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The
Basics
of American
Government
Fourth Edition
Carl D. Cavalli
Editor
Contributors
Maria J. Albo
Ross C. Alexander
Carl D. Cavalli
Barry D. Friedman
Craig B. Greathouse
Jonathan S. Miner
Brian M. Murphy
K. Michael Reese
Charles H. “Trey” Wilson III
Mary Catherine Beutel
Nathan Deal
Blue Ridge | Cumming | Dahlonega | Gainesville | Oconee
Copyright 2011, 2013, 2017, 2021 University of North Georgia Press
All rights reserved. No part of this book may be reproduced in whole or in part
without written permission from the publisher, except by reviewers who may
quote brief excerpts in connections with a review in newspaper, magazine, or
electronic publications; nor may any part of this book be reproduced, stored
in a retrieval system, or transmitted in any form or by any means electronic,
mechanical, photocopying, recording, or other, without the written permission
from the publisher.
Published by:
University of North Georgia Press
Dahlonega, Georgia
Printing Support by:
Lightning Source Inc.
La Vergne, Tennessee
Book and cover design by Corey Parson.
ISBN: 978-1-940771-90-8
Printed in the United States of America, 2017
For more information, please visit: http://ung.edu/university-press
or e-mail: ungpress@ung.edu
Prefaces
Table of Contents
v
Acknowledgements
ix
Foreword
xi
Theories of Democracy and Types of Government
1
The U.S. Constitution
11
Federalism
25
Political Socialization and the Communications Media
47
Interest Groups
89
Political Parties, Voting, and Elections
117
Congress
151
The Presidency
179
Executive Agencies
203
The Federal Judiciary
223
Civil Liberties and Civil Rights
249
Public Policy
271
State and Local Government
289
Georgia Public Policy
307
U.S. Foreign Policy
325
About the Authors
349
Nathan Deal, Governor of Georgia, 2011-2019
Ross C. Alexander
Ross C. Alexander
Charles H. “Trey” Wilson III
Maria J. Albo and Barry D. Friedman
Carl D. Cavalli and Barry D. Friedman
Carl D. Cavalli
Carl D. Cavalli
Carl D. Cavalli
Barry D. Friedman
Brian M. Murphy
K. Michael Reese and Brian Murphy
Barry D. Friedman
Ross C. Alexander
Maria J. Albo and Mary Catherine Beutel
Jonathan S. Miner and Craig B. Greathouse
Online Companion
Additional learning materials are available online thanks to the dedicated
staff at eCore. To access the Online Companion for The Basics of American
Government, please visit:
http://www.upnorthgeorgia.org/amergovt/
Digital Version
You can access a digital version (PDF) of the textbook at the site of the
University of North Georgia Press.:
https://ung.edu/university-press/books/
textbooks-and-oers.php
This digital version is courtesy of Affordable Learning Georgia.

– iv –
Preface to the Fourth Edition
Ten years! That is how long it has been since our first edition was released in
2011. The ensuing decade brought some of the most significant events in politics
and government in generations. In just the four years since the publication of our
previous edition, we have seen partisan shifts in both houses of Congress; significant
changes to the Supreme Court; and controversies involving state laws, voter access,
race, gender, and civil liberties. All capped off with a rancorous presidential election
and a once-in-a-century worldwide health crisis. We touch on those events and put
them in political context throughout our textbook.
As with previous versions, this edition examines the rise of new political figures
and the exit of others, the shift in policy and political focus at both the state and
federal level, the changes in the public, the continued rise of partisan divisiveness,
and shifting views of government in everyday life—including those resulting from
the COVID-19 pandemic. Lastly, we are honored to welcome the contribution and
insights of Nathan Deal, who served as Governor of Georgia from 2011 to 2019.
Of course, we also continue to correct and clarify our content. While we bring
you many changes and updates, we have not lost sight of our original mission to
provide direct, no-frills information on the basics of American government.
It is unfortunate that we must end on a sad note. One of our contributors, Dr.
Kenneth Michael Reese, passed away in July of 2019. Dr. Reese’s work will live on
in his Civil Liberties and Civil Rights chapter which was updated for this edition by
fellow contributor Brian Murphy.
Carl D. Cavalli, editor
July 2021
–v–
Preface to the Third Edition
This third edition of our textbook contains significant updates designed to keep
pace with the ever-changing political scene. Much of the book includes examples
and coverage of events in American politics occurring over the last couple of years.
We devote more attention to the rise in partisan polarization around the nation
as well as the growth of social media and its effects on politics and on governing.
The most notable of recent events of course, has been the 2016 elections and their
aftermath. The elections, a new presidential administration, and a new Congress,
are factored in to many areas throughout the book. In addition, many of our case
studies have been updated with newer examples.
We also say farewell to our previous student contributor, and welcome a new
one, Mary Catherine Beutel. She has updated our public policy supplement with
examples from the 2017 Georgia state legislative session, including the controversial
campus carry bill. She offers particularly valuable insights stemming from her time
as an intern in the governor’s office.
Of course, we also continue to correct and clarify material from the previous
edition.
While we bring you many changes and updates, we have not lost sight of our
original mission to provide direct, no-frills information on the basics of American
government.
Carl D. Cavalli, editor
July 2017
– vi –
Preface to the Revised Edition
The dynamic and cyclical world of politics demands constant attention.
There are predictable electoral, policy, and international cycles; and there are
unpredictable events. Even the predictable things often produce unpredictable and
unanticipated consequences. With this in mind, we offer a revised edition of our
book (and hope to offer future editions as well). We endeavor to bring you the latest
developments in foreign and domestic events relevant to American politics. We
also add a new supplemental section on Georgia public policies that we hope serves
to complement both our Public Policy and State and Local Government chapters.
With it, we welcome a new contributor, Courtney Mitchell, who recently earned
her bachelor’s degree in political science. While we offer no guarantees that college
graduates can immediately become published authors, we hope she serves as a role
model and inspiration that, yes, you do learn something in college, and there is
something you can do with that degree! Lastly, we attempted to correct and clarify
what we wrote in the rst edition. There are second chances in life!
The book is still the concise, no-nonsense text we originally envisioned. No
change there. Enjoy and learn.
Carl D. Cavalli, editor
May 2013
– vii –
Preface to the First Edition
This book is a collaborative effort among eight current and one retired
[2021 Update: five current and four former] University of North Georgia faculty
members in the Political Science and Criminal Justice departments, all of whom
have extensive experience teaching and conducting academic research in the field
of American politics. All of these professors were concerned with both the rising
cost and lack of academic rigor among American government texts on the market.
So, they decided to write their own.
The purpose of this book is twofold. First, it provides a thorough, no-frills
overview and analysis of the American political system. Second, most chapters
include a work of original academic scholarship that demonstrates or highlights
the chapter content. In addition, all chapters provide questions for discussion and
several feature a “civic engagement exercise” designed to spur students to become
more involved in the political system. Ultimately, this book combines the best
aspects of both a traditional textbook and a reader, presented in a concise, lowcost format. The reader will see that the “basics” of the American political system
are all addressed. However, in addition, this text devotes entire chapters to topics
not found in most texts on the market, i.e. state and local government and civic
engagement. Unlike other textbooks, but consistent with political science research,
this book is presented utilizing the APA format, with in-text citations. A secondary
goal of the authors is to familiarize the reader with scholarship in the field, making
it easier to locate the sources used to craft the chapters.
The authors hope you enjoy the book and are inspired to learn more about the
American political system.
Ross C. Alexander and Carl D. Cavalli, editors
June 2011
– viii –
Acknowledgements
We would like to thank all the peer reviewers who diligently reviewed each
chapter in both initial and later editions of this textbook. We are also grateful
for the feedback from our discussion panel at the 2010 Georgia Political Science
Association annual meeting. Lastly, we are grateful to the people at the University
of North Georgia Press including the director, Bonnie Robinson, and editors, both
past and present—Corey Parson, April Loebick, and Matt Pardue—for taking a
chance on an unusual idea, turning it into a reality, and maintaining that reality for
the past decade. The corrections, edits, and suggestions of all the aforementioned
made The Basics of American Government a better finished product. We would also
like to thank Affordable Learning Georgia (https://www.affordablelearninggeorgia.
org/) for making this a digital version of this textbook freely available to students.
Thanks also to Maria Albo’s summer 2011 American government class for their
feedback on a draft copy of the original edition, along with the numerous critiques
and suggestions we have received from students and faculty over the years. Any
remaining errors are, of course, our own.
Ross C. Alexander and Carl D. Cavalli
June 2011 (updated by Carl D. Cavalli, July 2021)
– ix –
In July 2019, we lost our friend and colleague Dr. K. Michael Reese. Fortunately
for all of us, Dr. Reese’s memory and work will live on in our Civil Liberties and
Civil Rights chapter. He will remain a co-author of the chapter in this and future
editions.
Kenneth Michael Reese
1945 – 2019
We will cherish our memories of Mike as an engaging lecturer on legal topics, an
acclaimed scholar, a loyal member of the university’s faculty, and the best friend
whom anyone could have.
–x–
Foreword
Nathan Deal, Governor of Georgia, 2011-2019
As I reviewed the book, The Basics of American Government, I was impressed
with the ability of Dr. Carl D. Cavalli, editor, to cover such a broad subject in
such a concise and informative fashion. Dr. Cavalli and his contributors have
demonstrated impressive insight into the continuing evolution of many facets of
our Constitutional Republic.
It is very difficult to analyze any subject or institution relating to our
government structure in a completely sterile manner. That is especially true in
our current partisan political environment. However, this book attempts to do so
by concentrating on the facts and eliminating the “spin” in which they are often
cloaked.
I was especially pleased to see how Dr. Cavalli and Dr. Barry D. Friedman
dealt with the topic, “Interest Groups,” in Chapter 5. This subject is often hidden
from public view, but the writers expose the abuses of the nonprofit sector, and the
hide and seek tactics of super PACs and 527 groups. The influence of these groups
continues to saturate almost every major political campaign at state and federal
elections.
During my time as Governor of Georgia (2011-2019), I was confronted with
the ongoing presence of The Great Recession and the challenges associated with a
recovery. I concentrated on growing jobs and the necessity of improving the skill
sets of Georgians in order to do so. Emphasis was placed on technical skills that
would be taught in our Technical College System of Georgia, and the importance
of offering degrees in our colleges and universities that would lead to employability.
We had to make changes to our HOPE Program to keep it from going bankrupt. The
cost of our correctional system (over $1.2 billion per year) which was a revolving
door for criminals, was revamped with amazing positive results.
An in-depth examination of what occurred during my administration should
demonstrate that state government can operate successfully within the historical
and constitutional guidelines set forth in the book. A quick summary will show
that over 800,000 new private sector jobs were created, that Georgia was named
the “Top State for Business” for seven consecutive years, that our criminal justice
reforms have become a model for the nation, that we maintained a AAA bond
rating, and that people came to Georgia moving it from the 10th to the 8th most
– xi –
populous state in the nation. All of this took place without tax increases, but with
targeted tax cuts. I am very pleased that these and many other advancements were
achieved during my tenure as Governor.
My first election to public office was in 1980, when I went to the Georgia State
Senate where I served for 12 years. In 1992 I was elected to the United States House
of Representatives from the 9th Congressional District of Georgia. I resigned
from that office in 2010 to campaign for Governor and was elected to that office in
November 2010.
Many events occurred during those years, and I had the opportunity to
observe and participate in many of them. Politics certainly changed during those
past thirty-eight plus years, for me personally and for our State and Nation.
When I was elected to the Georgia State Senate in 1980, I ran as a Democrat
and for each of my six elections to that body, I was a Democrat. At that time there
were only five Republicans in the fifty-six members of that body. Today, the Georgia
State Senate has thirty-four Republicans. Republicans now control both the State
Senate and the State House of Representatives and have done so for many years.
When I arrived in Washington, D.C., in January 1993, as a new member of
the United States House of Representatives, Democrats controlled that body. Bill
Clinton was the newly-elected president. I was part of the largest freshman class
since World War II, and the vast majority of those were Democrats.
Even though Democrats had superior numbers in the House of Representatives,
there were signs of growing troubles ahead. It first became apparent when President
Clinton’s first budget passed by only one vote. Many members, especially those
from the South, including me, believed the budget was too large. Over the first
two years of the Clinton administration, the regional and racial divides within the
Democrat Party became more pronounced.
As the election of 1994 approached, the leadership of Republicans in the
House, especially Newt Gingrich of Georgia and Dick Armey of Texas, began
to draw clear lines as to where the two major parties stood on important issues
of the day. This was embodied in what they called the “Contract with America.”
Republicans had aggressive campaigns to recruit candidates who would run on
the “Contract” issues. It was one of the most impressive and effective campaign
strategies in modern history.
As Representative Newt Gingrich would explain, the “Contract” was a promise
to the American people that if they would elect Republican representatives and put
them in control of the House, the items set forth in the “Contract” would be voted
on in the first 100 days of the next Congress. The issues that were in the “Contract”
had been extensively polled and had an 80% or better approval rating with the
public. Even though many Democrats, especially Southern Democrats, supported
– xii –
those issues, their leadership had never given them a chance to vote on them on
the floor of the House.
When the votes were counted in 1994, Republicans had elected enough new
members to constitute a majority in the House, for the first time in forty years.
Newt Gingrich was elected the Speaker of the House, and the issues embodied in
the “Contract” were voted on in first 100 days of the next session of Congress in
1995.
As the issues of the “Contract” came to final votes, there was extreme pressure
placed on every Democrat to vote against these measures. As I pointed out to
the Democrat leadership, most of these issues were things I supported, and I had
campaign literature to prove where I stood. Therefore, I wound up voting for most
of the items in the “Contract.”
When I came home for the Easter Recess in 1995, my wife and I decided that
I should switch parties, since I could no longer support the positions being taken
by the Democrat Party. Without consulting anyone in Washington and attempting
to negotiate any favorable concessions, I held a news conference in our home town
and announced my decision to become a Republican.
After my decision to change parties, four other Democrat members of the
House did the same. While these events were significant at the federal level, it took
longer for the political realignment to take place at the State level. Conservative,
Southern Democrats had been voting for Republican presidential candidates for
years, and gradually they started to vote for Republican candidates for Congress
and the State General Assembly.
Today, Republicans hold eight of the 14 congressional seats in Georgia and have
majorities in both chambers of the State General Assembly. Every Constitutional
Officer in the State is a Republican1.
This party realignment is possibly the most significant change in the politics
of Georgia in modern times. Even though the party labels have switched, the
underlying conservative opinions of many Georgians have not changed. While
much discussion centers around “grass roots politics,” this phenomenon of political
realignments did not begin at the bottom of the political spectrum; instead, it
started at the top and filtered down. A study of “how” and “why” those occurred
should be instructive to those who aspire to work in politics.
Sincerely,
Nathan Deal
1 Editor’s note: As covered in the Chapter 6 case study, as of 2021, Georgia’s two U.S. Senate seats
switched from Republican to Democratic incumbents.
– xiii –
1
Theories of Democracy
and Types of Government
Ross C. Alexander
Learning Objectives
After covering the topic of theories of democracy, students should understand:
1. How democracy has evolved in the historical and contemporary sense.
2. How democracy in America functions, comparing and contrasting it with
other systems around the world.
3. How foundational pieces in political philosophy influenced the
establishment of our republic, most notably the contributions of John
Locke.
Abstract
What is democracy? How does it differ from other political structures and
systems that existed over the past two millennia? In this chapter, we address these
foundational questions, in addition to others, to provide a solid framework for the
remainder of the book. By examining those thinkers, philosophers, and scholars who
have had an impact on the American political system, we can define democracy in
the American sense and contrast it with other systems today and throughout time. To
accomplish this end, this chapter offers an in-depth examination of Locke’s Second
Treatise of Government to determine its effect on the American brand of democracy.
Introduction—Toward a Definition of Democracy
Most texts addressing the American political system invariably begin with an
attempt to define democracy, which is vaguely understood as ‘‘rule by the people.’’
But what, exactly, does that mean? How does democracy differ from other systems
of government? Philosophers, thinkers, politicians, and students have been trying
to address and answer these questions for hundreds, if not thousands, of years with
The Basics of American Government
little consensus. Over 2,500 years ago, Aristotle, the godfather of western political
thought, in The Politics, offered a discourse on different systems of government,
and outlined six possible forms—three positive or ‘‘good’’ and three negative
or ‘‘bad’’—each linked with another. For example, with regard to rule by one
individual, kingship was the positive form; tyranny, the negative. Regarding rule
by few in society, aristocracy was desirable, while oligarchy was undesirable.
Finally, concerning rule by many in society, polity was the positive outcome,
and democracy the negative. To fully understand Aristotle’s distinctions, his
terminology must be defined. His view of kingship was one of an enlightened,
benevolent monarch ruling in the best interests of the people. Conversely, if
kingship would erode into tyranny, the tyrant would function as a self-interested
despot who would do anything to stay in power. For Aristotle, aristocracy was not
rule by the rich, but rather rule by the most capable in society, whether it be the
most educated, most experienced, or most enlightened. Conversely, as aristocracy
devolved into oligarchy, power would fall into the hands of the power-hungry
few. Finally, Aristotle viewed a polity as a representative democracy, where
citizens would elect qualified leaders to carry out their wishes in government.
As polity devolved into democracy, Aristotle envisioned rule by the mob which
is different than the modern view of democracy. For Aristotle, this constitutional
cycle was inevitable. Every enduring society would experience all these systems of
government as it progressed and evolved (Aristotle, 1984).
So, if democracy is not simply ‘‘rule by the people,’’ what is it? For Aristotle,
democracy had a negative connotation and was marked by mob rule, chaos, and
disorder. From a modern perspective, many political scientists and theorists
have attempted to define the notion of democracy. E.E. Schattschneider defined
democracy thusly: ‘‘Democracy is a competitive political system in which
competing leaders and organizations define the alternatives of public policy
in such a way that the public can participate in the decision-making process’’
(Schattschneider, 1960, 141). Schmitter and Karl viewed the concept as the
following: ‘‘Modern political democracy is a system of governance in which
rulers are held accountable for their actions in the public realm by citizens,
acting indirectly through the competition and cooperation of their elected
representatives’‘ (Schmitter and Karl, 1991, 76). Vanhannen contended that
‘‘Democracy is a political system in which different groups are legally entitled to
compete for power and in which institutional power holders are elected by the
people and are responsible to the people’’ (Vanhannen, 1997, 31). Perhaps the
CIA World Fact Book defines the concept of democracy best, with the following:
‘‘a form of government in which the supreme power is retained by the people,
–2–
Theories of Democracy and Types of Government
but which is usually exercised indirectly through a system of representation and
delegated authority periodically renewed’’ (Central Intelligence Agency, 2013). So,
while it is impossible to offer an authoritative, singular definition of democracy,
the common components of these various definitions seem to be concepts such as
competition, accountability to the public, election of representatives, respect for
the law, equal opportunity, encouragement and respect for debate, and involving
the people in political decisions.
Since the 19th century, most ‘‘democracies’’ are better described as republics.
A republic is an indirect democracy, a representative democracy whereby eligible
voters (the electorate) choose representatives to carry out their wishes in the
government. Most republics throughout the world function as constitutional
democracies, meaning that the government draws its legitimacy from some
authoritative document (a constitution) that defines the nation’s system of
government, its laws, and usually the rights of citizens (Central Intelligence
Agency, 2013). The United States is, of course, a constitutional democracy or
constitutional republic. In most republics and democracies today, the basic
functions of government could include the following: (1) protecting citizens, (2)
providing public goods such as education, parks, roads, sanitation, and health
care, and (3) ensuring some degree of equality among its citizens. With regard to
the American style of constitutional democracy, the relative degree of ‘‘success’’ is
due in large part to many factors, including the relatively high level of affluence
in the U.S. which contributes to governmental and societal stability, a high level
of education among the populace which encourages participation, and plentiful
resources with which to create jobs. To better understand the American political
system and its governmental structure, it is helpful to compare and contrast it
with other systems throughout history and today.
Other Systems of Government
When the U.S. Constitution was written in 1787 and ratified in 1789, most
forms of government throughout the world were either monarchies—whereby
a single sovereign (a king or a queen) exercised rule over a given populace and
territory with power transfer based upon heredity, but in which laws and rights
were established—or absolute monarchies—whereby the sovereign ruled with
absolute power and authority with no defined laws or rights. Throughout the
19th century, during the industrial revolution, communism and socialism took
root as a backlash against oppressive economic and social conditions in society
created largely by industrialization. Marxism, based upon the writings of Karl
Marx, espoused the inevitability that the working classes in society (who were
–3–
The Basics of American Government
the overwhelming majority) would shrug off the oppressive yoke of the capitalist
industrialists who were exploiting them, and set up a classless society in which
goods would be shared by all people with the guidance of an authoritarian ruling
party, which is what came to be known as communism (Marx, 1848). In most
cases, including the Soviet Union, China, Cuba, and North Korea, communism
devolved into totalitarianism, where the state controlled all aspects of life,
including the economic, political, social, and cultural spheres, and where any
dissent was quickly punished by the ruling party elite. This system functioned
very much like a dictatorship, in which a single person or small group exercises
absolute power, like North Korea under Kim Jong Un. In theocracies, or states
with a strong religious influence, there is no separation of church and state, and
the church, in effect, constitutes or controls the government, such as is the case in
several Islamic republics in the Middle East today.
In the 19th century, socialism functioned like, or was aligned with, Marxism
or communism. In the 20th century and today, socialism functions differently. In
those nations that utilize socialist systems, most notably the Scandinavian nations
of Sweden, Norway, and Denmark, the state provides many public goods, such
as universal health care and public education, and also controls the economy or
‘‘means of production.’’ Yet, citizens enjoy many of the same rights and liberties as
those living in democratic republics, including freedom of speech and expression,
freedom of the press, and freedom of religion, to name a few. The primary
distinction between socialist nations and capitalist nations is the level of taxation.
Obviously, taxes are much higher in socialist nations where the state controls the
economy and provides more public goods to its citizens. Finally, anarchy is the
unfortunate situation in which no government authority exists whatsoever with
total chaos ensuing.
Democracy in the United States—Separating Myth
from Reality
Are there certain characteristics and experiences that are unique to
Americans or the American political experience? Do Americans have a unique
political culture or common set of values shared by all? In his famous examination
of Americans and the American political system in the early 19th century, French
author Alexis de Tocqueville contended that Americans were individualistic,
pragmatic, hard-working, freedom-loving, and industrious, among other
qualities. In his treatise, Democracy in America, he argued that these common
American qualities allowed its people to form a government that reflected these
values which, at the time, were unique in his estimation (Tocqueville, 1945). So,
–4–
Theories of Democracy and Types of Government
was Tocqueville correct? Are these qualities uniquely and exclusively American?
Do they apply to all Americans, or just some? Do they still apply to twenty-first
century America? Can they be applied to other cultures in other nations as well?
These questions are difficult, if not impossible, to answer. So, what is myth, and
what is reality? What constitutes American democracy?
Political culture influences the political system. Individuals voting in
elections determine the nature of government, or so most are taught. This notion
of political equality, or one person, one vote, is often cited as a cornerstone of
the American political system. The notion that everyone’s vote counts equally
regardless of race, gender, sexual orientation, socioeconomic status, or religious
affiliation is something taught to students in schools beginning at a very young
age. Is political equality myth or reality? Do all citizens have an equal ability
to impact the political system? Some would argue yes, others no. Both would
be correct. In a practical sense, citizens can only cast one vote per election,
seemingly resulting in political equality. However, some have more ability to
impact the political system than others, largely through money, influence, power,
or connections to policymakers, which would shatter the notion of political
equality. The previous exercise sheds light on the nature of the American political
system and its unique brand of democracy. There are many questions and few
simple answers. If political equality does not exist, the myth does endure. How
about equality of opportunity?—does it exist? The ‘‘work hard and you’ll get
ahead’’ myth has been ingrained in the American experience for generations1, but
is it accurate? Do we all have equal opportunity to succeed? Again, some would
argue yes, others no. Those arguing ‘‘yes’’ would be quick to point out that we
have relatively equal access to public goods such as a free education, as well as
equal freedoms of speech, association, and expression. Those arguing ‘‘no’’ would
contend that some in society are inherently better off than others, having access to
better schools, business connections, nicer neighborhoods, and even more stable
families. Who is correct? Both sides. Again, there are no easy answers.
Ultimately, these opposing forces have shaped and forged the American
republic. The common perception of the American political system that students
learn in elementary, middle, and high school is that the majority of citizens, voting
in elections, determine the nature of government. Is that accurate? Is the United
States a system governed by individuals exercising majority-rule democracy, or
does this model exist only in a textbook? Can the individual shape the American
political system? Perhaps. Does the individual, exercising his or her political
rights, have the ability to cause change at the national level? Probably not. Does
1 See for example, Horatio Alger’s Ragged Dick series. It is available online from the Project Gutenberg site: http://www.gutenberg.
org/ebooks/20689
–5–
The Basics of American Government
this same individual have the ability to cause change in his or her community by
becoming involved in political matters at the local level? Probably.
If individuals do not substantively shape or influence the political system at
the national level, what forces do? In our system, in the modern sense, groups
exercise a tremendous amount of power and exert significant influence over the
political system, largely through money. This notion of groups having a profound
impact on the political system is referred to as pluralism. Groups donate
significant amounts of money to finance the campaigns of politicians, including
members of Congress, the Senate, and the president. These ‘‘special interests’’
lobby policymakers to enact laws and regulations that benefit their interests and
are discussed in much greater detail in Chapter 5. Groups are able to exert this level
of influence for many reasons, most notably because they possess constitutional
protection that allows them to lobby government. The First Amendment to the
U.S. Constitution reads, ‘‘Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances’’ (italics added). While the
shifting of power towards interest groups has surely had negative consequences,
including an over-emphasis on the interests of groups with the most money, there
have been positive outcomes as well, such as those groups advocating for social
and educational policy influencing lawmakers to pass bills in those arenas. While
the functioning of government in the United States is pluralistic in nature, it is by
no means exceptional compared to democracies and republics throughout the
world, where special interests also have tremendous degrees of power.
In sum, the myths of the development and functioning of the American
political system can be separated from the realities in some cases, but not
others. While much of what students learn about the system in grade levels is
over-simplified and inaccurate, some is not. The founding and development of
the American political system is a complex and fascinating case, but it can be
compared to other nations’ development as well. Furthermore, it is difficult to
offer an authoritative set of political values that all Americans share or treasure,
which is why American politics are so fascinating.
Case Study: The Influence of John Locke on The
Declaration of Independence
To gain a better understanding of the American political process and the
nature of American democracy, we need to examine the influences on the
founders during the colonial and Revolutionary War eras. When Thomas
–6–
Theories of Democracy and Types of Government
Jefferson authored the Declaration of Independence in 1776 under the guidance of
Benjamin Franklin and John Adams, he demonstrated the degree to which he had
been influenced by other great minds. Jefferson, like most of the delegates present
in Philadelphia in 1776, was an educated, well-read man who had studied the
classics (the writings of Greek and Roman historians and philosophers), as well
as the works of the Enlightenment Period of the previous century. Arguably, the
author who influenced Jefferson most was John Locke. Locke’s ideas are woven
throughout the Declaration. What follows is an in-depth examination of Locke’s
most famous writing and the impact that it had on Jefferson and the Declaration
of Independence in particular.
John Locke (1632-1704) was an English political philosopher, commentator,
and thinker who wrote during a time of great political change and upheaval when
the monarchy was being challenged in England before the “Glorious Revolution”
in 1688 and during the Enlightenment Period. Locke was considered one of the
greatest minds of the Enlightenment era along with such luminaries as Voltaire,
Jean-Jacques Rosseau, and Thomas Hobbes. Locke proposed and discussed many
radical political beliefs during this period of upheaval and political change which
dealt with the responsibilities of government, the rights of common people, and
the philosophical basis of government in general (Locke, 1988, 16-20). Unlike
previous generations, and contrary to the very nature of monarchy, Locke
believed that humans were born free (in a state of nature) and possessed inherent,
inalienable rights that could not be arbitrarily removed by the government (the
king). Locke assumed that the rights of people were bestowed not by the monarch,
but by their creator (God), which was a radical idea at the time (Locke, 1988).
Locke’s most famous work, The Second Treatise of Government, contains the
passages and ideas that were most influential to Jefferson and are easiest to identify
in the Declaration of Independence. As Jefferson advocated in the Declaration,
Locke believed in limited government. For Locke (and Jefferson), human freedom
was the greatest right, bestowed not by government, but by God (an inalienable
right). For Locke, people are born natural, reasonable, and free, beholden to no
one, possessing inherent civil liberties and natural rights, including freedom and
self-determination (Locke, 1988). Furthermore, people are able to acquire wealth
from their labor, which is best evidenced through the accumulation of private
property. For Locke, then, the primary duty of government is to preserve one’s
property, noting, ‘‘…whereas Government has no other end but the preservation of
Property’’ (Locke, 1988, 94). For Locke, government exists to preserve life, liberty
(freedom), and property, a theme paraphrased by Jefferson in the Declaration
as, ‘‘That all men are created equal; that they are endowed by their Creator with
–7–
The Basics of American Government
certain unalienable rights; that among these are life, liberty, and the pursuit of
happiness…’’ (Jefferson, 1776).
Another Lockean theme that influenced Jefferson was the notion that citizens
consent to be governed—that the people create, craft, and mold the government
because they allow it to exist—which was an extremely radical supposition at
the time. The idea that government exists to serve the people and only exercises
power over them because the people allow it to was contrary to the very ideals of
monarchy. The impact this idea had on Jefferson is observable in the Declaration:
‘‘…governments are instituted among men, deriving their just powers from
the consent of the governed; that whenever any form of government becomes
destructive of these ends, it is the right of the people to alter or abolish it, and to
institute a new government…’’ (Jefferson, 1776). Ultimately, according to Locke
and Jefferson, people and government enter into a contract of sorts, each with
duties, responsibilities, and obligations. Government’s obligation to its citizens is
to exercise power in a limited fashion securing the life, liberty, and property of the
people. The obligations of the people involve following the laws set forth by the
government (which the people create) and respecting the rights and property of
others. If government violates this contract, according to Locke, the people have the
right to: (1) change the government, (2) leave society (keeping their property and
wealth), and (3) revolt, an idea which especially appealed to Jefferson (Locke, 1988).
Locke’s influence on Jefferson and the Declaration of Independence is
profound and easily observable. Locke’s radical teachings from the century before
the founding period had far-reaching effects on the establishment of our republic
(and others, such as France). Lockean teachings and principles are found in
the Constitution as well, even if they are a bit harder to find at first glance. For
example, Locke strongly advocated for separation of powers, which is a hallmark
of our constitutional system. Locke wrote, ‘‘Therefore, ‘tis necessary there should
be a Power always in being, which should see to the Execution of the Laws that are
made, and remain in force. And thus the Legislative and Executive Power come
often to be separated’’ (p. 365, italics in original). Ultimately, Locke believed that
people were inherently good. Furthermore, because of their inherent ‘‘goodness,’’
they should not be constrained by government. Therefore, the responsibilities and
duties of government were the following:
1. to provide a universal application of the laws to everyone, regardless of
class,
2. making laws that are designed for the common good of the people,
3. ensuring low taxes, with tax increases being approved by the people or
their representatives, and
–8–
Theories of Democracy and Types of Government
4.
ensuring that the power of government, especially with regard to
lawmaking, resides in the legislature, because they are representatives of
the people (Locke, 1988).
As can be plainly seen, Locke’s ideals have impacted our republic since its
founding, and still do so today.
Discussion Questions
1.
2.
3.
4.
Which definition of democracy do you prefer? Craft your own definition
and compare it to the one you chose.
Which form of government is most similar to democracy? The most
different? What positives and negatives do you see in each?
With its emphasis on pluralism, has the United States moved too far
away from the ideal form of democracy? Do interest groups have too
much power in our system?
In your opinion, how would Locke view our democracy today? Which of
his ideals do we see reflected in our political system?
References
Aristotle. (1984). The politics. (C. Lord, Trans.). Chicago, IL: University of Chicago
Press. (Original work published 350 B.C.E.).
Central Intelligence Agency. (2013). Field Listing: Government Type. The World
Fact Book. Retrieved from https://www.cia.gov/library/publications/theworld-factbook/fields/2128.html.
Jefferson, T. (1776). Declaration of Independence. Retrieved from http://avalon.
law.yale.edu/18th_century/declare.asp.
Locke, J. (1988). Two treatises of government. P. Laslett, (ed.). New York, NY:
Cambridge University Press. (Original work published 1690).
Marx, Karl & Engel, Frederick. (1848). Communist Manifesto. Moscow: Progress
Publishers.
Schattschneider, E.E. (1960). The semisovereign people. New York, NY: Holt,
Rinehart and Winston.
Schmitter, P. C., & Karl, T. L. (1991). What democracy is…and is not. Journal of
Democracy, 2(3), 75-88.
Tocqueville, A. (1945). Democracy in America. New York, NY: Alfred A. Knopf,
Inc. (Original work published 1835).
Vanhannen, T. (1997). Prospects of democracy: A study of 172 countries. New York,
NY: Routledge.
–9–
2
The U.S. Constitution
Ross C. Alexander
Learning Objectives
After covering the topic of the U.S. Constitution, students should understand:
1. How forces during the Revolutionary War era led to the writing and
ratification of the Constitution.
2. The basic structure and functioning of the U.S. government as laid out in
the Constitution.
3. How the flexibility of the Constitution has allowed it to endure, but also
resulted in debate and controversy.
4. How the framers of the Constitution stated their case to the American
people in The Federalist.
Abstract
The Constitution is a revered, enduring document that provides the framework
for our democratic republic, but it is not without controversy. It is brief, flexible, and
open to interpretation, just as the framers intended. As a result, the document has been
able to remain largely intact in its original form for over 230 years. The Constitution
provides both the theoretical and practical framework for our government, providing
insight into the intentions of the framers during the Revolutionary and Founding
periods. In a practical sense, the document provides a framework for our branches of
government, means by which they check and balance each other, and the scope and
limits of the power of the national government. The Constitution was a product of
events and forces culminating throughout the Colonial and Revolutionary War eras,
not something that was produced in a vacuum in 1787. This chapter describes and
analyzes not only the Constitution itself but also the historical events leading up to
it. It also examines the legacy of the document and the reasons for the controversy it
has caused.
The Basics of American Government
The Events leading to the Constitution
The Revolution
The American Revolution raged from 1775, when shots were first fired at
Lexington and Concord, until 1783 when the Treaty of Paris formally ended the
war (even though the final battle was fought at Yorktown in 1781). Students learn
in school that the Revolution was brought about by freedom-loving patriots
who desired self-governance, shedding off the oppressive yoke of British rule.
This story is partly true. The causes of the Revolution are varied and complex,
and by no means did the entirety of the population of the colonies support
the uprising. Many were fighting for the right to self-rule and determination
while others were fighting for largely economic reasons (they were sick of
paying high taxes to fund the various wars of the British Empire or they did
not want to pay off their British creditors) while others yet were fighting for
adventure. Some, especially along the western frontier of the colonies, paid
little attention to the war in the east as it did not directly affect them. Finally,
many colonists remained loyal to the crown and even fought side-by-side with
their British cousins against the rebels. Regardless of their politics, loyalties,
and motivations, most would have agreed that the chances of a rag-tag, loosely
associated, underfunded, diverse group of colonies defeating the strongest
military empire in the world would have been slim at best.
Discontent with British rule had been culminating for at least ten years before
the skirmishes at Lexington and Concord. The British viewed the resource-rich
colonies as a commodity that could be exploited and taxed to fund their extensive
wars and campaigns around the globe. These increasing taxes on goods such as
stamps and tea resulted in the beginnings of organized dissent, like the Boston
Tea Party in 1773. Coupled with these high taxes was the reality that the planter
classes in the middle Atlantic and southern colonies owed more and more to their
British creditors for goods bought on credit–something that George Washington
and Thomas Jefferson understood and experienced first-hand. A small, influential
group of citizens believed that the colonies would be better as a sovereign, selfgoverning entity, divorced from British rule and control. These influential few
echoed the sentiments of many who saw themselves as British citizens but who
did not have the rights and privileges of those living in Britain. That is, they paid
taxes to the British crown yet had no representative voice in Parliament. This
notion of “taxation without representation” was a rallying cry for many itching
for rebellion.
– 12 –
The U.S. Constitution
The Declaration of Independence
On July 4, 1776, 56 delegates to the Second Continental Congress signed the
Declaration of Independence (including Lyman Hall and Button Gwinnett from
Georgia). The treatise was penned by Thomas Jefferson, one of the youngest and
brightest delegates to the Congress, under the tutelage of the more experienced
John Adams and Benjamin Franklin. The document is one of rebellion, not
reconciliation. It is written almost as a personal letter to King George III of
England and explains in detail the reasons for rebellion against the crown. Jefferson
borrowed liberally from many contemporary and historical sources, most notably
John Locke’s Second Treatise of Government, where Locke’s ‘‘life, liberty, and
property’’ became Jefferson’s ‘‘life, liberty, and the pursuit of happiness’’ (Locke,
1988). In the document, Jefferson argues for a limited government that exists at
the consent of the governed: the people, who possess these “inalienable” rights
(see: https://guides.loc.gov/declaration-of-independence). Those who signed
the Declaration were literally putting their lives on the line. Had the Revolution
been lost, they would have been tried (and probably executed) for treason. The
Declaration is one of our sacred founding documents largely because it articulates
the philosophical basis for our political system.
The Articles of Confederation
After the former colonies had formally declared independence from Great
Britain, one of the first orders of business was setting up some sort of government,
largely in order to effectively wage war. The 13 former British colonies did not
necessarily view themselves as one nation. Rather, they viewed themselves as
13 independent, sovereign countries, loosely affiliated, but working together
(somewhat ineffectively) to fight the Revolution. The idea of one “United States
of America” had not yet taken hold. However, some sort of government had to be
created to coordinate the activities of all the former colonies. In November 1777,
the Articles of Confederation, written by John Dickinson, was established. The
hallmark of this new government was that the national government possessed very
little real power. Rather, the true power remained with the states. A confederation
is a loose association of independent or quasi-independent states. The national
government under the Articles was so weak that it could not levy taxes, wage war,
regulate commerce, or issue a uniform currency among all the states. It contained
no executive branch, which resulted in relatively poor leadership. Rather, the
power that did exist was concentrated in the legislature, or Congress. However,
passing legislation or amending the Articles was onerous and difficult, requiring a
– 13 –
The Basics of American Government
unanimous vote of all 13 members (Kammen, 1986, pp. 10-18). It quickly became
apparent that the Articles was an inefficient, ineffective system of government and
was created in a haphazard fashion. It was not even formally ratified by the states
until 1781. The result was that funding the Revolution was uncoordinated and
ineffective, making the American victory even more impressive. Nevertheless, the
Articles was our first system of uniquely American government and existed until
the late 1780s. It should also be noted that it is within the Articles that the words
“United States of America” is mentioned for the first time, which is a rather odd
coincidence considering the weak nature of the national government provided by
the document.
The Great Compromise
By 1787, many in the new nation realized the inherent inefficiencies of the
Articles of Confederation. They argued that such a weak national government
could leave the new nation exposed to financial ruin or ripe for future foreign
invasion by Great Britain, France, or Spain, all of whom still laid claim to vast
stretches of the North American continent. However, others argued that there
was no need for more government beyond what the states and the weak national
government provided. Both sides tended to agree that the Articles could or should
be amended to function better. That was the charge of those delegates who met
in Philadelphia in the summer of 1787—to amend the Articles, not create a new
system of government. That is, however, exactly what they did. Twelve states sent
delegates to the Constitutional Convention, everyone except Rhode Island. The
meetings occurred in secret; the windows were nailed shut, and sentries were
posted at the doors and entrances. The framers very quickly understood that
they would be proposing a brand new government, one which looked radically
different from what existed under the Articles. They also understood that such a
development would not be without controversy.
Two Plans of Government
Many delegates from the various states made speeches and proposals as to
what the new government should look like. However, the proposals of two factions
soon became the most popular and seriously considered. The Virginia delegates,
proposed the Virginia Plan or Randolph Plan, which was written by James
Madison, who had come to the Convention with the proposal already written
for the most part. The Virginia Plan proposed a radical new form of government,
one in which the national government was significantly more powerful than that
– 14 –
The U.S. Constitution
found under the Articles. If accepted, the states would be ceding a great deal of
power to the national government. The plan proposed a bicameral or two-house
legislature with representation in both houses based on population which favored
the large population states such as Virginia, Pennsylvania, and Massachusetts. The
people would choose members of the lower house, while state legislatures would
choose members of the upper house (https://www.ourdocuments.gov). The plan
proposed a fusion-of-power or parliamentary system, whereby the legislature
would choose the chief executive (this is the type of arrangement present in
Britain, and with which the framers were familiar) (Kammen, 1986, pp. 22-25).
With regard to the judicial system, the Virginia Plan proposed a type of “supreme
court” chosen by the upper house of the legislature (https://www.ourdocuments.
gov). In a philosophical sense, the Virginia Plan viewed governmental power as
being derived from one, unified American “people,” rather than from the states—
much different than the Articles, which was state-based in terms of power.
In contrast, the New Jersey delegates proposed the New Jersey Plan, or Paterson
Plan. This plan looked very similar to the Articles, because it proposed a unicameral
or one-house legislature with equal representation regardless of state population
and favored the small population states such as New Jersey and New Hampshire. It
proposed a multi-person chief executive chosen by the legislature (Kammen, 1986,
pp. 25-30). In a philosophical sense, the New Jersey plan assumed that national
government power would be derived from the states, not the American people
as a whole. In our Constitution, there are elements of each proposal with more
weight given to the Virginia Plan. After much debate, a compromise was reached
by the framers, which came to be called the Great Compromise or Connecticut
Compromise, because it was largely brokered by the Connecticut delegation. The
proposal that resulted from the Constitutional Convention represented a radical
departure from the government under the Articles.
The Document
The United States Constitution possesses seven articles, the first three of
which detail the various branches of government. Article I outlines the powers
of Congress (who would pass the laws); Article II the powers of the President
(who would execute the laws); and Article III the powers of the Judiciary (who
would interpret the laws). The framers chose this sequence deliberately, believing
that Congress, the legislature, is the strongest branch of government. They were
familiar with how a strong legislature functioned (British parliament) and were
wary that the President (which had never before existed) would become tyrannical
or king-like, and they had just had a bad experience with a king leading up to the
– 15 –
The Basics of American Government
Revolution. Some among the framers (like Alexander Hamilton) even advocated
that the President should possess powers similar to a king, serving a life-term and
functioning as the strongest entity in the government, yet they were over-ruled.
Rather, they reasoned, a bicameral (two-house) legislature possessing the most
power would best articulate the wishes of the people. Therefore, Article I is long
and detailed. Conversely, Article II, which deals with the presidency, and Article
III, which addresses the Courts, are brief and less detailed. Neither a president
nor an independent judiciary had ever existed and the framers were not exactly
sure how either would function.
The document provides for a bicameral legislature. The lower house, the
House of Representatives, is directly elected by the people. Representation in
the House is based upon state population; the more people in a state, the more
representatives it has in the House. However, representation in the upper house,
the Senate, is equal with each state possessing two, regardless of population.
According to the Constitution, state legislatures choose each state’s Senators,
a provision in place until the passage of the 17th amendment in 1913, which
resulted in the direct election of Senators by the people. House members serve
two-year terms, must be 25 years old, and must be U.S. citizens for a minimum
of seven years. Senators serve six-year terms, must be 30 years old, and have been
U.S. residents for at least nine years. Both House members and Senators must
reside in the state they represent. Today, there are 435 members of the House of
Representatives (14 from Georgia) and 100 members of the Senate (two per state).
According to the Constitution, the president must be 35 years of age, a
natural born U.S. citizen, and a resident of the U.S. for the previous 14 years. The
president serves a four-year term of office and is not limited to any specific number
of terms. Presidents for nearly 150 years served a maximum of two terms not
because of any constitutional regulation, but rather because it was the precedent
set by George Washington. Franklin D. Roosevelt was the only president to break
with tradition, having been elected to four terms of office–1932, 1936, 1940,
and 1944–during the Great Depression and World War II. In 1951, the TwentySecond Amendment was ratified, which now limits the president to two terms
of office.
The framers were not common men. Rather, they were the elite, the powerful,
the educated, the aristocrats of the new nation. As such, they were a bit wary of
giving too much power to the common people, and they structured the presidential
election procedure uniquely. We do not directly elect the president as we directly
elect members of Congress. Rather, when we vote for president, we are technically
voting for a “slate of electors” who, in turn, several weeks after the general election,
– 16 –
The U.S. Constitution
vote for the president. Therefore, the true mechanism for choosing the president
is this Electoral College. Electors are chosen by their respective political parties
to serve this role. Representation in the Electoral College is based largely upon
population. A state’s total number of electors is the sum of its Representatives
plus its Senators (Kimberling, 1992). For example, in Georgia, this number is 16.
Therefore, states with more people have more electors. Today, the total number of
electors is 538–which is the total number of Representatives (435) plus the total
number of Senators (100) plus three representing the District of Columbia. In all
states except Maine and Nebraska, the candidate who wins the majority of the
popular vote receives all that state’s electors. For example, if candidate A receives
60% of the popular vote in a state and candidate B receives 40%, candidate A would
receive 100% of the electors. To win the presidential election, a candidate must
receive a majority (270) of the votes (Kimberling, 1992). Therefore, candidates
for the presidency are wise to gear their campaigns toward competitive states
with high numbers of electoral votes (FL, NC, PA, OH, GA, etc.). Because of
the Electoral College, the person receiving the majority of electoral votes (not
popular votes in the general election) becomes the president. In fact, five times,
most recently in 2016, the “victor” actually received fewer popular votes than the
“loser,” but received more votes where it counted–the Electoral College.
While no federal rule requires electors to choose the winner of their state’s
popular vote, most states have such rules. Until recently though, no so-called
“faithless elector” was ever punished. There have been a few such electors, but
none were decisive. They were always isolated protest votes. After the 2016
election, the states of Washington and Colorado attempted to punish such electors
by fining or replacing them. The Washington state Supreme Court, and a federal
court in Colorado issued conflicting decisions on whether electors had the right
to vote their conscience. The Supreme Court accepted the Colorado case, and
unanimously decided that states could punish electors: “[A] State may enforce its
pledge law against an elector” (Chiafalo v. Washington, 591 U.S. ___, 2020)
Impeachment is the formal means of removing the president from office.
It is a two-step process involving both houses of Congress. First, the House of
Representatives conducts an investigation to determine if the president has
committed some sort of crime. If so, “Articles of Impeachment” can be voted
against the president, requiring a simple majority vote. The “Articles” then go to
the Senate for the formal trial of the president. Here, the Senators serve as the
jury, and the Chief Justice of the Supreme Court oversees the proceedings. For
presidents to be convicted and forced to leave office, they must be found guilty
of “High Crimes and Misdemeanors,” requiring a super-majority (two-thirds)
– 17 –
The Basics of American Government
vote. Two presidents, Andrew Johnson and Bill Clinton, have had Articles of
Impeachment voted against them, but neither was convicted of High Crimes and
Misdemeanors.
Article III established the Judicial Branch of government, or the courts. An
independent judiciary had never existed, so Article Three is very vague. In it, the
framers described the parameters of the highest court in the land–the Supreme
Court. Today, the Court has nine members. However, the Constitution does not
require a specific number of justices. The most controversial aspect of this Article
is the notion that federal judges receive life appointments, serving as long as they
are deemed to be in good standing.
Article V of the Constitution describes the formal amendment process.
The U.S. Constitution is amended infrequently, only 27 times in total. The first
10 amendments serve as the Bill of Rights (adopted in 1791). The process of
both proposing and ratifying an amendment is onerous and requires more than
a majority vote. There are two methods of proposing an amendment to the
Constitution. The more common method is by a two-thirds vote in both houses
of the U.S. Congress. The less common method is at the request of two-thirds
of the state legislatures. With regard to ratifying a proposed amendment, the
more common method is by a three-quarters vote of all state legislatures. The
less common method of ratification is by three-quarters of the states in a special
convention. With respect to both the proposal and ratification process, a relatively
small minority can block the will of the majority, which has resulted in only 17
amendments being ratified since 1791.
Slavery
The words ‘‘slave’’ or ‘‘slavery’’ do not appear in the Constitution, yet the
framers were very aware of the controversial nature of the institution. Slavery
is addressed indirectly, most notably by the three-fifths compromise. Article I,
Section Two, Paragraph Three of the Constitution describes how slaves would be
counted as three-fifths of a person in terms of representation, when determining
the total number of persons in a state. The slave-holding states of the south
argued that slaves should be counted in terms of representation, resulting in
more representatives in the House for those states. The non-slave-holding states
contended that they should not count as “persons” because they were considered
property. The resulting compromise was that slaves would be counted as threefifths of a person.
Many framers were slaveholders, including Washington and Jefferson.
Others were abolitionists who abhorred the practice and desired to see it ended
– 18 –
The U.S. Constitution
immediately. Most, however, understood that ending slavery would be difficult,
as the many southern states depended upon it economically. Had slavery been
outlawed in the Constitution, it would probably not have been ratified, because
many southern states would have withdrawn their support. Valid arguments can
be made saying that the framers should have outlawed slavery at the founding.
The counterargument that ending slavery at that time would have resulted in the
Constitution not being ratified is also valid. There are no simple or authoritative
answers on this subject.
Controversy
Enumerated v. Implied Powers
The framers understood that they could not possibly predict the challenges
that the Constitution would have to face, yet they wanted to create a document
that would endure and be applicable for future generations. To that end, they
crafted a purposefully ambiguous product that could be molded, changed, and
applied somewhat differently by future policymakers. One mechanism they
included to allow for this constitutional evolution is found in Article I. Article I,
Section Eight of the U.S. Constitution is referred to as the Necessary and Proper
Clause. This clause, sometimes referred to as the ‘‘Elastic Clause,’’ allows for the
future expansion and evolution of the power of the federal government. It says
Congress has the power “To make all Laws which shall be necessary and proper
for carrying into the Execution the foregoing Powers, and all other Powers vested
by this Constitution in the Government of the United States, or in any Department
or Officer thereof.” This relatively simple provision, which leaves open-ended the
power of the federal government, has sparked a great deal of controversy about
the limits of its authority.
At the time of the founding, and even today, many argued that the powers
of the federal government should be limited to those specifically listed, or
enumerated, in the Constitution—no more, no less—and that the powers of the
federal government are not open-ended. Rather, they argued, the states should
possess those powers not listed in the Constitution. These states’ rights advocates
also looked to the Constitution and the Bill of Rights to substantiate their case.
The 10th Amendment to the Constitution is referred to as the Reserved Powers
Clause, which simply states: “The Powers not delegated to the United States by
the Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.”
These two clauses, one found in the Constitution and one found in the Bill
– 19 –
The Basics of American Government
of Rights, are contradictory in nature. The Necessary and Proper Clause assumes
that the federal government possesses implied powers beyond what are listed in
the Constitution. Conversely, the Reserved Powers Clause assumes that the federal
government possesses enumerated powers, or those listed in the Constitution,
with all others being given or reserved to the states. This ambiguity has caused
a great deal of debate, confusion, conflict, and even rebellion over the past 200
years, resulting in events leading to the Civil War and conflicts between the states
and the federal government ever since. What did the framers actually intend? It
is impossible to know exactly. They purposely crafted and envisioned a flexible
document that is open to interpretation by future generations. However, they also
understood the need for strong state governments.
Federalists v. Anti-Federalists
The ratification of the Constitution was not a foregone conclusion. Many
were opposed to its passage. Mostly, they were fearful of a tyrannical national
government that would take all power away from the states, causing them to wither
away. These anti-Constitution forces were largely fearful of what was referred to
at the time as consolidation of power, or the notion that all governmental power
would be concentrated in one level of government (the national level in this
case). Rather, they contended, power should be decentralized across two levels
of government—the national and the state—leaving the states with considerable
power and authority. The forces in favor of the Constitution were dubbed
Federalists, while those opposed to it were called Anti-Federalists.
The Federalists included such dignitaries as James Madison, John Adams,
Alexander Hamilton, and George Washington—those who had attended the
Constitutional Convention and played a large part in the crafting of the document.
The Federalists saw the need for a strong, energetic, and efficient national
government that would unify the new republic as one nation. They assumed that
power would be somewhat consolidated under the national government, but
realized that states would play a major role in this power-sharing arrangement.
The Federalist base of support was much stronger in New England and the Middle
Atlantic States, in the cities, and among intellectuals, merchants, and scholars.
Conversely, the Anti-Federalists believed that the states should remain strong,
that they be at least co-equal players with the national government, and that power
should be dispersed among these levels of government. The Anti-Federalist base
of support was stronger in rural areas, the south, and among farmers, frontier
settlers, and individualists.
– 20 –
The U.S. Constitution
Case Study: Marketing the Constitution: The
Federalist
Once the Constitution was written, it needed to be ratified by the states. To
become the law of the land, nine of the thirteen states had to support it. To ensure
passage, the framers needed to explain to the states, and more importantly, to
the people, why the Constitution was in their best interests. The primary method
they chose to sell the Constitution to the people was through a series of periodic
essays published in newspapers throughout the states, laying out in simple
terms, the basic provisions of the Constitution. These 85 essays, collectively
called The Federalist, appeared in newspapers and were widely circulated in
1787-88. Not only did they explain how the Constitution was structured and
how it would function but also the essays provided insight into the framers’
philosophical and theoretical reasoning when crafting the document. Three
men wrote the 85 essays, James Madison, Alexander Hamilton, and John Jay.
Madison and Hamilton penned the vast majority. Overall, Madison’s essays are
probably the most famous, because he laid out a commonsense, nuanced, and
balanced argument, which respectfully addressed the concerns of the AntiFederalists. Hamilton, on the other hand, was more direct and less conciliatory
towards the Anti-Federalists.
The framers reasoned that if people could read these essays and understand
their reasoning, they would ultimately support the new Constitution. The
Anti-Federalists wrote a number of rebuttal essays that in many cases provide
excellent arguments against the Constitution. However, because the Constitution
ultimately is ratified and the Federalists “won,” the Anti-Federalists’ essays
have been largely marginalized or forgotten. Throughout this year-and-a-half,
Madison and Hamilton would publish periodic essays under the pen-name
“Publius” and various Anti-Federalist writers, many of whom would also use a
pen-name, would respond with a counter-essay. What follows is an analysis of
some of the most famous essays of The Federalist—those that lay out the argument
of the Federalists best. Collectively, the 85 papers that comprise The Federalist are
probably the third-most important set of documents of the founding era, behind
only The Declaration of Independence and the Constitution. These three pieces
comprise the basis of American political philosophy.
Federalist #10, written by James Madison, is probably the most famous
and influential of all the essays. It best summarizes the Federalists’ collective
argument in favor of the Constitution. In this essay, Madison primarily addresses
the issue of factions, what we would call special interests or interest groups, or
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The Basics of American Government
even political parties today. With incredible foresight into the development of the
modern American political system, Madison explained that if a strong, energetic
government was not established, factions would dominate the system, alienating
the people and negatively influencing the crafting of legislation and public policy
(which, many today would argue, is exactly what occurred). Madison defined
factions as “…a number of citizens, whether amounting to a majority or minority
of the whole, who are united and actuated by some common impulse of passion,
or of interest, adverse to the rights of other citizens, or to the permanent and
aggregate interest of the community” (Hamilton, Jay, & Madison, 2001, p. 92).
Madison explained that factions would always exist, but government should
ensure that their effects are tempered or diminished. To accomplish this end,
he reasoned, a strong national government, a republic, must be established to
safeguard the liberties and will of the people. He further argued that too much
freedom and liberty can result in too much faction: “Liberty is to faction what air
is to fire” (Hamilton, et al, 2001, p. 92). Madison further explained that the best
system of government to limit the power and influence of factions is a republic,
a representative democracy. Echoing Rousseau and others, Madison understood
that democracy was predisposed to breeding faction. However, he reasoned, the
United States, with its large territory and population, was uniquely situated and
comprised to limit factions. Factions were inevitable but could be marginalized
in a large, vast republic. Madison envisioned a system whereby the people would
choose the best, brightest, and most capable members of society to represent
them in government. He, in fact, advocated for a “natural” aristocracy that
would represent the people in government. Like the rest of the framers, he was
a well-educated aristocrat who felt that some were better fit to lead than others.
Throughout #10, and in other essays, the authors refer to “men of fit character”
who would govern in the best interests of the people.
Federalist #39, also penned by Madison, addresses the primary concern of the
Anti-Federalists–that the proposed Constitution would result in a consolidated
government whereby all power would be concentrated in the national government,
and the states would lose all or significant power, causing them to wither away.
Madison does concede that the states would lose some power, but would remain
very important partners in this unique power-sharing arrangement that the
Constitution proposes, where there are multiple levels of sovereign government
existing at the same time, which is the definition of federalism. Today, we use
the terms “federal” and “national” almost interchangeably. To Madison, they
were different. In explaining how the states would retain power under the
Constitution, he made a detailed distinction between “federal” and “national.”
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The U.S. Constitution
Madison explained that the government would function simultaneously as federal
and national in nature. When governmental authority flowed from the states, it
was federal in nature. However, when governmental authority flowed directly
from the people, it was national in nature. Therefore, the proposed Constitution
viewed its power as derived from sovereign states individually as well as from the
American people collectively. For one of the first times, the nation was beginning
to view itself as one, unified entity.
Most of the essays written by Hamilton are not nearly as delicate as Madison’s.
In fact, at times, they tend to even contradict Madison. In Federalist #15, Hamilton
also addresses the issue of consolidation of power and is not nearly as conciliatory
to states’ rights advocates, explaining that a powerful national government is the
best guarantee of national progress and health as a nation. He even refers to the
Articles (which guaranteed the strength and power of the states) as a “national
humiliation.” In this essay, Hamilton argues that the fledgling nation needs to
be grounded on firm financial footing and possess an ability to defend itself,
something that can only occur through the establishment and leadership of a
strong national government. He argues that the states had proven to be ineffective
in either of these areas. Hamilton also argues strongly for consolidation, even at
the expense of state power: “…we must resolve to incorporate into our plan those
ingredients which may be considered as forming the characteristic difference
between a league and a government; we must extend the authority of the Union
to the persons of the citizens—the only proper objects of government” (Hamilton,
Jay, & Madison, 2001, p. 111). Here, Hamilton is advocating that the government
rightly serves all Americans as individual citizens of one nation, not the interests
of the states. Until then, he reasoned, the new nation would remain financially
insolvent, fractured, and ripe for foreign invasion.
A Civic Engagement Challenge: Draft a
Constitution
Are there aspects to the Constitution that do not seem just or fair? Did
the framers err when drafting certain articles that left the document open to
interpretation and speculation that did not mirror their intent? Would you like
to see certain amendments made to the Constitution? Here’s your chance. Break
into groups of five or so students and draft your own Constitution for a nation
you have created. Be sure to include the following: a brief description of your
society or nation, a Preamble or “mission statement,” and 10-12 realistic, detailed,
specific changes and/or provisions your group would like to see enacted. Your
document can be focused at a national, state, community, or even campus level.
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The Basics of American Government
After you have finished, trade papers with another group to see what they have
crafted. Be serious, but have fun!
Discussion Questions
1.
2.
3.
4.
5.
Are the Declaration of Independence and the Constitution compatible
documents? How are they similar? How are they different?
How do you think the framers would react to the evolution of the power
of the president over the past 200 years? Has the office become too
powerful? Was that their intent?
Should the federal government be more limited to the enumerated
powers found in the Constitution, or is it inevitable that it assumes
implied powers over time? What are the consequences or implications?
What did the framers intend?
Should the framers have ended the institution of slavery in the
Constitution? Why or why not?
If you were alive in 1787, would you have been a Federalist or AntiFederalist? Why? What were their basic differences?
References
Hamilton, A., Jay, J., & Madison, J. (2001). The Federalist G. W. Carey & J.
McClellan (eds.). Indianapolis, IN: Liberty Fund. (Original work published
1788).
Kammen, M. (ed.). (1986). The origins of the American Constitution: A
documentary history. New York, NY: Penguin.
Kimberling, W. C. (1992). The electoral college. Retrieved from https://www.fec.
gov/pdf/eleccoll.pdf.
Locke, John. (1988). Two treatises of government Peter Laslett, (ed.). New York,
NY: Cambridge University Press. (Original work published 1690).
United States Constitution. (n.d.). Retrieved from https://topics.law.cornell.edu/
constitution. (Original work published 1878).
Court Cases
Chiafalo v. Washington, 591 U.S. ___ (2020).
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Federalism
Charles H. “Trey” Wilson III
Learning Objectives
3
After covering the topic of federalism, students should understand:
1. What federalism is and how the U.S. Constitution allocates powers to
both the national and state governments to create a federalist system in
the United States.
2. The evolution of American federalism from inception to its modern
manifestations. The concepts of “dual federalism,” “cooperative
federalism,” “New Federalism,” and “New Age Federalism.”
3. The future of federalism in light of recent Supreme Court decisions
affecting the distribution of power between the national and state
governments.
Abstract
Federalism in the United States refers to a governmental system outlined in the
Constitution in which power is distributed between the national government and the
state governments. The U.S. Constitution allocates power to the national government
chiefly through the enumerated powers, the implied powers, the power to tax, and
the Supremacy Clause, and to the state governments through the “Reserved Powers
Clause.” The nuances of federalism have evolved and changed in the U.S. as views
altered over time about how power should be shared between the federal government
and state governments. Political scientists routinely use labels such as “dual federalism,”
“cooperative federalism,” “New Federalism,” and “New Age Federalism” to describe
the various incarnations of federalism. The future of federalism may be dynamic
depending upon how the U.S. Supreme Court chooses to adjudicate cases in which the
distribution of power in government is at issue.
The Basics of American Government
Introduction
Federalism may be defined as a political system in which power is divided
between a central government and multiple constituent, provincial, or state
governments. While the U.S. Constitution never expressly states anything like
“the United States will have a federal system,” various provisions in the document
confer or deny powers to the national government while others reserve or withhold
powers for the fifty state governments. In this way, a federal system was created
for America. This system has evolved and changed over time and continues to do
so today, as a kind of tension has grown to exist between the central and the state
governments over which will exercise power. Understanding this system and its
nuances is requisite to fully grasping American government, since federalism is at
the heart of how government is organized in the United States.
Why Federalism?
For the framers, federalism was a kind of middle ground between two other
systems of government that had proven to be unsatisfactory for Americans. In one
such system (called a unitary system by political scientists), a centralized, national
government retained virtually all governmental power, as in the case of the
British monarchy. Many colonists believed they had been subjected to tyrannical
oppression at the hands of the king, and so were wary of conferring too much power
on what they feared would become a distant and unfamiliar national government.
However, the opposite extreme of government was equally undesirable. While the
confederal system created by the Articles of Confederation did create a national
government, the Articles gave relatively little power to that central government and
instead reserved most governing power for the several states. While this provided
for a great deal of local autonomy, the result was a puny national government.
Indeed, this national government was too weak and ill-equipped to respond to
even internal crises such as Shays’ Rebellion (a minor uprising of Massachusetts
farmers angered over an ailing economy), let alone external threats from powerful
neighbors. A federal system empowered to some extent both the state and national
governments, thereby combining the benefits of both.
Creating a Federal System
Empowering a National Government
Four items contained in the U.S. Constitution serve to confer the lion’s share
of power on the national government: the “enumerated powers,” the “implied
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Federalism
powers,” the “Supremacy Clause,” and the power to tax.
To enumerate something simply means to count it off, one by one, as in a list.
Hence, the enumerated powers are essentially contained in list form in the U.S.
Constitution, specifically in Article I, Section 8. This text gives “Congress,” which
should be taken to mean the national government, the power to do many specific
things, including coining money, establishing post offices, and maintaining a
navy, among others.
While the enumerated powers specify many things that the federal government
can do, the framers knew that they could never create an exhaustive list of powers
for the Congress. After all, times change, and much would doubtlessly occur in
the future that they could not even anticipate, let alone write about. Consequently,
the framers included language in Article I, Section 8 which has come to be known
as the Elastic Clause, so-called because it lets the federal government expand and
stretch its power under certain circumstances. The Elastic Clause provides that
Congress shall have the power to make all laws which are “necessary and proper”
for executing any of its enumerated powers (The Elastic Clause is sometimes
referred to as the “Necessary and Proper Clause” because of this language). The
result is that, providing Congress can demonstrate that a law it likes is both
necessary and proper, it may be able to do something that might, at first glance,
seem beyond the scope of its enumerated powers. Of course, determining exactly
how “necessary” and “proper” should be defined in any given circumstance is
often a matter of fierce debate in government, and anyone who does not like the
law in question will certainly argue that it is unnecessary and improper. Political
scientists refer to powers the national government derives from the Elastic Clause
and the enumerated powers as implied powers since, while they are not overtly
stated, such powers may be fairly construed to exist.
Article VI of the U.S. Constitution contains what is referred to as the
Supremacy Clause. Occasionally, both the federal government and one or
more state governments might each claim some power to do something—for
example, the power to regulate the issuance of monopolies on steamboat ferry
transportation across the Hudson Bay (see the Supreme Court case of Gibbons v.
Ogden later in the chapter). The Supremacy Clause states that in these conflicts,
the federal government shall be presumed to win out over the state government(s).
Chief Justice John Marshall put it more eloquently in the judicial opinion
he wrote in 1819 for the U.S. Supreme Court case of McCulloch v. Maryland.
Marshall declared, “the Constitution and the laws made in pursuance thereof
are supreme…they control the constitution and laws of the respective States, and
cannot be controlled by them.” The framers included this provision because they
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The Basics of American Government
had seen first-hand under the Articles of Confederation how the nation could
suffer under an impotent national government.
Finally, the national government derives much of its power from the ability
to tax. To avoid the myriad problems of inadequate revenue that surfaced under
the Articles of Confederation, the framers empowered the federal government
with the ability to levy charges against such things as activities, products, and,
with the Sixteenth Amendment, income. The power to tax can be a powerful
tool to shape public policy. Consider, for example, consumption or “sin” taxes
imposed by government on everything from alcohol to tobacco products to “gas
guzzling” vehicles. Proponents of such taxes hope tacking on additional expenses
to the cost of taxed products will discourage people from acquiring them and,
eventually, make the products so unattractive to consumers that they disappear
from the market.
Empowering State Governments
Like the federal government, state governments derive power from the U.S.
Constitution. Regarding state power, Supreme Court Justice Hugo Black once
wrote that federalism meant, “a proper respect for state functions, a recognition
of the fact that the entire country is made up of a Union of separate State
governments, and a continuance of the belief that the National Government will
fare best if the States and their institutions are left free to perform their separate
functions in their separate ways” (Younger v. Harris, 44). Indeed, having lived
for a decade with the Articles of Confederation under which states maintained
virtually all governmental power, it would have gone without saying for many
of the framers that states would retain power under the U.S. Constitution.
Consequently, relatively little is stated outright regarding state power in the
Constitution’s articles. However, Anti-Federalist concerns over the national
government usurping too much power eventually led to the inclusion of the
Tenth Amendment in the U.S. Constitution. It states, “The powers not delegated
to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” Political scientists refer to this
bit of text as the Reserved Powers Clause and these powers as “reserved powers”
or, alternatively, “police powers.” While the latter term might conjure up images
of men and women in blue brandishing pistols and handcuffs, think of it more
broadly. Besides being a noun, “police” can also be a verb. To “police” something
essentially means to keep something maintained in good order. In the context of
federalism, a state’s “police powers” let it exclusively regulate within its borders
things like law and order, health, safety, and morality as it sees fit and prohibits
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Federalism
the federal government from interfering with state interests in these areas. This
explains why some states may permit some practices (such as same-sex marriage
or capital punishment), while others do not. Each state is exercising its reserved
powers autonomously.
Powers Shared Between (and Denied to) the Federal and
State Governments
We have seen how the U.S. Constitution confers power onto the national
government and onto state governments to create America’s federal system.
However, to completely grasp how federalism functions, we must also understand
the concepts of concurrent powers (or shared powers) and prohibited powers
(or denied powers). Concurrent powers are powers that are held by both the
federal and the state governments. For example, both the federal government and
the several state governments have the power to establish a court system. This
is why the United States has a federal Supreme Court, just as each state has its
own state supreme court of last resort for cases moving through the state judicial
system. Another example of a shared power would be the power to tax. If you
have not already begun doing so, every year around mid-April, you will submit
your Federal Income Tax Return, probably the (in)famous I.R.S. Form 1040. In
most states, such as Georgia, you will also submit an income tax return to the
state you live in around this time as well. Some states, such as Florida, Nevada,
and New Hampshire, do not have a state income tax. As the name implies,
concurrent powers may be exercised by the states and the national government
simultaneously. However, note that states may exercise these shared powers only
up to the point that they do not violate or conflict with national law. For example,
while the state of Georgia does have the power to tax, the state could not begin
taxing goods slated to be exported to other countries through its shipping ports.
This is because the U.S. Constitution contains a clause that prohibits export taxes
from being used (note that Georgia and other states can tax imported goods—
providing they obtain approval from Congress to do so).
The prohibition on export taxes is a good example of a “prohibited power.” As
the name implies, a prohibited power is one that is denied to either the federal
government, the state governments, or, at times, denied to both governments.
For example, the Constitution contains a clause that reads, “No Title of Nobility
shall be granted by the United States.” Hence, as nifty as they might sound, there
will never be a “John Jones, Duke of Dahlonega” or “Susan Smith, Duchess of
Dawsonville”—at least not officially, anyway. Another example of a prohibited
power relates to what are called ex post facto laws. “Ex post facto” is Latin for
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The Basics of American Government
“after the fact.” An ex post facto law is one that would criminalize some action
for the purpose of prosecuting it after someone had already performed the action
at a time when it was legal to do so. Vengeful politicians in neither the federal
government nor any state government can enact such laws. Examples of powers
prohibited to only state governments would include the power to make treaties
or to coin money. Examples of powers prohibited to only the federal government
could include things like establishing a drinking age or setting the age of consent
for marriage, since these would be considered state police powers protected from
federal government intrusion thanks to the Tenth Amendment.
“Horizontal Federalism” and Relations between the States
The foregoing material describes how the U.S. Constitution allocates (or
does not allocate) powers to the national and state governments. Some political
scientists qualify this as vertical federalism since it describes a dynamic occurring
between government on two different levels, federal and state. Just as important,
however, is how power is shared between the several different governments that
all inhabit the state level.
To many people, part of what makes the United States a remarkable country
is the heterogeneity of its fifty states. The size, population, resources, natural
environment, and political culture of no two states are exactly alike. What is it
that keeps big California with its population of around 40 million people and vast
resources from trying to throw its weight around against other, smaller states? In
fact, several provisions of the Constitution serve to put all the states on one level
(i.e., horizontal) playing field. Four of the most significant of these provisions of
horizontal federalism are the Full Faith and Credit Clause, the Privileges and
Immunities Clause, and the Interstate Rendition (a.k.a. Extradition) Clause,
which are all contained in Article IV, and interstate compacts.
The Full Faith and Credit Clause requires each state to respect “the public
Acts, Records, and judicial Proceedings of every other State.” Practically speaking,
this statement means that contracts and judicial orders arising out of one state will
continue to be binding in other states, mostly because it better facilitates national
commerce. It is the reason a couple can drive cross-country all night, get married
at a 24-hour wedding chapel in Las Vegas, and then return home, still married,
even though their ceremony occurred several states away. Assuming the marriage
contract was valid in Nevada, the Full Faith and Credit Clause requires that other
states recognize it as well.
But what if something permitted by a minority of states happens to be a
thing that a majority of other states would rather prohibit? Could the Full Faith
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Federalism
and Credit clause compel that majority of states to kowtow to the policy of the
minority? A scenario rather along these lines emerged in the U.S. beginning
around the 1990s. A handful of states (including Hawaii, Vermont, and
Massachusetts) began legalizing either civil unions for same-sex couples or samesex marriage. For a variety of reasons, many other states and many lawmakers in
the Federal government bristled at this. In 1996, the federal congress passed and
President Clinton signed into law the “Defense of Marriage Act” (DOMA) which,
among other things, essentially defined marriage as being a union between one
man and one woman. As well, by around 2006, more than a dozen states had
amended their own constitutions to deny recognition and acknowledgment
within their borders of what became popularly termed “gay marriages” that had
been performed in other jurisdictions.
The next decade saw much litigation over the constitutionality of DOMA
and state-authored gay marriage bans. Court battles culminated in June of 2015,
when a closely-divided U.S. Supreme Court ruled in the case of Obergefell v.
Hodges (2015) that same-sex marriage bans were unconstitutional. Interestingly,
though, the Court did not rely at all upon the Constitution’s Full Faith and
Credit clause to inform its ruling that essentially legalized gay marriage in the
U.S. Rather, the Court struck down the bans because, in its view, they violated
Fourteenth Amendment guarantees of equal protection under the law to all
citizens, including homosexuals.
Does this leave unanswered the question of whether or not the Full Faith
and Credit Clause can subordinate a majority of states to the will of a minority of
states? Not entirely. In another case decided in 1988, the Supreme Court noted that
the Full Faith and Credit clause “does not compel a State to substitute the statutes
of other States for its own statues dealing with a subject matter concerning which
it is competent to legislate” (Franchise Tax Bd. of Cal. v. Hyatt, 2003, citing Sun Oil
Co. v. Wortman, 1988). Language such as this has been interpreted by some legal
observers as giving states the prerogative to claim what is termed a “public policy
exception” to the Full Faith and Credit clause. Though there is not a great deal
of case law providing much nuance about the exception, states can presumably
invoke it in at least some instances to avoid having to embrace some unwanted
policy adopted by a sister state. Whether it would be the public policy exception
or the rule (i.e., the Full Faith and Credit clause) that would control in any given
situation is, of course, something that the judiciary would determine. Like the
Full Faith and Credit Clause, the Privileges and Immunities Clause also serves
to equalize power distribution between states. This clause guarantees that citizens
of one state shall be deemed to possess the same fundamental rights as citizens
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The Basics of American Government
of all other states. It is occasionally referred to as the ‘‘Comity Clause’’ because
it prevents any state from discriminating against visiting citizens from another
state in certain respects, which would tend to preserve harmony as people travel
between states (‘‘comity’’ means a friendly social atmosphere, which probably
would better come about if everyone thought they were on equal footing with
everyone else). Note that this clause applies only to basic constitutional rights
such as those discussed in Chapter 11. So, for example, a state might legally
charge residents one price to enter a state museum but charge non-state-residents
a higher price since museum-going is not a fundamental right protected by the
U.S. Constitution.
Interstate Rendition (or perhaps more commonly, if not entirely correctly,
referred to as “extradition”) occurs when a fugitive apprehended in one state
is handed over to the authorities of another state for prosecution for crimes
committed in tha…
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