1. Describe the founding ideals of American government.
“Power corrupts. Absolute power corrupts, absolutely.” Lord Acton
Understanding American government and politics involves a healthy respect for the past. Many of our democratic institutions are rooted in historical traditions. Of course the essence of our government is found in the words of the United States Constitution. In the next couple of weeks we will review these traditions including the document that best defines the powers and limits of the United States government.
Why government at all?
The word “government” is derived from a Latin word that means, “to manage.” As societies grew more and more complex governments were formed to help manage group norms. These norms are established in the form of laws and public policies.
Throughout history there have been many different kinds of governments. The most common form relied on unelected authoritarian rulers who governed by force. When assessing governments two critical words must be considered – legitimacy and authority. Legitimacy relates to accepting one’s government while authority relates to the power given to a government to fulfill its responsibilities.
In our English tradition the rule of law is, in part, rooted in the Magna Charta (1215). The king’s legitimate power was found in a written document and not only in his arbitrary will. The Magna Charta heralded a new era in government and politics. The king no longer ruled in isolation of his people.
In the Western tradition enlightenment thinkers dramatically challenged beliefs about government legitimacy. John Locke, in the 17th century, no longer accepted the legitimacy of traditional monarchies. He wrote about the importance of “the consent of the governed.” Also in the 17th century Thomas Hobbes favored strong centralized leaders but saw legitimacy in a social contract with the people. Hobbes also wrote about the state of nature where man was “solitary, poor, nasty and brutish.” A legitimate government with the necessary authority is an essential safeguard for a civil society.
Certain salient concepts give breathe to the grand American experiment in self rule.
Fundamentally our Founders maintained an essential commitment to a limited government. The United States government would set boundaries as laid out in explicit formal expressed powers. The new government would be comprised of three branches – the legislative, executive and judicial – all separate but responsible for checking and balancing each other. This separation of powers not only limited government but also fulfilled the promise of our revolution. Ultimate legitimacy and authority is found in the people. Popular sovereignty could only be safeguarded if government was limited. The Constitution diluted power even more by creating a federal form of government. In this way power and authority would be shared between central, state and local governments. In the end the rule of law would protect not only the liberty but also the equality of all.
Whereas direct democracy empowered the people to rule without representatives, the framers of our constitution opted for a republican form of government. In this way the untrustworthy passions of the people were insulated through the direct election of qualified representatives. Republicanism in theory hopes to represent all of the people and not just majorities. The original constitution only allowed for the direct election of the House of Representatives.
As we will see the genius of the American system of government, rooted in personal liberty, protects each and every one of us. Here the privileged and the strong must abide by the same rules as everybody else.
Each unit of study is broken down into ten (10) essential objectives. Each objective requires a context of understanding. You will find that context here. Read carefully. Each word matters. In the end we hope that by distilling the content of American government and politics to its bare essentials a larger number then before can count themselves as educated citizens. Without such a citizenry our hope for a bright future is in peril.
2. Identify the critical historical events leading up to the ratification of the U.S. Constitution.
In addition to the continental enlightenment thinkers, the foundations of American government are also rooted in our colonial experience. Protestant congregations were self-governing. The salutary neglect that characterized the American experience when combined with the changing attitudes about legitimate government authority on the continent provided the essential backdrop to understanding our Revolution in 1776.
The American Revolution was fought and won for the cause of liberty. Thomas Paine in Common Sense (1776) called liberty “the cause of mankind.” Thomas Jefferson in the Declaration of Independence (1776) put in writing an American promise to uphold equality for all. Government here would be a byproduct of the people. All legitimacy and authority would be rooted in “the consent of the governed.” Our political institutions would be self-governing. Such ideas were so revolutionary no long lasting model of government existed. Our first attempt would fail.
The Articles of Confederation, the first governing charter of the United States, succeeded in ending the war with England and proposing territorial rules for expansion but maintaining order it could not. There were a number of fatal flaws built into the Articles. There was no executive branch. There was no judicial branch. A unicameral Congress could not tax or regulate trade. The Articles of Confederation, understandably, created a weak central government. Too weak as the United States government was unable to adequately deal with the Shay’s Rebellion in Massachusetts. All that was gained in the American Revolution for the rights of man looked to be on shaky ground.
Leaders from the across the new 13 States joined together in Philadelphia in the summer of 1787 to make amends. In the end they chose not to correct the Articles but to start over and write a brand new constitution. Today their work still serves as our guiding document. In the new constitution our Founding Fathers addressed both the strengths and weaknesses of their earlier experience.
History suggests that this new constitution was almost scuttled due to a dispute over representation between the large and small states. Had it not been for compromise, the Great Compromise, the United States Constitution would never have succeeded. Creating a two-house legislature placated both large and small states. Population would dictate representation in the House of Representatives while the Senate would be made up of two members per state. This bicameral Congress comprised of a House and Senate was just one compromise that allowed for our new constitution to be ratified in 1789. The slavery dispute was settled with the 3/5s compromise.
Ratification did not come easy. Nine of the thirteen states were required to ratify this new governing document before it was empowered to serve the people. A series of essays, called the Federalist Papers, written by proponents helped nudge the state legislatures toward ratification. Two of the most noted essays were Federalist 10 and 51. Federalist 10, written by James Madison, addressed the need for a republican form of government. A republican democracy gives popular control over government through elected officials. It also assuaged the fear over dangerous factions controlling the government at large. Madison argued that factions could never be abolished without removing personal liberty. A large republic, however, could limit them. A large republic would make it unlikely that any one faction or special interest could control the whole government. In doing so Madison was espousing a pluralist system. An elite class would not rule here. Rather many competing groups would attempt to influence public policy. Pluralism would protect us from an authoritarian government. Federalist 51 addressed the fear that a centralized government might jeopardize individual freedom. “If men were angels,” Madison argued, “we would not need a government.” Madison explained how the separation of powers and a system of checks and balances would protect personal liberty. Nevertheless a strong but not too strong central government was essential to enjoying that liberty.
One more issue would need to be settled before the necessary number of states would sign on to this new governing document. The framers would need to add a Bill of Rights. The members of the constitutional convention argued that this new government would not be strong enough to imperil individual liberty. Their arguments were insufficient. Assurances were made that a Bill of Rights would be added. The first ten amendments, our Bill of Rights, were proposed and ratified by the first Congress and ratified by the states in 1791.
With the proposal and ratification of the U.S Constitution and the Bill of Rights some would say America had completed its second revolution. The first brought independence and the promise of liberty. The second established a workable government based on popular sovereignty but also protected order. That document still serves us today. Let’s take a closer look at the United States Constitution.
3. Explain how the U.S. Constitution, when ratified, impacted the role of the central government.
The original U.S. Constitution was organized in 7 Articles or sections.
Article 1 describes and enumerates the powers given to our Legislative branch. The Legislative branch is often called our first branch. Our bicameral Congress has three primary responsibilities: (1) make laws; (2) provide oversight to the rest of the government; (3) represent their constituents through casework. Originally only the House the Representatives was directly elected. At our founding Senators were appointed by their respective state legislatures. The times, places and manner of all elections would be determined by each individual state. Article 1, Section 8 enumerated the basic expressed powers given to our Congress. The most notable powers given to the Legislative branch were the right to raise taxes, declare war, and to regulate interstate commerce. The interstate commerce clause would prove to be the most frequently used provision to expand the power of our central government. The most controversial power, however, is found in Article 1, Section 8, and clause 18. Called the elastic clause, “the necessary and proper clause” empowers our legislative branch to pass any law that is related to one of its expressed powers. Needless to say this provision has been used to extend the reach of government whenever the vague language of the Constitution proved inadequate. In the end our Legislative branch has been given “the power of the purse.” The United States Congress is responsible for collecting all revenues necessary to cover the appropriations of our government according to the prepared budget.
Article 2 describes and enumerates the powers given to our executive branch. Though given “the power of the sword,” our early presidents were considered relatively weak. Presidential authority was based more on personality then the expressed powers found in the Constitution. That is why the Legislative branch overshadowed many of our earliest presidents. Nevertheless the Constitution empowers the president to be commander-in-chief, to appoint with the Advice and Consent of the Senate ambassadors, judges and other officials of the Executive branch. Ultimately the president was empowered to faithfully execute the laws passed by the legislative branch. The president can veto all laws. As is still true, the original Constitution created an indirect means to elect our president. Our Framers feared democracy as much as they feared monarchy. An Electoral College was created to provide a filter between the direct votes of citizens and the selection of our chief executive. President’s can be removed through impeachment. The House of Representatives can accuse the president of “high crimes and misdemeanors” but only the Senate can hold the trial to remove him from office.
Article 3 describes the powers of the judicial branch. Alexander Hamilton called the judiciary “the least dangerous branch.” The authority of the Supreme Court would grow as subsequent congresses gave it more and more power. The Supreme Court was empowered to interpret what our laws mean.
Article 4 describes the relationship between the central government and the states. The Constitution guarantees a republican form of government. The Full Faith and Credit clause assures that all states will respect the laws of the land. This also includes the laws of other states. The Privileges and Immunities clause has also been used to legally bind the state governments into one cohesive unit.
Article 5 describes the means by which the original constitution could be amended. The process may appear straightforward and simple. As of today, however, our Constitution has only been amended 27 times. The most common way to amend the Constitution is for a proposal to be made by 2/3s of Congress and then a ratification vote by 3/4s of the state legislatures. Though never used as such, proposals can be made by national conventions with ratification by state conventions.
Article 6 assured that the debts of the United States carried over from the Revolution would be honored and paid.
Article 7 prescribed that 9 of the original 13 states would be required to ratify the new constitution.
Though the U.S. Constitution does not mention political parties two primary factions debated its merits. The Federalists advocated for a stronger central government and pushed hardest for ratification. The Anti-Federalists were suspicious of granting too much power to the new national government. The most significant reservation was over a Bill of Rights.
The Federalists claimed that the essential civil liberties were already contained within the original constitution. The Writ of Habeas Corpus, “show me the body,” protects all citizens from unlawful detention. Bills of Attainder were prohibited. All citizens would be guaranteed a trial by a judiciary. Nor could citizens be convicted through Ex Post Facto laws. One cannot apply law after the fact or retroactively. Federalists argued that the central government with its limited powers would be unable to infringe upon personal liberty. Anti-Federalists held out for the assurance that a Bill of Rights would be added.
4. Describe the formal and informal methods used to change the meaning of the U.S. Constitution.
Article 5 of the United States Constitution describes the means by which the original constitution could be formally amended. The process may appear straightforward and simple. As of today, however, our Constitution has only been amended 27 times. The most common way to amend the Constitution is for a proposal to be made by 2/3s of Congress and then a ratification vote by 3/4s of the state legislatures. Though never used as such, proposals can be made by national conventions with ratification by state conventions.
In addition to the Bill of Rights we have amended the Constitution 17 more times for a total of 27 amendments. Here are the most notable:
13th, 14th and 15th Amendments are referred to as the Civil War Amendments. The 13th freed the slaves. The 14th Amendment extended citizenship and the 15th granted African-American males the right to vote.
16th Amendment (1913) – established the federal income tax.
17th Amendment (1913) – established the direct election of U.S. Senators by popular vote.
22nd Amendment (1951) – limited presidents to two-terms.
24th Amendment (1964) – eliminated the poll tax.
26th Amendment (1971) – extended the right to vote to 18 – 20 year olds.
Yet one should not imagine that the meaning of our constitution has experienced little change. The following words of Thomas Jefferson have animated our politics since the days he first stated them, “On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” Though the formal structure of our constitution has gone virtually unchanged, the meaning and application has gone through numerous informal changes.
Congress often changes the meaning of our constitution by exercising its legislative authority. Empowered by the elastic clause, the U.S. Congress has been granted the authority to pass necessary laws. These laws often exceed the reach of our original constitution. These changes all point to a similar direction – the size and scope of the United States government is ever growing.
The Congress is not alone in expanding the power and authority of the U.S. constitution. The Supreme Court too can informally change the meaning of the U.S. constitution through its decisions. By establishing new precedents the Court alters the meaning and understanding of our ruling document.
The Executive branch too can informally change how our original document is understood. Presidential authority allows for executive actions that often go beyond what the framers imagined. Agents of the government as well, making up the Federal bureaucracy, often possess discretionary power that seem to move beyond formal constitutional limits.
In the end, however, we are a nation of laws and limits. The Supreme Court is held responsible for interpreting those limits. The people ultimately hold the health of our “living constitution” in their hands.
5. Explain how the first ten amendments to the U.S. Constitution, the Bill of Rights, limit the central government.
Today our Bill of Rights is found in the first ten amendments to the U.S. Constitution. It should be remembered that these privileges have been granted to all as a means to directly limit the power of the central government.
Below is a brief review of our most cherished civil liberties:
Amendment 1: Freedom of Speech, Religion, Press, Assembly, Petition.
Note: The freedom of speech gets preferential treatment by the courts. It is our most sacred right. Yet even freedom of speech has its limits. You are not free to publish obscene materials. You are not free to lie or slander others nor can you write falsely which is called libel. Likewise prior restraint or censorship of the press must pass over a high bar. Freedom of religion is split into two separate protections. We have freedom from an establishment of religion. This protects us from an official State religion. The Lemon Test prescribes the rules regarding any apparent cooperation between church and state: (1) The government’s action must have a secular purpose; (2) The government’s action must not have the primary effect of either advancing or inhibiting religion; (3) The government’s action must not result in an “excessive entanglement” with religion. We also have the free exercise of religion. The government cannot infringe upon our right to worship the way we please.
Amendment 2: The right to Bear Arms.
Amendment 3: Freedom from Quartering Troops in peace time.
Amendment 4: Freedom from unreasonable Searches and Seizures.
Amendment 5: Rights given to the accused including Due Process. All citizens would be free from self-incrimination. Eminent Domain – any taking of private property for public purposes must be accompanied by just compensation.
Amendment 6: Rights of the Accused. All citizens would be guaranteed the right to an attorney, a speedy trial and an impartial jury.
Amendment 7: Certain rights applied in criminal cases would be also be provided in civil law.
Amendment 8: Freedom from Cruel and Unusual Punishment.
Amendment 9: Rights given to the people. The enumerated rights contained within the constitution were not to be considered exhaustive. Where other rights were found they belong to the people. [Note: the enumerated powers are those powers that belong exclusively to the national government].
Amendment 10: Reserved Rights. Those rights not guaranteed or enumerated by the federal constitution would be reserved to the States. The 10thAmendment further solidified the concept of federalism.
6. Describe how the Fourteenth Amendment has been used to change the role played by the central government in protecting civil liberties.
The Bill of Rights was added in fear of an all-powerful central government. Ironically these rights ultimately extended the reach and authority of the federal government beyond anyone’s imagination. It was intended that way. In fact, the Bill of Rights only protected our civil liberties from being infringed by the national government. This was clearly defined by the Supreme Court in the case Barron v. Baltimore (1833). The court made clear that the rights contained in the first ten amendments did not apply to the states. In other words, the United States Congress could not violate your freedom of speech but the State of New York could. It would take a number of generations before this confusion was remedied.
The extension of the Bill of Rights to the States is called the selective Incorporation Doctrine. It could not have occurred without the 14th Amendment. The 14th Amendment guaranteed to all citizens in all of the States both the due process of law and the equality of opportunity granted to all. Furthermore no State could abridge the privileges or immunities given to citizens of the United States. It was not until 1925 in the case Gitlow v. New York where the Supreme Court applied the language of the 14th Amendment into a State dispute. Today virtually all of our civil liberties as guaranteed in the Bill of the Rights have been applied or incorporated to the States. To summarize, little by little the Supreme Court applied or incorporated the Bill of Rights to the States using the due process clause of the 14th Amendment.
7. Explain how the U.S. Supreme Court over time has interpreted the meaning of our fundamental freedoms as found in the First Amendment.
Ultimately the United States Supreme Court is empowered to interpret what our laws and privileges mean. Throughout our history there have been a number of landmark court cases that have defined the meaning of our rights. Below you will find a few of the most important landmark cases:
Marbury v. Madison (1803) established judicial review. This empowered the court to rule on the constitutionality of all laws including presidential action. Though rarely used in our early years hardly any significant question in today’s political arena escapes the Court’s review and judgment.
McCulloch v. Maryland (1819) established the supremacy of the national government. In this case the court recognized the necessary and proper clause as authoritative when creating a national bank despite the constitution’s silence on the matter. This case would have far reaching consequences in the battle between the national government and the states.
Schenck v. U.S. (1919) was an early case defining the limits of our free speech. Justice Oliver Wendell Holmes famously stated in his opinion, “…Free speech would not protect a man in falsely shouting fire in a theater.” The ruling precedent of this case established the clear and present danger standard.
Gitlow v. New York (1925) incorporated the free speech clause of the First Amendment. For the first time free speech would be extended equally in all States through the due process clause of the 14th Amendment.
Tinker v. Des Moines (1969) further established the reach of the First Amendment into symbolic speech [later this would be codified in Texas v. Johnson (1989), the flag burning case]. Furthermore the Court recognized that students do not shed their rights “at the schoolhouse gate.” Most importantly symbols on clothing and/or inaudible expressions are protected by the free speech clause of the First Amendment.
New York Times v. U.S. (1971) established the limits of free press. The government can use prior restraint when confronted by national security issues but the bar for such censorship is high. The court, however, chose in this case to raise the standard of national security quite high. Here the court chose not to disallow the publication of the leaked Pentagon Papers.
Everson v. Board of Education (1947) defined for the first time the establishment clause of the First Amendment. Justice Hugo Black stated that a “wall of separation” existed between church and state. This case also incorporated the establishment clause. Using the due process clause of the 14th Amendment no state could establish one religion over another.
Be reminded that the First Amendment contains our most cherished rights. Often our courts give them a preferred position. Governments did not give these rights to us. Rather we empower governments to protect these natural rights.
8. Explain how the U.S. Supreme Court over time has interpreted the meaning of criminal due process as guaranteed in the Bill of Rights.
The Bill of Rights contains many diverse protections. In addition to political rights like speech and press they also protect us from oppressive police powers. Throughout our history there have been a number of landmark court cases that have defined the meaning of these rights. Below you will find a few of the most important landmark cases:
Mapp v. Ohio (1961) incorporated the exclusionary rule using the due process clause of the 14th Amendment. The exclusionary rule disallows in court any illegally obtained evidence. The exclusionary rule provides a safeguard for our 4th Amendment right to be free from unreasonable searches and seizures.
Miranda v. Arizona (1966) held that any suspect put in custody by authorities must be first informed of their rights. The Miranda warning, hence, has become standard at the point of any legal detention – “You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney one will be provided for you.”
Gideon v. Wainwright (1963) incorporated the 6th Amendment’s right to attorney. Not only in federal cases but also in all State and Local, as well, the government must provide legal counsel.
Griswold v. Connecticut (1965) utilized the vague language of the 9th Amendment to establish the right to privacy. Though not specifically mentioned in the Constitution’s Bill of Rights the right to privacy was later extended to include a women’s right to choose an abortion in Roe v. Wade (1973). Few judicial opinions have been more controversial.
One commonly misunderstood criminal law practice is the plea bargain. Courts have frequently upheld their validity. A plea bargain allows the state and its prosecutors to offer a reduced sentence if the accused agree to plea guilty to a lesser offense. The intent of a plea bargain is to reduce the heavy workload of the court system. Plea bargains ultimately mean fewer trials and more defendants doing time for their offences.
As these cases represent, the Supreme Court acts as the final arbitrator of our rights and privileges as United States citizens.
9. Describe the evolution of civil rights in American society.
When looking at our foundations, liberty was not the only promise made during our Revolution. Equality as well was an essential feature of our unique American experiment. Our record in extending equality to all has been, as some have written, our “American dilemma.” Defending equality almost tore us apart during the American Civil War. But as Lincoln wrote in his Gettysburg Address, we fought for “a new birth of freedom.” We continue to fight. Our form of democratic-republicanism upholds majority rule while putting in place protections for minority rights.
The civil rights movement heralded the rights of Women and African-Americans. Subsequently it was extended to Latinos. Today such civil rights are being waged on behalf of the LGBT community. Federalism often delays and complicates the extension of civil rights. A limited government, like ours, is not fitted to make dramatic changes in a hurry.
We can learn from the civil rights movements of the past on how best to pursue even greater equality in our future. African-Americans following the Civil War found much of America to be unwelcoming. Grateful for their freedom but Jim Crow laws segregated and relegated them to second-class citizens. Work was difficult to find. They were not permitted to join in society as equal partners. Even the United States Supreme Court ruled in Plessy v. Ferguson (1896) that “separate but equal” was a tenable standard. De jure segregation, that is segregation by law, was indeed constitutional.
The early civil right movement saw the courts as their battleground. Through litigation civil rights attorneys could argue their case in court. Their greatest victory came in 1954 in the case Brown v. Board of Education. Brown overturned the Plessy precedent by ruling that “separate was not equal.” Schools could no longer segregate on the basis of race. This landmark decision set in motion an end to de jure segregation. The law of the land would no longer permit a racially divided society. Its rationale was found in the due process and equal protection clauses of the 14th Amendment. The national government was flexing its authority over the states. De facto segregation, separation by private choices, still exists.
With the courts solidly behind them, the civil rights movement turned to Congress. Political pressure combined with a heavy dose of personal courage helped to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These historic pieces of legislation extended equality even further. Segregation, discrimination and prejudice would no longer be accepted. Voting rights would be protected. Rules to suppress black political participation like literacy tests were outlawed. America was moving closer to its promise of equality for all.
Affirmative action programs were put in place to offer racial minorities a chance to catch up for past discrimination. This preferential treatment has not gone unnoticed. The civil rights movement continues as the fight for equality is not over.
African-Americans were not the only marginalized groups to win political victories in the wake of the civil rights movement. One of the more notable victories occurred for women with Title IX of the Education Amendments of 1972. This prohibited any form of discrimination on the basis of gender in any education program or activity.
Today any program or activity that continues to discriminate must pass the “strict scrutiny test.” On occasion our Supreme Court allows for instances of discrimination. For instance, women have usually been held out of direct combat roles when serving in the military. Such discrimination has been permitted using the “strict scrutiny” test based upon a “compelling state interest.” Increasingly our judiciary has been asked to extend due process not only procedurally but substantively as well. Procedural due process assures fair and impartial treatment. Substantive due process empowers the Court to identify those private choices that are beyond government restriction. Future civil rights victories rest in the Court protecting these substantive rights.
10. Describe how the Fourteenth Amendment has been used to change the role played by the central government in protecting civil rights.
Our civil liberties are protected by the Bill of Rights. Civil rights guarantees equal protection under the law. The 14th Amendment, more so then any other act of government, has advanced “due process” and “equal protection” for all. Civil liberties limit government action while civil rights protect us from de jure acts of segregation. The law cannot permit acts that deny equality to all. Forged in time, the protection of our civil rights has not been easy. In the end the central government has expanded its authority as it has been asked more and more to safeguard our most cherished rights.
Thomas Jefferson’s promissory note, recorded in our Declaration of Independence, claimed: “We hold these truths to be self evident, that all men are created equal.” Furthermore Lincoln fought to hold our Union together by promising “a new birth of freedom.” As history has proved, freedom and equality do not come easy. There is a cost to bear. Each generation must take on the example of our forefathers and stand up when called upon to defend the principles we all hold dear.
James Madison wrote, “The very success of democracy depends upon the knowledge and skills of its citizens.” In reviewing our foundations you are taking an important step in assuring that success. Throughout the remaining weeks of this semester you will find three (3) primary meta-narratives that coexist today when studying American government and politics. Look for examples as we progress through the semester. These grand narratives are:
1. An ever-expanding and centralizing national government. The story of American government is a story of federal aggrandizement.
2. The increasing democratization of the American polity. Traditional republicanism and its inherent elitism have increasingly been transformed into a more pluralistic and populist democracy.
3. Our motto, E Pluribus Unum, under siege. The Unum is ever challenged by our Pluribus. Partisan politics and an ever-increasing pluralistic culture apply constant tension threatening the foundations of our political efficacy.
American foundations ultimately are built on hope. Ralph Waldo Emerson called “America a country built on tomorrow.” We here at CitizenU agree. There is always room 2B a good citizen. No better time to start then now. Soren Kierkegaard said, “Life is understood looking backwards but it must be lived looking forwards.”
When studying foundations our gaze upon the past is really an internal GPS helping us orient ourselves to the future. Welcome aboard. You are all framers now.