the soldiers came back from the war, they were met with a housing shortage due to the reduction in residential construction. The reduction was caused by allocation of building materials to military projects.

3. Procedural Posture: The District Court held that the authority of Congress to regulate rents by virtue of the war power ended with the President’s New-Year’s Eve 1946 proclamation of peace. Also, Congress did not state that they were acting under the war power when they passed the Housing and Rent Act. The government appealed directly to the Supreme Court.

4. Issue: Whether the Housing and Rent Act is a constitutional exercise of the war power by Congress.

5. Holding: Yes.

6. Majority Reasoning: [Douglas] Citing to both Hamilton and Ruppert, the court stated that the war power includes the power “to remedy the evils which have arisen from its rise and progress” and continues for the duration of that emergency. It does not end with the cessation of hostilities. The Presidential proclamation recognized that the state of war still existed, and the war effort was what contributed most heavily to the present housing shortage. Thus, Congress had the power, even after the cessation of hostilities, to regulate a shortage of housing caused primarily by the war. The necessary and proper clause requires that the war power be held over to treat the effects of war. Although this holding, read broadly, would authorize the war power to used during peace to regulate long-term effects of war and swallow up the Ninth and Tenth amendments, we must assume that Congress will act responsibly and take into account its constitutional limits when exercising the war power.

7. Concurrence Reasoning: [Jackson] felt that the result in this case was clear, but was worried about the potential abuse of the war power because it tended to bexercised during periods of hasty patriotism. The war power cannot last as long as the effects and consequences of war because many are permanent.

 

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Yick Wo v. Hopkins

1. Yick Wo v. Hopkins, (1886)

2. Facts: A San Franscisco law required that laundries could not be operated in other than brick or stone buildings without approval by the city. All but one of 88 non-chinese applicants were granted approval to operate in a non-stone building. However, not a single one of 200 chinese applicants had been granted approval.

3. Procedural Posture: Unknown

4. Issue: Whether the statistically unequal administration of a facially neutral law is violation of equal protection when it operates to discriminate in practice against a racial minority.

5. Holding: Yes.

6. Reasoning: Statistics show that the application of this law was clearly discriminatory against chinese launderers. Even if the law is neutral on its face, it is a violation of equal protection to enforce it in an invidiously discriminatory manner.

7. Notes: In Swain v. Alabama, the court held that a prosecutor may use peremptory challenges to strike all black jurors from a jury, without violating equal protection unless a showing could be made that it was systematic discrimination. However, in Batson v. Kentucky, the court overruled Swain to hold that it was a violation of equal protection if it was based on the justification that blacks, as a class, would be unable to impartially consider the State’s case against a black defendant. Also, in Snowden v. Hughes, the court stated that “unequal application” of statutes fair on their face is not a violation of unequal protection “unless there is a showing of intentional or purposeful discrimination.”

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Zablocki v. Redhail

1. Zablocki v. Redhail, (1978)

2. Facts: A Wisconsin law required that a person who had a child who he was required to pay child support on must gain the permission of the court before remarrying. Redhail, a deadbeat dad with an illegitimate daughter, applied for a marriage license but was denied because he did not ask the court for permission.

3. Procedural Posture: Redhail brought a class action suit to invalidate the statute.

4. Issue: Whether the Wisconsin law is consitutional.

5. Holding: No.

6. Majority Reasoning: [Marshall] stated that the right to marry is of fundamental importance and since the statute significantly interferes with that right, “critical examination” of the state interests is required. Reasonable regulations that do not significantly interfere with decisions to marry may be legitimately imposed, however, this law did “directly and substantially” interfere. A “critical examination” means that the law “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Although the interests were legitimate, there was a bad means-ends fit. The statute did not provide for counseling (as was one of the asserted interests). Also, there were less intrusive means for “exacting compliance with support obligations,” such as civil and criminal penalties. The net result of preventing marriage is more illegitimate children.

7. Concurrence Reasoning: [Powell] felt that the majority opinion was too broad because it required too strict of scrutiny in an area that was traditionally subject to state regulation. Particularly, that a sphere of privacy exists between married couples does not require that the same level of scrutiny be applied to regulations of entry into marriage. [Stevens] found that the constitution allowed “direct and substantial” regulation of marriage, but rested his concurrence on equal protection grounds - this statute discriminated against the poor. [Stewart] rested his concurrence entirely on substantive due process grounds, feeling that the equal protection standards proposed by other opinions were “no more than due process by another name.”

 

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Important Documents

Here you find important documents relating to the AP US Government and Politics exam. These important documents, along with the AP US Government and Politics outlines, vocabulary terms, political parties, political timelines, biographies, and case briefs will help you prepare for the AP US Gov and Politics exam.

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Political Timelines

A timeline of the United States' political history. These political timelines, along with the AP US Government and Politics vocabulary terms, political parties, outlines, biographies, case briefs, and important documents will help you prepare for the AP US Gov and Politics exam.

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1800-1809 - The Jeffersonian Revolution

Date Event
January 1, 1800

Presedential Elections: Popular Vote Electoral VoteThomas Jefferson (D-Republican) 73
Aaron Burr (D-Republican) 73
John Adams (Federalist) 65
Charles C. Pinckney (Federalist) 64
John Jay (Federalist) 1

January 1, 1800

Adams negotiated peace treaty,splitting Federalists

November 21, 1800

Senate moved to location in Washington

October 1, 1801

Democrat-Republican majority of 71-34 in House

November 21, 1801

Senate moved to new location in Washington

January 1, 1802

Vice President Arron Burr voted with Federalists,ending Republican alleigance

January 1, 1802

Repub. editor Samuel Harrison Smith petitioned to permit reporters access to floor

January 1, 1803

Treaty drawn to purchase Louisiana Territory

January 1, 1804

Presedential Elections: Popular Vote Electoral VoteThomas Jefferson (D-Republican) 162
Charles C. Pinckney (Federalist) 14

January 1, 1804

House impeaches Samuel Chase

March 12, 1804

US Dist. Court Judge John Pickering guilty of decisions contrary to law and insanity

February 5, 1805

trial began for impeachment of Samuel Chase

March 1, 1805

failure to convict Chase in impeachment

January 1, 1806

Henry Clay enters Senate

January 1, 1806

seizure of Burr's boats in the Ohio and apprehension in Mississipi

January 1, 1807

Jefferson sends Senate message of Burr's conspiracy

January 1, 1807

Embargo Act pushed by Thomas Jefferson

January 1, 1807

Macon defeated as Speaker

January 1, 1808

Presedential Elections: Popular Vote Electoral VoteJames Madison (D-Republican) 122
Charles C. Pinckney (Federalist) 47
George Clinton (D-Republican) 6

January 1, 1809

Senate approved legality of taking West Florida from spain

Subject: 
Subject X2: 

1810-1819 - Formative Years

Date Event
January 1, 1810

Henry Clay enters House of Representatives

January 1, 1811

Bill drafted to raise army of 25,000 men

January 1, 1811

Henry Clay becomes Speaker of the House on first day

January 1, 1812

Presedential Elections: Popular Vote Electoral VoteJames Madison (D-Republican) 128
DeWitt Clinton (Federalist) 89

June 17, 1812

Senate approves Madison's declaration of war against Britain

January 1, 1813

Madison gains nearly fatal illness,as victories prevail overseas

January 1, 1814

Delegation of commissioners dispatched to Britain for negotiations

January 1, 1815

Committees created in Senate to examine sections of presidents message

January 1, 1815

President Madison proposes domestic program,including tariffs and a bank recharter

January 8, 1815

Treaty of Ghent approved after Jackson's victory

January 1, 1816

Presedential Elections: Popular Vote Electoral VoteJames Madison (D-Republican) 183
Rufus King (Federalist) 34

January 1, 1816

""standing committees" approved in Senate "

December 2, 1816

Rep. Calhoun (SC) introduced bill for canals and roads on Clay's "American System"

January 1, 1817

Benjamin Crowninshield of Massachusetts becomes head of Navy

January 1, 1818

Smith Thompson of New York becomes head of Navy

January 1, 1819

Treaty ceding Florida to United States

Subject: 
Subject X2: 

1820-1829 - The Era of Good Feelings

Date Event
January 1, 1820

Presedential Elections: Popular Vote Electoral VoteJames Monroe (D-Republican) 231
John Q. Adams (Ind. Republican) 1

January 1, 1820

Missouri Compromise of 1820

February 22, 1821

Treaty ceding Florida to United States ratified

January 1, 1822

Monroe recognizes South American colonies as independent states

January 1, 1822

Daniel Webster enters Senate

December 2, 1823

Monroe Doctrine declared

January 1, 1824

Presedential Elections: Popular Vote Electoral VoteJohn Q. Adams (Ind. Republican) 30.5 84
Andrew Jackson (D-Republican) 43.1 99
Henry Clay (D-Republican) 13.2 37
William H. Crawford (D-Republican) 13.1 41

February 1, 1825

Clay becomes Secretary of State through "corrupt bargain",giving Adams support

January 1, 1828

Presedential Elections: Popular Vote Electoral VoteJohn Q. Adams (Nat. Republican) 56 178
Andrew Jackson (D-Republican) 44 83

November 21, 1828

Senate moved to location in Washington

January 1, 1829

Senate rejects Andrew Jackson's appointees

December 1, 1829

Senate rejects Andrew Jackson's appointees

December 20, 1829

Foot resolution to limit lands acquired

Subject: 
Subject X2: 

1840-1849 - Seeds of Secession

Date Event
January 1, 1840

Presedential Elections: Popular Vote Electoral VoteWilliam H. Harrison (Whig) 53.1 234
Martin Van Buren (Democratic) 46.9 60

January 1, 1840

Liberty party founded,runs James G. Birney

January 1, 1840

American Republican Party endorses Clay and Frelignhysen

May 1, 1840

Democratic National convention

October 1, 1840

Birney accepted democratic nom. For Michigan legislature

January 1, 1841

bank bill passed in Senate

June 21, 1841

extended fillibuster over bank recharter bill

January 1, 1842

Webster-Ashburton Treaty signed

March 1, 1843

Cushing becomes Secretary of State

January 1, 1844

Presedential Elections: Popular Vote Electoral VoteJames K. Polk (Democratic) 49.6 170
Henry Clay (Whig) 48.1 105
James G. Birney (Liberty) 2.3

April 1, 1844

treaty of Texas annexation considered

December 1, 1844

Adams launches effort to eliminate gag rule on slavery

January 1, 1845

admission of Republic of Texas

December 4, 1845

defeated motion of Vice Presidential appointments

August 1, 1846

Wilmot Proviso fillibustered in Senate

January 1, 1848

Presedential Elections: Popular Vote Electoral VoteZachary Taylor (Whig) 47.4 163
Lewis Cass (Democratic) 42.5 127
Marten Van Buren (Free Soil) 10.1

January 1, 1848

Wilmot Proviso attatched to Oregon treaty

January 1, 1848

Free Soil party founded

March 10, 1848

ratification of treaty with Mexico

May 22, 1848

Convention/Democrats split into Barnburners and Hunkers

June 7, 1848

Whig Convention in Philidelphia

January 1, 1849

Free soilers refuse to support caucuses in House

January 1, 1849

Plurality used to elect speaker

Subject: 
Subject X2: 

1850-1859 - Sectionalism and Secession

Date Event
January 1, 1850

Compromise of 1850

March 1, 1850

Calhoun addresses Senate on Clay's proposals

March 7, 1850

Webster reply to Calhoun

March 31, 1850

Benton-Foote confrontation in Senate

April 18, 1850

Committee of thirteen selected

January 1, 1852

Presedential Elections: Popular Vote Electoral VoteFranklin Pierce (Democratic) 50.9 254
Winfield Scott (Whig) 44.1 42
John P. Hale (Free Soil) 5

June 1, 1852

Baltimore Democratic Party convention

June 16, 1852

Whig convention in Baltimore,put in Compromise measures

January 1, 1853

civil service reform requiring clerks to pass an examination

January 1, 1854

Illinois elects Republican Lyman Trumbull

January 1, 1854

Steven Douglas introduces Kansas-Nebraska act

January 1, 1854

Douglas moves to exempt Nebraska

March 1, 1854

Alvan E. Bovay founds Republican party

January 1, 1855

Republicans outdistance Know-Nothings,absorbing voters

January 1, 1856

Presedential Elections: Popular Vote Electoral VoteJames Buchanan (Democratic) 45.3 174
John C. Fr

January 1, 1856

rule of debate considered after philibuster

February 1, 1856

Know-Nothings (American Party) holds national council meeting

February 22, 1856

Republicans national organizing convention in Pittsburg

May 14, 1856

Sumner denunciates Douglas' views

May 22, 1856

Brooks beats Sumner with cane on Senate floor

June 2, 1856

Democratic National convention in Cincinnati

January 1, 1857

U.S. Supreme Court beings Dred Scott v. Sanford case

January 1, 1858

approval of a proslavery Constitution

January 1, 1858

Lincoln-Douglas debates

January 1, 1858

success of People's Party in Pennsylvania

December 1, 1858

Douglas removed from Committee on Territories

January 1, 1859

Vice President Arron Burr voted with Federalists,ending Republican alleigance

Subject: 
Subject X2: 

1860-1869 - Radical Reconstruction

Date Event
January 1, 1860

Presedential Elections: Popular Vote Electoral VoteAbraham Lincoln (Republican) 39.8 180
John Bell (Constitutional Union 29.5 12
John C. Breckinridge (Democratic) 18.1 72
John Bell (Constitutional Union) 12.6 39

April 23, 1860

Democratic national convention in Charleston,SC

May 16, 1860

Republican national convention in Chicago,surrounded by "Wigwams"

June 18, 1860

Democrats re-assemble in Baltimore

December 4, 1860

South Carolina leaves the Union

January 9, 1861

Mississippi leaves the union

July 21, 1861

Select Committee on the Loyalty of Government Employees started

December 4, 1861

Breckinridge expelled from Senate as a traitor

December 10, 1861

Joint Committee on the Conduct of the War in House,investigations into General Stone

February 1, 1862

Indiana's Jesse Bright expelled from Senate

September 22, 1862

Emancipation Proclamation issued by Lincoln

January 1, 1863

Lincoln offers extension of recognition to South with 10% taking oath

May 1, 1863

Vallandigham peace campaign ends,tried in court for resisting draft

January 1, 1864

Presedential Elections: Popular Vote Electoral VoteAbraham Lincoln (Republican) 55 212
George McClellan 45 21

April 8, 1864

abolishing of slavery in House

June 7, 1864

Union Party first convention in Baltimore

July 5, 1864

Wade-Davis bill vetoed

September 1, 1864

Sherman captures Atlanta,Lincoln gains popularity

January 1, 1865

Joint Committee of Fifteen on Reconstruction established

April 14, 1865

Lincoln assassinated

January 1, 1866

ranks of Republicans in congress expanded after war

January 1, 1866

Johnson vetoes Civil Rights Bill and extension of Freedmen's Bureau

June 13, 1866

Fourteenth Amendment passes

January 7, 1867

James M. Ashley introduced legislation to impeach president

January 13, 1867

First reconstruction Act introduced by Stevens

January 22, 1867

House voted to have 40th Congress begin the day after 39th Congress and authority to call special sessions

March 1, 1867

Tenure of Office Act passed

March 2, 1867

Reconstruction Act vetoed and overridden

March 23, 1867

Supplementary Reconstruction Act

July 19, 1867

Third Reconstruction Act

August 2, 1867

Johnson fires Secretary of War Stanton,impeachment given

January 1, 1868

Presedential Elections: Popular Vote Electoral VoteUlysses S. Grant (Republican) 52.7 286
Horatio Seymour (Democratic) 47.3

March 4, 1868

Johnson impeachment trial begins

March 11, 1868

Third Reconstruction Act

May 16, 1868

vote on removal of Johnson fails

May 20, 1868

National Union Republican" party convention at Chicago

July 4, 1868

Democrats hold convention in new Tammany Hall

September 24, 1868

Black Friday caused by corrective action by Secretary of Treasury Boutwell

Subject: 
Subject X2: 

1870-1879 - The Gilded Age

Date Event
January 1, 1870

Presedential Elections:Rutherford B. Hayes (Republican)
Samuel J. Tilden (Democratic)

January 1, 1870

Hiram Revels elected as first black senator

January 1, 1870

Presedential Elections:Ulysses S. Grant (Republican)
Horace Greeley (Democratic)

January 1, 1870

Republican party convention in Philadelphia

February 21, 1870

Labor Reform Party founded and holds convention in Columbus,Ohio

July 9, 1870

Democratic convention in Baltimore

January 1, 1874

Samuel Tilden elected to governor of New York

January 1, 1875

Ohio Democrats take inflationist stand as Governor Allen embraces greenbackism

June 14, 1875

Republican convention in Cincinnati

January 1, 1876

""Greenback" Independent Party launched "

June 22, 1876

Hayes executive order that government officials take no part in politics

January 1, 1878

Bland-Allison Act allows limited coinage of silver dollars

Subject: 
Subject X2: 

1880-1889 - Status Quo Politics

Date Event
January 1, 1880

Presedential Elections: Popular Vote Electoral VoteJames A. Garfield (Republican) 48.5 214
Winfield S. Hancock (Democratic) 48.1 155
James B. Weaver (Greenback) 3.4

January 1, 1880

Rules made a standing committee by Speaker Randall

May 1, 1880

""no third term" opposition holds convention in St. Louis "

June 2, 1880

Republican convention in Chicago,split into "Stalwarts" and "Halfbreeds"

June 7, 1880

Mugwumps at Massachusetts Reform Club appeal to aiding of a Democratic nomination

June 9, 1880

Greenback convention torn between radicals and fusionists

June 22, 1880

Democratic convention in Cincinnati

October 20, 1880

Garfield learns of forged Morey letter

March 1, 1881

Senate convenes for

May 16, 1881

Conkling and Platt resign from Senate

June 22, 1881

Garfield shot by crazed office seeker

September 9, 1881

President Garfield dies in bed

January 1, 1882

Republicans regain Senate control

January 1, 1883

tariff measure to bring in extra revenue passes

January 1, 1883

Pendleton Act to reform civil service passes

January 1, 1884

Presedential Elections: Popular Vote Electoral VoteClover Winfield (Democratic) 48.5 219
James G. Gland (Democratic 48.2 182

January 1, 1884

debates on how to eliminate $150 million surplus go on in Senate

January 1, 1884

information Blaine's renewal of land grant scandal goes in print

May 12, 1884

Anti-Monopoly Party holds national convention

May 28, 1884

Greenback convention in Indianapolis nominated General Butler

June 4, 1884

Republican convention held in Chicago,Mugwumps leave party

June 28, 1884

meeting of Blaine Irish-Americans convenes as Irish newspapers endorse Blaine

July 18, 1884

Democratic convention held in Chicago

October 29, 1884

Blaine's "rum,Romanism,and rebellion" speech made

January 1, 1885

Woodrow Wilson completes his dissertation,"Congressional Government"

January 1, 1886

bill defeated in House for tariff reductions

January 1, 1886

Cleveland marries,stories circulate about him beating his wife

January 1, 1887

Dawes Act and Interstate Commerce Act pass

January 1, 1887

Electoral Count act passes

January 1, 1888

Presedential Elections: Popular Vote Electoral VoteBenjamin Harrison (Republican) 47.9 233
Glover Cleveland (Democratic) 48.6 168

May 15, 1888

Union Labor Party convention at Cincinnati

June 1, 1888

Democratic convention in St. Louis

June 19, 1888

Republican convention held in Chicago

August 10, 1888

Blaire parades in New York streets for Harrison's campaign

January 1, 1889

Thomas B. Reed (ME) elected as speaker

Subject: 
Subject X2: 

1890-1899 - The Agrarian Revolt

Date Event
January 1, 1890

McKinley Tariff passes in Congress

June 7, 1890

Republican convention in Minneapolis reaffirmed tariff position

January 1, 1891

New York Governor Hill elected to Senate,sets hopes for Presidency

January 1, 1891

McKinley elected as Ohio governor

February 22, 1891

""snap" Republican convention called to secure a Hill delegation "

May 1, 1891

People's Party formed

January 1, 1892

Presedential Elections: Popular Vote Electoral VoteGlover Cleveland (Democratic) 46.1 277
Benjamin Harrison (Republican) 43 145
James B. Weaver (People's) 8.5 22

January 1, 1892

law that president pro tempore succeed the presidency passes

February 22, 1892

St. Louis Populist conference adopting platform

June 7, 1892

Republicans hold convention in Minneapolis

July 2, 1892

Omaha Populist conference meets

January 1, 1893

McKinley faced with bankruptcy,reimbursed by Hanna

January 1, 1894

Republicans gain House control,Populists hold balance of power in Senate

January 1, 1894

Supreme Court declares Wilson-Gorman Act unconstitutional

January 1, 1894

Coin's Financial School published

August 1, 1894

silver Democrats set up national committee

January 1, 1895

Hanna begins campaign to get McKinley the presidential nomination

January 1, 1896

Presedential Elections: Popular Vote Electoral VoteWilliam M. McKinley (Republican) 51.1 271
William J. Bryan (Democratic) 47.7 176

January 1, 1896

conference of Platt,Quay,Clarkson,Manley,and Filley encourage "favorite son" candidacies

June 16, 1896

Republican convention in St. Louis

July 7, 1896

Democratic national convention in Chicago opposes silver men

July 22, 1896

Populist convention at St. Louis endorses W. J. Bryan

January 1, 1897

William Allison becomes chairman of the Republican caucus

January 1, 1898

Theodore Roosevelt elected as governor of New York

April 1, 1898

Sherman resigns from state department

January 1, 1899

Secretary Hay secures open-door policy in China

Subject: 
Subject X2: 

1900-1909 - The Modern State

Date Event
January 1, 1900

Bryan declares government ownership a non-issue

January 1, 1900

Presedential Elections: Popular Vote Electoral VoteWilliam M. McKinley (Republican) 51.7 292
William J. Bryan (Democratic) 45.5 155

June 19, 1900

Republican national convention at Philadelphia

July 4, 1900

Admiral George Dewey announces candidacy for President

July 4, 1900

Democratic convention in Kansas City nominates Bryan and Silver Republican

September 6, 1901

McKinley shot by anarchist at Pan-American Exposition

January 1, 1902

Roosevelt intervenes in the anthracite coal strike

January 1, 1903

""Uncle Joe" Cannon elected as Speaker of the House "

January 1, 1904

Presedential Elections: Popular Vote Electoral VoteTheodore Roosevelt (Republican) 57.4 336
Alton B. Parker (Democratic) 37.6 140
Eugene V. Debs (Socialist) 3

June 21, 1904

Republican national convention in Chicago

July 6, 1904

Democratic convention in St. Louis

January 1, 1906

W. J. Bryan makes speech in Madison Square Garden advocating government ownership of railroads

January 1, 1906

two senators convicted on fraud and corruption charges,campaign for direct election begins

January 1, 1906

Hepburn Act drawn up by William Peters

March 1, 1906

""Treason of the Senate" articles appear through print "

January 1, 1907

Panic 1907 asserts fundamental conservatism of Republican majority

January 1, 1907

Harriman letter appears in New York World

January 1, 1908

Presedential Elections: Popular Vote Electoral VoteWilliam H. Taft (Republican) 51.6 321
Alton B. Parker (Democratic) 43.1 162
Eugene V. Debs (Socialist) 2.8

June 16, 1908

Republican national convention in Chicago

July 1, 1908

Democratic convention in Denver re-nominates Bryan

March 1, 1909

progressive Republicans break ranks and vote for James Beauchamp Clark for Speaker

Subject: 
Subject X2: 

1910-1919 - The Progressive Era

Date Event
January 1, 1910

Ballinger-Pinchot controversy; Pinchot writes letter to Senator Dolliver

March 1, 1910

bipartisan uprising against "Uncle Joe" Cannon

March 17, 1910

Norris proposes Rules Committee in which the Speaker is excluded

January 1, 1911

House passes direct election amendment by 296-11 margin

January 1, 1911

National Progressive Republican League founded

February 2, 1911

La Follette speaks at Publishers Association and is reported to have a breakdown; support switches to Roosevelt

January 1, 1912

Presedential Elections: Popular Vote Electoral VoteTheodore Roosevelt (Progressive) 41.9 435
William H. Taft (Republican) 27.4 88
Eugene V. Debs (Socialist) 23.2 8

May 1, 1912

William Borah (ID) guides direct election measure to enactment

August 5, 1912

Progressive Party convention n Chicago

October 1, 1912

Roosevelt criticizes treaties by Taft as suit brought against dissolution of U.S. Steel

October 14, 1912

insane man attempts to assassinate Roosevelt in Milwaukee

January 1, 1913

Underwood tariff passes in House

April 3, 1913

Wilson appears before special session of congress calling for elimnation of tariffs

January 1, 1914

Federal Trade Commission Act and Clayton Antitrust Act approved by Senate

January 29, 1914

Maryland's Blair Lee becomes first directly elected senator

April 1, 1914

onset of the world war,Senate's attention shifted to foreign policy

January 1, 1915
January 1, 1916

Presedential Elections: Popular Vote Electoral VoteWoodrow Wilson (Democratic) 49.4 277
Charles E. Hughes (Republican) 46.2 254
A. L. Benson (Socialist) 3.2

March 2, 1917

Progressives hold filibuster of arming ships on noninterventionist policies

March 5, 1917

cloture' measure (Rule 22) passes at Wilson's demand

January 1, 1918

Wilson calls for establishment of Democratic congress to see the victory

January 1, 1918

Truman Newberry defeats Henry Ford in Michigan Senate race

January 1, 1918

Wilson sets forth "Fourteen Points" to Congress

May 16, 1918

Sedition Act proposed to punish anyone who spoke out against the government

August 1, 1918

H. Cabot Lodge becomes Senate's floor leader and senior member

March 1, 1919

Lodge presents resolution signed by 29 senators urging the separation of the treaty from the League of Nations covenant

July 10, 1919

peace treaty sent to Senate; voted down amendments

October 22, 1919

Wilson suffers a stroke,and returns to capital from peace campaign

November 29, 1919

Newberry indicted on charges of conspiracy

Subject: 
Subject X2: 

1920-1929 - A Return to Normalcy

Date Event
January 1, 1920

Presedential Elections: Popular Vote Electoral VoteWarren G. Harding (Republican) 60.4 404
James M. Cox (Democratic) 34.2 127
Eugene V. Debs (Socialist) 3.4

January 1, 1920

due to census anomalies,House Census Committee recommends extending membership to 483

January 1, 1920

Alfred Smith defeated for reelection in New York

January 1, 1920

Senate agrees to abolish forty-one standing committees

March 20, 1920

Peace treaty struck down again as it fails the vote

May 1, 1920

Socialist convention at New York,Debs nominated from prison

June 8, 1920

Republicans hold gathering in Chicago

June 28, 1920

Democrats hold convention in Chicago,pass Wilsonian platform

November 19, 1920

Senate rejects peace treaty after Wilson refuses modifications

January 1, 1921

Budget and Accounting Act passed

May 1, 1921

Supreme Court overturns Newberry's conviction

January 1, 1922

House elections reduce Republican margin to fifteen

January 1, 1922

House Rules Committee Chairman Campbell defeated

January 1, 1922

Newberry resigns from Senate

January 1, 1922

bonus bill passes in Congress and is vetoed

January 1, 1922

Conference for Progressive Political Action founded

November 21, 1922

Rebecca Latimer Felton elected governor of Georgia

January 1, 1923

magazine article states that Harding never had intentions of joining League of Nations

June 1, 1923

President Harding sets out on transcontinental trip

August 2, 1923

President Harding dies

November 21, 1923

Rebecca Latimer Felton elected governor of Georgia

January 1, 1924

Presedential Elections: Popular Vote Electoral VoteCalvin Coolidge (Republican) 54 382
John W. Davis (Democratic) 28.8 136
Robert M. La Follette (Progressive) 16.6 13

January 1, 1924

Longworth pushes through a change in rules governing petitions

January 1, 1924

Rep. Haugen and Sen. McNary promote purchasing and selling of agricultural products

June 24, 1924

Democratic national convention at Madison Square Gardens

July 4, 1924

La Follette named for nomination by gathering of progressive groups

January 1, 1925

Senate agrees to revise the Federal Corrupt Practices Act

June 1, 1925

Robert La Follette dies

January 1, 1926

Smith and Vare campaigns spurs Senate investigations

January 1, 1927

McNary-Haugen bill passes,and is vetoed

January 1, 1927

Supreme Court strengthens investigations with McGrain v. Daugherty

August 3, 1927

Coolidge announces he will not run again

January 1, 1928

Presedential Elections: Popular Vote Electoral VoteHerbert C. Hoover (Republican) 58.2 444
Alfred E. Smith (Democratic) 40.9 87

June 12, 1928

Republican convention held in Kansas City

June 26, 1928

Democratic convention held in Houston

January 1, 1929

Agricultural Marketing Act fails

January 1, 1929

Senate launches investigation related to maintenance of prerogatives

January 1, 1929

Congress passes bill to establish an automatic reapportionment

January 1, 1929

Senate censures Connecticut's Hiram Bingham for placing a lobbyist on payroll

October 1, 1929

Stock market crash

Subject: 
Subject X2: 

1930-1939 - The New Deal Landslide

Date Event
January 1, 1930

Republican majority in House reduced to one seat

June 1, 1930

Smoot-Hawley Tariff carries by two votes

January 1, 1931

Congress passes servicemen loan bill over Hoover's veto

January 1, 1931

Democrats lowers amount of signatures required for discharge petition

December 1, 1931

Hoover waits to address the economic crisis

January 1, 1932

Presedential Elections: Popular Vote Electoral VoteFranklin D. Roosevelt (Democratic) 57.4 472
Herbert C. Hoover (Republican) 39.7 59

January 1, 1932

Hattie Caraway becomes first woman in Senate

January 1, 1932

Bonus March on Washington

February 16, 1932

Lame Duck' amendment passes

June 14, 1932

Republican convention in Chicago

June 27, 1932

Barkley speaks at Democratic convention in Chicago

January 1, 1933

73rd Congress convenes its first 100 days

March 9, 1933

Roosevelt calls Congress into special session

May 1, 1933

National Labor Relations Act passes in Senate under Wagner

January 1, 1934

Democratic majority in Congress increases

January 1, 1934

Borah leads efforts to investigate munitions industry

January 1, 1934

Liberty League appears,backed by wealthy

January 1, 1934

Rules Committee proposed that there would be no appropriation bill amendments,sparks furor

January 1, 1935

Harry S. Truman begins Senate service

January 1, 1935

Congress passes Neutrality Act t

January 1, 1936

Presedential Elections: Popular Vote Electoral VoteFranklin D. Roosevelt (Democratic) 60.8 523
Alfred M. Landon (Republican) 36.5 8

January 8, 1936

Democrats begin practice of Jackson Day dinners

June 9, 1936

Republican national convention in Cleveland

June 19, 1936

Lemke and O'Brien announce candidacy for "Union Party"

June 23, 1936

Democratic convention gathers in Philadelphia

September 11, 1936

national conference of liberals endorse Roosevelt

July 6, 1937

Senate debates begin over court-packing scheme

July 14, 1937

Majority Leader Robinson found dead,Barkley succeeds

November 1, 1937

Roosevelt calls special session

January 1, 1938

Roosevelt attempts to "purge" party of conservative leaders

January 1, 1938

Republican revival in Congress

January 1, 1939

Hatch Act passed prohibiting officials from politics

January 1, 1939

Felix Frankfurter elevated to Supreme Court

January 1, 1939

Roosevelt asks for large defense appropriation

Subject: 
Subject X2: 

1940-1949 - Rise of Money Politics

Date Event
January 1, 1940

Presedential Elections: Popular Vote Electoral VoteFranklin D. Roosevelt (Democratic) 54.8 499
Wendel L. Willkie (Republican) 44.8 82

January 1, 1940

stringent campaign finance act passed

March 8, 1940

Senate approves president's "Lend-Lease" plan

July 15, 1940

Democratic convention at Chicago

August 17, 1940

Wilkie accepts Republican nomination

September 16, 1940

Congress enacts first peacetime draft

October 25, 1940

John Lewis urges labor to vote for Willkie

January 1, 1941

Senator Chandler proposes hiring 'research experts'

March 1, 1941

Senate creates Special Committee to Investigate the National Defense Program

August 1, 1941

opposition arises in renewal of the draft

December 8, 1941

Sen. Arthur Vandeer reverses isolationist position,nation goes to war

January 1, 1942

Republicans gain seats in Congress as there is a swing to the right

September 1, 1942

Roosevelt threats Congress with action

January 1, 1943

conservative coalition repeals many New Deal agencies

July 1, 1943

C.I.O. forms first Political Action Committee

January 1, 1944

Presedential Elections: Popular Vote Electoral VoteFranklin D. Roosevelt (Democratic) 53.5 432
Thomas E. Dewey (Republican) 46 99

January 1, 1944

Henry Wallace replaced by Truman as vice presidential nominee

February 23, 1944

Roosevelt vetoes Barkley's tax bill

May 1, 1944

Communist Party dissolves,forms Communist Political Association

July 19, 1944

Democratic convention in Chicago

August 4, 1944

soldier voting act amended

August 30, 1944

America First party holds convention in Detriot,nominates Smith

January 1, 1945

Joint Committee on the Organization of Congress established

January 1, 1945

Senate agrees to the United Nations Charter

April 12, 1945

President Roosevelt dies,replaced by Truman

January 1, 1946

number of Republicans increase in Senate to majority,pass Taft-Hartley Act

January 1, 1946

Henry Wallace resigns

May 1, 1946

Truman proposes law to draft strikers,labor relations hurt

January 1, 1947

""Vandenburg Resolution" adopted "

January 1, 1947

Senate approves "Truman Doctrine"

January 1, 1948

Presedential Elections: Popular Vote Electoral VoteHarry S. Truman (Democratic) 54.8 499
Thomas E. Dewey (Republican) 44.8 82

January 1, 1948

Lyndon Johnson,Hubert Humphrey elected to Senate

January 1, 1948

Democrats return to majority status in house

January 1, 1948

Eisenhower refuses to run

March 1, 1948

General MacArthur announces possible candidacy

July 12, 1948

Democratic convention held in Philadelphia

July 17, 1948

Dixiecrats hold convention,nominate Strom Thurmond

July 22, 1948

Progressive Party convention in Philadelphia nominates Wallace

August 1, 1948

Communist Party endorses Wallace

January 1, 1949
Subject: 
Subject X2: 

1950-1959 - Cold War Politics

Date Event
January 1, 1950

Internal Security Act enacted over Truman's veto

February 9, 1950

Sen. McCarthy begins anti-Comunist accusations

February 20, 1950

McCarthy details '81 loyalty risks'

January 1, 1951

Bricker on campaign for amendment allowing Congressional treaty regulation

July 14, 1951

McCarthy accuses Gen. Marshall of 'whimpering appeasement'

September 1, 1951

Senator Taft announces intentions to run for President

January 1, 1952

Presedential Elections: Popular Vote Electoral VoteDwight D. Eisenhower (Republican) 55.1 442
Adlai E. Stevenson (Democratic) 44.4 89

July 2, 1952

Republican convention at Chicago

January 1, 1953

Bricker obtains sixty-two Senate cosponsors

July 31, 1953

Taft dies; Knowland becomes majority leader

January 1, 1954

Averell Harriman elected governor of New York

February 1, 1954

Johnson substitute for Bricker amendment fails by one vote

March 1, 1954

Puerto Rican Nationalists open fire on the House of Representatives

April 1, 1954

televised hearings of McCarthy trials air

December 2, 1954

Senate censures McCarthy

January 1, 1955

Howard Smith becomes the House Rules Committee chair

January 1, 1955

House resolution to aid Formosa

July 1, 1955

President goes to Big Four summit,popularity booms

January 1, 1956

Presedential Elections: Popular Vote Electoral VoteDwight D. Eisenhower (Republican) 57.6 457
Adlai E. Stevenson (Democratic) 42.1 73

January 1, 1956

Senate kills Eisenhower's Dixon-Yates contract

August 13, 1956

Democratic convention held in Chicago

August 20, 1956

Republican national convention at San Fransisco's Cow Palace

January 1, 1957

passage of civil rights act forwarded by Johnson

January 1, 1957

Kennedy writes Profiles in Courage

January 1, 1957

Eisenhower uses troops to enforce segregation by Governor Faubus

January 1, 1958

Democrats gain majority in House of Representatives

January 1, 1959

Senate rejects Lewis Strauss as Secretary of Commerce

Subject: 
Subject X2: 

1960-1969 - The Era of Civil Revolt

Date Event
January 1, 1960

Presedential Elections: Popular Vote Electoral VoteJohn F. Kennedy (Democratic) 49.7 303
Richard M. Nixon (Republican) 49.5 219

July 25, 1960

Democratic national convention held in Chicago

September 26, 1960

first televised debate held

October 7, 1960

further televised debates held

January 1, 1961

Democrats caucus and elect Mike Mansfield as floor leader

April 1, 1961

Kennedy attempts invasion of Cuba,lacks support

January 1, 1962

Military Assistance Command-Vietnam formed

January 1, 1962

Republicans loose four Senate seats

January 1, 1962

segregationist Democrats attempt amendments to limit federal powers

April 1, 1962

business leaders denunciate Kennedy's economic policies,stop proposed increase in steel prices

January 1, 1963

Sen. Jacob Javits declares the need for a binding code of conduct

January 1, 1963

South asked to achieve "first step compliance" in desegregation

September 25, 1963

Kennedy and Mansfield push through Limited Nuclear Test Ban Treaty

November 22, 1963

John F. Kennedy shot,Mansfield does not deliver speech

January 1, 1964

Presedential Elections: Popular Vote Electoral VoteLyndon B. Johnson (Democratic) 61.1 486
Barry M. Goldwater (Republican) 38.5 52

January 1, 1964

Senate cooperates with Johnson to start "Great Society"

January 1, 1964

National Election Service set up to provide quick election returns

June 10, 1964

Senate invokes cloture for the first time on civil rights

June 19, 1964

Senate passes strong Civil Rights Act and tax deduction measure

July 1, 1964

bipartisan Select Committee on Standards and Conduct formed

August 7, 1964

Senate passes "Gulf of Tonkin Resolution" by 88-2

August 24, 1964

Democratic national convention held in Atlantic City

January 1, 1965

twenty five House liberals plea for hearings on Vietnam policy

January 1, 1966

Democratic majorities reduced in Congress

January 1, 1967

Sen. Thomas Dodd censured for using campaign funds

October 1, 1967

left-wing anti-war groups require military to protect Pentagon

November 18, 1967

Governor Romney announces Republican candidacy for President

January 1, 1968

Presedential Elections: Popular Vote Electoral VoteRichard M. Nixon (Republican) 43.3 301
Hubert H. Humphrey (Democratic) 42.7 191
George Wallace (A. Independent) 13.5 46

February 1, 1968

Nixon declares candidacy

March 2, 1968

Johnson appoints advisory commission on civil disorders

March 16, 1968

Robert Kennedy announces candidacy in Senate Caucus Room

March 31, 1968

Johnson ends bombing raids,silences political opposition

April 27, 1968

Hubert Humphrey declares candidacy

April 30, 1968

Nelson Rockefeller announces Republican liberal candidacy

August 5, 1968

Republican national convention at Miami

August 26, 1968

Democratic National Convention,plagued by demonstrations

September 30, 1968

Humphrey promised to end bombing if demilitarized zone restored

January 1, 1969
Subject: 
Subject X2: 

1970-1979 - Seeds of Corruption

Date Event
January 1, 1970

Cooper and Church reassert prerogatives by restricting ground forces in Cambodia

December 31, 1970

Gulf of Tonkin Resolution repealed

January 1, 1971

Speaker McCormack retires,succeeded by Carl Albert

January 1, 1971

McGovern announces candidacy and outlines twin campaign themes

January 1, 1971

Edward Kennedy quiets scandalmongers and announces he would not run

January 1, 1972

Presedential Elections: Popular Vote Electoral VoteRichard M. Nixon (Republican) 60.7 520
George S. McGovern (Democratic) 37.5 17

May 15, 1972

Bremer wounds Governor George Wallace

June 6, 1972

Humphrey attacks McGovern at California primary

July 10, 1972

Democrats hold national convention in Chicago

July 11, 1972

Governor Askew calls for "coalition of protest"

August 21, 1972

Republicans hold national convention

November 4, 1972

Virginian elector votes for Libertarian candidate

January 1, 1973

Senate begins examinations of ethical misconduct in 1972 campaign

July 23, 1973

committee learns of existence of Nixon tape recordings

October 4, 1973

conferees agree on bill setting restrictions on presidential military powers

October 7, 1973

Nixon ordered firing of Special Prosecutor Archibald Cox

October 24, 1973

President vetoes War Powers Act

November 7, 1973

Congress passes War Powers Resolution

January 1, 1974

Congressional Budget and Impoundment Control Act curtails presidents ability in the matter

January 1, 1974

Federal Elections Act established public financing for campaigns

February 6, 1974

House authorizes Judiciary Committee to begin Nixon investigation

July 27, 1974

bipartisan majority voted in favor of Nixon impeachment

August 28, 1974

President Richard Nixon resigns

December 1, 1974

Carter declares presidential candidacy

January 1, 1975

Senate adopts reform requiring open hearings and business meetings

January 1, 1975

Senate adopts rules change reducing cloture vote

November 1, 1975

Ronald Reagan announces candidacy for presidency

January 1, 1976

Presedential Elections: Popular Vote Electoral VoteJimmy Carter (Democratic) 50.1 297
Gerald R. Ford (Republican) 48 240

January 1, 1976

Legislative Reorganization Act passed

January 1, 1976

Rep. Wayne Hays found to have abused authority on committee

January 1, 1976

Supreme Court strikes down public financing statute

July 12, 1976

Democratic National Convention in Madison Square Garden

August 16, 1976

Republican convention in Kemper Arena

September 23, 1976

presidential debates in Philadelphia

October 15, 1976

vice-presidential and presidential debates

January 1, 1977

Senate acknowledges right of the minority to hire one third of the committee staff

January 1, 1977

Speaker Albert retires,succeeded by Top O'Neill

January 1, 1977

Robert C. Byrd elected as Democrat majority leader

January 1, 1977

Congress toughens codes of conduct

January 1, 1979

Senate "denounces" Sen. Talmadge for financial misconduct

January 1, 1979

Byrd limits "post-cloture" fillibuster

January 1, 1979

House votes to allow television coverage by C-SPAN

Subject: 
Subject X2: 

1980-1989 - The Reagan Revolution

Date Event
January 1, 1980

Presedential Elections: Popular Vote Electoral VoteRonald W. Reagan (Republican) 50.7 489
Jimmy Carter (Democratic) 41 19
John B. Anderson (Independent) 6.6 0

July 5, 1980

Republicans hold their convention in Detroit,MI

August 11, 1980

Democrats hold their convention in New York,NY

January 1, 1981

Republicans win control of the Senate

March 10, 1981

assasination attempt of Ronald Reagan

January 1, 1982

Richard Kelley's corruption conviction overturned by court

January 1, 1982

Democrats gain strength in Congressional elections

January 1, 1982

Senate moves to expel Sen. Wiliams for corrupt bargain

January 1, 1982

budget passes that cut $35 billion from social programs and added $18 billion to defense

January 1, 1983

Supreme Court reaffirms Roe vs. Wade abortion decision

March 1, 1983

Reagan announces his Strategic Defense Initiative

January 1, 1984

Presedential Elections: Popular Vote Electoral VoteRonald W. Reagan (Republican) 58.4 525
Walter Mondale (Democratic) 41.6 13

January 1, 1984

House insists on $24 million limit on covert war in Nicaragua

January 1, 1984

Sen. Jesse Helms spends record $15 million on reelection campaign

July 16, 1984

Democrats hold their convention in San Francisco,CA

August 20, 1984

Republicans hold their convention in Dallas,TX

January 1, 1985

Howard Baker retires

March 1, 1985

House accepts provision to cut off all aid to contras

July 13, 1985

Reagan undergoes intestinal surgery,hands temporary power to Bush

January 1, 1986

after extended debate,the Senate's proceedings become televised

January 1, 1986

Senate returns to Democratic hands

October 9, 1986

Senate removes Federal District Judge Harry Clairborne from office

November 1, 1986

Middle Eastern newspaper reveals secret armaments shipped to Iran

November 25, 1986

Attorney General Meese announces that NSC had diverted profits to support contras

January 1, 1987

Democrats return to power in Congress,Byrd reassumes role

January 1, 1987

Senate hearings on Iran-contra scandal begin

January 7, 1987

House establishes committee to investigate arms deal and diversion

January 1, 1988

Presedential Elections: Popular Vote Electoral VoteGeorge W. Bush (Republican) 53.4 426
Michael Dukakis (Democratic) 45.6 111

July 18, 1988

Republicans hold their convention in New Orleans,LA

August 15, 1988

Republicans hold their convention in New Orleans,LA

January 1, 1989

Supreme Court upholds public flag burning as expression of free speech

January 1, 1989

Oliver North indicted on Iran-contra charges

Subject: 
Subject X2: