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  • 1. 1. The 2008 presidential campaign and election areexplored throughout the book, including a look at the2008 primary season, the party conventions, the roleof the media, the historic election of Barack Obamaand voter turnout. Figures and tables have also beencompletely updated with information on the 2008election.2. We have integrated the latest examples andscholarship on American politics and government,including recent Supreme Court decisions, theeconomic conditions at the end of 2008, andcomparisons with countries around the world.3. The new Generation Next feature presentsinformation about 16-25 year olds, showing theirissues, values, and challenges as they relate to specificquestions such as partisan differences, the rise of smallcampaign donors, search and seizure in the age ofterrorism, and levels of patriotism. Comparisons witholder voters and demographic breakdowns help youunderstand where you fit and why government shouldmatter to you.4. Being part of a government by the people requiresconsideration of differing points of view. You WillDecide/Thinking It Through explores in-the-newsquestions like the impact of third-party candidates,the advantages and disadvantages of a nationalpresidential primary, and the need for restrictions oncivil liberties during the war on terror and then asks youto weigh options for resolving the issue.5. Using a nationwide survey as a guide, we developeda master list of learning objectives to shape thisedition. Learning Objectives appear at the beginningof each chapter, while individual Objectives and keycoverage are called out in the text margins. A Summaryand Self-Test at the end of each chapter provides youwith a final check of your understanding.6. The growing importance of the Internet and thedeclining importance of newspapers are discussed indetail, including the role of the Internet in the 2008campaign and election (Chapter 10).7. An updated chapter on the presidency (Chapter 12)includes information on George W. Bush s use of vetopower, invocation of executive privilege, and use ofsigning statements. The section on the White HouseStaff now includes historic examples and explores thedifferent leadership approaches of presidents.8. An updated chapter on civil liberties (Chapter 15)combines two chapters and includes a new sectiondistinguishing civil liberties from civil rights. Newdiscussions include the Morse v. Frederick Bong Hits4 Jesus case and a discussion of habeas corpus usingthe Hamdan and Boumedienne cases.9. A new chapter on the process of making publicpolicy (Chapter 17) provides a brief introduction to thetopic to help you better understand the specific publicpolicy chapters.10. MyPoliSciLab, our Website that offers a widearray of multimedia activities videos, simulations,exercises, and online newsfeeds has been completelyintegrated with this edition to make learning moreeffective.If you re wondering why youshould buy this new edition ofGovernment by the People,here are 10 good reasons!, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 2. Alabama9Arizona10 Arkansas6California55Colorado9Florida27Georgia15Idaho4Illinois21Indiana11Iowa7Kansas6 Kentucky8Louisiana9Maine4Michigan17Minnesota10Mississippi6Missouri11Montana3Nebraska4Nevada5New Mexico5New York31North Carolina15NorthDakota3Ohio20Oklahoma7Oregon7Pennsylvania21SouthCarolina8SouthDakota3Tennessee11Texas34Utah5Virginia13Washington11WestVirginia5Wisconsin10Wyoming3ELECTORAL COLLEGE VOTES IN THE 2008 ELECTIONTHE UNITED STATESA political map showing the number of electoral votes per stateA political map with states drawn in proportion to the number of electoral votesCalifornia55Washington11Oregon 7Idaho4Montana3NorthDakota3SouthDakota3Colorado9Arizona10NewMexico5Kansas6Illinois21Iowa7Minnesota10 Wisconsin10Missouri11Arkansas6Louisiana9Mississippi6Alabama9Tennessee11Kentucky8Ohio20Michigan17Pennsylvania21Virginia13North Carolina15SouthCarolina8Georgia15Florida27New York31Connecticut7RhodeIsland4Washington D.C.3New Jersey15WestVirginia5Oklahoma7Texas34Hawaii4Alaska3Utah5Nevada5Wyoming3Delaware3Maryland 10Indiana11Obama victoryMcCain victoryMassachusetts12Maine4NewHampshire4Vermont3Hawaii4Alaska3Connecticut7Delaware3Washington D.C.3Massachusetts12NewHampshire4New Jersey15Rhode Island4Vermont3Maryland10411NebraskaNebraska splits its electoral votes; four went to McCainand one to Obama.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 3. Governmentby the PeopleGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 4. This page intentionally left blankGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 5. DAVID B. MAGLEBYBrigham Young UniversityPAUL C. LIGHTNew York University2009 National EditionLongmanNew York San Francisco BostonLondon Toronto Sydney Tokyo Singapore MadridMexico City Munich Paris Cape Town Hong Kong MontrealGovernmentby the PeopleGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 6. EDITOR-IN-CHIEF Eric StanoASSISTANT DEVELOPMENT MANAGER David KearDEVELOPMENT EDITOR Elisa AdamsASSOCIATE DEVELOPMENT EDITOR Donna GarnierSENIOR MEDIA PRODUCER Regina VertizMARKETING MANAGER Lindsey PrudhommePRODUCTION MANAGER Bob GinsbergPROJECT COORDINATION, TEXT DESIGN,AND ELECTRONIC PAGE MAKEUP Elm Street Publishing ServicesCOVER DESIGN MANAGER John CallahanCOVER DESIGNER Maria IlardiCOVER PHOTOS (sailboat) Gary John Norman/Taxi/Getty Images;( ag) Rich Vintage/iStockphotoPEARSON IMAGE RESOURCE CENTER/PHOTORESEARCHER Teri StratfordIMAGE PERMISSION COORDINATOR Ang John FerreriSENIOR MANUFACTURING BUYER Dennis J. ParaPRINTER AND BINDER Quebecor World/DubuqueCOVER PRINTER Phoenix Color CorporationFor permission to use copyrighted material, grateful acknowledgment is made to the copyrightholders on pp. 607 608, which are hereby made part of this copyright page.Library of Congress Cataloging-in-Publication DataGovernment by the people. 23rd ed.p. cm.Includes index.ISBN 978-0-13-606242-4 (national, state, and local) ISBN 978-0-13-606222-6 (national)ISBN 978-0-13-605040-7 (alternate) ISBN 978-0-205-66637-9 (brief)1. United States Politics and government Textbooks. I. Magleby, David B.JK276.G68 2009i320.473 dc22 2008024966Copyright © 2009 by Pearson Education, Inc.All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, ortransmitted, in any form or by any means, electronic, mechanical, photocopying, recording, orotherwise, without the prior written permission of the publisher. Printed in the United States.12345678910 QWD 12 11 10 09ISBN-13: 978-0-13-606222-6ISBN-10: 0-13-606222-9Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 7. viiBrief ContentsContents viiiLearning Objectives xiiPreface xviiAbout the Authors xxviiiPart I Constitutional PrinciplesChapter 1 Constitutional Democracy 2Chapter 2 The Living Constitution 28The Constitution of the United States 50Chapter 3 American Federalism 62Part II The Political ProcessChapter 4 Political Culture and Ideology 90Chapter 5 The American Political Landscape 114Chapter 6 Interest Groups 146Chapter 7 Political Parties 178Chapter 8 Public Opinion, Participation, and Voting 206Chapter 9 Campaigns and Elections 238Chapter 10 The Media and U.S. Politics 274Part III Policy-Making InstitutionsChapter 11 Congress 298Chapter 12 The Presidency 326Chapter 13 The Federal Bureaucracy 356Chapter 14 The Judiciary 382Part IV Rights and LibertiesChapter 15 Civil Liberties 408Chapter 16 Civil Rights 438Part V The Politics of National PolicyChapter 17 Public Policy 468Chapter 18 Making Economic Policy 488Chapter 19 Making Social Policy 514Chapter 20 Making Foreign and Defense Policy 538Epilogue Sustaining Constitutional Democracy 564Appendix The Declaration of Independence 572The Federalist, No. 10 573The Federalist, No. 51 576The Federalist, No. 78 578Presidential Election Results, 1789 2008 582Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 8. Learning Objectives xiiPreface xviiAbout the Authors xxviiiPart I Constitutional Principles1 Constitutional Democracy 2U.S. Government and Politicians in Context 4De ning Democracy 5* YOU WILL DECIDE/THINKING IT THROUGHShould the United States Adopt a National Initiative Process? 6* GENERATION NEXTFor Better or Worse? 9The Roots of the American Constitutional Experiment 13The Constitutional Convention of 1787 15* HISTORY MAKERSAlexander Hamilton and James Madison 16* THE CHANGING FACE OF U.S. POLITICSThe Constitutional Convention 17* HOW OTHER NATIONS GOVERNFactors Contributing to Democratic Stability 22To Adopt or Not to Adopt? 22Summary 25 | Chapter Self-Test 26 | Key Terms 27 |Further Reading 272 The Living Constitution 28Views of the Constitution 30Checking Power with Power 31* GENERATION NEXTSetting Aside the Constitution in an Age of Terror 35* HOW OTHER NATIONS GOVERNComparing Constitutional Governance 37Judicial Review and the Guardiansof the Constitution 38* HISTORY MAKERSThurgood Marshall s Living Constitution 39The Constitution as an Instrument of Government 40Changing the Letter of the Constitution 42* THE CHANGING FACE OF U.S. POLITICSThe United States Racial Heritage 45* YOU WILL DECIDE/THINKING IT THROUGHShould We Interpret the Constitution Accordingto Original Intent or Today s Needs? 46Summary 48 | Chapter Self-Test 48 | Key Terms 49 |Further Reading 49The Constitution of the United States 503 American Federalism 62De ning Federalism 64* GENERATION NEXTA Preference for Local Government 66The Constitutional Structure ofAmerican Federalism 68* THE CHANGING FACE OF U.S. POLITICSImmigrants and Federal, State, andLocal Responses 69* HOW OTHER NATIONS GOVERNDifferent Visions of Federalism 75The Federal Courts and Federalism 75Regulatory Federalism 79* HISTORY MAKERSChief Justice William H. Rehnquist 80The Politics of Federalism 83* YOU WILL DECIDE/THINKING IT THROUGHShould the No Child Left BehindAct be Repealed? 84The Future of Federalism 85Summary 87 | Chapter Self-Test 87 | Key Terms 88 |Further Reading 89Part II The Political Process4 Political Culture and Ideology 90De ning the American Political Culture 92* THE CHANGING FACE OF U.S. POLITICSImmigrants and Assimilation into American Political Culture 94* GENERATION NEXTPatriotism 97* YOU WILL DECIDE/THINKING IT THROUGHIs the American Dream Still Alive and Important? 98* HOW OTHER NATIONS GOVERNGovernment and Nation: Differing Public Perspectives 100Political Ideology and Attitudes Toward Government 103* HISTORY MAKERSRachel Carson and the Environmental Movement 109Political Ideology and the American People 109Summary 111 | Chapter Self-Test 112 | Key Terms 113 |Further Reading 1135 The American Political Landscape 114A Land of Diversity 116Where We Live 122Who We Are 124* THE CHANGING FACE OF U.S. POLITICSA More Diverse Population 125* YOU WILL DECIDE/THINKING IT THROUGHShould We Sample? 128* GENERATION NEXTReligion and Politics 130* HISTORY MAKERSLucretia Mott and Elizabeth Cady Stanton 134* HOW OTHER NATIONS GOVERNAging Populations 142Unity in a Land of Diversity 142Summary 143 | Chapter Self-Test 144 | Key Terms 144 |Further Reading 145ContentsviiiGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 9. CONTENTS * ix6 Interest Groups 146Interest Groups Past and Present:The Mischiefs of Faction 148Types of Interest Groups 150* HISTORY MAKERSJohn Sherman and the Sherman Antitrust Act 151* HOW OTHER NATIONS GOVERNUnions and the Minimum Wage 154Characteristics and Power of Interest Groups 158The In uence of Lobbyists 162* THE CHANGING FACE OF U.S POLITICSBreaking into a Male-Dominated Profession 163Money and Politics 164* YOU WILL DECIDE/THINKING IT THROUGHShould Corporations and Unions Be Unlimited inFunding Parties and in Running Issue Ads? 168How Much Do Interest Groups In uence Electionsand Legislation? 172* GENERATION NEXTAre Corporations Too Powerful? 173Curing the Mischiefs of Faction Two Centuries Later 173Summary 175 | Chapter Self-Test 176 | Key Terms 176 |Further Reading 1777 Political Parties 178What Parties Do for Democracy 179* YOU WILL DECIDE/THINKING IT THROUGHIs a Vote for a Third-Party Candidate with LittleChance of Winning a Wasted Vote? 184A Brief History of American Political Parties 185American Parties Today 188* HISTORY MAKERSFranklin Delano Roosevelt and the Democratic Party 189* THE CHANGING FACE OF U.S. POLITICSPortrait of the Electorate 195* GENERATION NEXTPartisan Differences 196How Parties Raise and Spend Money 199Are the Political Parties Dying? 200* HOW OTHER NATIONS GOVERNCampaign Finance Regulation 201Summary 203 | Chapter Self-Test 204 | Key Terms 205 |Further Reading 2058 Public Opinion, Participation,and Voting 206Public Opinion 208Participation: Translating Opinions into Action 218* HISTORY MAKERSLyndon Johnson and the Voting Rights Act of 1965 221* HOW OTHER NATIONS GOVERNElectoral Institutions and Turnout 224* THE CHANGING FACE OF U.S. POLITICSVoter Turnout by Demographic Factors 227Voting Choices 229* GENERATION NEXTWhy Vote? 230* YOU WILL DECIDE/THINKING IT THROUGHShould We Allow Voting by Mail and on the Internet? 232Counting Votes 233Summary 234 | Chapter Self-Test 235 | Key Terms 236 |Further Reading 2369 Campaigns and Elections 238Elections: The Rules of the Game 240* HOW OTHER NATIONS GOVERNTwo-Party vs. Multiparty Systems 241Running for Congress 244Running for President 248* GENERATION NEXTViews on Large and Small Donors 250* THE CHANGING FACE OF U.S. POLITICSMore Diversity Among National Party NominationConvention Delegates 253* HISTORY MAKERSHenry George and the Secret Ballot 258Money in U.S. Elections 259Improving Elections 268* YOU WILL DECIDE/THINKING IT THROUGHShould We Establish a National Presidential Primary? 270Summary 271 | Chapter Self-Test 272 | Key Terms 273 |Further Reading 27310 The Media and U.S. Politics 274The In uence of the Media on Politics 276* HISTORY MAKERSWalter Cronkite 278* THE CHANGING FACE OF U.S. POLITICSToward a More Representative Newsroom 279The Changing Role of the U.S. News Media 280Mediated Politics 283* GENERATION NEXTMedia Consumption 284* HOW OTHER NATIONS GOVERNFreedom of the Press in Comparative Perspective 285* YOU WILL DECIDE/THINKING IT THROUGHHow Should the Media Report Sex Scandals? 288The Media and Elections 290The Media and Governance 294Summary 296 | Chapter Self-Test 296 | Key Terms 297 |Further Reading 297Part III Policy-Making Institutions11 Congress 298Congressional Elections 300* YOU WILL DECIDE/THINKING IT THROUGHShould Congress Ban Earmarks? 302The Structure and Powers of Congress 304* GENERATION NEXTSupport for Compromise 305* HOW OTHER NATIONS GOVERNStrong and Weak Legislatures 308Congressional Leadership and Committees 308* HISTORY MAKERSSpeaker Uncle Joe Cannon 310* THE CHANGING FACE OF U.S. POLITICSDiversity in Congress 311The Job of the Legislator 315Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 10. How a Bill Becomes a Law 320An Assessment of Congress 322Summary 323 | Chapter Self-Test 323 | Key Terms 324 |Further Reading 32412 The Presidency 326The Structure and Powers of the Presidency 328Controversies in Presidential Power 335The Evolution of Presidential Power 338* HOW OTHER NATIONS GOVERNStrong and Weak Chief Executives 339Managing the Presidency 340* HISTORY MAKERSCondoleezza Rice 342The President s Job 344Congress and the Presidency 346* GENERATION NEXTThe President s Approval Rating 347* THE CHANGING FACE OF U.S. POLITICSPresidential Appointees 349* YOU WILL DECIDE/THINKING IT THROUGHShould the Two-Term Limit Be Repealed? 350Judging Presidents 351Summary 353 | Chapter Self-Test 353 | Key Terms 354 |Further Reading 35413 The Federal Bureaucracy 356Understanding the Federal Bureaucracy 358* THE CHANGING FACE OF U.S. POLITICSA Representative Government 363Leading the Federal Bureaucracy 367* HOW OTHER NATIONS GOVERNBureaucracy Across the World 368The Civil Service 369* GENERATION NEXTTrust in Government 371The Job of the Federal Bureaucracy 373* YOU WILL DECIDE/THINKING IT THROUGHWho Wants a Federal Career? 374Controlling the Federal Bureaucracy 375* HISTORY MAKERSLouis Brownlow 376A History of Great Endeavors 378Summary 379 | Chapter Self-Test 379 | Key Terms 381 |Further Reading 38114 The Judiciary 382Understanding the Federal Judiciary 384The Three Types of Federal Courts 386The Politics of Appointing Federal Judges 388* THE CHANGING FACE OF U.S. POLITICSDiversity in the Federal Courts 393How the Supreme Court Decides 394* YOU WILL DECIDE/THINKING IT THROUGHShould the Federal Courts Be Active? 394* GENERATION NEXTEqual Rights 396* HISTORY MAKERS:Justice Sandra Day O Connor 399* HOW OTHER NATIONS GOVERNJudicial Independence and Accountability 401Limits on Judicial Action 402Judicial Power in a Constitutional Democracy 404Summary 405 | Chapter Self-Test 406 | Key Terms 406 |Further Reading 407Part IV Rights and Liberties15 Civil Liberties 408Rights in the Original Constitution 410The Bill of Rights and the States 411First Amendment Freedoms 413* THE CHANGING FACE OF U.S. POLITICSThe Continuing Importance of Religion and Personal Belief 415* YOU WILL DECIDE/THINKING IT THROUGHShould the Government Restrict Civil LibertiesDuring the War on Terror? 418Property Rights 422Due Process Rights 423Privacy Rights 424* HISTORY MAKERSEstelle Griswold 425Rights of Criminal Suspects 427* GENERATION NEXTSearches and Seizures in an Age of Terrorism 429The Death Penalty 432* HOW OTHER NATIONS GOVERNThe Death Penalty Around the World 433Protecting Our Civil Liberties: Whose Responsibility? 434Summary 434 | Chapter Self-Test 435 | Key Terms 436 |Further Reading 43616 Civil Rights 438Equality and Equal Rights 440Citizenship Rights 440The Quest for Equal Justice 443* HISTORY MAKERSMartin Luther King Jr. 446Equal Protection of the Laws: What Does It Mean? 451* HOW OTHER NATIONS GOVERNThe Treatment of Homosexuality Across the World 453* YOU WILL DECIDE/THINKING IT THROUGHShould Marriage be Limited to Heterosexual Couples? 454Voting Rights 454Rights to Equal Access: Accommodations,Jobs, and Homes 456Education Rights 458* THE CHANGING FACE OF U.S. POLITICSRacial and Ethnic Diversity in U.S. Public Elementaryand Secondary Schools 459The Af rmative Action Controversy 461* GENERATION NEXTAf rmative Action 462Equal Rights Today 464Summary 465 | Chapter Self-Test 466 | Key Terms 467 |Further Reading 467Part V The Politics of National Policy17 Public Policy 468De ning Public Policy 470* YOU WILL DECIDE/THINKING IT THROUGHHow Should We Fix Social Security? 472x * CONTENTSGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 11. CONTENTS * xiThe Eight Steps in Making Public Policy 472* HISTORY MAKERSRalph Nader 474* THE CHANGING FACE OF U.S. POLITICSThink Tanks 476* HOW OTHER NATIONS GOVERNThe Policy Process 479* GENERATION NEXTGovernment Control of Daily Life 480Citizens and Public Policy 484Summary 485 | Chapter Self-Test 485 | Key Terms 486 |Further Reading 48618 Making Economic Policy 488An Introduction to Economic Policy 490Fiscal Policy 492* HOW OTHER NATIONS GOVERNTax Rates Around the World 495* GENERATION NEXTSatisfaction with the Financial Situation 497Monetary Policy 498* HISTORY MAKERSAlan Greenspan 499Promoting the Economy 500* YOU WILL DECIDE/THINKING IT THROUGHShould the Federal Government Do More toProtect U.S. Jobs? 504Regulating the Economy 504* THE CHANGING FACE OF U.S. POLITICSFemale and Minority Board Members 506The Deregulation Movement 509A Continued Federal Role 511Summary 511 | Chapter Self-Test 512 | Key Terms 513 |Further Reading 51319 Making Social Policy 514The Role of the Federal Government inSocial Policy 516Types of Social Policy 517* GENERATION NEXTHelping the Needy 518The Expansion of Social Policy inthe Twentieth Century 521* HISTORY MAKERSMarian Wright Edelman 523* YOU WILL DECIDE/THINKING IT THROUGHShould the Federal Government Promote Marriage? 526Social Policy Challenges for the Future: Health,Education, and Crime 526* HOW OTHER NATIONS GOVERNWealth and Health 530* THE CHANGING FACE OF U.S. POLITICSAccess to College, 2000 2008 534The Politics of Social Policy 535Summary 535 | Chapter Self-Test 536 | Key Terms 537 |Further Reading 53720 Making Foreign and DefensePolicy 538Understanding Foreign Policy and Defense 540The Foreign Policy and Defense Agenda 542* GENERATION NEXTHard Versus Soft Power 543* HISTORY MAKERSWoodrow Wilson 547The Foreign Policy and Defense Bureaucracy 549* THE CHANGING FACE OF U.S. POLITICSDiversity in the Military 554Foreign Policy and Defense Options 554* HOW OTHER NATIONS GOVERNScandinavia s Foreign Aid 557* YOU WILL DECIDE/THINKING IT THROUGHShould Women Engage in Combat? 558Prospects for the Future 559Summary 560 | Chapter Self-Test 561 | Key Terms 562 |Further Reading 562EPILOGUE Sustaining ConstitutionalDemocracy 564The Case for Government by the People 566Participation and Representation 566The Role of the Politician 569Leadership in a Constitutional Democracy 569The Importance of Active Citizenship 570Further Reading 571Appendix 572The Declaration of Independence 572The Federalist, No. 10 573The Federalist, No. 51 576The Federalist, No. 78 578Presidential Election Results, 1789 2008 582GLOSSARY 584NOTES 590PHOTO CREDITS 607INDEX 609Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 12. Chapter 1* De ne government, politics, politicians, politicalscience, and constitutional democracy. 4+ Differentiate democracy from other forms ofgovernment. 6, Identify the conditions that help democracy ourishand explain why they do so. 8- Explain the importance to successfuldemocracy of values, political processes, andpolitical structures. 10. Show how politics before 1787 shaped theConstitution. 13/ Identify the most important compromises achieved bythe delegates to the Constitutional Convention of 1787. 180 Assess the arguments for and against therati cation of the Constitution. 22Chapter 2* Describe the basic structure of the Constitution andits Bill of Rights. 30+ Summarize the basic principles of governmentestablished by the Constitution. 31, Compare and contrast the three main branches ofthe U.S. Government. 32- Show how the system of checks and balancesoperates among the three branches of the U.S.government. 32. Show how the use of judicial review strengthensthe courts in a separation of powers system. 38/ Analyze the effect of Marbury v. Madison on the roleof the judiciary. 380 Explain how the meaning of the Constitution hasevolved over time. 401 Outline the way we make formal changes to theConstitution. 41Chapter 3* Compare and contrast the different interpretationsof federalism. 64+ Show how federalism protects citizens. 67, Differentiate between the types of national andstate powers. 68- Describe and compare the constitutional pillarsof national power. 70. Analyze the role of the national courts in regulatingfederalism. 76/ Compare and contrast the arguments ofdecentralists and centralists. 770 Analyze the differences between grants andmandates. 791 Establish the link between the growth ofthe national government and federalism. 83Chapter 4* Identify the most important elements of the Americanpolitical culture and how we learn them. 92+ Assess the importance of the American dreamin the context of economic change. 99, Compare and contrast different ideologicalassumptions about government. 103- Assess the arguments for and against eachideology. 104. Analyze the importance of political ideology in lightof competing ideas such as pragmatism, practicality,and the changing agenda of American politics. 111Chapter 5* Describe the opportunities and challenges posed bythe diversity of the American population. 116+ Explain how geography affects politics. 117, Describe the political evolution of theSouth. 119- Evaluate the role of population density and wherepeople live in American politics. 122. Assess the roles of race, ethnicity, religion,gender, and changing family demographics inAmerican politics. 124/ Evaluate the roles of education, income, class, andage in American politics. 136Chapter 6* Evaluate the role of interest groups and socialmovements in American politics. 148+ Identify the different types of interest groupsin the United States. 150, Compare the sources of interest grouppower. 158LEARNING OBJECTIVESxiiGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 13. LEARNING OBJECTIVES * xiii- Describe lobbyists and how they in uencepolicy. 159. Assess how some interest groups use moneyto pursue their agendas and evaluate theconsequences for interest group pluralism ofsome groups having little money. 164Chapter 7* Explain why parties arise in democracies and theirprimary functions. 180+ Contrast the unique features of the American partysystem with those of other countries. 183, Understand the history of American political parties. 185- Distinguish parties functions as institutions,in government, and in the electorate. 188. Discuss how parties and elections are nanced. 199/ Assess the long-term prospects for the current partysystem and, speci cally, the Democratic andRepublican Parties. 201Chapter 8* Identify the key dimensions of public opinion andhow we measure it. 208+ Describe the forces that create and shapeindividuals political attitudes. 212, Analyze the relationship between public opinionand public policy. 216- Assess non-voting participation and how it maychange in the age of the Internet. 218. Describe the demographic, legal, and electioneeringfactors that affect voter turnout. 220/ Explain why people vote the way they do inelections. 2290 Identify the problems associated withadministering elections and proposedsolutions to those problems. 233Chapter 9* Summarize election rules and assess theirimplications for elections in the United States. 240+ Describe the electoral college, how it works, and itsimpact on presidential elections. 242, Identify the regularities of congressional electionsand explain why they are generally not competitive. 244- Identify the stages in U.S. presidential elections andanalyze the differences in campaigning at each stage. 248. Assess the in uence of money in congressional andpresidential elections and evaluate the mainapproaches to campaign nance reform. 259/ Evaluate the need for improving presidential andcongressional elections in the United States. 268Chapter 10* De ne the news media and show how their differentforms connect the government and the people. 276+ Describe the evolution of the media s interaction withpolitics from the Founding until today, including thechanges brought by the Internet. 280, Evaluate the media s in uence on public opinion andattention. 284- Identify the bene ts and problems of the media s rolein elections. 290. Assess the media s relationship to governance in theUnited States. 294Chapter 11* Describe the congressional election process anddemonstrate how it protects incumbents. 301+ Differentiate the powers of Congress. 305, Compare and contrast the structure and powers ofthe House and Senate. 305- Compare the leadership systems used in theHouse and Senate. 308. Analyze the committee structure and show howmembers are assigned to committees. 312/ Assess the effect of different forms of representationon citizen engagement. 3160 Examine the in uences on legislative decisions andhow these in uences may vary with issues. 3171 Identify the key steps by which a bill becomes a lawand the ways a bill can be stopped at each step. 320Chapter 12* Describe the constitutional foundations ofthe presidency. 328+ Compare and contrast the three types ofpresidential power. 331, Evaluate the controversies surrounding thepresident s assertion of additional executivepowers and the evolution of presidential power. 335- Analyze the roles of the White House staff, ExecutiveOf ce of the President, cabinet, and vice president. 340. Describe the president s job. 344/ Identify the sources of presidential/congressionalcon ict and the tools presidents use to in uenceCongress. 3470 Identify factors that make a great president. 352Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 14. Chapter 13* Understand why the federal bureaucracy is calledthe unde ned branch. 358+ Analyze the pros and cons of bureaucracy. 360, Compare and contrast the different types of federalorganizations. 361- Describe the differences between the bureaucracy stwo types of leaders. 367. Evaluate the differences between the spoils andmerit systems. 369/ Identify the key regulations that govern the civil service. 3700 Analyze the tools of implementation and theireffectiveness. 3731 Compare and contrast efforts to control the federalbureaucracy. 376Chapter 14* Analyze the implications of the adversarialprocess. 384+ Explain the structure of the federal court system. 386, Evaluate factors important in appointing judicialnominees. 388- Compare and contrast arguments in favor of andagainst judicial activism. 392. Describe the process of reaching a decision in theU.S. Supreme Court. 394/ Assess the in uences on U.S. Supreme Courtdecision making. 3990 Compare and contrast the limits on judicial action. 4021 Assess the role of the judiciary in a constitutionaldemocracy. 404Chapter 15* Evaluate the arguments for amending a Bill of Rightsto the original Constitution. 411+ Identify protections under the establishment and freeexercise clauses of the Constitution. 413, Contrast the categories of protected andunprotected speech. 417- Compare and contrast procedural and substantivedue process. 423. Analyze the degree to which criminal suspects rightsare protected in our criminal justice system. 427Chapter 16* Evaluate the importance of citizenship rights,particularly concerning immigration and the waron terror. 441+ Compare and contrast different groups efforts toobtain equal protection of the law. 443, Appraise the reasons for delay in the women s rightsmovement. 446- Assess the constitutional tests applied todiscriminatory laws in the United States. 451. Analyze the protections provided by the 1965 VotingRights Act. 454/ Describe how Congress has legislated againstdiscrimination in housing and accommodations. 4560 Explain the dif culty of integration in a societylargely segregated by housing patterns. 4581 Evaluate the current state of af rmative action inthe United States. 461Chapter 17* Compare politics and public policy and show howeach affects the other. 470+ Analyze the three types of public policy. 471, Evaluate the eight steps in making public policy. 473- Compare and contrast the tools of public policy. 478. Identify how citizens can in uence each step of thepublic policy process. 483Chapter 18* Identify the two most important measures of economicperformance and show how they interact. 490+ Evaluate the role of scal policy in keeping theeconomy stable. 492, Outline the key steps in the federalbudget process. 494- Evaluate the role of monetary policy in keeping theeconomy stable. 498. Analyze the federal government s role in promotingthe economy. 500/ Analyze the federal government s role in regulatingthe economy. 5040 Contrast the advantages and disadvantages of thederegulation movement. 509xiv * LEARNING OBJECTIVESGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 15. LEARNING OBJECTIVES * xvChapter 19* Explain the difference between entitlements andmeans-tested entitlements. 517+ Compare and contrast the two types ofsocial policy. 519, Identify the major contributions of the New Dealand the Great Society to social policy. 521- Evaluate the impact of welfare reform. 525. Analyze the causes of and solutions for the lack ofhealth coverage for all Americans. 529/ Assess the tools of federal education andcrime policy. 531Chapter 20* Analyze the ve questions that shape positionson U.S. foreign policy and defense. 540+ Compare and contrast hard and soft power. 542, Evaluate the seven issues that currentlydominate the foreign policy and defenseagenda. 542- Identify the goals of the war in Iraq and evaluatethe level of U.S. success. 546. Assess the components of the foreign policyand defense bureaucracy. 550/ Examine the defense hierarchy. 5520 Analyze the options for achieving foreign policyand defense goals. 554Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
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  • 17. PrefaceGovernment and politics matter. Government matters in such areas as theeconomy, educational opportunity, and public health. One of the lessons from thegovernment s poor response to Hurricane Katrina in 2005 is that in such times weall depend to a great degree on government to provide safety and security. Withoutthat security, we face a world of anarchy. While government can fail, as it did in itsresponse to Katrina, it can also succeed, as it did when the NASA space programplaced astronauts on the moon, polio was largely eradicated, and the Cold War waspeacefully resolved. We title this book Government by the People because we want toemphasize the important role people play in our constitutional democracy.Understanding American politics and government must include an appreciation ofthe people, their similarities and differences, their beliefs and attitudes, and theirbehaviors. A foundation of that understanding of the people is our chapter on theAmerican political landscape in which we examine such aspects of our populationas race, ethnicity, gender, age, religion, income, and region. Our country is diverseand that diversity is important politically.The study of American government should be engaging, relevant, and rigorous. Asauthors of this book, we see politics and government as topics worthy of careful study.Constitutional democracy the kind we have in the United States is exceedingly hardto achieve, equally hard to sustain, and often hard to understand. Our political historyhas been an evolution toward an enlarged role for citizens and voters. Citizens havemore rights and political opportunities in 2008 and 2009 than they had in 1800 or 1900.The framers of our Constitution warned that we must be vigilant in safeguarding ourrights, liberties, and political institutions. But to do this, we must rst understand theseinstitutions and the forces that have shaped them.We want you to come away from reading this book with a richer understanding ofAmerican politics, government, the job of politicians, and the important role you, as acitizen, play in this country s present and future. We hope you will participate activelyin making this constitutional democracy more vital and responsive to the urgent prob-lems of the twenty- rst century.What s New in This EditionThe new edition of Government by the People builds on the longstanding reputationof this book for strong coverage of the foundations of American government that isaccurate, accessible, and current. We have integrated the latest in scholarship onAmerican politics and government, the dramatic 2008 elections, recent SupremeCourt decisions, and comparisons with countries around the world into a book thatintroduces you to the subject and the discipline of political science.Also new to this edition are data on how young people see politics and government.Using data from studies of 18 24 and 18 29 year olds, we examine the attitudes, opin-ions, and values of this emerging generation of voters with Generation Next boxes.Each feature includes the actual question asked of others in the studies, allowing you toanswer for yourself and compare your answers to others.Building on the theme of the people in government, we examine the changing faceof American politics in each chapter with current data on the importance of our diver-sity as a people. Each chapter also, as we suggest above, has a new approach to puttingthe U.S. government into comparative perspective.Perhaps most strikingly, this edition introduces a new framework of learningpedagogy to help you navigate each chapter s discussion, focus on the most impor-tant concepts, and understand American politics and goverment. After surveyingAmerican government and politics courses taught around the country, we developedxviiGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 18. a list of learning objectives the concepts professors teaching this course most of-ten want their students to understand to shape and guide the development of thisedition. A master list of these objectives appears just before this Preface, providing afull inventory of the key concepts students must master to complete the course suc-cessfully. These objectives reappear at the beginning of each chapter, highlighting thelearning goals for that chapter, while individual objectives are called out in the textmargins as the key concepts are discussed. A summary and self-test at the end of eachchapter provide students with a nal check of their understanding, and the self-testincludes both short and longer essay questions to promote critical thinking.The 2009 Edition also includes the following changes:xviii * PREFACEChapter 1 begins with a new introduction that uses the elections of 2000, 2004,and 2008 to frame the chapter.Chapter 2 uses the issue of school prayer to establish the lack of speci city of theConstitution. The Democratic control of Congress in 2006 (continuing in 2008) hasbeen added to the discussion of divided government. Methods for proposing amend-ments include examples to clarify the two methods.Chapter 3 uses Californias emissions-standard battle with the EPA to frame thechapter. The discussion of federalism providing training for national of cials hasbeen expanded. No Child Left Behind has been added to the discussion of federalmandates and unfunded mandates.Chapter 4 looks at the struggle to establish Martin Luther King Jr. Day. The sectionon liberalism, conservatism, and criticisms of both has been updated to re ect recentissues, events and the 2008 campaign and election. Socialism has been expanded toSocialism and Communism, with an expanded discussion of the Soviet Union.Chapter 5 uses the 2008 primary season to explore identity politics and ethno-centrism. The demographic data in the discussions of different groups has beenupdated throughout the chapter. A discussion of the nomination and election ofBarack Obama has been added to the section on African Americans. Californias legal-ization and subsequent banning of same-sex marriage is explored.Chapter 6 adds a discussion of the free rider problem.The Internet has been added tothe discussion of techniques interest groups use to exert in uence.The discussion of PACsnotes the change in allegiance of PACs after the 2006 Democratic control of Congress.Chapter 7 adds the Democratic control of Congress in 2006 to the discussion ofparty function in the government. The history of American political parties has beenstreamlined to focus on the major periods and events, and information on the impactof the 2008 election has been added. How parties raise and spend money has beenstreamlined, but the distinction between hard and soft money is covered.Chapter 8 has been updated throughout to re ect the events and outcomes ofthe 2008 election. The role of the Internet and social networking sites in the 2008campaign has been added. A section on absentee and early voting has been added tothe discussion of voting.Chapter 9 has been thoroughly updated to re ect the 2008 election, includingnew information in the introduction, a new gure on safe/competitive seats in theHouse, updated data for the rising campaign costs in general elections, the candi-dates and nomination process in the 2008 primaries and conventions, acceptancespeeches at the conventions, the selection of Joe Biden and Sarah Palin as runningmates, the party platforms, campaign nance, and the outcome of the election.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 19. Chapter 10 discusses the role of the Internet in the 2008 campaigns and election.The declining importance of newspapers is discussed, as is the growing importanceof the Internet.Chapter 11 has been updated to re ect the 2008 Congressional elections. The dis-cussion of senatorial consent has been moved to Chapter 14 on appointing federaljudges.Chapter 12 includes updated information on Bushs use of veto power, invoca-tion of executive privilege, and use of signing statements.Chapter 13 includes a new section on de ning bureaucracy that includesMax Weber s work, describing the six characteristics of an effective bureaucracy, andidentifying the major weaknesses of bureaucracy today. A new section at the end ofthe chapter discusses the great achievements of the bureaucracy.Chapter 14 uses cases related to using race to assign students to individual pub-lic schools to show the importance of the membership of the Court. The section onSupreme Court decisions has been rewritten to more clearly guide the studentsthrough the entire process.Chapter 15 has been combined with Chapter 16 from the last edition, bringing allthe civil liberties topics together. The discussion of habeas corpus includes updatesfrom the Hamdan and Boumedienne cases. A section distinguishing civil liberties fromcivil rights has been added. The discussion of property rights has been moved to thischapter from Chapter 16, including a new discussion of Kelo v. City of New London.Due process rights, privacy rights, including abortion and sexual orientation, therights of the accused and the death penalty have been moved here from Chapter 16.Chapter 16 (previously Chapter 17) adds Barack Obamas candidacy to the dis-cussion of racial equality, and Hillary Clinton and Sarah Palin to the discussion ofwomens rights.Chapter 17 is a new chapter that takes the brief introduction to public policyfrom Chapter 18 in the previous edition and expands it to provide a more thoroughdiscussion of the process. It begins with a de nition of public policy, including thevarious types of public policy. The chapter then explores the eight steps in makingpublic policy, including more detail and examples.Chapter 18 includes updated budget and expenditure data throughout thenarrative and in gures and tables. The discussion of the Federal Reserve Systemincludes a new section and gure on the prime interest rate and the Fed s recentactivity. A new section on corporate responsibility has been added to the chapter.Chapter 19 includes an expanded discussion of help for the unemployed, includ-ing a new section on low-income workers, the minimum wage, and the earnedincome tax credit. The section on education includes updated information on theimpact of No Child Left Behind and Head Start.Chapter 20 has been reorganized to focus on ve approaches to foreign policy.The discussion of the war in Iraq has been updated to re ect events of the past twoyears. A new section on the role of contractors in Iraq and Afghanistan has been added.PREFACE * xixGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 20. xxRead by over one million students, this new edition of the classicGovernment by the People has been substantially rewritten andredesigned to assist you in your study of American governmentand politics.A Focus on Foundations . . .New! Learning Objectives help you identify thekinds of learning you will be expected to do witheach chapter. We also integrate the LearningObjectives throughout the chapter and return tothem at the end of the chapter in a shortChapter Summary. This closely knit pedagogicalsystem helps you navigate through chapter dis-cussions and demonstrate that you have mas-tered the concepts.Some years ago, a community college district in Los Angeles held a nonpartisan elec-tion for its trustees in which any registered voter could run if he or she paid the$50 ling fee and gathered 500 valid signatures on a petition. Each voter could cast up toseven votes. Political parties were not allowed to nominate candidates, and party labelsdid not appear on the ballot to help orient voters to the candidates.A total of 133 candidates ran. They were listed alphabetically, and those whosenames began with the letters A to F did better than those later in the alphabet. Being wellknown or having a Mexican American surname was also an advantage. Endorsementsby the Los Angeles Times also in uenced the outcome, as did campaigning by a conser-vative group. But how do people vote in an election without parties?Parties are both a consequence of democracy and an instrument of it. They servemany functions, including narrowing the choices for voters1 and making nationaland state elections work. American voters take for granted the peaceful transfer ofpower from one elected of cial to another and from one party to another, yet in newdemocracies where holding power may be more important than democratic princi-ples, the transfer of power after an election is often problematic. Well-establishedparties help stabilize democracy.This chapter begins by examining why parties are so vital to the functioning ofdemocracy. We then examine the evolution of American political parties. AlthoughU.S. political parties have changed over time, they remain important in three differentsettings: as institutions, in government, and in the electorate.We ll look at the way par-ties facilitate democracy in all three. Finally, we discuss the strength of parties todayand the prospects for party reform and renewal.What Parties Do for DemocracyAmerican political parties serve a variety of political and social functions, some welland others not so well. The way they perform them differs from place to place andtime to time.Party FunctionsPolitical parties are organizations that seek political power by electing people to of cewho will help party positions and philosophy become public policy.Organize the Competition Parties exist primarily as an organizing mechanism to winelections and thus win control of government. For some races, parties recruit andnominate candidates for of ce; register and activate voters; and help candidates bytraining them, raising money for them, providing them with research and voter lists, andenlisting volunteers to work for them.2179Political PartiesLEARNING OBJECTIVESExplain why parties arise in democra-cies and their primary functions.Contrast the unique features of theAmerican party system with those ofother countries.Understand the history of Americanpolitical parties.Distinguish parties functions asinstitutions, in government, and in theelectorate.Discuss how parties and elections arenanced.Assess the long-term prospects for thecurrent party system and, speci cally,the Democratic and Republican Parties.Essential to DemocracyEach chapter begins with aChapter Outline that breaks downlarger subjects into importantsubparts and previews the topicsto come.LEARNING OBJECTIVEExplain why parties arise indemocracies and their primaryfunctions.opposition. Moreover, to win elections, pparty and gain their support. This actiontwo large national political parties in the AParties have great dif culty buildinabortion or gun control. Not surprisinglyde ning themselves or the election in siners disagree with the party s stand on onagree on other issues. Deemphasizing sand unify the electorate.Explain why parties arise in democracies and their primaryfunctions.Political parties are essential to democracy. Theysimplify voting choices, organize electoral competition,unify the electorate, help organize government by bridgingthe separation of powers and fostering cooperation amongbranches of government, translate public preferences intopolicy, and provide loyal opposition.Contrast the unique features of the American party systemwith those of other countries.CHAPTER SUMMARYCHAPTER OUTLINEWhat Parties Do for DemocracyA Brief History of U.S. PoliticalPartiesU.S. Parties TodayHow Parties Raise and SpendMoneyAre the Political Parties Dying?Local and judicial elections in most states are nonpartisanmeans no party af liation is indicated. Such systems make it morecal parties to operate precisely why many jurisdictions have adcontending that party af liation is not important to being a gooboard member. As in the community college board election at thchapter, many voters in nonpartisan elections rely more on howname of a candidate is, or whether he or she now holds of ce. In adtend to turn out for nonpartisan elections than for standard partisaUnify the Electorate Parties are often accused of creating con ichelp unify the electorate and moderate con ict, at least within the pstrong incentive to ght out their internal differences but come togeGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 21. In several close elections, including the 2000 presidential election, the votecast for one or another minor party, if cast for the likely second choice ofthose voters, would have changed the outcome of the election. In such asituation, should voters care more about in uencing who wins an election ormore about casting a vote for a candidate whose views are closest to theirown, even if that candidate has little chance of winning?Is a Vote for a Third-PartyCandidate with Little Chance ofWinning a Wasted Vote?DECIDEYOU WILLDECIDEChapter Self-Test1. De ne the term political party. (p. 179)2. Explain the ve major functions of political parties,using one or two sentences for each one. (pp. 179 181)3. In a short essay, describe the bene ts and problems witheach form of nominating candidates caucus, open pri-mary, closed primary, and blanket primary. Choose whichmethod is best and defend your answer. (pp. 179 181)4. Keeping in mind the ve functions of political parties,discuss in a few sentences why partisan ghting is aninevitable part of the party system. (pp. 181 182)5. From each pair, identify which feature is part of the system and which is part of a typical parliamen-tary system. (pp. 179 183)a. winner-take-all/proportional representationb. multi-member districts/single-member districtsc. party-centered campaigns/candidate-centeredcampaignsd. two dominant parties/many partiese. weak party organization/strong party organizationf. ideological parties/centrist parties6. In two or three sentences, explain why a vote for a third-party candidate in a U.S. election is typically considereda wasted vote. (pp. 183 185)7. Place the following partisan realignments in chronologi-cal order and match them to the party that gainedpower as a result Democratic, Republican orFederalist. (pp. 185 187)a. The Foundingb. Jackson and grassroots democracyc. The Civil Ward. The progressive erae. The New Deal8. Analyze the chart on page 195 and identify three or fourchanges in partisan identi cation in the last forty years.For example, far fewer men identify themselves asDemocrats today.9. Match each of the following activities with the aspect of apolitical party it best represents (a) parties as institutions(b) in government, or (c) in the electorate. (pp. 188 194)i. A student registers to vote, stating-his party prefer-ence as Republican on the registration form beforehanding it to the county clerkii. Howard Dean, Chair of the Democratic NationalCommittee, decides whether the votes of Democratsin Michigan and Florida should count during the2008 presidential primariesiii. The Senate splits 55 45 on a bill authorizingfunds for the Iraq War, with Republicans voting 44 5in favor and Democrats voting 50 1 against10. A woman in Michigan learns about Barack Obama andbegins campaigning enthusiastically for him, despitenever caring much about politics before. This woman ismost likely________. (p. 194)a. A party regularb. A candidate activistc. An issue activistTHINKINGTHINKING IT THROUGHHow you answer this question depends on what you want to accomplishwith your vote. Those who see the vote as a largely symbolic exercise willlikely vote for a minor party candidate with little chance of winning. Theproblem is that the more electable candidate who is clearly preferred overthe other more competitive alternative may not win of ce at all if a voterdoes not consider electability. The winner-take-all system makes this trade-off more consequential. In a system in which proportional representation ispossible, a voter is more likely to be able to translate policy preferencesinto a vote for representatives. But in our system, voters must often vote fortheir second choice in order to avoid letting their third choice win of ce.Interest groups, like environmental groups, often nd themselves not en-dorsing a minor party candidate who may be closer to their views becausethey want to avoid helping to elect a competitive alternative candidatewhose views they abhor.One way to lessen the in uence of these candidates is to requirea run-off election of the top two vote-getters if no candidate gets amajority. Although this would forceanother election in some instances,it would also force people whovote to decide among the moreviable options. A counterargu-ment is that many people whosupport minor party candidateswould opt out of an election with-out this chance to express theirpreferences, and so such a run-off is already accomplished withthe plurality winner system wenow have.Questions1. Was a vote for someone otherthan Bush or Gore in 2000 awasted vote? Why or why not?2. What are some issues a minorparty might push that would affectthe major parties, even if the minorparty does not win an election?3. What are the obstacles minorparties face that major parties donot?xxiNew! The study of government and politics is not justabout learning facts; it is about becoming good criticalthinkers and, by extension, better citizens. This skill is en-hanced with practice, and to assist you with this criticalthinking we have provided a box in each chapter calledYou Will Decide Thinking It Through. You Will Decideasks a question that you as a citizen will decide. ThinkingIt Through provides some ways to think through the ques-tion and discussion. There is no right or wrong answerwhat is important is that you have considered multipleways to answer the question and how you would go aboutapproaching the issue.. . . a Focus on Learning ObjectivesNew! To assist you in preparing forexams and make your learning ex-perience more effective, we haveprepared a Chapter Self-Test whichincludes at least one essay ques-tion. A tip that will improve yourperformance in the class is to tryand answer these questions soonafter you read the chapter. Beforeyou take an exam, practice on oneor more of the essay questions.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 22. HISTORY MAKERSChief Justice William H. RehnquistWhen asked his career plans by hiselementary school teacher, William H.Rehnquist once recalled saying, I amgoing to change the government. * Afterserving in the army during World War II,Rehnquist majored in political science atStanford University and later graduatedfirst in his class from Stanford Law School.He then clerked for a Supreme Courtjustice and went into private legal prac-tice while becoming active in Republicanpolitics.As an assistant attorney general in theadministration of President Richard M. Nixon,Rehnquist was appointed associate justice ofthe Supreme Court in 1972. In his early yearson the Court he emerged as a champion offederalism, limiting the power of the nationalgovernment and returning power to thestates. However, he could not persuade amajority to go along with his views andearned the nickname Lone Ranger forwriting more dissenting opinions than anyother justice at the time. In 1986, PresidentRonald Reagan elevated him to chief justice,and he presided over the Court until his deathin 2005.A major legacy of the Rehnquist Court isthe way it curbed Congress in defense ofthe states. Besides resurrecting the rhetoricof states rights and the Tenth Amendment,Chief Justice Rehnquist was central to aseries of decisions that strengthened thestates:Congress must make a plain statementof its intent to preempt state laws; other-wise the Court will defer to the states.Congress s power over interstate commercehas inherent limits, and it may not compelstates to enact laws in compliance withfederal standards or compel them to enforcefederal laws.Congress s power under the commerceclause permits it to regulate noneco-nomic activities, but only if they sub-stantially affect interstate commerce. §Congress s power to enforce theFourteenth Amendment guarantee ofequal protection of the law is limited toremedying violations that the Courtrecognizes; it does not extend to creat-ing rights.||States immunity from lawsuits under theEleventh Amendment bars lawsuitsagainst them, without their consent, infederal and state courts, and by citizensof other states as well as of their ownstate who seek state compliance with fed-eral laws forbidding, for example, discrim-ination on the basis of age or disability.¶In short, Chief Justice Rehnquist presidedover a Court that curbed the expansion ofcongressional powers and federal regulationsin a renewed defense of the boundaries offederalism.QUESTIONS1. What do you think were Rehnquist smost important contributions inprotecting states from the nationalgovernment?2. How can citizens influence SupremeCourt decisions, and should they try?3. How was Rehnquist able to in uencethe court even when he was in theminority?*Quoted in Craig Bradley, William H. Rehnquist, in Clare Cushman, ed., The Supreme Court Justices (CQ Press, 1993), p. 496.Gregory v. Ashcroft, 501 U.S. 452 (1991).New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997).§United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000); but see Nevada v. Hibbs, 538 U.S. 721 (2003).||City of Bourne v. Lopez, 521 U.S. 507 (1997), and United States v. Morrison, 529 U.S. 598 (2000).¶See, for example, Alden v. Maine, 527 U.S. 706 (1998).William H. RehnquistxxiiGovernment...Government by the people has become more and more a realityduring the course of American history.History Makershighlights the contributionspeople have made to ourgovernment and providesrecognizable and tangibleexamples of the influence ofthe principles and theoriesdiscussed in the text.The Changing Faceof U.S.Politics. In importantways, the people of theUnited States today aremuch more diverse than atany previous time. Thisfeature explores the impactof the ever-increasing levelof diversity in the Americanpolitical landscape, includinghow race and gender arechanging the way theAmerican government works.These unique boxes aredesigned to re ect theconcerns and experiences ofethnic and minority groups inAmerican politics.For most of the twentieth century, the high-est percentage of immigrants to theUnited States came from Europe. Today LatinAmericans and Asians exceed Europeans asimmigrants.The number of immigrants arriving in theUnited States has been growing. Many enterthe country illegally and join the workforce.According to the Pew Hispanic Center, in2005 the United States had 35.7 million for-eign-born residents, of whom 61 percentwere legal permanent residents and 29 per-cent were undocumented migrants.*The majority of undocumented aliens canbe found in California, Texas, Florida, NewYork, Illinois, and New Jersey. However, al-most two in ve undocumented aliens now re-side in other states, which makes the issue ofimmigration relevant in almost every electionas the total number increases, including chil-dren who were born in theUnited States or crossedthe border with a parent.Whereas 1.3 million illegalimmigrants came to theUnited States in the1980s, 5.8 million came inthe 1990s, and 3.1 millionarrived in 2000 2004.As a result of the sub-stantial recent growth inillegal immigration, bro-ken borders and the ris-ing unemployment rateamong U.S. citizenshave become very con-troversial issues. Manyobject to undocumentedImmigrants and Federal, State,and Local ResponsesTHE CHANGING FACE OF U.S. POLITICSworkers taking jobs away from U.S. citi-zens, and the children of illegal immigrantsoften receive education and health bene ts.The controversy is complex, and there isno consensus about how to resolve it. Morethan 50 immigration bills have been intro-duced in Congress, and another 1,562 billswere introduced in state legislatures in 2007alone. They address many solutions to immi-gration issues such as extending visas forhighly educated workers in hard-to-recruitprofessions, establishing new procedures forlegalizing undocumented workers, providingsome form of amnesty for illegal immigrantswho have been living in the United States foryears, and increasing border security.QUESTIONS1. Why does the number of undocumentedaliens provoke such controversy acrossthe nation even though most immigrantslive in California, Illinois, New York,Texas, and Florida?2. Should the nation deny public bene tssuch as access to schools, health care,and housing to undocumented alienswho are children? Why or why not?*Jeffrey S. Passel, Estimates of the Size and Characteristics of the Undocumented Population, Pew Hispanic Center report, March 21, 2005, p. 7.National Conference of State Legislatures, 2007 Enacted State Legislation Related to Immigrants and Immigration, Immigrant Policy Project, November 29,2007, p. 1.Menaged 18 39:4.5 million43%Womenaged 18 39:3.0 million29%Adultsaged40 and over:1.1 million11%Childrenunder 18:1.7 million17%Age and Sex of Undocument Aliens, 2004.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 23. xxiiiThe demographics of a nation in uences itspolitics and policy. The gures summa-rized here come from the United NationsPopulation Division. They compare our sam-ple of countries in terms of median age, andthe dependency ratio, or the ratio of the popu-lation over age 65 to the working-age popula-tion. This ratio measures the extent to which acountry has a working population and showsthe number of younger people who will beable to support the older population.The median age for all countries in thissample rose a little less than 3 years be-tween 1950 and 2000, but is projected toclimb more than 11 years between 2000 and2050. The United States and the UnitedKingdom had the highest median age in1950, but by 2000, Japan s was higher.Median age is in uenced by not only publichealth but by birthrates. Mexico, with thelowest median age of the sample countriesin 1950, is projected to have a higher me-dian age than the United States in 2050.One reason is that Mexico s birthrate wasthe highest of the sample countries in 1950but by 2050 will be essentially the same asthe rate in China, India, the United States,and the United Kingdom.This kind of information is relevant to pol-itics and policy because it in uences thekinds of demands populations place on gov-ernments for health care and other services.A shrinking population may not have enoughworkers to keep an economy viable, perhapsforcing aging populations to work moreyears than they are presently doing. In theUnited States this issue has surfaced in de-bates over the long-term viability of SocialSecurity.QUESTIONS1. How might a nation s median age in u-ence where global commerce willchoose to locate?2. What are some policy issues associatedwith a high old-age dependency ratio?3. Do these data on dependency ratioshave any bearing on policies to encour-age or discourage people from havingchildren?Aging PopulationsHOW OTHER NATIONS GOVERNMedian Age and Dependency Ratio in Comparative PerspectiveWorld China India Japan Mexico Nigeria United Kingdom United StatesMedian Age1950 23.9 23.9 21.3 22.3 18.7 19.1 34.6 302000 26.7 30 22.7 41.3 23.4 17.1 37.7 35.32050 38.1 45 38.6 54.9 43.1 28 43.4 41.1Old-Age Dependency Ratio1950 9 7 5 8 6 5 16 132000 11 10 8 25 8 6 24 192050 25 39 21 74 34 9 40 34SOURCE: United Nations Population Division, 2006 Revision Population Database.New! Generation Next.Because you are the nextgeneration to assume fullcitizenship responsibilities,we have identi ed key issuesthat persons under age 30face now or will face in thefuture. Drawing from datagathered by the Pew studyHow Young People ViewTheir Lives: A Portrait ofGeneration Next we havebroken out the youngestcohort of persons, 18 25 or18 29 depending on the sur-vey, and contrasted the viewsand behaviors of this groupwith older citizens.One of the reasons federalism ourishesin the U.S. system of government is thatthe closer the government is to the people,the greater their trust. Most U.S. citizenstrust local governments most.Members of Generation Next feel the same.According to the Pew Research Center s 2007A Preference for Local GovernmentGENERATION NEXTsurvey of the nation s political landscape,younger U.S. adults are just as likely as anyother age group to agree that the federalgovernment should run only those things thatcannot be run at the local level.Members of Generation Next do not allagree on this issue, however. Members ofminority groups are much less likely to favorlocal government over national government,perhaps because they see the national gov-ernment as an essential guarantor of theircivil liberties and civil rights. Independentsare more likely to favor national action, too,perhaps because they have less con dencein the two parties to represent them. Finally,conservatives favor local action, in part be-cause they see the national government asa source of big spending and meddling inlocal affairs.As a group, members of Generation Nextare not signi cantly different from other gen-erations in their preference for local govern-ment. All generations tend to have greaterfaith in the governments they know best,which are the ones closest to home.QUESTIONS1. How does local government give youmore say in the issues you care about?2. What issues do you think the federalgovernment might be better suited todeal with? Why?3. Why is the national government some-times the best level of governmentaction for achieving change in issuessuch as global warming or access tohealth care?0 10 20 30 40 50GenderRacePoliticalPartyIdeologyMaleFemaleWhiteNonwhiteDemocratIndependentRepublicanVeryconservativeConservativeModerateLiberalVery liberalPercentage of 18- to 29-year-olds who completely agree that the federal governmentshould run only those things that cannot be run at the local level.How Other Nations Govern contrasts an important dimension of each chapter across thefollowing countries: China, Great Britain, India, Japan, Mexico, Nigeria, and the United States.This feature highlights the experience of the people in other political systems and examinesforeign political structures and processes, and how these similar and/or differing approachescan affect and be affected by American the PeopleGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 24. Name ofSupplement Available to DescriptionAmerican GovernmentStudy SiteInstructor s Manual0-13-606243-1Test Bank0-13-606253-9MyTest0-13-606244-XStudy GuidePowerPoint PresentationDigital TransparencyMastersLongman PoliticalScience Video ProgramYou Decide! CurrentDebates in AmericanPolitics, 2009 Edition0-205-68405-XVoices of Dissent: CriticalReadings in AmericanPolitics, Eighth Edition0-205-69797-6Writing in PoliticalScience, Third Edition0-321-21735-7Choices: An American Gov-ernment Database ReaderOnline resource of practice tests, Web links, and flashcards organized bymajor topics and arranged according to Government by the People s tableof contents. Visit www.pearsonamericangovernment.comOffers chapter summaries, recent news and pop culture examples,discussion topics, and Web activities.Contains over 200 questions per chapter in multiple-choice, true-false, shortanswer, and essay format. Questions address all levels of Bloom s taxonomyand are correlated to the Learning Objectives in the book. All questions havebeen reviewed for accuracy and effectiveness.This flexible, online test generating software includes all questionsfound in the printed Test Bank.Contains learning objectives, chapter summaries, and practice tests.Slides include a lecture outline of the text along with graphics from the book.It is available on the Instructor Resource Center*.These PDF slides contain all maps, figures, and tables found in the text.It is available on the Instructor Resource Center*.Qualified college adopters can peruse our list of videos for the Americangovernment classroom.This debate-style reader by John Rourke of the University of Connecticutexamines provocative issues in American politics today by presenting varioussides of key political topics.This collection of critical essays assembled by William Grover of St. Michael sCollege and Joseph Peschek of Hamline University goes beyond the debatebetween mainstream liberalism and conservatism to fundamentally challengethe status quo.This guide by Diane Schmidt of California State Univeristy-Chico takesstudents through all aspects of writing in political science step-by-step.Instructor/StudentInstructorInstructorInstructorStudentInstructorInstructorInstructorStudentStudentStudentStudent This customizable reader allows instructors to choose from a database ofover 300 readings to create a reader that exactly matches their course needs.Go to for more information.Ten Things That EveryAmerican GovernmentStudent Should Read0-205-28969-XPenguin-Longman ValueBundlesLongman State PoliticsSeries* Instructor Resource Center available at by Karen O Connor of American University. We asked American gov-ernment instructors across the country to vote for the 10 things beyond thetext that they believe every student should read and put them in this briefand useful reader. Available at no additional charge when ordered packagedwith the text.Edited by Peter Woll of Brandeis University, this longtime best-selling readerprovides a strong, balanced blend of classic readings and cases that illustrateand amplify important concepts in American government, alongside extremelycurrent selections drawn from today s issues and literature. Available at adiscount when ordered packaged with this text.Longman offers 25 Penguin Putnam titles at more than a 60 percent discountwhen packaged with any Longman text. Go for more information.These primers on state and local government and political issues areavailable at no extra cost when shrink-wrapped with the text. Available forTexas, California, and Georgia.StudentStudentStudentStudentAmerican Government:Readings and Cases,Eighteenth Edition0-205-69798-4Print OnlineResources in Print and OnlineGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 25. Improve results withDesigned to amplify a traditional course in numerous ways or toadminister a course online, MyPoliSciLab combines pedagogyand assessment with an array of multimedia activities videos,simulations, exercises, and online newsfeeds to make learningmore effective for all types of students. Now featuring the com-bined resources, assets, and activities of both Prentice Hall andLongman Publishers, this new release of MyPoliSciLab is visu-ally richer and even more interactive than previous iterations aquantum leap forward in design with more points of assessmentand interconnectivity between concepts.TEACHING AND LEARNING TOOLSAssessment: Comprehensive online diagnostic tools learningobjectives, study guides, ashcards, and pre- and post-testshelp students gauge and improve their understanding.E-book: Identical in content and design to the printed text,an e-book provides students access to their text whereverand whenever they need it.UPDATED! PoliSci News Review: A series of weeklyarticles and video clips from traditional and non-traditionalnews sources recaps the most important political newsstories, followed by quizzes that test students understanding.NEW! ABC News RSS feed: MyPoliSciLab provides anonline feed from ABC News, updated hourly, to keep studentscurrent.ABC News Video Clips: Over 60 high-interest 2- to4-minute clips provide historical snapshots in eachchapter of key political issues and offer opportunities tolaunch discussions.UPDATED! Roundtable and Debate Video Clips: Thesevideo clips feature professors discussing key concepts fromideologically diverse perspectives and debating politicallycharged issues.Student Polling: Updated weekly with timely, provocativequestions, the polling feature lets students voice their opin-ions in nationwide polls and view how their peers across thecountry see the same issue.Political Podcasts: Featuring some of Pearsonsmost respected authors, these video podcasts present short,instructive and even entertaining lectures on key topicsthat students can download and play at their convenience.NEW! Student Podcasts: The new MyPoliSciLab allowsstudents to record and download their own videos for peer-to-peer learning.INTERACTIVE ACTIVITIESNew and Updated Simulations: Featuring an appealingnew graphic interface, these role-playing simulations helpstudents experience political decision-making in a way theynever have before including new mini activities within thesimulations that prepare students to make the right decisions.NEW! Debate Exercises: These provocative new exercisespresent classic and contemporary views on core controver-sies, ask students to take a position, and then show them thepotential consequences of taking that stand.More Focused Comparative Exercises: These exerciseshave been revised in scope to concentrate on a more speci cissue when comparing the US to other political systems, giv-ing students a more concrete foundation on which to analyzekey similarities and differences.More Interactive Timelines: With redesigned media andgraphics, these timelines let students step through the evolu-tion of some aspect of politics and now include more interactivequestions throughout.More Dynamic Visual Literacy Exercises: These revisedexercises offer attractive new graphs, charts, and tables andmore opportunities to manipulate and interpret political data.Expanded Participation Activities: Re ecting ourcountrys growing political interest, these expanded activitiesgive students ideas and instructions for getting involved in allaspects of politics.Icons in the margins of this book direct students to theactivities on MyPoliSciLab related to the topics theyare studying.ONLINE ADMINISTRATIONNo matter what course management system you use or if you donot use one at all, but still wish to easily capture your studentsgrades and track their performance Pearson has a MyPoliSciLaboption to suit your needs. Contact one of Pearsons TechnologySpecialists for more information or assistance.A MyPoliSciLab access code is no additional cost when pack-aged with selected Pearson American Government texts. To getstarted, contact your local Pearson Publishers Representative by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 26. AcknowledgmentsThe writing of this book has pro ted from the informed, pro-fessional, and often critical suggestions of our colleaguesaround the country. This and previous editions have beenconsiderably improved as a result of reviews by the followingindividuals, for which we thank them all:Scott Adler, University of ColoradoWayne Ault, Southwestern Illinois College BellevillePaul Babbitt, Southern Arkansas UniversityThomas Baldino, Wilkes UniversityBarry Balleck, Georgia Southern UniversityRobert Ballinger, South Texas CollegeJodi Balma, Fullerton CollegeJeff Berry, South Texas CollegeCynthia Carter, Florida CommunityCollege Jacksonville, North CampusLeonard Champney, University of ScrantonMark Cichock, University of Texas at ArlingtonAnn Clemmer, University of Arkansas, Little RockAlison Dagnes, Shippensburg UniversityPaul Davis, Truckee Meadows Community CollegeRon Deaton, Prince Georges Community CollegeRobert DeLuna, St. Philips CollegeAnthony Di Giacomo, Wilmington CollegeRichardson Dilworth, Drexel UniversityRick Donohoe, Napa Valley CollegeArt English, University of Arkansas, Little RockAlan Fisher, CSU Dominguez HillsBruce Franklin, Cossatot Community Collegeof the University of ArkansasEileen Gage, Central FloridaCommunity CollegeRichard Glenn, Millersville UniversityDavid Goldberg, College of DuPageNicholas Gonzalez, Yuen DeAnza CollegeCharles Grapski, University of FloridaBilly Hathorn, Laredo Community CollegeMax Hilaire, Morgan State UniversityJames Hoe er, Dickinson CollegeJustin Hoggard, Three Rivers Community CollegeGilbert Kahn, Kean UniversityRogan Kersh, Syracuse UniversityTodd Kunioka, CSU Los AngelesLa Della Levy, Foothill CollegeJim Lennertz, Lafayette CollegeJohn Liscano, Napa Valley CollegeAmy Lovecraft, University of Alaska FairbanksHoward Lubert, James Madison UniversityMichael McConachie, Collin CountyCommunity CollegeLowell Markey, Allegany College of MarylandLarry Martinez, CSU Long BeachToni Marzotto, Towson UniversityBrian Newman, Pepperdine UniversityAdam Newmark, AppalachianState UniversityRandall Newnham, Penn StateUniversity BerksKeith Nicholls, University of South AlabamaSean Nicholson-Crotty, Universityof Missouri ColumbiaRichard Pacelle, Georgia Southern UniversityWilliam Parente, University of ScrantonRyan Peterson, College of the RedwoodsRobert Rigney, Valencia CommunityCollege Osceola CampusBren Romney, Vernon CollegeJack Ruebensaal, West Los Angeles CollegeBhim Sandhu, West Chester UniversityGib Sansing, Drexel UniversityColleen Shogan, George Mason UniversityTom Simpson, Missouri SouthernLinda Simmons, Northern Virginia CommunityCollege Manassas CampusDan Smith, Northwest MissouriState UniversityJay Stevens, CSU Long BeachLawrence Sullivan, Adelphi UniversityHalper Thomas, CUNY BaruchJose Vadi, CSU PomonaAvery Ward, Harford Community CollegeShirley Warshaw, Gettysburg UniversityIfe Williams, Delaware CountyCommunity CollegeMargie Williams, James Madison UniversityChristy Woodward-Kaupert, San AntonioCollegeChris Wright, University of Arkansas MonticelloxxviGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 27. ACKNOWLEDGMENTS * xxviiThis book builds on a long tradition of clear and accessible writ-ing, good scholarship, and currency. James MacGregor Burns andJack Peltason, the founding authors of the book, andTom Cronin,who later joined them, set a high standard in these areas.We alsoexpress appreciation to David O Brien for his work on the twenty-rst and twenty-second editions of the book. As additional au-thors have joined the book we have worked hard to maintain thislegacy while at the same time extensively revising each new edi-tion. Joining us in writing four chapters of this edition has beenChris Nemacheck of the College of William and Mary. ProfessorNemacheck is an expert in the courts and constitutional law andhas substantially strengthened the book in those areas. We aregrateful for her many contributions to the 2009 edition of thebook. Writing the book requires teamwork rst among thecoauthors who converse often about the broad themes, features,and focus of the book and who read and rewrite each othersdrafts; then with our research assistants, who track down looseends and give us the perspective of current students; and nallywith the editors and other professionals at Pearson Longman.Important to each revision are the detailed reviews by teachersand researchers, who provide concrete suggestions on how toimprove the book. We are grateful to all who helped with thisedition.Research assistants for the current edition of Governmentby the People are Aaron M. Anderson, E. Kyle Barnett, BradleyJones, David Lassen, Tim Taylor, and Russell Thacker ofBrigham Young University. Bryan Bradley, an expert in educa-tional assessment, consulted with us on the chapter reviewquestions found at the end of each chapter.We gratefully acknowledge the professionalism, energy,and commitment of Political Science Editor-in-Chief EricStano. Our work with Eric and the Longman team was collegialand symbiotic.Many skilled professionals were important to the publica-tion of this book. They include Elisa Adams and David Kear fortext development, Bob Ginsberg for production, HeatherJohnson at Elm Street for page layout, Teri Stratford for photoresearch, and John Callahan for cover design.We also want to thank you, the professors and studentswho use our book, and who send us letters and email messageswith suggestions for improving Government by the People.Please write us in care of the Political Science Editor at PearsonLongman, 51 Madison Ave., New York, NY 10010, or contact usdirectly:David B. Magleby Distinguished Professor of PoliticalScience and Dean of FHSS, Brigham Young University,Provo, UT 84602 david_magleby@byu.eduPaul C. Light Paulette Goddard Professor of Public Service atNew York University and Douglas Dillon Senior Fellow at theBrookings Institution, pcl226@nyu.eduGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 28. xxviiiAbout the AuthorsDavid B. Magleby is nationally recognized for his expertise on direct democracy,voting behavior, and campaign finance. He received his B.A. from the University ofUtah and his Ph.D. from the University of California, Berkeley. CurrentlyDistinguished Professor of Political Science, Senior Research Fellow at the Centerfor the Study of Elections and Democracy, and Dean of the College of Family, Homeand Social Science at Brigham Young University, Professor Magleby has also taughtat the University of California, Santa Cruz, and the University of Virginia. He and hisstudents have conducted statewide polls in Virginia and Utah. For the 1998 2008elections he has directed national studies of campaign finance and campaign com-munications in competitive federal election environments involving a consortiumof academics from nearly 80 universities and colleges in 38 states. This research issummarized in six edited books. In addition, he is co-editor of a longstanding seriesof books on financing federal elections. In partnership with colleagues, he has beenstudying the implementation of new voting technology, work funded in part by theNational Science Foundation. He has been a Fulbright Scholar at Oxford Universityand a past president of Pi Sigma Alpha, the national political science honor society.Magleby is the recipient of many teaching awards including the 1990 UtahProfessor of the Year award from the Council for the Advancement and Support ofEducation and the Carnegie Foundation, the 2001 Rowman & Littlefield Award forInnovative Teaching in Political Science, and several department and universityawards. At BYU he served as Chair of the Political Science Department before beingnamed dean. He is married to Linda Waters Magleby. They are the parents of fourand grandparents of one.Paul C. Light is the Paulette Goddard Professor of Public Service at New YorkUniversity s Wagner School of Public Service. He received his B.A. from MacalesterCollege and his Ph.D from the University of Michigan. Professor Light has a wide-ranging career in both academia and government. He has worked on Capitol Hill asa senior committee staffer in the U.S. Senate and as an American Political ScienceAssociation Congressional Fellow in the U.S. House. He has taught at the Universityof Virginia, University of Pennsylvania, and Harvard University s John F. KennedySchool of Government. He has also served as a senior adviser to several nationalcommissions on federal, state, and local public service. He is the author of 15 bookson government, public service, and public policy. Light s current research focuses ongovernment reform, Congress, the presidency, and social entrepreneurship. His lat-est books are A Government Ill Executed (Harvard University Press, 2008) and TheSearch for Social Entrepreneurship (Brookings Institution Press, 2008). He was thefounding director of the Brookings Institutions Center for Public Service and contin-ues his research on how to invite Americans to serve their communities throughpublic service. His work has been funded by the Douglas Dillon Foundation, the PewCharitable Trusts, the David and Lucille Packard Foundation, among many others.He is also an expert on preparing government, charitable organizations, and privatecorporations for natural and human-made disasters, and was a recognized leader inthe response to Hurricane Katrina in 2005. He has testi ed before Congress morethan a dozen times in the last ve years.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 29. A SpecialAcknowledgmentxxixIt is rare for a college textbook in any eld to be a leader in its discipline for more thana generation. The competition between publishers is intense. Moreover, there is noshortage of leading scholars who are eager to share their ideas with students by pub-lishing their own textbooks. With so many works to choose from, it is not surprisingthat some very good books cease publication after only two or three editions. JamesMacGregor Burns and Jack W. Peltasons book has more than stood the test of time, ithas set a high standard for scholarship, clarity of writing, and currency. Their book,Government by the People, has been a leader among American government texts fordecades.Government by the People began when two young assistant professors, JamesMacGregor Burns of Williams College and Jack W. Peltason of Smith College, de-cided to partner and write an American government text sixty years ago, in 1948.Their first edition had a publication date of 1952. Although much has changed incollege text book publishing since then, one constant has been the extraordinarycommitment of the authors to producing a well-written, accessible, and balancedlook at government and politics in the United States. Burns and Peltason werejoined by Tom Cronin of Colorado College in the tenth edition of the book and byDavid O Brien of the University of Virginia in the twenty-first and twenty-secondeditions of the book. As current authors of the book, we share the founding authorspassion for the subject of American government and their desire as teachers andauthors to communicate the importance of government by the people. As the booknow transitions to a new author team, we wish to acknowledge the important foun-dation provided by James MacGregor Burns, Jack W. Peltason, Thomas E. Cronin,and David M. O Brien. We provide a brief personal acknowledgment below and wededicate this edition to them.James MacGregor Burns was the Woodrow Wilson Professor of Government atWilliams College. He also taught at the University of Michigan and University ofRichmond where he directed centers on leadership. A proli c writer, he won thePulitzer Prize and National Book Award for his biographies of Franklin Roosevelt,Roosevelt the Lion and the Fox and Roosevelt: The Soldier of Freedom. His clarity of ar-gument and willingness to challenge readers to think critically are his hallmarks. Hisbook, Deadlock of Democracy, on how the separation of powers can result in deadlock,continues to foster healthy debate about the strengths and weaknesses of our consti-tutional system. More recently his focus has been on leadership, where he has pub-lished multiple books in the past several years. The University of Maryland has createdthe James MacGregor Burns Academy of Leadership, re ecting his contributions tothat specialization. Burns was a leader in political science, having been elected presi-dent of the American Political Science Foundation.Jack W. Peltason has shaped American higher education as well in his own disci-pline of political science. His teaching and writing is in the area of judicial process andpublic law. His book on the federal judges who implemented the Supreme Court sschool integration decision in Brown v. Board of Education of Topeka Kansas is a clas-sic which he titled, Fifty-Eight Lonely Men: Southern Judges and School Desegregation.Peltason was quickly seen as a leader and became the Chancellor of the University ofIllinois, Chancellor of the University of California Irvine, and President of theUniversity of California with leadership responsibility for all ten campuses of theUniversity of California system. As President of the American Council on Education,Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 30. xxx * A SPECIAL ACKNOWLEDGMENThe represented higher education before Congress and state legislatures. Peltasonbrought clarity of writing to Government by the People and a willingness to push him-self and his coauthors to understand their audience and reach them. Peltason andBurns saw the entire book as their shared creation and pushed each other and the au-thors who later joined them to substantiate arguments, consider different points ofview, fully document and support the text, and keep the book current and engaging.Thomas E. Cronin joined the author team of Government by the People in thetenth edition. He fully subscribed to the approach of intense author interaction and asa skilled teacher at Colorado College and other institutions helped ensure that thebook understood and spoke to college students. Cronin had been a White HouseFellow and, like Burns, once ran for the U.S. Congress. He later became President ofWhitman College. He is the McHugh Professor of American Institutions andLeadership at Colorado College.David M. O Brien participated in the twenty- rst and twenty-second editions ofthe Government by the People. He is the Leone Reaves and GeorgeW. Spicer Professor atthe University of Virginia. He was a Judicial Fellow and Research Associate at theSupreme Court of the United States, and a Fulbright Lecturer at Oxford University; heheld the Fulbright Chair for Senior Scholars at the University of Bologna and was aFulbright Researcher in Japan, as well as a Visiting Fellow at the Russell SageFoundation. Among his publications are Storm Center: The Supreme Court in AmericanPolitics, 6th Ed.; a two volume casebook, Constitutional Law and Politics, 5th Ed.; anannual, Supreme Court Watch; and Animal Sacri ce and Religious Freedom: Church ofLukumi Babablu Aye v. City of Hialeah. He received the American Bar AssociationsSilver Gavel Award for contributing to the publics understanding of the law.As the current authors of Government by the People we recognize the legacy we in-herit and wish to express our appreciation to Jim Burns, Jack Peltason, Tom Cronin,and David O Brien for their commitment to scholarship, teaching, and citizenship.DAVID B. MAGLEBYPAUL C. LIGHTGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 31. Governmentby the PeopleGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 32. 1chapterGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 33. The peaceful transfer of power following elections is a process that U.S. citizens takefor granted. Many people look on elections with disdain, saying things like, Votingdoes not matter, Nothing ever changes, or Its just all politics. But in fact, U.S. elec-tions are remarkable and consequential. They conclude with a rare event in human his-tory: the peaceful transfer of political power. What is unusual is what is not happening.Most of the time in most nations, those in power got there because either they were bornto the right family or they killed or jailed their opponents. During most of history, noone, especially not an opposition political party, could openly criticize the government,and a political opponent was an enemy.Even in a highly contested election like the 2000 presidential election, DemocratAl Gore won the popular vote only to see George W. Bush declared the winner by theelectoral college, after the Supreme Court effectively ruled 5 to 4 that Bushs slimFlorida plurality should stand. Gore graciously conceded defeat: I say to President-elect Bush that what remains of partisan rancor must now be put aside, and may Godbless his stewardship of this country. Neither he nor I anticipated this long and dif -cult road. Certainly neither of us wanted it to happen. Yet it came, and now it hasended, resolved, as it must be resolved, through the honored institutions of ourdemocracy. 1 The Democrats thus turned over the keys to the White House to GeorgeW. Bush and the Republicans. In many countries the irregularities of the votingprocess in Florida and other states would have been suf cient excuse for the party inpower to declare that a new election needed to be held, and it would not be uncom-mon for that party to retain power until after the election or to pressure the high courtto rule in its favor.Eight years later, many Democrats still felt cheated by the process that occurred in2000, and the close election in 2004 only reinforced their passion to win back the pres-idency. The Democratic standard-bearer, Illinois Senator Barack Obama, also had theadvantage of negative public perceptions of President Bushs performance in of ce,especially in the war in Iraq. Republicans, who had built an effective political opera-tion following the 2000 election only to see their party lose majorities in both houses ofCongress in 2006, campaigned aggressively to retain power. Filling television screens,bookshelves, and blogs for months, both candidates and their allies did their utmostto demonstrate that they were most t to lead the country.After the 2008 election outcome appeared certain, John McCain graciously concededdefeat to Barack Obama and the process of organizing a new administration began.Obamas victory meant the eight year Republican control of the presidency shifted to theDemocrats. Even though the day before the election John McCain, his running mate,Alaska Governor Sarah Palin, and their followers were insisting that if Barak Obama andhis running mate, Delaware Senator Joe Biden, won the election there would be dire eco-nomic and national security consequences, once the votes were counted there was noserious consideration that anybody other than Barack Obama would become president.Outgoing President George Bush did not attempt to prolong his time in of ce by calling onthe military to keep Obama from taking power. McCains supporters did not take up armsor go underground to plan a revolution or leave the country. Instead, they almost immedi-ately began planning how they could win the next election. Nor did Obama or his follow-ers seriously think about punishing McCain and his supporters once they gained power.3Constitutional DemocracyLEARNING OBJECTIVES* De ne government, politics,politicians, political science, andconstitutional democracy.+ Differentiate democracy from otherforms of government., Identify the conditions that helpdemocracy ourish and explain whythey do so.- Explain the importance to successfuldemocracy of values, politicalprocesses, and political structures.. Show how politics before 1787shaped the Constitution./ Identify the most important compro-mises achieved by the delegates tothe Constitutional Convention of 1787.0 Assess the arguments for andagainst the rati cation of theConstitution.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 34. 4 * CHAPTER 1 Constitutional DemocracyCHAPTER OUTLINE* U.S. Government and Politiciansin Context* De ning Democracy* The Roots of the AmericanConstitutional Experiment* The Constitutional Conventionof 1787* To Adopt or Not to Adopt?LEARNING OBJECTIVE* De ne government, politics,politicians, political science, andconstitutional democracy.The Democrats wanted to throw the Republicans out of of ce, not in jail. In all these ways,the election of 2008 was a routine transfer a constitutional democracy at work.The peaceful transfer of power from one party and presidential administration toanother is only one example of the successful functioning of our political system. Thereare many others, including, perhaps most important, GeorgeWashington relinquishingpower after serving as our rst president. In this chapter, we begin our exploration ofthe successful U.S. experiment with government by the people by taking a closer look atthe meaning of democracy and the historical events that created the constitutionaldemocracy of the United States.U.S. Government and Politicians in ContextThe oldest constitutional democracy in the world, the United States of America hassurvived for more than two centuries, yet it is still an experiment and a work inprogress. We think of it as an enduring, strong government, but our constitutionalpolitical system is built on a fragile foundation. The U.S. Constitution and Bill of Rightssurvive not because we still have the parchment they were written on, but becauseeach generation of U.S. citizens has respected, renewed, and worked to understandthe principles and values found in these documents. Each generation has faced differ-ent challenges in preserving, protecting, and defending our way of government.The U.S. constitutional democracy, founded on enduring values, has shownresilience and adaptability. We have held 111 presidential and midterm elections(including the 2008 election), and we have witnessed the peaceful transfer of powerfrom one party to another on dozens of occasions. The United States has succeededlargely because its citizens love their country, revere the Constitution, and respect thefree enterprise system. We also believe that debate, compromise, and free elections arethe best ways to reconcile our differences. From an early age, we practice democracy inelementary school elections, for example, and even though we may be critical ofelected leaders, we recognize the need for political leadership. We also know there aredeep divisions and unsolved problems in the United States. Many people are con-cerned about the persistence of racism, about religious bigotry, about the gap in eco-nomic opportunities between rich and poor, and about the need to control the violencethat disproportionately af icts children and minorities. And we want our government,in addition to defending us against terrorism and foreign enemies, to provide us withbasic health care and education, and to address other domestic problems.But what is this government of which we expect so much? The reality is that gov-ernment by the people is built on the foundation of hundreds of thousands of ourfellow citizens: the people we elect and the people they appoint to promote the gen-eral welfare, provide for domestic tranquillity, and secure the blessings of liberty for us.Before moving ahead, we need to de ne some of the basic terms we ll be usingthroughout this book. Government refers to the procedures and institutions (such aselections, courts, and legislatures) by which a people govern and rule themselves.Politics, at least in our system of government, is the process by which people decidewho shall govern and what policies shall be adopted. Such processes invariablyrequire discussions, debates, and compromises about tactics and goals. Politiciansare the people who ful ll the tasks of overseeing and directing a government. Somepoliticians legislators, mayors, and presidents come to of ce through election.Nonelected politicians may be political party of cials or aides, advisers, or consul-tants to elected of cials. Political science is the study of the principles, procedures,and structures of government and the analysis of political ideas, institutions, behavior,and practices.More than any other form of government, the kind of democracy that hasemerged under the U.S. Constitution requires active participation and a balance be-tween faith and skepticism. Government by the people does not, however, mean thateveryone must be involved in politics and policy making. It requires people to run forof ce seeking to represent the voters, many of whom will always be too busy doingGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 35. Defining Democracy * 5other things, and some of whom will always be apathetic about government and poli-tics. But the public must be attentive, interested, involved, informed, and willing,when necessary, to criticize and change the direction of government.Thomas Jefferson, author of the Declaration of Independence and one of ourbest-known champions of constitutional democracy, believed in the common sense ofthe people and in the possibilities of the human spirit. Jefferson warned that everygovernment degenerates when it is left solely in the hands of the rulers. The peoplethemselves, Jefferson wrote, are the only safe repositories of government. He believedin popular control, representative processes, and accountable leadership. But he wasno believer in the simple participatory democracy of ancient Greece or revolutionaryFrance. Even the power of the people must be restrained from time to time.Government by the people requires faith in our common human enterprise, a be-lief that if the people are informed and care, they can be trusted with their own self-government, and an optimism that when things begin to go wrong, the people canbe relied on to set them right. But we also need a healthy skepticism. Democracyrequires us to question our leaders and never entrust a group or institution with toomuch power. And even though constitutional advocates prize majority rule, theymust remain skeptical about whether the majority is always right.Constitutional democracy requires constant attention to protecting the rights andopinions of others, to ensure that our democratic processes serve the principles of lib-erty, equality, and justice. Thus a peculiar blend of faith and skepticism is warrantedwhen dealing with the will of the people.Constitutional democracy means government by representative politicians. A cen-tral feature of democracy is that those who hold power do so only by winning a freeelection. In our political system, the fragmentation of powers requires elected of cialsto mediate among factions, build coalitions, and work out compromises among andwithin the branches of our government to produce policy and action. We expect ourpoliticians to operate within the rules of democracy, and to be honest, humble, patri-otic, compassionate, sensitive to the needs of others, well informed, competent, fair-minded, self-con dent, and inspirational. We want politicians, in other words, to beperfect, to have all the answers, and to have all the correct values (as we perceivethem). We want them to solve our problems, yet we also make them scapegoats for thethings we dislike about government: taxes, regulations, hard times, and limits on ourfreedom. Many of these ideals are unrealistic, and no one could live up to all of them.Like all people, politicians live in a world in which perfection may be the goal, butcompromise, ambition, fund raising, and self-promotion are necessary.U.S. citizens will never be satis ed with their political candidates and politicians.The ideal politician is probably a myth, because no one could please everyone andmake con ict disappear without asking us to make sacri ces. Politicians becomeideal only when they are dead. Politicians and candidates, as well as the people theyrepresent, all have different ideas about what is best for the nation. Indeed, liberty in-vites disagreements over ideology and values. Thats why we have politics, candidates,opposition parties, heated political debates, and elections.De ning DemocracyThe word democracy is nowhere to be found in the Declaration of Independence orin the U.S. Constitution, nor was it a term the founders used. It is both an ancient termand a modern one.When this nation was founded, democracy was used to describe un-desirable groups and conditions: mobs, lack of standards, and a system that encour-aged leaders to gain power by appealing to the emotions and prejudices of the rabble.The distinguishing feature of democracy is that government derives its authorityfrom its citizens. In fact, the word comes from two Greek words: demos, the people,and kratos, authority or power. Thus democracy means government by the people,not government by one person (a monarch, dictator, or priest) or government by thefew (an oligarchy or aristocracy).Thomas Jefferson, author of the Declarationof Independence, third president of theUnited States, and founder of the Universityof Virginia.democracyGovernment by the people, both directly orindirectly, with free and frequent elections.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 36. direct democracyGovernment in which citizens vote on lawsand select of cials directly.LEARNING OBJECTIVE* Differentiate democracy from otherforms of government.Ancient Athens, a few other Greek city-states,and the Roman Republic had a direct democracy inwhich citizens assembled to discuss and pass lawsand select their of cials. Most of these Greek city-states and the Roman Republic degenerated intomob rule and then resorted to dictators or rule byaristocrats. When the word democracy came intouse in English in the seventeenth century, it denotedpower wielded by an unruly mob. It was a term ofderision, a negative word.In 1787, James Madison, in The Federalist,No. 10, re ected the view of many of the framers of the U.S. Constitution when hewrote, Such democracies [as the Greek and Roman]. . . have ever been found incom-patible with personal security, or the rights of property; and have in general been asshort in their lives, as they have been violent in their deaths (The Federalist, No. 10, isreprinted in the Appendix at the back of this book). Madison feared that empoweringcitizens to decide policy directly would be dangerous to freedom, minorities, andproperty, and would result in violence by one group against another.Over time our democracy has increasingly combined representative and directdemocracy. The most important examples of direct democracy were added roughlya century ago and include the direct primary, in which voters select who may runfor office; the initiative and referendum, which allow citizens to vote on state lawsor constitutional amendments; and the recall, which lets voters remove state andlocal elected officials from office between elections. Initiatives and referendumshave been used frequently, and 2003 saw the first governor recalled in 82 yearswhen California voters replaced Gray Davis with Arnold Schwarzenegger. Oncein office, Governor Schwarzenegger attempted to govern by taking policy disputesdirectly to the voters. For example, he pressed for a special election in 2005 todecide four ballot initiatives. The voters roundly defeated all four measures, andSchwarzenegger later stated that thereafter he would rely far less on campaignsand ballot fights as a governing strategy. 2 He also said, If I were to do anotherTerminator movie, I would have the Terminator travel back in time to tell Arnold notto have a special election. 3A New Hampshire man speaks at a local townmeeting. Since Colonial times, many localgovernments in New England have held meet-ings in which all community members are in-vited to attend and discuss their opinions withpublic of cials. In some cases, communitymembers meet once a year to vote on a varietyof issues that will affect their town over thefollowing year.Should the United States Adopta National Initiative Process?DECIDEYOU WILLDECIDEEven though more than half the states have some form of initiative or popularreferendum in which voters can petition to vote directly on policy issues, thenational government does not provide for such a process. Voters in manyother democracies directly ratify constitutional changes like our constitutionalamendments in a national election.6Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 37. Today it is no longer possible, even if it weredesirable, to assemble the citizens of any but thesmallest towns to make their laws or select their of-ficials directly. Rather, we have invented a system ofrepresentation. Democracy today means repre-sentative democracy, or a republic, in which thosewho have governmental authority get and retainthat power directly or indirectly by winning freeelections in which all adult citizens are allowed toparticipate. The framers used the term republic toavoid any confusion between direct democracy,which they disliked, and representative democracy,which they liked and thought secured all the ad-vantages of a direct democracy while curing itsweaknesses.Many of the ideas that came to be part ofthe Constitution can be traced to philosophers writ-ings in some cases centuries before the AmericanRevolution and the constitutional convention.Among those philosophers the framers would haveread and been in uenced by were Aristotle, Hobbes,Locke, and Montesquieu. Aristotle, a Greek philoso-pher writing in the fourth century BC, had providedimportant ideas on a political unit called a state, butalso on the idea of a constitution, and on variousforms of governing.4 John Locke, an English philoso-pher, also profoundly in uenced the authors ofthe Declaration of Independence and Constitution.Locke rejected the idea that kings had a divine right torule, advocated a constitutional democracy, and pro-vided a philosophic justi cation for revolution.5Locke, like his fellow Englishman Thomas Hobbes,asserted that there was a social contract whereby peo-ple formed governments for security and to avoidwhat he called the state of nature, where chaos ex-isted and where everyone was against everyone. 6In defining democracy, we need to clarifyother terms. Constitutional democracy refers to agovernment in which individuals exercise govern-mental power as the result of winning free and relatively frequent elections. It is agovernment in which there are recognized, enforced limits on the powers of all gov-ernmental officials. It also generally includes a written set of governmental rulesand procedures a constitution. The idea that constitutional provisions can limitpower by having another part of the government balance or check it is one moregood example of how the founders applied ideas from earlier thinkers in thiscase, the French philosopher Charles de Montesquieu.7Constitutionalism is a term we apply to arrangements checks and balances,federalism, separation of powers, rule of law, due process, a bill of rights that requireour leaders to listen, think, bargain, and explain before they make laws, in order toprevent them from abusing power. We then hold them politically and legally account-able for the way they exercise their powers.Like most political concepts, democracy encompasses many ideas and has manymeanings. It is a way of life, a form of government, a way of governing, a type of nation,a state of mind, and a variety of processes. We can divide these many meanings ofdemocracy into three broad categories: a system of interacting values, a system of in-terrelated political processes, and a system of interdependent political structures.representative democracyGovernment in which the people elect those whogovern and pass laws; also called a republic.THINKINGTHINKING IT THROUGHInvolving voters directly in the process of deciding public policy is appealingand consistent with the move toward direct democracy the United States hasexperienced over the past century. Such votes may help legitimate major con-stitutional changes by demonstrating voter approval of them, and if a petitionprocess were permitted, citizens could directly put before their fellow voterswhatever constitutional changes they wanted. Letting the voters decide legis-lation and constitutional changes instead of relying on Congress could engagemore voters in politics and alleviate the low regard some have for Congress.What might voters decide under such a reform? They could, for example,petition to change the Senate so that instead of two senators, each state havea minimum of one and the remainder be apportioned by population. Othersmight petition to institute mandatory school prayer, or to legalize medicinalmarijuana as a guaranteed constitutional right. Do these possibilities affectyour answer? Should some questions be out of bounds? If so, who decides?In most of the United States these kinds of issues are decided by courts, butthat puts courts in a politically charged position. Is that a good idea?Although letting voters decide policy questions is an extension of directdemocracy, in practice the initiative and referendum may actually impederepresentative democracy. Congress and the president may evade toughissues by waiting for someone to put them to a vote of the people. An initia-tive also forces a yes or no vote and compromise is not possible. Whodecides how the question will be worded? How many signatures would berequired to place a measure on the ballot? How many initiatives or referen-dums can we put before the voters in any single election?When it comes to implementinga successful initiative or referendum,does that vote supersede theConstitution itself? Could theSupreme Court declare a nationalinitiative unconstitutional, or is thevote of the people the nal word ona matter? How would Congress andthe president allocate tax money forimplementing an initiative? Theauthors of our Constitution clearlypreferred a more representative anddeliberative form of democracy tothe initiative. What were their reser-vations about direct democracy, andwere they correct?Questions1. Who should word the questionput to voters in a referendum,and what effect does the way aquestion is worded have on theprocess?2. Could a majority group vote tolimit the rights of a minority in areferendum?3. How is voters deciding a referen-dum different from legislatorsdeciding legislation?constitutional democracyGovernment that enforces recognized limits onthose who govern and allows the voice of thepeople to be heard through free, fair, and rela-tively frequent elections.constitutionalismThe set of arrangements, including checks andbalances, federalism, separation of powers, ruleof law, due process, and a bill of rights, thatrequires our leaders to listen, think, bargain, andexplain before they act or make laws. We thenhold them politically and legally accountable forhow they exercise their powers.7Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 38. 8 * CHAPTER 1 Constitutional DemocracyLEARNING OBJECTIVEA woman casts her vote in Harare, Zimbabwe,where long lines formed at the polling stationshours before they opened.Before we begin our discussion of these three categories, let s outline the conditionsnecessary to foster constitutional democracy.Conditions Conducive to Constitutional DemocracyAlthough it is hard to specify the precise conditions essential for establishing and pre-serving a democracy, and it does not always ourish, we can identify some patternsthat foster its growth.Educational Conditions The exercise of voting privileges requires an educatedcitizenry. But a high level of education (measured by the number of high schooldiplomas and university degrees granted) does not guarantee democratic government,as the examples of Nazi Germany and the Soviet Union, where many had thesecredentials, illustrate. And in some democracies, such as India, many people areilliterate. Still, voting makes little sense unless many of the voters can read and write andexpress their interests and opinions. The poorly educated and illiterate often get left outin a democracy. Direct democracy puts a further premium on education. Better-educated persons are better able to understand and participate in policy makingthrough initiatives and referendums.8Economic Conditions A relatively prosperous nation, with an equitable distribution ofwealth, provides the best context for democracy. Starving people are more interested infood than in voting.Where economic power is concentrated, political power is also likelyto be concentrated; thus well-to-do nations have a better chance of sustainingdemocratic governments than do those with widespread poverty. As a result, theprospects for an enduring democracy are greater in Canada or France than in Zimbabweor Egypt, for example.Private ownership of property and a market economy are also related to the cre-ation and maintenance of democratic institutions. Democracies can range from heav-ily regulated economies with public ownership of many enterprises, such as Sweden,to those in which there is little government regulation of the marketplace, such as theUnited States. But there are no democracies with a highly centralized, government-run economy and little private ownership of property, although many authoritariannations like Oman or Saudi Arabia have a market economy. There are no truly demo-cratic communist states, nor have there ever been any.Social Conditions Economic development generally makes democracy possible, yetproper social conditions are necessary to make it real.9 In a society fragmented intowarring groups that ercely disagree on fundamental issues, government by discussionand compromise is dif cult, as we have seen in Afghanistan and Iraq.When ideologicallyseparated groups consider the issues at stake to be vital, they may prefer to ght ratherthan accept the verdict of the ballot box, as happened in the United States in 1861 withthe outbreak of the CivilWar.In a society that consists of many overlapping associations and groupings, how-ever, individuals are less likely to identify completely with a single group and give theirallegiance to it. For example, Joe Smith is a Baptist, an African American, a southerner,a Democrat, an electrician, and a member of the National Ri e Association, and hemakes $50,000 a year. On some issues, Joe thinks as a Baptist, on others as a southerner,and on still others as an African American. Sue Jones is a Catholic, a white Republican, areal estate agent, and a member of the National Organization for Women (NOW); shecomes from a Polish background, and she makes $150,000 a year. Sometimes she actsas a Republican, sometimes as a real estate agent, and sometimes as a member of NOW.Jones and Smith differ on some issues and agree on others. In general, the differencesbetween them are not likely to be greater than their common interest in maintaining ademocracy.10Ideological Conditions American adults have basic beliefs about power, government,and political practices beliefs that arise from the educational, economic, and socialconditions of their individual experience. From these conditions must also develop a* Identify the conditions that helpdemocracy ourish and explainwhy they do so.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 39. general acceptance of the ideals of democracy, and a willingness of a substantialnumber of people to agree to proceed democratically. This acceptance is sometimescalled the democratic consensus. Widely accepted ideals of democracy include oneperson, one vote; majority rule; freedom of speech; and freedom of assembly.Democracy as a System of Interacting ValuesA constitutional democracy is strengthened by an educated and prosperous public thathas con dence in its ability to work out differences in the political process. A set of inter-acting values, the rst of the three ways we can look at a democracy, provides a foundationfor that public con dence. Belief in representative democracy may be as near a universalfaith as the world has today. Respect for human dignity, freedom, liberty, individual rights,and other democratic values are widespread. Personal liberty, respect for the individual,equality of opportunity, and popular consent are at the core of democratic values.For Better or Worse?GENERATION NEXTsaying today is better and 44 percent think-ing it was better 20 years ago. For example,today s 18- to 26-year-olds see theirgeneration as less able to buy a house thanwas the case for the same age group20 years ago.One item on which Generation Next dis-agrees along racial lines is whether today sgeneration has done more to bring aboutsocial change than yesterday s generationdid. Almost as many of today s AfricanAmericans (45 percent) feel they have donemore to bring about social change thanthose who feel yesterday s generation did(48 percent). Overall, 56 percent ofGeneration Next felt it was better at bringingabout social change than the last generation.The fact that today s generation sees ed-ucational opportunities as better for theirgeneration suggests that this foundationof democracy remains strong. However,concerns about buying a house and achiev-ing nancial security raise questions aboutthe economic con dence that helps sustaindemocracy. Although these may be short-term worries, they constitute a potentialfuture challenge to democratic stability.QUESTIONS1. How does education enhancesupport for democracy? What areyou learning while getting a collegeeducation that is relevant to activecitizenship?2. Why is economic opportunityimportant to sustainingdemocracy?Percentage of Young Adults Who Agree That People of Their Age Group(18 26) Have It Better than Young Adults 20 Years Ago in Terms ofHaving Opportunities to Get a Good Education.0 60 80 100GenderRacePoliticalPartyIdeologyMaleFemaleWhiteBlackAsianOtherDemocratIndependentRepublicanVery conservativeConservativeModerateLiberalVery LiberalPercent of respondents who agreeAsk yourself the same question a na-tional sample of young adults wasasked in the 2006 Generation Next Survey(conducted by the Pew Research Centerfor the People and the Press): In which ofthese areas do you think young adults inyour age group (18 25) have it better andin which areas did young adults 20 yearsago have it better? Respondents wereasked this question with specific referenceto getting a job, living in an exciting time,having sexual freedom, enjoying financialsecurity, bringing about social change,buying a house, and having opportunitiesto get a good education.Most 18- to 26-year-olds see them-selves as better off than the generation of20 years ago in getting high-paying jobs,living in exciting times, having sexual free-dom, and having opportunities to get agood education.Generation Next is divided on whethertoday s 18- to 26-year-olds have it better interms of nancial security, with 48 percent9Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 40. 10 * CHAPTER 1 Constitutional DemocracyLEARNING OBJECTIVEstatismThe idea that the rights of the nation aresupreme over the rights of the individuals whomake up the nation.popular consentThe idea that a just government must deriveits powers from the consent of the people itgoverns.Personal Liberty Liberty has been the single most important value in U.S. history. Itwas for life, liberty, and the pursuit of happiness that independence was declared; itwas to secure the Blessings of Liberty that the Constitution was drawn up andadopted. Even our patriotic songs extol the sweet land of liberty. The essence of libertyis self-determination, meaning that all individuals must have the opportunity to realizetheir own goals. Liberty is not simply the absence of external restraint on a person(freedom from something); it is also a persons freedom and capacity to reach his or hergoals (freedom to do something). Moreover, both history and reason suggest thatindividual liberty is the key to social progress. The greater the peoples freedom, thegreater is the chance of discovering better ways of life.Respect for the Individual Popular rule in a democracy ows from a belief thatevery person has the potential for common sense, rationality, and fairness.Individuals have important rights; collectively, those rights are the source of alllegitimate governmental authority and power. These concepts pervade democraticthought. They are woven into the writings of Thomas Jefferson, especially in theDeclaration of Independence: All men . . . are endowed by their Creator with cer-tain unalienable rights. (The Declaration of Independence is reprinted in theAppendix.) Constitutional democracies make the person rich or poor, black orwhite, male or female the central measure of value.Not all political systems put the individual rst. Some promote statism, a form ofgovernment based on centralized authority and control, especially over the economy.China,Vietnam, and Cuba, for example, take this approach. In a modern democracy, thenation, or even the community, is less important than the individuals who compose it.Equality of Opportunity The democratic value of equality enhances the importance ofthe individual: All men are created equal and from that equal creation they derive rightsinherent and unalienable, among which are the preservation of liberty and the pursuitof happiness. So reads Jeffersons rst draft of the Declaration of Independence, and thewords indicate the primacy of the concept. The nineteenth-century French statesmanAlexis de Tocqueville and other foreign students of American democracy were all struckby the strength of egalitarian thought and practice in our political and social lives.But what does equality mean? And equality for whom? Does equality of opportu-nity mean that everyone should have the same place at the starting line? Or does itmean that society should try to equalize the factors that determine a personseconomic or social well-being? These enduring issues arise often in American politics.Popular Consent The animating principle of the American Revolution, the Declarationof Independence, and the resulting new nation was popular consent, the idea that a justgovernment must derive its powers from the consent of the people it governs. Acommitment to democracy thus means that a community must be willing to partici-pate and make decisions in government. These principles sound unobjectionable, butin practice they mean that people must be willing to lose when more people vote theother way.Democratic Values in Con ict The basic values of democracy do not always coexisthappily. Individualism may con ict with the collective welfare or the public good. Self-determination may con ict with equal opportunity. A media outlets freedom topublish classi ed documents about foreign or defense policy may con ict with thegovernments constitutional requirement to provide for the common defense.Much of our political combat revolves around how to strike a balance amongdemocratic values. How, for example, do we protect the Declaration of Independencesunalienable rights of life, liberty, and the pursuit of happiness while trying to form,as the Constitution announces, a more perfect Union, establish Justice, insure do-mestic Tranquility, provide for the common defense, promote the general Welfare, andsecure the Blessings of Liberty to ourselves and our Posterity ? (See the Preamble tothe Constitution at the end of Chapter 2.) Over the years, despite occasional setbacks,the U.S. political system has moved toward greater freedom for individuals andmore democracy.* Explain the importance to successfuldemocracy of values, politicalprocesses, and political structures.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 41. Defining Democracy * 11Democracy as a System of Interrelated Political ProcessesIn addition to meeting a few key conditions and having a consensus of core demo-cratic values, a successful, democratic government requires a well-de ned politicalprocess as well as a stable governmental structure. To make democratic values a real-ity, a nation must incorporate them into its political process, most importantly in theform of free and fair elections, majority rule, freedom of expression, and the right of itscitizens to peaceably assemble and protest.Free and Fair Elections Democratic government is based on free and fair electionsheld at intervals frequent enough to make them relevant to policy choices. Elections areone of the most important devices for keeping of cials and representatives accountableto the voters.Crucial to modern-day de nitions of democracy is the idea that opposition politi-cal parties can exist, can run candidates in elections, and have a chance to replacethose who currently hold public of ce. Thus political competition and choice arecrucial to the existence of democracy. Although many agree that all citizens should haveequal voting power, free and fair elections do not imply that everyone must or will haveequal political in uence. Some people, because of wealth, talent, or position, inevitablyhave more in uence than others. How much they should be allowed to exercise it is fre-quently debated. But in an election, each citizen president or plumber, corporate CEOor ditchdigger casts only one vote.Majority and Plurality Rule Majority rule governance according to the expressedpreferences of the majority is a basic rule of democracy. The majority candidate orparty is the one that receives more than half the votes and so wins the election andtakes charge of the government until the next election. In practice, however, majorityrule is often plurality rule, in which the candidate or party with the most votes winsthe election, even though it may not have received more than half the votes becausevotes were divided among three or more candidates or parties. About a third of ourpresidents have won with pluralities in the popular vote rather than majorities.11Once elected, of cials do not have a right to curtail the attempts of politicalminorities to use all peaceful means to become the new majority. Even as the winnerstake power, the losers are at work trying to get it back at the next election.12A student from Chicago casts an early vote inthe 2008 Illinois presidential primary.majority ruleGovernance according to the expressedpreferences of the majority.majorityThe candidate or party that wins more thanhalf the votes cast in an election.pluralityThe candidate or party with the most votescast in an election, not necessarily morethan half.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 42. 12 * CHAPTER 1 Constitutional DemocracyShould the side with the most votes always prevail? American citizens answer thisquestion in various ways. Some insist that majority views should be enacted into lawsand regulations. However, an effective representative democracy requires far more thansimply counting individual preferences and implementing the will of most of the peo-ple. In a constitutional democracy, the will of a majority may run counter to the rights ofindividuals. For example, the Supreme Court struck down a 1964 California initiativethat would have allowed discrimination against minorities in the sale of residentialhousing.13 Legislating in a representative democracy is a complicated and often untidyprocess in which the people and their agents debate, compromise, and arrive at a deci-sion only after thoughtful deliberation.The framers of the U.S. Constitution wanted to guard society against oppressionof any one faction of the people by any other faction. The Constitution re ects theirfear of tyranny by majorities, especially momentary majorities that spring from tem-porary passions. They insulated certain rights (such as freedom of speech) and insti-tutions (such as the Supreme Court and, until the Constitution was changed in 1913,even the Senate) from popular choice. Effective representation of the people, theframers insisted, should not be based solely on parochial interests or the shiftingbreezes of opinion.Freedom of Expression Free and fair elections depend on voters having access tofacts, competing ideas, and the views of candidates. This means that competing,nongovernment-owned newspapers, radio stations, and television stations must beallowed to ourish. If the government controls what is said and how it is said, electionscannot be free and fair and there is no democracy.We examine free expression in greaterdetail in Chapter 15.The Right to Assemble and Protest Citizens must be free to organize for politicalpurposes. Obviously, individuals can be more effective if they join with others in a party,a pressure group, a protest movement, or a demonstration. The right to oppose thegovernment, to form opposition parties, and to have a chance to defeat incumbents is ade ning characteristic of a democracy.Democracy as a System of InterdependentPolitical StructuresDemocracy is, of course, more than the values and processes we ve discussed so far. Itsthird characteristic is political structures that safeguard these values and processes. TheConstitution and its rst ten amendments the Bill of Rights set up an ingeniousstructure that both grants and checks government power. A system of political parties,interest groups, media, and other institutions that intercede between the electorateand those who govern reinforces this constitutional structure and thus help maintaindemocratic stability.The U.S. constitutional system has ve distinctive elements: federalism, the divi-sion of powers between the national and state governments; separation of powersamong the executive, judicial, and legislative branches; bicameralism, the division oflegislative power between the House of Representatives and the Senate; checks andbalances in which each branch is given the constitutional means, the political inde-pendence, and the motives to check the powers of the other branches so that a relativebalance of power between the branches endures; and a judicially enforceable, written,explicit Bill of Rights that provides a guarantee of individual liberties and due processbefore the law.We ve now discussed the conditions conducive to viable constitutional democ-racy, as well as the values, political processes, and political structures that help fosterit. These provide a foundation on which we can assess governments around the world,as well as the extraordinary story of the founding and enlargement of constitutionaldemocracy in the United States, to which we turn next.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 43. The Roots of the American Constitutional Experiment * 13The Roots of the American ConstitutionalExperimentMost of us probably consider the natural order of history democracy and a consti-tution. We take pride in our ability to make it work, yet we have essentially inheriteda functioning system, the work of others, nine or ten generations ago. Yet our job isnot just to keep it going, but to improve it and adapt it to the challenges of ourtimes. To do so, however, we must first understand it by recalling our democraticand constitutional roots.The Colonial BeginningsOur democratic experiment might well have failed. The 13 original states (formerlycolonies) were independent and could have gone their separate ways. Differences be-tween them, based on social and economic conditions, especially the southern statesdependence on slavery, were an obvious challenge to unity. Religious, ethnic, andracial diversity, which frustrate so many governments around the world today, alsoexisted in the early United States.Given these potential problems, how did democracy survive? The framers ofthe Constitution had experience to guide them. For almost two centuries, Europeanshad been sailing to the New World in search of liberty especially religious libertyas well as land and work. In 1620, while still aboard the May ower, the Pilgrims haddrawn up a compact to protect their religious freedom and to make possible justand equal laws. The experience of settling a new land, overcoming obstacles, andenjoying the fruits of their labors was also important to the spirit of independence inthe colonies.14But freedom in the colonies was limited. The Puritans in Massachusetts establisheda theocracy, a system of government in which religious leaders claimed divine guidanceand in which other sects were denied religious liberty. Later, as that system was chal-lenged, the Puritans continued to worry about what would maintain order in a societylacking an established church, an attachment to place, and the uncontested leadershipof men of merit. 15 Nine of the 13 colonies eventually set up a state church. Throughoutthe 1700s, Puritans in Massachusetts barred certain men from voting on the basis ofchurch membership.Women, slaves, and Native Americans could not vote at all.By the 1700s, editors in the colonies found they could speak freely in their news-papers, dissenters could distribute lea ets, and agitators could protest in taverns or inthe streets. And yet dissenters were occasionally exiled, imprisoned, and even exe-cuted, and some printers were beaten and had their shops closed. In short, thecolonists struggled with the balance between unity and diversity, stability and dissent,order and liberty.The Rise of Revolutionary FervorAs resentment against British rule mounted during the 1770s and revolutionary fervorrose, the colonists became determined to ght the British to win their rights and liber-ties. In 1776, a year after the ghting broke out in Massachusetts, the Declaration ofIndependence proclaimed in ringing tones that all men are created equal, endowed bytheir Creator with certain unalienable rights; that among them are life, liberty, andthe pursuit of happiness ; that to secure those rights, governments are institutedamong men; and that whenever a government becomes destructive of those ends, it isthe right of the people to alter or abolish it. (Read the full text of the Declaration ofIndependence in the Appendix.)We have heard these great ideals so often that we take them for granted.Revolutionary leaders did not. They were deadly serious about these rights and willingto ght and pledge their lives, fortunes, and sacred honor for them. Indeed, by signingtheocracyGovernment by religious leaders, who claimdivine guidance.LEARNING OBJECTIVE* Show how politics before 1787shaped the Constitution.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 44. The American Revolutionary War was waged bymilitias and volunteers who overcame manychallenges to prevail.14 * CHAPTER 1 Constitutional DemocracyArticles of ConfederationThe rst governing document of the confeder-ated states, drafted in 1777, rati ed in1781, and replaced by the presentConstitution in 1789.the Declaration of Independence they were effectively signing their own death war-rants if the Revolution failed.16 In most cases, state constitutions guaranteed freespeech, freedom of religion, and the natural rights to life, liberty, and property. All theirconstitutions spelled out the rights of persons accused of crime, such as knowing thenature of the accusation, confronting their accusers, and receiving a timely and publictrial by jury.17 Moreover, these guarantees were set out in writing, in sharp contrast tothe unwritten British constitution.Toward Unity and OrderAs the war against the British widened to include all 13 colonies, the need arose fora stronger central government to unite them. In 1777 Congress established a newnational government, the Confederation, under a written document called theArticles of Confederation.18 Though they were established in 1777, the Articleswere not approved by all the state legislatures until 1781, after Washingtons troopshad been fighting for six years.The Confederation was more like a fragile league of friendship than a nationalgovernment. There was no national executive, judiciary, or coinage. Congress had towork through the states and had no direct authority over citizens. It could not levytaxes, regulate trade between the states or with other nations, or prevent the states fromtaxing each others goods or issuing their own currencies. The lack of a judicial systemmeant that the national government had to rely on state courts to enforce national lawsand settle disputes between the states. In practice, state courts could overturn nationallaws. Moreover, with the end of the Revolutionary War in 1783, the sense of urgencythat had produced unity among the states began to fade. Con icts between states andbetween creditors and debtors within the various states grew intense. Foreign threatscontinued; territories ruled by England and Spain surrounded the weak new nation. Aspressures on the Confederation mounted, many leaders became convinced that a morepowerful central government was needed to create a union strong enough to deal withinternal diversity and factionalism and to resist external threats.In September 1786, under the leadership of Alexander Hamilton, supporters ofa truly national government took advantage of the Annapolis Convention aAnnapolis ConventionA convention held in September 1786 toconsider problems of trade and navigation,attended by ve states and important becauseit issued the call to Congress and the states forwhat became the Constitutional Convention.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 45. The Constitutional Convention of 1787 * 15meeting in Annapolis, Maryland, on problems of trade and navigation attended bydelegates from five states to issue a call for a convention to consider basicamendments to the Articles of Confederation. The delegates were to meet inPhiladelphia on the second Monday of May 1787, to devise such further provi-sions as shall appear to them necessary to render the Constitution of the FederalGovernment adequate to the exigencies of the Union. 19 This meeting became theConstitutional Convention.For a short time, all was quiet. Then, late in 1786, messengers rode into GeorgeWashingtons plantation at MountVernon inVirginia with the kind of news he and otherleaders had dreaded. Farmers in western Massachusetts, crushed by debts and taxes,were rebelling against foreclosures, forcing judges out of their courtrooms, and freeingdebtors from jails. As a patriot and a wealthy landowner, Washington was appalled.What, gracious God, is man? he exclaimed.Not all reacted as Washington did to what became known as Shays Rebellion(named for Daniel Shays, its leader). When Abigail Adams, the politically knowl-edgeable wife of John Adams, the Revolutionary statesman from Massachusetts,sent news of the rebellion to Thomas Jefferson, the Virginian replied, I like a littlerebellion now and then, noting also that the tree of liberty must be refreshed fromtime to time with the blood of patriots and tyrants. It is its natural manure. 20 Butthe rebellion highlighted the lack of a mechanism to enforce contractual obliga-tions in the absence of a strong central government. Some, like historian Charles A.Beard, have argued that the primary motive of the authors of the U.S. Constitutionwas the protection of their economic interests more than a concern for other val-ues.21 Beard s views have been challenged.22 Most agree that while the early leadersof the United States were protecting their own economic interests, that was nottheir only motive.Shays Rebellion petered out after the farmers attacked an arsenal and were cutdown by cannon re. The uprising had threatened prosperity, the established order,and the rule of law, and reinforced the view that a stronger national government wasneeded. Congress issued a cautiously worded call to all the state legislatures toappoint delegates for the sole and express purpose of revising the Articles ofConfederation. 23 The call for a convention speci ed that no recommendation wouldbe effective unless approved by Congress and con rmed by all the state legislatures, asprovided by the Articles.The Constitutional Convention of 1787The delegates who assembled in Philadelphia in May 1787 had to establish a nationalgovernment powerful enough to prevent the young nation from dissolving but not sopowerful that it would crush individual liberty. What these men did continues to havea major impact on how we are governed. It also provides an outstanding lesson inpolitical science for the world.The DelegatesThe various states appointed 74 delegates, but only 55 arrived in Philadelphia. Ofthese, approximately 40 actually took part in the work of the convention. It was a dis-tinguished gathering. Many of the most important men of the nation were there: suc-cessful merchants, planters, bankers, lawyers, and former and present governors andcongressional representatives (39 of the delegates had served in Congress). Most hadread the classics of political thought. Most had experience constructing local and stategovernments. Many had also worked hard to create and direct the national confedera-tion of the states. And the Constitutional Convention also included eight of the 56signers of the Declaration of Independence.The convention was as representative as most political gatherings were at thetime: The participants were all white male landowners. These well-read, well-fed,Constitutional ConventionThe convention in Philadelphia, from May 25 toSeptember 17, 1787, that debated and agreedon the Constitution of the United States.Shays RebellionA rebellion led by Daniel Shays of farmers inwestern Massachusetts in 1786 1787 protest-ing mortgage foreclosures. It highlighted theneed for a strong national government just asthe call for the Constitutional Conventionwent out.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 46. HISTORY MAKERSAlexander Hamilton and James MadisonIn the Constitution of the United States, theframers offered perhaps the most brilliantexample of collective intellectual genius com-bining theory and practice in the history ofthe Western world. How could a country sosparsely populated by today s standards pro-duce several dozen men of genius who metin Philadelphia, not to mention another hun-dred or so equally talented political thinkerswho did not attend? The lives of two promi-nent delegates, Alexander Hamilton andJames Madison, help explain the origins ofthis collective genius.Alexander Hamilton (1757 1804) came tothe United States from the West Indies andwhile still a college student won national at-tention for his brilliant pamphlets in defenseof the Revolutionary cause. During the war,he served as General Washington s aide,and his experiences con rmed his distastefor a Congress so weak it could not evensupply the Revolution s troops with enoughfood or arms. He was the engineer of theAnnapolis Convention, and as early as 1778,he had been urging that the national govern-ment be made stronger.James Madison (1751 1836) helped frameVirginia s rst constitution in 1780 and servedboth in the Virginia Assembly and in theContinental Congress. Madison was also aleader of those who favored a stronger na-tional government.Like most of the other framers, Hamiltonand Madison were superbly educated. Bothhad extensive private tutoring a one-to-one teacher student ratio. Like scores ofother thinkers of the day, both also had widepractical experience in religion, politics, andgovernment.Both men were also moral philosophers.They had strong views on the supreme valueof liberty as well as on current issues. Insteadof simply sermonizing about liberty, they ana-lyzed it; they debated what liberty meant,how to protect it, and how to expand it.QUESTIONS1. Do we have exceptional leaderslike Hamilton and Madison today?How were the framers of theConstitution different from today spoliticians?2. How did Hamilton and Madisonseducation and experience help them bemore creative and combine theory withpractice in their role as political inventors?James Madison.Alexander Hamilton.16well-bred, and often well-wed delegates were mainly state or national leaders, for inthe 1780s, ordinary people were not likely to participate in politics. (Even today,farm laborers, factory workers, and truck drivers are seldom found in Congress, al-though a haberdasher, a peanut farmer, and a movie actor have made their way tothe White House.)Although active in the movement to revise the Articles of Confederation, GeorgeWashington had been reluctant to attend the convention and accepted only when per-suaded that his prestige was needed for its success. He was selected unanimously topreside over the meetings. According to the records, he spoke only twice during thedeliberations, yet his in uence was felt in the informal gatherings as well as during thesessions. Everyone understood that Washington favored a more powerful central gov-ernment led by a president. In fact, the general expectation that he would be the rstpresident played a crucial role in the creation of the presidency. No one feared that hewould misuse power.... His genuine hesitancy, his reluctance to assume the position,only served to reinforce the almost universal desire that he do so. 24To encourage everyone to speak freely and allow delegates to change their mindsafter debate and discussion, the proceedings of the convention were kept secret anddelegates were forbidden to discuss them with outsiders. The delegates also knew thatif word of the inevitable disagreements got out, it would provide ammunition for themany enemies of the convention.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 47. 17If the Constitutional Convention were con-vened today, how would the delegatescompare to the all-white, all-male, property-owning delegates who drafted theConstitution in Philadelphia in 1787? Onelikely similarity is that they would be suc-cessful and generally well-educated individ-uals willing to engage in public service.Many of those who drafted the Constitutionhad served in state legislatures. If theConstitutional Convention were held today andincluded state legislators, it would be muchmore diverse. Almost 25 percent of state legis-lators are now female on average, including atleast a third in Maryland, Delaware, Arizona,Colorado, Kansas, Nevada, and Vermont. Atthe same time, state legislatures remain almostentirely white only 9 percent were AfricanAmerican in 2007, and just 3 percent wereHispanic.Many of those who drafted theConstitution were also lawyers and success-ful business managers. If the ConstitutionalConvention were held today and includedthese professions, the proportion of womenparticipating would be between 35 and 40percent, and 15 percent of the delegateswould not be white.* Although these propor-tions show a growing diversity among the del-egates who might be called to PhiladelphiaThe Constitutional ConventionTHE CHANGING FACE OF U.S. POLITICStoday, they do not yet re ect the diversity ofthe population at large.QUESTIONS1. How would the recent changes in U.S. de-mographics translate into changes in thecontent of any constitution produced by aConstitutional Convention held today?2. Why are lawyers disproportionately rep-resented in politics, both today and atthe Constitutional Convention? What dif-ference does having so many lawyers asconstitution makers have on the processand on the document they produce?*U.S. Equal Employment Opportunity Commission, Diversity in Law Firms, different constituencies and dif-ferent ideologies, the Constitutional Conventiondevised a totally new form of government thatprovided for a central government strongenough to rule but still responsible to its citizensand to the member states.ConsensusThe Constitutional Convention is usually discussed in terms of its three famous com-promises: the compromise between large and small states over representation inCongress, the compromise between North and South over the regulation and taxationof foreign commerce, and the compromise between North and South over the countingof slaves for the purposes of taxation and representation. There were other importantcompromises. Yet on many signi cant issues, most of the delegates were in agreement.All the delegates publicly supported a republican form of government based onelected representatives of the people. This was the only form the convention seriouslyGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 48. 18 * CHAPTER 1 Constitutional DemocracyThe Assembly Room of Independence Hall inPhiladelphia, Pennsylvania.considered and the only form acceptable to the nation. Equally important, all the del-egates opposed arbitrary and unrestrained government.Most of the delegates were in favor of balanced government in which no single in-terest would dominate, and in which the national government would be strongenough to protect property and business from outbreaks like Shays Rebellion.Benjamin Franklin, the 81-year-old delegate from Pennsylvania, favored extendingthe right to vote to all white males, but most of the delegates believed landowners werethe best guardians of liberty. James Madison feared that those without property, if giventhe right to vote, might combine to deprive property owners of their rights. Delegatesagreed in principle on limited voting rights but differed over the kind and amount ofproperty owned as a prerequisite to vote. The framers recognized that they would jeop-ardize approval of the Constitution if they made the quali cations to vote in federal elec-tions more restrictive than those of the states. As a result, each state was left to determineits own quali cations for electing members of the House of Representatives, the onlybranch of the national government that was to be elected directly by the voters.Within ve days of its opening, the convention voted with only the Connecticutdelegates dissenting that a national government ought to be established consistingof a supreme legislative, executive, and judiciary. This decision profoundly changedthe nature of the union, from a loose confederation of states to a true nation.Few dissented from proposals to give the new Congress all the powers of the oldCongress, plus all other powers necessary to ensure that state legislation would not chal-lenge the integrity of the United States. After the delegates agreed on the extensive pow-ers of the legislative branch and the close connection between its lower house and thepeople, they also agreed that a strong executive, which the Articles of Confederation hadlacked, was necessary to provide energy, direction, and a check on the legislature. Theyalso accepted an independent judiciary without much debate. Other issues, however,sparked con ict.Con ict and CompromiseSerious differences among the various delegates, especially between those from the largeand small states, predated the Constitutional Convention. With the success of the War ofIndependence, the United States gained the formerly British land west of the colonialborders. States with large western borders such as Virginia claimed that their bordersLEARNING OBJECTIVE* Identify the most importantcompromises achieved by thedelegates to the ConstitutionalConvention of 1787.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 49. The Constitutional Convention of 1787 * 19should simply be extended, as depicted in Figure 1 1. Colonies without open Westernborders such as New Jersey and Connecticut took exception to these claims, reinforcingthe tension between the colonies.The matter was resolved in the Land Ordinance of 1785and the Northwest Ordinance of 1787, when all states agreed to cede the western lands tothe national government and permit them to eventually become part of new states ratherthan expand the borders of existing states. But the rivalries between the former coloniesremained sharp at the convention in Philadelphia in 1787. For example, the large statesalso favored a strong national government (which they expected to dominate), while del-egates from small states were anxious to avoid being dominated.This tension surfaced in the rst discussions of representation in Congress.Franklin favored a single-house national legislature, but most states had had two-chamber legislatures since colonial times, and the delegates were used to this system.Bicameralism the principle of the two-house legislature re ected delegates beliefin the need for balanced government. The Senate, the smaller chamber, would repre-sent the states and to some extent the wealthier classes, and it would offset the larger,more democratic House of Representatives.The Virginia Plan The Virginia delegation took the initiative. They presented 15resolutions known as the Virginia Plan. This called for a strong central governmentwith a legislature composed of two chambers. The voters were to elect the members ofWestern land claims of the states,ceded to Congress in 1791States after ceding claims to CongressVIRGINIA MARYLANDDELAWARENEW JERSEYMASS.RHODEISLANDCONNECTICUTNORTHCAROLINASOUTHCAROLINAGEORGIAPENNSYLVANIANEWYORKVERMONTNEW HAMPSHIRE Governedby Mass.Disputed with BritainDisputedwith SpainClaimed byMass.Claimed byN.C.ClaimedbyGeorgiaClaimed by S.C.BRITISHNORTH AMERICA(CANADA)SPANISHTERRITORYSPAN I S H TERRITORYNORTHWESTTERRITORYClaimedbyVirginiaClaimed by Conn.A T L A N T I CO C E A NG u l f o f M e x i c o00 100 200 Kilometers100 200 MilesOhio R.MississippiR.Lake ErieL. OntarioLakeHuronLakeMichiganLake SuperiorSt. Lawrence R.FIGURE 1 1Western expansion, 1791.bicameralismThe principle of a two-house legislature.Virginia PlanThe initial proposal at the ConstitutionalConvention made by the Virginia delegation fora strong central government with a bicamerallegislature dominated by the big states.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 50. the more representative chamber, which would choose the members of the smallerchamber from nominees submitted by the state legislatures. Representation in bothhouses would be based on either wealth or numbers, which would give the wealthierand more populous states Massachusetts, Pennsylvania, and Virginia a majority inthe national legislature.The Congress thus created was to have all the legislative power of its predecessorunder the Articles of Confederation, as well as the power to legislate in all cases inwhich the separate States are incompetent, to veto state legislation that con ictedwith the proposed constitution, and to choose a national executive with extensive juris-diction. A national Supreme Court, along with the executive, would have a quali edveto over acts of Congress. In sum, the Virginia Plan would have created a strong na-tional government with disproportionate power to the more populous states and muchless powerful smaller states.The New Jersey Plan The Virginia Plan dominated the discussion for the rst fewweeks. That changed when delegates from the small states put forward their plan.William Paterson of New Jersey presented a series of resolutions known as theNew Jersey Plan. Paterson did not question the need for a strengthened centralgovernment, but he was concerned about how this strength might be used. The NewJersey Plan would give Congress the right to tax and regulate commerce and to coercestates, and it would retain the single-house or unicameral legislature (as underthe Articles of Confederation) in which each state, regardless of size, would have thesame vote.The New Jersey Plan contained the germ of what eventually came to be a keyprovision of our Constitution: the supremacy clause. The national Supreme Courtwas to hear appeals from state judges, and the supremacy clause would require alljudges state and national to treat laws of the national government and thetreaties of the United States as superior to the constitutions and laws of each of thestates. (Table 1 1 outlines the key features of the Virginia and New Jersey Plans.)For a time the convention was deadlocked. The small states believed that all statesshould be represented equally in Congress, especially in the smaller upper house ifthere were to be two chambers. The large states insisted that representation in bothhouses be based on population or wealth, and that voters, not state legislatures, shouldelect national legislators. Finally, the so-called Committee of Eleven was elected to devisea compromise. On July 5, it presented its proposals, including what came to be known asthe great or Connecticut Compromise.The Connecticut Compromise The Connecticut Compromise (so labeled becauseof the prominent role the Connecticut delegation played in constructing it) calledfor one house in which each state would have an equal vote, and a second house inwhich representation would be based on population, and in which all bills for20 * CHAPTER 1 Constitutional DemocracyNew Jersey PlanThe proposal at the Constitutional Conventionmade by William Paterson of New Jersey for acentral government with a single-houselegislature in which each state would berepresented equally.Connecticut CompromiseThe compromise agreement by states at theConstitutional Convention for a bicamerallegislature with a lower house in whichrepresentation would be based on populationand an upper house in which each state wouldhave two senators.TABLE1 1 The Virginia and New Jersey PlansVirginia Plan New Jersey PlanLegitimacy derived from citizens, based onpopular representationDerived from states, based on equal votesfor each stateBicameral legislature Unicameral legislatureExecutive size undetermined, elected andremovable by CongressMore than one person, removable bystate majorityJudicial life tenure, able to veto state legislation No power over statesLegislature can override state laws Government can compel obedience tonational lawsRati cation by citizens Rati cation by statesGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 51. The Constitutional Convention of 1787 * 21raising or appropriating money a key function of governmentwould originate. This proposal was a setback for the large states,which agreed to it only when the smaller states made it clear this wastheir price for union. After the delegates accepted equality of staterepresentation in the Senate, most objections to a strong nationalgovernment dissolved.North South Compromises Other issues split the delegates from theNorth and South. Southerners were afraid that a northern majority inCongress might discriminate against southern trade. They had somebasis for this concern. John Jay, a New Yorker who was secretary offoreign affairs for the Confederation, had proposed a treaty with GreatBritain that would have given advantages to northern merchants atthe expense of southern exporters of agricultural products suchas tobacco and cotton. To protect themselves, the southern dele-gates insisted that a two-thirds majority in the Senate be required toratify a treaty.One subject that appears not to have been open for resolutionwas slavery. The view widely shared among historians is that thestates with a greater reliance on slaves would have left the conven-tion if the document had reduced or eliminated the practice. Theissue did arise over whether to count slaves for the purpose of appor-tioning seats in the House of Representatives. To gain more represen-tatives, the South wanted to count slaves; the North resisted. Afterheated debate, the delegates agreed on the three- fths compromise.Each slave would be counted as three- fths of a free person for thepurposes of apportionment in the House and of direct taxation. Thisfraction was chosen because it maintained a balance of power be-tween North and South The compromise also included a provision toeliminate the importation of slaves within 20 years, and Congress didso in 1808. The issue of balance between North and South wouldrecur in the early history of our nation as territorial governmentswere established and territories that applied for statehood decidedwhether to permit or ban slavery.Other Issues Delegates also argued about other issues. Should thenational government have lower courts, or would one federal SupremeCourt be enough? This issue was left to Congress to resolve. TheConstitution states that there shall be one Supreme Court and thatCongress may establish lower courts.How should the president be selected? For a long time, the convention favored al-lowing Congress to pick the president, but some delegates feared that Congress wouldthen dominate the president, or vice versa. The convention also rejected election bythe state legislatures because the delegates distrusted the state legislatures. The dele-gates nally settled on election of the president by the electoral college, a group of in-dividuals equal in number to the U.S. senators and representatives. Originally it wasthought electors would exercise their own judgment in selecting the president. But thecollege quickly came to re ect partisanship, and today for most states, electors castballots for the candidate who wins the popular vote of that state. (We discuss the elec-toral college in greater detail in Chapter 9.) This was perhaps the delegates most novelcontribution as well as the most contrived, and it has long been one of the most criti-cized provisions in the Constitution.25 (See Article II, Section 1 of the Constitution,which is reprinted between Chapters 2 and 3.)After three months, the delegates stopped debating. On September 17, 1787, allbut three of those still present signed the document they were recommending to thenation. Others who opposed the general drift of the convention had already left. Theirwork well done, the delegates adjourned to the nearby City Tavern to celebrate.President Bill Clinton addresses a joint session of Congress in theHouse chamber during his 1999 State of the Union Address (top),and the Senate allows for a rare photograph of proceedings insidethe Senate chamber (bottom).three- fths compromiseThe compromise between northern and south-ern states at the Constitutional Convention thatthree- fths of the slave population would becounted for determining direct taxation andrepresentation in the House of Representatives.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 52. 22HOW OTHER NATIONS GOVERNFactors Contributing to Democratic StabilityPolitical scientists have long tried to deter-mine what factors contribute to stability ina democracy. Comparative studies have of-ten linked national prosperity to democraticsuccess. Other factors, such as educationand literacy, are important as well. The fol-lowing table lists several different dimensionsfor the countries that we will be comparing tothe United States throughout the book.These countries vary dramatically in someaspects. For example, note the extremelyyoung population of Nigeria compared to thegenerally older population of Japan. The prob-lems facing Japan in the future namely, howto deal with an increasingly older society aremuch different than in AIDS-ravaged Nigeria.Their respective governments will necessarilyapproach these problems differently. There arealso similarities between countries; for exam-ple, China and India both must cope with thechallenges presented by populations of morethan one billion people.QUESTIONS1. What surprises you as you compare theUnited States to the other countries inthis table?2. Notice that the U.S. population is lessthan one-fourth that of China. What arethe implications of that difference?3. What do you think accounts for thedifference in literacy between men andwomen in India, Nigeria, and to a lesserextent China?4. Japan has the longest life expectancy(82 years) and Nigeria the shortest(47.4 years). What are the implications ofthis difference for both governments?According to an old story, a woman confronted Benjamin Franklin as he left thelast session of the convention.What kind of government have you given us, Dr. Franklin? she asked. A republicor a monarchy?A republic, Madam, he answered, if you can keep it.To Adopt or Not to Adopt?The delegates had gone far. Indeed, they had disregarded Congresss instruction to dono more than revise the Articles of Confederation. In particular, they had ignoredArticle XIII, which declared the Union to be perpetual and prohibited any alteration ofthe Articles unless Congress and every one of the state legislatures agreed a provi-sion that had made it impossible to amend the Articles. The convention delegates,World Britain China India Japan Mexico NigeriaUnitedStatesPopulation(millions;July 2007 est.)6,602.22 60.78 1,321.85 1,129.87 127.43 108.7 135.03 301.14Median Age 28.1 39.9 33.6 25.1 43.8 26 18.7 36.7Life Expectancy 65.8 78.7 72.9 68.6 82 75.6 47.4 78LiteracyMale 87 99 95.1 73.4 99 92.4 75.7 99Female 77 99 86.5 47.8 99 89.6 60.6 99Government Type ConstitutionalmonarchyCommuniststateFederalrepublicConstitutionalmonarchyFederalrepublicFederalrepublicFederalrepublicGDP1 46.77 2.35 2.53 0.81 4.88 0.74 0.08 13.16Freedom House2 Free Not Free Free Free Free Partly free FreeSOURCES: Central Intelligence Agency, The 2008 World Factbook, at, and Freedom House, Freedom in the World2007: The Annual Survey of Political Rights and Civil Liberties, at 1) Calculated based on the country s of cial exchange rate in trillions of USD; 2) For more on Freedom House s Freedom Index, OBJECTIVE* Assess the arguments for andagainst the rati cation of theConstitution.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 53. To Adopt or Not to Adopt? * 23however, boldly declared that their newly proposed Constitution should go into effectwhen rati ed by popularly elected conventions in nine states.They turned to this method of rati cation for practical considerations as well as tosecure legitimacy for their proposed government. Not only were the delegates awarethat there was little chance of winning approval of the new Constitution in all state leg-islatures, but many also believed that a constitution approved by the people would havehigher legal and moral status than one approved only by a legislature. The Articles ofConfederation had been a compact of state governments, but the Constitution wasbased on the will of the people (recall its opening words: We the People... ). Still, eventhis method of rati cation would not be easy. The nation was not ready to adopt theConstitution without a thorough debate.Federalists Versus AntifederalistsSupporters of the new government, by cleverly appropriating the name Federalists,forced their opponents to be known as the Antifederalists and pointed up the negativecharacter of the arguments opposing rati cation. While advocating a strong nationalgovernment but also retaining state prerogatives, the Federalists took some of the stingout of charges that they were trying to destroy the states and establish an all-powerfulcentral government.The split was in part geographic. Seaboard and city regions tended to beFederalist strongholds; backcountry regions from Maine (then part of Massachusetts)through Georgia, inhabited by farmers and other relatively poor people, were gener-ally Antifederalist. But as in most political contests, no single factor completely ac-counted for the division between Federalists and Antifederalists. Thus in Virginia, theleaders of both sides came from the same general social and economic class. New YorkCity and Philadelphia strongly supported the Constitution, yet so did predominantlyrural New Jersey and Connecticut.The great debate was conducted through pamphlets, newspapers, letters to edi-tors, and speeches. It provides an outstanding example of a free people publicly dis-cussing the nature of their fundamental laws. Out of the debate came a series of essaysknown as The Federalist, written under the pseudonym Publius by AlexanderHamilton, James Madison, and John Jay to persuade the voters of New York to ratifythe Constitution. The Federalist is still widely regarded as the most profound singletreatise on the Constitution ever written and as among the few masterly works in polit-ical science produced in all the centuries of history. 26 (Three of the most importantFederalist essays, Nos. 10, 51, and 78, are reprinted in the Appendix of this book.)The Antifederalists most telling criticism of the proposed Constitution was its fail-ure to include a bill of rights.27 Antifederalists opposed the creation of a strong centralgovernment because they believed state and local governments would remain more re-sponsive to local needs and concerns. They worried that under the Constitution,Congress would impose barriers against commerce, and they were concerned thatthe Constitution did not do enough to ensure frequent rotation of of ce, meaningelected of cials could not be recalled through elections and over time would becomeless concerned with their constituents.28 The Federalists believed a bill of rights was un-necessary because the proposed national government had only the speci c powers thatthe states and the people delegated to it. Thus there was no need to specify thatCongress could not, for example, abridge freedom of the press, because the states andthe people had not given the national government power to regulate the press in therst place. Moreover, the Federalists argued, to guarantee some rights might be danger-ous, because rights not listed could be assumed to be denied. The Constitution itself al-ready protected some important rights the requirement of trial by jury in federalcriminal cases, provided for in Article III, for example. Hamilton and others also in-sisted that paper guarantees were feeble protection against governmental tyranny.The Antifederalists were unconvinced. If some rights were protected, what could bethe objection to providing constitutional protection for others? Without a bill of rights,FederalistsSupporters of rati cation of the Constitutionand of a strong central government.AntifederalistsOpponents of rati cation of the Constitutionand of a strong central government generally.The FederalistEssays promoting rati cation of theConstitution, published anonymously byAlexander Hamilton, John Jay, and JamesMadison in 1787 and 1788.You Are James MadisonGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 54. 24 * CHAPTER 1 Constitutional Democracywhat was to prevent Congress from using one of its delegated powers to abridge freespeech? If bills of rights were needed in state constitutions to limit state governments,why did the national constitution not include a bill of rights to limit the national govern-ment? This was a government further from the people, they contended, with a greatertendency to subvert natural rights than was true of state governments.The Politics of Rati cationThe absence of a bill of rights in the proposed Constitution dominated the struggleover its adoption. In taverns, churches, and newspaper of ces, people were mutter-ing, No bill of rights no Constitution! This feeling was so strong that someAntifederalists, though they were far more concerned with states rights than indi-vidual rights, joined forces with those wanting a bill of rights in order to defeat theproposed Constitution.The Federalists began the debate over the Constitution as soon as the delegates leftPhiladelphia in mid-September 1787. Their tactic was to secure rati cation in as manystates as possible before the opposition had time to organize. The Antifederalists werehandicapped because most newspapers supported rati cation. Moreover, Antifederaliststrength was concentrated in rural areas, which were underrepresented in some statelegislatures and in which it was more dif cult to arouse the people to political action.The Antifederalists needed time to organize, while the Federalists moved in a hurry.Most of the small states, now satis ed by getting equal Senate representation, rati-ed the Constitution without dif culty. Delaware was the rst, and by early 1788,Pennsylvania, New Jersey, Georgia, and Connecticut had also rati ed (see Table 1 2). InMassachusetts, however, opposition was growing. Key leaders, such as John Hancockand Samuel Adams, were doubtful or opposed. The debate in Boston raged for most ofJanuary 1788 and into February. But in the end, the Massachusetts Convention narrowlyrati ed the Constitution in that state, 187 to 168.By June 21, 1788, Maryland, South Carolina, and New Hampshire had also rati ed,giving the Constitution the nine states required for it to go into effect. But two big hur-dles remained: Virginia and New York. It would be impossible to begin the new govern-ment without the consent of these two major states. Virginia was crucial. As the mostpopulous state and the home of Washington, Jefferson, and Madison,Virginia was a linkPatrick Henry s famous cry of Give me libertyor give me death! helped rally support for therevolution against Britain. Later he was anoutspoken opponent of rati cation of theConstitution and was instrumental in forcingadoption of the Bill of Rights.TABLE1 2 Ratification of theU.S. ConstitutionState DateDelaware December 7, 1787Pennsylvania December 12, 1787New Jersey December 18, 1787Georgia January 2, 1788Connecticut January 9, 1788Massachusetts February 6, 1788Maryland April 28, 1788South Carolina May 23, 1788New Hampshire June 21, 1788Virginia June 25, 1788New York July 26, 1788North Carolina November 21, 1789Rhode Island May 29, 1790Comparing Political LandscapesGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 55. Chapter Summary * 25CHAPTER SUMMARYform and consolidate. Among these, educational,economic, social, and ideological conditions are the mostimportant.- Explain the importance to successful democracy of values,political processes, and political structures.The essential democratic values are a belief in personal lib-erty, respect for the individual, equality of opportunity, andpopular consent. Essential elements of the democraticprocess are free and fair elections, majority rule, freedomof expression, and the right to assemble and protest.Political structures include courts, legislatures, the execu-tive, and administrative agencies. In the United States thepolitical structure also includes federalism and the princi-ple of limited government.. Show how politics before 1787 shaped the Constitution.In the formative years of American democracy, severalcompeting factions worked, sometimes at cross pur-poses, to develop the Constitution. Some of the mostdivisive issues that the framers had to address werethe challenges presented by a federal system. Smallstates had real concerns about their role in a democraticsystem. There were also issues that had more to do withgeography and economics. The divide between theNorth and the South on slavery was also importantat the convention./ Identify the most important compromises achievedby the delegates to the Constitutional Convention of 1787.The framers came up with some brilliant compromisesto address these issues, such as the ConnecticutCompromise that led to our current bicameral legislativebranch. Other issues were put on hold. For example, the* De ne government, politics, politicians, political science,and constitutional democracy.The United States operates under a constitutionaldemocracy. Within our system, the Constitution lays outthe basic rules of the game under which politicians act toaccomplish their different agendas. Politics is a broadterm that can be used to describe what happens betweenthese politicians in pursuit of their goals. Governmentis another broad term that encompasses the manydifferent institutions enumerated by the Constitution inwhich the politicians function. Political science studies theinteraction between politics, politicians, the government,and, within the American context, our constitutionaldemocracy.+ Differentiate democracy from other forms of government.In the United States, we often use the term democracy todescribe our form of government. This is true to an extent,but a more accurate term would be representative democ-racy or republic. The politicians in our system areelected representatives meant to stand up for the interestsof their constituents. Many other forms of governmenthave been tried throughout the worlds history.Representative democracy differs from direct democracyin the level of citizen participation. Citizens of the UnitedStates take for granted the peaceful transfer of power ashappened after the 2008 presidential election., Identify the conditions that help democracy ourish andexplain why they do so.In recent years, political scientists have directed muchattention to the question of what conditions are conduciveto democratic governments. Scholars have identi edseveral factors that may help democratic governmentsbetween North and South. The Virginia ratifying convention rivaled the ConstitutionalConvention in the caliber of its delegates. Madison, who had only recently switched tofavoring a bill of rights after saying earlier that it was unnecessary, captained theFederalist forces. The ery Patrick Henry led the opposition. In an epic debate, Henrycried that liberty was the issue: Liberty, the greatest of earthly possessions...that pre-cious jewel! But Madison promised that a bill of rights embracing the freedoms ofreligion, speech, and assembly would be added to the Constitution as soon as the newgovernment was established. Washington tipped the balance with a letter urging rati -cation. News of the Virginia vote, 89 for the Constitution and 79 opposed, was rushed toNewYork.29The great landowners along NewYorks Hudson River, unlike the southern planters,opposed the Constitution. They feared federal taxation of their holdings, and they didnot want to abolish the pro table tax New York had been levying on trade and com-merce with other states. When the convention assembled, the Federalists were greatlyoutnumbered, but they were aided by Alexander Hamiltons strategy and skill, and byword of Virginias rati cation. New York approved by a margin of three votes. AlthoughNorth Carolina and Rhode Island still remained outside the Union (the former rati edin November 1789, the latter six months later), the new nation was created. In NewYork, a few members of the old Congress assembled to issue the call for elections underthe new Constitution. Then they adjourned without setting a date for reconvening.What Are American Civic Values?Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 56. 26Chapter Self-Test1. Write a short essay discussing the intersection betweengovernment and politics. In what ways are they similar?How are they different? (pp. 4 5)2. In a few sentences, de ne political science and discusswhy it is a useful eld of study. (p. 4)3. Explain the differences and similarities between directdemocracy and representative democracy in a shortparagraph. (pp. 5 7)4. The framers of the Constitution had concerns aboutunlimited direct democracy. List some of those con-cerns. (pp. 5 7)5. Russia has a well-educated population and a fairlystrong economy. However, its people do not havemuch experience with democracy and many are suspi-cious of it. Given these facts, assess the prospects fordemocracy in Russia using the criteria listed in thechapter. (pp. 8 9)6. Write a short essay explaining how democratic valuesare important to a successful democracy. (pp. 9 10)7. Write a short essay explaining how speci c values havecontributed to the relative longevity of democracy inthe United States. Which values seem most important toU.S. citizens? (pp. 9 10)8. Identify three or four issues the United States facestoday that the founders could not have foreseen.Discuss brie y how the Constitution is relevant to theseissues. (pp. 7 12)9. Put the following events in chronological order:(pp. 13 25)a. Drafting of the Articles of Confederationb. Revolutionary Warc. Declaration of Independenced. Constitutional Conventione. Shay s Rebellionf. Rati cation of the Constitution10. Identify three or four historical tensions that impededrati cation of the constitution that have persisted intopresent-day politics. (pp. 18 25)11. Which state was the compromise that led to a bicamerallegislature named after? (p. 20)a. Rhode Islandb. Connecticutc. New Hampshired. Maine12. The critical compromise reached to accommodateconcerns over how to count slaves for apportion-ment purposes was known as the __________compromise: (p. 21)a. 3/4b. 3/5c. 2/3d. 5/713. Write a brief persuasive essay adopting theAntifederalist position against rati cation of theconstitution. In your essay list two or three argu-ments that you feel Federalists would put forwardand then counter those with your persuasivearguments. (pp. 23 25)14. Match the following articles with their appropriate sub-ject (see Appendix):a. Art. I i. Interstate Relationsb. Art. II ii. Rati cationc. Art. III iii. Congressionald. Art. IV iv. Amending Powere. Art. V v. Executivef. Art. VI vi. Supremacy Actg. Art. VII vii. Judiciary15. Assess the arguments for and against the rati cation ofthe Constitution. Write one paragraph for each, beingsure to explain the best arguments and the criticismsagainst them.framers postponed dealing with slavery and compromisedon counting slaves as three- fths of a person for purposesof apportionment.* Assess the arguments for and against the rati cation ofthe Constitution.Some of the same themes that dominated the debate overrati cation can still be heard today. Federalists argued for acentral government that would be strong enough to makethe newly united states capable of standing up to the greatpowers of the time. Antifederalists worried about whatmight come of a strong central government and were par-ticularly concerned about the lack of any bill of rights inthe document.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 57. 27Further ReadingBERNARD BAILYN, ED., The Debate on theConstitution: Federalist and AntifederalistSpeeches, Articles, and Letters During theStruggle over Rati cation, 2 vols. (Libraryof America, 1993).LANCE BANNING, The Sacred Fire of Liberty:James Madison and the Founding of theFederal Republic (Cornell UniversityPress, 1995).ROBERT A. DAHL, How Democratic Is theAmerican Constitution, 2d ed. (YaleUniversity Press, 2003).ROBERT A. DAHL, On Democracy (YaleUniversity Press, 1998).STANLEY ELKINS AND ERIC MCKITRICK,The Age of Federalism: The Early AmericanRepublic, 1788 1800 (Oxford UniversityPress, 1994).DAVID HACKETT FISCHER,Washingtons Crossing (Oxford UniversityPress, 2004).ALAN GIBSON, Understanding theFounding: Crucial Questions (UniversityPress of Kansas, 2007).ALEXANDER HAMILTON, JAMES MADISON,AND JOHN JAY, The Federalist Papers, ed.Clinton Rossiter (New American Library,1961). Also in several other editions.MATTHEW S. HOLLAND, Bonds ofAffection: Civic Charity and the Making ofAmerica Winthrop, Jefferson and Lincoln(Georgetown University Press, 2007).PHILIP B. KURLAND AND RALPH LERNER,The Founders Constitution, 5 vols.(University of Chicago Press, 1987).SANFORD LEVINSON, Our UndemocraticConstitution (Oxford University Press,2006).AREND LIJPHART, Patterns of Democracy:Government Forms and Performance inThirty-Six Countries (Yale UniversityPress, 1999).PAULINE MAIER, American Scripture:Making the Declaration of Independence(Vintage Books, 1997).STEPHEN MACEDO ET AL., Democracy atRisk: How Political Choices UndermineCitizen Participation, and What We CanDo About It (Brookings InstitutionPress, 2005).RICHARD B. MORRIS, Witnesses at theCreation: Hamilton, Madison, and Jayand the Constitution (Holt, Rinehart &Winston, 1985).PIPPA NORRIS, ED., Critical Citizens: GlobalSupport for Democratic Institutions(Oxford University Press, 1999).ROBERT PUTNAM, Making DemocracyWork (Princeton University Press, 1993).Key Termsdemocracy, p. 5direct democracy, p. 6representative democracy, p. 7constitutional democracy, p. 7constitutionalism, p. 7statism, p. 10popular consent, p. 10majority rule, p. 11majority, p. 11plurality, p. 11theocracy, p. 13Articles of Confederation, p. 14Annapolis Convention, p. 14Constitutional Convention, p. 15Shays Rebellion, p. 15bicameralism, p. 19Virginia Plan, p. 19New Jersey Plan, p. 20Connecticut Compromise, p. 20three- fths compromise, p. 21Federalists, p. 23Antifederalists, p. 23The Federalist, p. 23JACK N. RAKOVE, Original Meanings:Politics and Ideas in the Making of theConstitution (Vintage Books, 1997).GARY ROSEN, American Compact: JamesMadison and the Problem of Founding(University Press of Kansas, 1999).MICHAEL J. SANDEL, Democracy sDiscontent: America in Search of a PublicPhilosophy (Belknap Press, 1996).MICHAEL SCHUDSON, The Good Citizen: AHistory of American Civic Life (HarvardUniversity Press, 1998).CASS R. SUNSTEIN, Designing Democracy:What Constitutions Do (OxfordUniversity Press, 2001).ALEXIS DE TOCQUEVILLE, Democracy inAmerica, 2 vols. (1835).SEANWILENTZ, The Rise of AmericanDemocracy (Norton, 2005).GARRY WILLS, A Necessary Evil: A History ofAmerican Distrust of Government (Simon& Schuster, 1999).GORDON S.WOOD, The Radicalism of theAmerican Revolution (Knopf, 1992).See also the Journal of Democracy (JohnsHopkins University Press).Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 58. 2chapter
  • 59. The Constitution of the United States is the worlds oldest written constitution. Some224 other countries have written constitutions, but more than half (122) have beenadopted or signi cantly revised since 1990, with 17 new ones rati ed since 2000. Ninecountries have no written constitution, including Oman, New Zealand, and the UnitedKingdom.1Debate was critical in getting the signers agreement to the initial document of theU.S. Constitution in 1787. Since then, the ambiguity and brevity of many constitu-tional provisions have spurred a great deal of additional debate, although therehas not been a serious effort to alter our basic constitutional system of governmentsince the Constitution went into effect in 1789. Indeed, the potential to alter theConstitution through the amendment process has created a remarkable democraticsystem of government capable of withstanding a civil war, two world wars, and inter-nal and external security threats, all the while providing individual protections for anincreasingly heterogeneous population.One recent constitutional debate concerned students efforts to pray before theirhigh school football game. Written more than 200 years before this dispute, the FirstAmendment provided the framework to determine whether such an effort was consti-tutional. In September 1999, high school senior Marian Ward led a prayer before thefootball game between the Santa Fe Indians and the Crosby Cougars. In it, she saidGod, thank you for this evening.. . . I pray that you ll bless each and every person heretonight. 2 She ended her message by saying In Jesus name, amen. 3A little over a year later, the U.S. Supreme Court considered whether the pre-gameprayer at a public high school football game violated the First Amendments restriction onestablishing religion. In a 6-to-3 decision in Santa Fe Independent School District v. Doe,the Court said that it did. The justices decision was based on a number of factors, includ-ing the coercive pressure exerted on students, particularly nonbelievers.4The continuing debate regarding prayer in the public schools highlights both thegenius and a aw in the Constitution its lack of speci city. In composing theConstitution, the framers were conscious that they were writing a document thatneeded to withstand the test of time. By not specifying how the government shouldadminister the separation of church and state, they designed a document that otherscould apply to changing circumstances. However, this generality also results in contin-uing debates, which have included the appropriate authority of the governingbranches and the extent of national government authority over the states. The powerof the courts to determine what exactly the Constitution means has also led many toscrutinize the ways by which it reaches those decisions.Understanding the Constitution and considering its strengths and weaknesses is anecessary step in studying and participating in U.S. government. After such study, onestudent turned his college research paper at the University of Texas into a successfuldrive to ratify the Twenty-Seventh Amendment (concerning congressional salaries) in1992. We wont all achieve such a result through our participation, but by being moreknowledgeable about our system, we can better protect our own individual liberties,evaluate the appropriate authority of various elected and appointed governmentalof cials, and understand what it means to have a government with powers that areseparated, shared, and checked.29The Living ConstitutionLEARNING OBJECTIVES* Describe the basic structure of theConstitution and its Bill of Rights.+ Summarize the basic principles ofgovernment established by theConstitution., Compare and contrast the three mainbranches of the U.S. government.- Show how the system of checks andbalances operates among the threebranches of the U.S. government.. Show how the use of judicial reviewstrengthens the courts in aseparation of powers system./ Analyze the effect of Marbury v.Madison on the role of the judiciary.0 Explain how the meaning of theConstitution has evolved over time.1 Outline the way we make formalchanges to the Constitution.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 60. High school students pray outside their school before classes begin for the day. Although this typeof prayer has been upheld by the courts, the Supreme Court struck down student-led prayerbroadcasted over a stadium loudspeaker before a high school football game.30 * CHAPTER 2 The Living ConstitutionCHAPTER OUTLINE* Views of the Constitution* Checking Power with Power* Judicial Review and theGuardians of the Constitution* The Constitution as an Instrumentof Government* Changing the Letter of theConstitutionLEARNING OBJECTIVE* Describe the basic structureof the Constitution and its Billof Rights.In this chapter we ll discuss our constitutionally arranged system of separation ofpowers and checks and balances, as well as how special-interest groups and politicalparties try to circumvent these protections. We ll see how the judiciary came to bewidely accepted as the nal interpreter of constitutional meaning, and the way boththe executive and the legislature have used the Constitution to pursue their own ends.Finally, we will examine the dif cult process through which citizens can amend theConstitution. As the framers intended, that is no small feat, and one that is an impor-tant factor in the stability of our Constitution.Views of the ConstitutionIn addition to being the oldest written Constitution in the world, the U.S. Constitution isalso one of the shortest. The original Constitution, excluding the Bill of Rights, containsjust 4,543 words. Its basic structure is straightforward. Article I establishes a bicam-eral Congress, with a House of Representatives and a Senate, and empowers it to enactlegislation; for example, governing foreign and interstate commerce (as discussed furtherin Chapter 11). Article II vests the executive power in the president (as discussed inChapter 12), and Article III vests the judicial power in the Supreme Court and other fed-eral courts that Congress may establish (as discussed in Chapter 14). Article IV guaranteesthe privileges and immunities of citizens and speci es the conditions for admitting newstates. Article V provides for the methods of amending the Constitution, and Article VIspeci es that the Constitution and all laws made under it are the supreme law of the land.Finally, Article VII provides that the Constitution had to be rati ed by nine of the original13 states to go into effect. In 1791 the rst ten amendments, the Bill of Rights, were added,and another 17 amendments have been added since. The entire Constitution and itsamendments appear at the end of this chapter.Despite its brevity, the Constitution rmly established the framers experiment infree-government-in-the-making that each generation reinterprets and renews. That iswhy after more than 220 years we have not had another written Constitution letalone two, three, or more, like other countries around the world. Part of the reason isthe widespread acceptance of the Constitution across our population. But theComparing ConstitutionsGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 61. Checking Power with Power * 31LEARNING OBJECTIVE* Summarize the basic principles ofgovernment established by theConstitution.James Madison was the fourth president of theUnited States (1809 1817) and an author ofThe Federalist. Madison s view on a separatedsystem of government in which each branchchecks the power of other branches shapes ourgovernmental structure.natural lawGod s or nature s law that de nes right fromwrong and is higher than human law.Constitution has also endured because it is a brilliant structure for limited governmentand one that the framers designed to be adaptable and exible.As the Constitution won the support of citizens in the early years of the Republic,it took on the aura of natural law law that de nes right from wrong, which is higherthan human law. The framers grew ever larger in stature as they receded from view;the era in which they lived and fought became a Golden Age; in that age there hadbeen a fresh dawn for the world, and its men were giants against the sky. 5 Like thecrown in Great Britain, the Constitution became a symbol of national unity andloyalty, evoking both emotional and intellectual support from Americans, regardless oftheir differences. The framers work became part of the U.S. creed and culture.6The Constitution stands for liberty, equality before the law, limited or expandedgovernment indeed, for just about anything anyone wants to read into it.Even today, U.S. citizens generally revere the Constitution, though many do not knowwhat is in it. A poll by the National Constitution Center found that nine of ten U.S. adultsare proud of the Constitution and feel it is important to them. However, a third mistakenlybelieve the Constitution establishes English as the countrys of cial language. One in sixbelieves it establishes the United States as a Christian nation. Only one of four could namea single First Amendment right. Although two in three knew the Constitution created threebranches of the national government, only one of those could name all three branches.7The Constitution is more than a symbol, however. It is the supreme and binding lawthat both grants and limits powers. In framing a government which is to be administeredby men over men, wrote James Madison in The Federalist, No. 51, the great dif culty liesin this: you must rst enable the government to control the governed; and in the next placeoblige it to control itself. (See The Federalist, No. 51, in the Appendix of this book.) TheConstitution is both a positive instrument of government, which enables the governors tocontrol the governed, and a restraint on government, which enables the ruled to check therulers. How does the Constitution limit the power of the government? How does it creategovernmental power? How has it managed to serve as a great symbol of national unity andat the same time as an adaptable instrument of government? The secret is an ingeniousseparation of powers and a system of checks and balances that limits power with power.Checking Power with PowerIf men were angels, James Madison argued in The Federalist, No. 51, no governmentwould be necessary. If angels were to govern men, neither external nor internal controlson government would be necessary. 8 But the framers knew well that men were notangels, and thus to create a successful government, they would need to create a govern-ment of limited authority. How? Within the government, competing interests wouldcheck each other, and externally the governed would check the government throughelections, petitions, protests, and amendments. The framers wanted a stronger andmore effective national government than they had under the Articles of Confederation.But they were keenly aware that the people would not accept too much central control.Ef ciency and order were important concerns, but liberty was more important. Theframers wanted to ensure domestic tranquillty and prevent future rebellions, but theyalso wanted to forestall the emergence of a homegrown King George III. Accordingly,they allotted certain powers to the national government and reserved the rest for thestates, thus establishing a system of federalism (whose nature and problems we discussin Chapter 3). Even this was not enough. The framers believed additional restraints wereneeded to limit the national government.The most important means they devised to make public of cials observe theconstitutional limits on their powers was free and fair elections, through which voterscould throw those who abuse power out of of ce. Yet the framers were not willing todepend solely on political controls, because they did not fully trust the peoples judg-ment. Free government is founded on jealousy, and not in con dence, said ThomasJefferson. In questions of power, then, let no more be heard of con dence in man, butbind him down from mischief by the chains of the Constitution. 9Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 62. 32 * CHAPTER 2 The Living ConstitutionLEARNING OBJECTIVE* Compare and contrast the threemain branches of the U.S.government.separation of powersConstitutional division of powers among thelegislative, executive, and judicial branches,with the legislative branch making law, theexecutive applying and enforcing the law, andthe judiciary interpreting the law.LEARNING OBJECTIVE+ Show how the system of checks andbalances operates among the threebranches of the U.S. government.checks and balancesA constitutional grant of powers that enableseach of the three branches of government tocheck some acts of the others and thereforeensure that no branch can dominate.No less important, the framers feared a majority might deprive minorities of theirrights. This risk was certainly real at the time of the framing, as it is today. In the SantaFe case, for example, students voted both on who would be their Student Chaplainand on whether that person should deliver a pregame prayer over the footballstadiums loudspeaker. However, the majority vote of Santa Fes student body didnothing to protect the rights of religious minorities. A dependence on the people is,no doubt, the primary control on the government, Madison contended in TheFederalist, No. 51, but experience has taught mankind the necessity of auxiliaryprecautions. 10 What were these auxiliary precautions against popular tyranny?Separation of PowersThe rst step was the separation of powers, the distribution of constitutional authorityamong the three branches of the national government. In The Federalist, No. 47, Madisonwrote, No political truth is certainly of greater intrinsic value, or is stamped with theauthority of more enlightened patrons of liberty, than that...the accumulation of all pow-ers, legislative, executive, and judiciary, in the same hands...may justly be pronouncedthe very de nition of tyranny. 11 Chief among the enlightened patrons of liberty towhose authority Madison was appealing were the eighteenth-century philosophers JohnLocke and Montesquieu, whose works most educated citizens knew well.The intrinsic value of the dispersion of power, however, is not the only reason theframers included it in the Constitution. It had already been the general practice in thecolonies for more than 100 years. Only during the Revolutionary period did some ofthe states concentrate authority in the hands of the legislature, and that unhappyexperience as well as that under the Articles of Confederation con rmed the framersbelief in the merits of the separation of powers. Many attributed the evils of stategovernment and the lack of energy in the central government under the Articles ofConfederation to the lack of a strong executive to check legislative abuses and to giveenergy and direction to administration.Still, separating power by itself was not enough. It might not prevent the branchesof the government and of cials from pooling their authority and acting together, orfrom responding alike to the same pressures from the demand of an overwhelmingmajority of the student body to allow student prayer over the loudspeaker at publichigh school football games, for example, or to impose con scatory taxes on the rich. Ifseparating power was not enough, what else could be done?Checks and Balances: Ambition to Counteract AmbitionThe framers answer was a system of checks and balances (see Table 2 1). The greatsecurity against a gradual concentration of the several powers in the same department,wrote Madison in The Federalist, No. 51, consists in giving to those who administer eachdepartment the necessary constitutional means and personal motives to resist encroach-ments of the others:...Ambition must be made to counteract ambition. 12 Each branchtherefore has a role in the actions of the others (see Figure 2 1).Congress enacts legislation, which the president must sign into law or veto. TheSupreme Court can declare laws passed by Congress and signed by the presidentunconstitutional, but the president appoints the justices and all the other federaljudges, with the Senates approval. The president administers the laws, but Congressprovides the money to run the government. Moreover, the Senate and the House ofRepresentatives have absolute veto power over each other, because both houses mustapprove bills before they can become law.Not only does each branch have some authority over the others, but each is politi-cally independent of the others. Voters in each local district choose members of theHouse; voters in each state choose senators; the president is elected by the voters in allthe states. With the consent of the Senate, the president appoints federal judges, whoremain in of ce until they retire or are impeached.The American System ofChecks and BalancesGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 63. Checking Power with Power * 33CONGRESSTHE LEGISLATIVE BRANCHApproves federal budgetCan override presidential veto bytwo-thirds vote of both houses and canpropose constitutional amendments tocounter Supreme Court rulingsHouse can impeach president, otherfederal officials including federal judgesSenate approves treatiesSenate tries all impeachmentsDetermines number, location, andjurisdiction of federal courtsSenate confirms senior federalappointments, including federal judgesPRESIDENTTHE EXECUTIVE BRANCHCan propose lawsCan veto lawsCan call special sessions ofCongressCan appeal directly to publicCan pardon peopleconvicted of federalcrimes (excludesimpeachments)Nominates officers of the U. S.government andfederal judgesSUPREME COURT AND LOWER COURTSTHE JUDICIAL BRANCHCan declare executive actionsand laws unconstitutionalPasseslawsInterpretslawsEnforceslawsFIGURE 2 1The Separation of Powers and Checksand Balances.TABLE2 1 The Exercise of Checks and Balances, 1789 2009Vetoes Presidents have vetoed more than 2,500 acts of Congress. Congress has overriddenpresidential vetoes more than 100 times.Judicial review The Supreme Court has ruled some 176 congressional acts or parts thereofunconstitutional.Impeachment The House of Representatives has impeached two presidents, one senator,one secretary of war, and 13 federal judges; the Senate has convicted seven of the judges butneither president.Confirmation The Senate has refused to confirm nine cabinet nominations. Many othercabinet and subcabinet appointments were withdrawn because the Senate seemed likelyto reject them.For additional resources on the Constitution, go to by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 64. 34 * CHAPTER 2 The Living Constitutiondivided governmentGovernance divided between the parties,especially when one holds the presidencyand the other controls one or both housesof Congress.partisanshipStrong allegiance to one s own political party,often leading to unwillingness to compromisewith members of the opposing party.The framers also ensured that a majority of the voters could win con-trol over only part of the government at one time. Although in an off-year(nonpresidential) election a new majority might take control of the House ofRepresentatives, the president still has at least two more years, and senators holdoffice for six years. Finally, there are independent federal courts, which exercisetheir own powerful checks.Distrustful of both the elites and the masses, the framers deliberately built intoour political system mechanisms to make changing the system dif cult. Theydesigned the decision-making process so that the national government can actdecisively only when there is a consensus among most groups and after all sideshave had their say. The doctrine of separation of powers was adopted by theconvention of 1787, in the words of Justice Louis D. Brandeis, not to promoteef ciency but to preclude the exercise of arbitrary power. The purpose was not toavoid friction, but, by means of the inevitable friction incident to the distribution ofthe governmental powers among three departments, to save the people from autoc-racy. 13 Still, even though the fragmentation of political power written into theConstitution remains, constitutional silences, or topics the Constitution does notaddress, and subsequent developments have modi ed the way the system of checksand balances works.The Rise of National Political Parties and Interest GroupsPolitical parties the Republican and Democratic parties being the largest canserve as unifying factors, at times drawing the president, senators, representatives,and sometimes even judges together behind common programs. When parties dothis, they help bridge the separation of powers. Yet they can be splintered and weak-ened by having to work through a system of fragmented governmental power, and bythe increasing in uence of special-interest groups (discussed further in Chapter 6),so they never become too strong or cohesive. When one party controls Congress orone of its chambers and the other party controls the White House, in a situationcalled divided government, partisanship is intensi ed, and Congress is inclined tomore closely monitor the executive branch. Because his party controlled Congressduring much of his presidency, President Bush was remarkably free from congres-sional investigations of his administration. However, when Democrats regainedcontrol in both the Senate and the House of Representatives in 2006, they quickly be-gan congressional investigations into the use of intelligence leading up to the war inIraq and the ring of U.S. Attorneys by the U.S. Justice Department. More con ict iscertainly to be expected during divided government, but even when one partycontrols both branches, the pressures of competing interest groups may make coop-eration among legislators dif cult.Because of this institutional competition between the legislative and executivebranches, we nd each institution protecting and promoting itself through a broad in-terpretation of its constitutional and political status, even usurping the others powerwhen the opportunity presents itself. 14 Thus we have had battles over the budget andangry con rmation hearings for the appointment of justices of the Supreme Court, andeven of lower federal courts and members of the executive branch. The division of pow-ers also makes it dif cult for the voters to hold anyone or any party accountable.Presidents blame Congress...while members of Congress attack the president....Citizens genuinely cannot tell who is to blame. 15Yet when all the shouting dies down, political scientist David Mayhew concludes,there have been just as many congressional investigations and just as much importantlegislation passed when one party controls Congress and another controls the presi-dency as when the same party controls both branches.16 And Charles Jones, a notedauthority on Congress and the presidency, adds that divided government is preciselywhat the voters appear to have wanted through much of our history.17James Comey, former Deputy Attorney Generalof the United States, testi es about the ringof eight U.S. Attorneys. Congress investigatedwhether the terminations were made forpolitical reasons.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 65. direct primaryAn election in which voters choose partynominees.Expansion of the Electorate and the Move Toward MoreDirect DemocracyThe framers wanted the electoral college wise, independent citizens free of popu-lar passions and hero worship to choose the president rather than leave the job toordinary citizens. Almost from the beginning, though, the electoral college did notwork this way.18 Rather, voters actually do select the president, because thepresidential electors the voters choose pledge in advance to cast their electoralvotes for their party s candidates for president and vice president. Nevertheless,presidential candidates may occasionally win the national popular vote but losethe vote in the electoral college, as happened when Al Gore won the popular votein the 2000 presidential election but lost the electoral college with 266 votes toGeorge W. Bushs 271.The kind of people allowed to vote has expanded from free, white, property-owning males to include all citizens over age 18. In addition, during the past century,U.S. states have expanded the role of the electorate by adopting direct primaries,in which the voters elect party nominees for the House and Senate and even forpresident; by permitting the voters in about half the states to propose and vote onSetting Aside the Constitutionin an Age of TerrorGENERATION NEXTto give up some civil liberties to fightterrorism.Although members of Generation Nextdon t differ much on this question based onrace or gender, Republicans and those whoconsider themselves very conservative aremore likely to think it will be necessary torestrict civil liberties to deal with the threatof terrorism. Conversely, 18- to 29-year-oldswho consider themselves liberal or veryliberal are least likely to believe there is aneed to restrict civil liberties in order to curbterrorism, perhaps because of their con-cern for protecting individual liberties moregenerally.There are even greater differences be-tween Generation Next and older U.S.adults. For example, 47 percent of adultsbetween ages 40 and 49 believe it will benecessary to restrict civil liberties to ghtterrorism.QUESTIONS1. Why doesn t the Constitution protectour civil liberties absolutely?2. Should you be concerned with restrictionsin civil liberties that are only temporary?3. Why might other people feel differentlyabout this polling question than you do?Percentage of 18- to 29-Year-Olds Who Think the Average PersonWill Need to Give Up Some Civil Liberties to Fight Terrorism.0 10 20 30 40 50GenderRacePoliticalPartyIdeologyMaleFemaleWhiteNonwhiteDemocratIndependentRepublicanVeryconservativeConservativeModerateLiberalVery LiberalOne of the dif culties in dealing with thethreat of terrorism in an open society isthe need to protect individual liberties atthe same time. The Constitution providesfor such protections, but they are not ab-solute. Moreover, the U.S. Supreme Courthas made it clear that the government mayinfringe on individual rights and liberties intimes of crisis.*Many members of Generation Next dis-agree. According to the Pew ResearchCenter s 2007 survey of the nation s politi-cal landscape, only a minority of youngpeople think the average person will need35*See, for example, Schenck v. United States, 249 U.S. 47 (1919).Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 66. 36 * CHAPTER 2 The Living ConstitutionVoter turnout in the 2008 Democratic primaryrace was high across the United States. Inmany states additional ballots had to be printedto meet the demand of high numbers of voters.laws through initiatives; by allowing voters to reconsider actions of the legislaturethrough referendums; and even by allowing voters to remove elected state and localof cials from of ce in a recall. And since the rati cation of the SeventeenthAmendment in 1913, senators are no longer elected by state legislatures but arechosen directly by the people.Establishment of Agencies Designed to Exercise Legislative,Executive, and Judicial FunctionsWhen the national government began to regulate the economy in the late nine-teenth and twentieth centuries, it found that it was impossible to legislate preciseand detailed rules on complex matters such as railroad safety, mass communi-cations, the health and safety of working conditions, and environmental protection.Congress has thus provided administrative agencies with the power to make andapply rules and to decide disputes. Beginning in 1887, Congress created independentregulatory commissions, for example in 1934 it established the Federal Communi-cations Commission. More recently, it has established independent executiveagencies, which typically have broader authority and are more responsive to theadministration than are commissions. One example is the Environmental Pro-tection Agency.Changes in TechnologyThe system of checks and balances operates differently today from the way it did in1789. Back then, there were no televised congressional committee hearings; noelectronic communications; no Larry King Live talk shows; no New York Times, USAToday, CNN, Fox News, or C-SPAN; no Internet; no nightly news programs withnational audiences; no presidential press conferences; and no live coverage ofwars and of U.S. soldiers fighting in foreign lands. Nuclear bombs, television,computers, cellular telephones, and the Internet these and other innovationsinitiativeA procedure whereby a certain number of votersmay, by petition, propose a law or constitutionalamendment and have it submitted to the voters.referendumA procedure for submitting to popular votemeasures passed by the legislature or pro-posed amendments to a state constitution.recallA procedure for submitting to popular vote theremoval of of cials from of ce before the endof their term.Major TechnologicalInnovations that HaveChanged the PoliticalLandscapeGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 67. create conditions today that are unimaginably different from those of two centuriesago. We also live in a time of instant communication and polls that tell us whatpeople are thinking about public issues almost from one day to the next.In some ways, these new technologies have added to the powers of presidents bypermitting them to appeal directly to millions of people and giving them immediateaccess to public opinion. And in turn they have enabled interest groups to target thou-sands of letters and calls at members of Congress, to orchestrate campaigns to writeletters to editors, and to organize and mobilize on the Internet. New technologies havealso given greater independence and in uence to nongovernmental institutions suchas special-interest groups and the press. They have made it possible for rich people tobypass political parties and carry their message directly to the electorate, as formerU.S. senator and now New Jersey governor Jon Corzine and religious leaders such as PatRobertson have done.The Growth of Presidential PowerToday, problems elsewhere in the world Afghanistan, Israel, Pakistan, Iran, NorthKorea, Iraq often create crises for the United States. The need to deal with perpetualemergencies has concentrated power in the hands of the chief executive and thepresidential staff. The president of the United States has emerged as the most signi -cant player on the world stage, and media coverage of summit conferences withforeign leaders enhances his status. Headline-generating events give the president avisibility no congressional leader can achieve. The of ce of the president has onoccasion modi ed the system of checks and balances, especially between the execu-tive branch and Congress, and provided a measure of national unity. Drawing onconstitutional, political, and emergency powers, the president can sometimes over-come the restraints the Constitution imposes on the exercise of governmentalpower to the applause of some and the alarm of others.HOW OTHER NATIONS GOVERNComparing Constitutional GovernanceThe U.S. Constitution is unusual in sev-eral ways. One distinguishing factor isits brevity. Compare its seven articles and27 amendments to India s constitution, thelongest in the world at 395 articles and 8schedules. Another unique characteristicof the U.S. Constitution is its age; it is theworld s oldest written constitution. It was rati-ed in 1789, compared to India s, which waspassed in 1949.A hallmark of the U.S. Constitution is itsprotection of individual liberties, providedfor in the Bill of Rights. In comparison, somecountries such as China might promise arule of law and equality under it but fall shortof meeting this goal. Some type of dictator-ship has been the basis of the constitutionalstructure under all of China s several consti-tutions since 1949, and government of cialshave routinely been shielded from the law. Incontrast, India used the U.S. Constitution asthe basis for several aspects of its constitu-tion, including the protection of individualrights and a system of federalism.Not all countries even have constitutions.Great Britain, for example, has an uncodi edconstitution, not a written one. Instead, itsgovernment has developed over many yearsthrough custom, history, and a series of lawsenacted to provide for the legal structurethat exists.Informal powers and politics can bemore important than constitutional provisionsgranting power. According to Articles 76 81of Japan s 1947 constitution, the judiciaryis independent, as it is in the U.S. system.However, because of the Liberal DemocraticParty s long dominance in Japan, it controlscourt appointments, ensuring that the courtreaches decisions it favors.Of course, as our own Civil War remindsus, the existence of a constitution does notensure stability. Nigeria, which has undergonefour major constitutional changes since 1960,interspersed with military coups and dictator-ships, is certainly a case in point. Nigeria scurrent constitution providing for democraticgovernance has been in place since 1999.However, allegations of government corrup-tion are widespread, and the government sadherence to the constitution continues toseem tenuous.QUESTIONS1. Why might it be an advantage to havea written constitution?2. What factors might contributeto a successful and stableconstitution?37Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 68. LEARNING OBJECTIVE+ Analyze the effect of Marbury v.Madison on the role of the judiciary.Judicial Review and the Guardians of theConstitutionThe judiciary has become so important in our system of checks and balances that itdeserves special attention. Judges did not claim the power of judicial review thepower to strike down a law or a government regulation that judges believe con ictswith the Constitution until some years after the Constitution had been adopted.From the beginning, however, judges were expected to check the legislature. Theindependence of judges, wrote Alexander Hamilton in The Federalist, No. 78 (whichappears in the Appendix), may be an essential safeguard against the effects of occa-sional ill humors in the society. 19Judicial review is a major contribution of the United States to the art of govern-ment, one that many other nations have adopted. In Canada, Germany, France, Italy,and Spain, constitutional courts review laws referred to them to ensure that the lawscomply with their constitutions, including with the charter of rights that is now part ofthose constitutions.20Origins of Judicial ReviewThe Constitution says nothing about who should have the nal word in disputes thatmay arise over its meaning. Scholars have long debated whether the delegates to theConstitutional Convention of 1787 intended to give the courts the power of judicial re-view. The framers clearly intended that the Supreme Court have the power to declarestate legislation unconstitutional, but whether they meant to give it the same powerover congressional legislation and the president is not clear. Why didnt the framersspeci cally provide for judicial review? Probably because they believed justices couldinfer they had the power, from certain general provisions and the necessity of inter-preting and applying a written constitution.The Federalists who urged rati cation of the Constitution and controlledthe national government until 1801 generally supported a strong rolefor federal courts and thus favored judicial review. Their opponents, theJeffersonian Republicans (called Democrats after 1832), were less enthusias-tic. In the Kentucky and Virginia Resolutions of 1798 and 1799, respectively,Jefferson and Madison (who by this time had left the Federalist camp) cameclose to arguing that state legislatures and not the Supreme Court had theultimate power to interpret the Constitution. These resolutions seemed toquestion whether the Supreme Court even had nal authority to review statelegislation, a point about which there had been little doubt.When the Jeffersonians defeated the Federalists in the election of 1800,the question of whether the Supreme Court would actually exercise thepower of judicial review was still undecided. Then in 1803 came Marbury v.Madison, the most pathbreaking Supreme Court decision of all time.21Marbury v. MadisonPresident John Adams and fellow Federalists did not take their 1800 defeat byThomas Jefferson easily. Not only did they lose control of the executive of ce,they also lost both houses of Congress. That left the judiciary as the lastremaining Federalist stronghold.To further shore up the federal judiciary, the outgoing Federalist Congressconsequently created dozens of new judgeships. By March 3, 1801, the day be-fore Jefferson was due to become president, Adams had appointed, and theSenate had con rmed, loyal Federalists to all of these new positions. Althoughthe commissions were signed and sealed, a few, for the newly appointed jus-tices of the peace for the District of Columbia, were not delivered. JohnMarshall, the outgoing secretary of state and newly con rmed chief justice of38 * CHAPTER 2 The Living Constitutionjudicial reviewThe power of a court to refuse to enforcea law or a government regulation that in theopinion of the judges con icts with the U.S.Constitution or, in a state court, thestate constitution.LEARNING OBJECTIVE* Show how the use of judicial reviewstrengthens the courts in aseparation of powers system.Chief Justice John Marshall (1755 1835), our most in u-ential Supreme Court justice. Appointed in 1801, Marshallserved until 1835. Earlier he had been a staunch defenderof the U.S. Constitution at the Virginia ratifyingconvention, a member of Congress, and a secretary ofstate. He was one of those rare people who served in allthree branches of government.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 69. HISTORY MAKERSThurgood Marshall s Living ConstitutionAs a leader in the civil rights movement inthe 1940s and 1950s, ThurgoodMarshall was a crusading lawyer for theLegal Defense and Educational Fund of theNational Association for the Advancementof Colored People (NAACP). He argued be-fore the Supreme Court and won a compan-ion case with the landmark ruling in Brown v.Board of Education of Topeka (1954), whichheld that segregated public schools wereunconstitutional. President John Kennedyappointed him to the federal appellatebench in 1961. President Lyndon Johnsonthen persuaded Marshall to become solici-tor general of the United States (the solicitorgeneral argues the government s casesbefore the Supreme Court), and appointedhim to the Supreme Court in 1967. As therst African American on the SupremeCourt, Justice Marshall served until 1991and continued to champion the cause of civilrights throughout his career.On the Bicentennial of the Constitution in1987, he spoke out in dissent and defendedhis view of our living Constitution :I do not believe that the meaning ofthe Constitution was forever xed atthe Philadelphia Convention. Nor do Ind the wisdom, foresight, and senseof justice exhibited by the framers par-ticularly profound. To the contrary, thegovernment they devised was defec-tive from the start, requiring severalamendments, a civil war, and momen-tous social transformation to attain thesystem of constitutional government,and its respect for the individualfreedoms and human rights, that wehold as fundamental today. When con-temporary Americans cite The Con-stitution, they invoke a concept thatis vastly different from what the framersbarely began to construct two cen-turies ago.For a sense of the evolving natureof the Constitution we need look nofurther than the rst three words ofthe document s preamble: We thePeople. When the Founding Fathersused this phrase in 1787, they didnot have in mind the majority ofAmerica s citizens. We the Peopleincluded, in the words of the framers,the whole Number of free Persons.On a matter so basic as the rightto vote, for example, Negro slaveswere excluded, although they werecounted for representational pur-poses at three- fths each. Womendid not gain the right to vote for overa hundred and thirty years...And so we must be careful, whenfocusing on the events which tookplace in Philadelphia two centuriesago, that we not overlook the mo-mentous events which followed, andthereby lose our proper sense ofperspective. . .. If we seek, instead,a sensitive understanding of theConstitution s inherent defects, andits promising evolution through 200years of history, the celebration ofthe Miracle at Philadelphia will, inmy view, be a far more meaningfuland humbling experience. We will seethat the true miracle was not the birthof the Constitution, but its life, alife nurtured through two turbulentcenturies of our own making, and alife embodying much good fortunethat was not.*QUESTIONS1. How do you think Justice Marshall sexperiences with the NAACP Legal andEducational Defense Fund affected hisview of the Constitution?2. Building on the ideas of JusticeMarshall, how is our conceptionof the Constitution todaydifferent from citizens understandingin 1787?Justice Thurgood Marshall.39the Supreme Court, left the delivery of these commissions for his successor as secretaryof state, James Madison.This packing of the judiciary angered Jefferson, now inaugurated as president.When he discovered that some of the commissions were still lying on a table in theDepartment of State, he instructed a clerk not to deliver them. Jefferson could see no rea-son why the District needed so many justices of the peace, especially Federalist justices.22William Marbury never received his commission and decided to seek action from thecourts. Section 13 of the Judiciary Act of 1789 authorized the Supreme Court to issue writsof mandamus, orders directing an of cial, such as the secretary of state, to perform aduty, such as delivering a commission. Marbury went directly to the Supreme Court and,citing Section 13, made his request.Marbury s request presented Chief Justice John Marshall and the Supreme Courtwith a dif cult dilemma. On the one hand, if the Court issued the writ, Jefferson andwrit of mandamusA court order directing an of cialto perform an of cial duty.*Remarks at the annual seminar of the San Francisco Patent and Trademark Law Association, Maui, Hawaii, May 16, 1987. Quoted in David M. O Brien, ed., Judges onJudging, 2d ed. (CQ Press, 2004).Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 70. 40 * CHAPTER 2 The Living ConstitutionLEARNING OBJECTIVE* Explain how the meaning of theConstitution has evolved over time.Madison would probably ignore it. The Court would be powerless, and its prestige,already low, might suffer a fatal blow. On the other hand, by refusing to issue the writ,the judges would appear to support the Jeffersonian Republicans claim that the Courthad no authority to interfere with the executive. Would Marshall issue the writ?Most people thought he would; angry Republicans even threatened impeachment ifhe did so.On February 24, 1803, the Supreme Court delivered what is still considered a bril-liantly written and politically savvy decision. First, Marshall, writing for a unanimousCourt, took Jefferson and Madison to task. Marbury was entitled to his commission,and Madison should have delivered it to him. Moreover, the proper court could issue awrit of mandamus, even against so high an of cer as the secretary of state.However, Marshall concluded that Section 13 of the Judiciary Act, giving the SupremeCourt original jurisdiction to issue writs of mandamus, was in error. It impermissiblyexpanded the Courts original jurisdiction, which is detailed in Article III of theConstitution. Marshall concluded that the grant of original jurisdiction in Article III wasmeant to be limited to those cases explicitly mentioned: when an ambassador, foreignminister, or a state is a party. Because none of these was at issue in Marburys request forthe writ of mandamus, the Court deemed Section 13 of the Judiciary Act contrary to theConstitution. Given that Article VI provided that the Constitution is the supreme Law ofthe Land, and judges took an oath to uphold the Constitution, any law in con ict with itcould not withstand the Courts review.Although the Federalists suffered a political loss in not seating all theirmidnight judges on the bench, Marshall and the Court gained a much more im-portant power to declare laws passed by Congress unconstitutional. Subsequentgenerations might have interpreted Marbury v. Madison in a limited way, such asthat the Supreme Court had the right to determine the scope of its own powersunder Article III, but Congress and the president had the authority to interprettheir powers under Articles I and II. But over the decades, building on Marshall sprecedent, the Court has taken the commanding position as the authoritative inter-preter of the Constitution.Once we accept Marshall s argument that judges are the of cial interpreters of theConstitution, several important consequences follow. The most important is that peo-ple can challenge laws enacted by Congress and approved by the president. Simply bybringing a lawsuit, those who lack the clout to get a bill through Congress can often se-cure a judicial hearing. And organized interest groups often nd they can achievegoals through litigation that they could not attain through legislation. Litigation thussupplements, and at times even takes precedence over, legislation as a way to makepublic policy.23The Constitution as an Instrumentof GovernmentAs careful as the Constitutions framers were to limit the powers they gave the nationalgovernment, the main reason they assembled in Philadelphia was to create a strongernational government. Having learned that a weak central government was a danger toliberty, they wished to establish a national government within the framework of a fed-eral system with enough authority to meet the needs of all time. They made generalgrants of power, leaving it to succeeding generations to ll in the details and organizethe structure of government in accordance with experience.Hence our formal, written Constitution is only the skeleton of our system. It islled out in numerous ways that we must consider part of our constitutional system ina larger sense. In fact, our system is kept up to date primarily through changes in theinformal, unwritten Constitution. These changes exist in certain basic statutes andhistorical practices of Congress, presidential actions, and, as we discuss in the YouWill Decide feature, Supreme Court decisions.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 71. The Constitution as an Instrument of Government * 41The Unwritten ConstitutionCongressional Elaboration Because the framers gave Congress authority to providefor the structural details of the national government, it is not necessary to amend theConstitution every time a change is needed. Rather, Congress can create legislation tomeet the need, with what we refer to as congressional elaboration. The Judiciary Act of1789, for example, laid the foundations for our national judicial system, just as otherlaws established the organization and functions of all federal executive of cialssubordinate to the president and enacted the rules of procedure, internal organization,and practices of Congress.A dramatic example of this congressional elaboration of our constitutional system isthe use of the impeachment and removal power. An impeachment is a formal accusationagainst a public of cial and the rst step in removing him or her from of ce.Constitutional language de ning the grounds for impeachment is sparse. Look at theConstitution and note that Article II, the Executive Article, calls for removal of the presi-dent, vice president, and all civil of cers of the United States on impeachment for, andconviction of, Treason, Bribery, or other High Crimes and Misdemeanors. Still, Congresshas to give meaning to that language.Article I, the Legislative Article, gives the House of Representatives the sole power toinitiate impeachments and the Senate the sole power to try them. If the president is tried,the chief justice of the United States presides, as Chief JusticeWilliam H. Rehnquist did inthe impeachment of President Bill Clinton in 1999. Article I also requires conviction onimpeachment charges to have the agreement of two-thirds of the senators present.Judgments shall extend no further than removal from of ce and disquali cation fromholding any of ce under the United States, but a person convicted by the Senate may alsobe liable to indictment, trial, judgment, and punishment according to the law. Article Ialso exempts cases of impeachment from the presidents pardoning power. Article III (theJudicial Article) exempts cases of impeachment from the jury trial requirement.That is allthe relevant constitutional language about impeachment. We must look to history to an-swer most questions about the proper exercise of these and other powers.24Fortunately, there is little history to go on. The House of Representatives has in-vestigated 67 individuals for possible impeachment and has impeached 17 (includingtwo presidents Andrew Johnson in 1868 and Bill Clinton in 1999).Presidential PracticesAlthough the formal constitutional powers of the president have not changed, the of ceis dramatically more important and more central today than it was in 1789. Vigorouspresidents George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln,Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, LyndonJohnson, Bill Clinton, and George W. Bush have boldly exercised their political andconstitutional powers, especially during times of national crisis such as the current waragainst international terrorism. Their presidential practices have established importantprecedents, building the power and in uence of the of ce.A major practice is the use of executive orders, which carry the full force of law.They may make major policy changes, such as withholding federal contracts frombusinesses engaging in racial discrimination, or they may simply be formalities, suchas the presidential proclamation of Earth Day.Other practices include executive privilege, the right to con dentiality of execu-tive communications, especially those that relate to national security; impoundmentby a president of funds previously appropriated by Congress; the power to send armedforces into hostilities; and the authority to propose legislation and work actively tosecure its passage by Congress.Foreign and economic crises as well as nuclear-age realities and the war against in-ternational terrorism have expanded the presidents role: When it comes to actionrisking nuclear war, technology has modi ed the Constitution: the President, perforce,becomes the only such man in the system capable of exercising judgment under thecongressional elaborationCongressional legislation that gives furthermeaning to the Constitution based onsometimes vague constitutional authority,such as the necessary and proper clause.impeachmentA formal accusation by the lower houseof a legislature against a public of cial, therst step in removal from of ce.executive orderA directive issued by a president or governorthat has the force of law.executive privilegeThe power to keep executive communicationscon dential, especially if they relate to nationalsecurity.impoundmentPresidential refusal to allow an agency tospend funds that Congress authorized andappropriated.LEARNING OBJECTIVE* Outline the way we make formalchanges to the Constitution.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 72. extraordinary limits now imposed by secrecy, complexity, and time. 25 The presidencyhas also become the pivotal of ce for regulating the economy and promoting the gen-eral welfare through an expanded federal bureaucracy (as we discuss in Chapter 13).In addition, the president has become a leader in sponsoring legislation as well as thenations chief executive.Custom and UsageCustom and usage also play a role in our governmental system.The development of struc-tures outside the formal Constitution such as national political parties, interest groups,and expanded suffrage has democratized our Constitution. Other examples of customand usage are in televised press conferences and presidential and vice presidential de-bates. Through such developments, the president has become responsive to the peopleand has a political base different from that of Congress. Consequently, the constitutionalrelationship between the branches today is considerably different from what the framersenvisioned.Changing the Letter of the ConstitutionThe idea of a constantly changing system disturbs many people. How, they contend,can you have a constitutional government when the Constitution is constantly beingtwisted by interpretation and changed by informal methods? This view fails todistinguish between two aspects of the Constitution. As an expression of basic andtimeless personal liberties, the Constitution does not, and should not, change. Forexample, a government cannot destroy free speech and still remain a constitutionalgovernment. In this sense, the Constitution is unchanging. But when we considerthe Constitution as an instrument of government and a positive grant of power,we realize that if it did not grow with the nation it serves, it would soon be irrelevantand ignored.The framers could never have conceived of the problems facing the government ofa large, powerful, and wealthy nation of about 300 million people at the beginning of thetwenty- rst century. Although the general purposes of government remain the same toestablish liberty, promote justice, ensure domestic tranquillity, and provide for thecommon defense the powers of government that were adequate to accomplish thesepurposes in 1787 are simply insuf cient more than 220 years later. The framers knewthat future experiences would call for changes in the text of the Constitution and that itwould need to be formally amended. In Article V, they gave responsibility for amendingthe Constitution to Congress and to the states. The president has no formal author-ity over constitutional amendments; presidential veto power does not extend tothem, although presidential in uence is often crucial in getting amendments proposedand rati ed.Proposing AmendmentsThe rst method for proposing amendments and the only one used so far is by atwo-thirds vote of both houses of Congress. Dozens of resolutions proposing amendmentsare introduced in every session, but Congress has proposed only 31 amendments, ofwhich 27 have been rati ed (see Figure 2 2).Why is introducing amendments to the Constitution so popular? In part becausegroups frustrated by their inability to get things done in Congress hope to bypass it. Inpart because Congress, the president, interest groups, or the public may want to over-turn unpopular Supreme Court decisions. In part because the nation needs to makegovernment more responsive to changing times. Although amendments are debatedrather frequently, very few have made it through Congress to begin the rati cationprocess.Two U.S. presidents, Andrew Johnson andBill Clinton, have been impeached by theU.S. House of Representatives. In bothcases the U.S. Senate did not muster a two-thirds majority vote, which would have beenneeded to convict these two presidents.President Richard Nixon almost surelywould also have been impeached by theHouse of Representatives in 1974, but heresigned and left the presidency, a decisionthat preempted the House s action.42 * CHAPTER 2 The Living ConstitutionGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 73. Congress, the president, interest groups, and the public were all involved in an effortto overturn the Supreme Courts decision to strike down a Texas law barring ag burning(Texas v. Johnson [1989]).26 Though Congress attempted to bypass the decision with theFederal Flag Protection Act of 1989, which prohibited intentionally burning or de lingthe ag, the Court struck down that law as well (United States v. Eichman [1990]).27 In do-ing so, the Court ruled that the First Amendment protects burning the ag as a form ofpolitical speech.Following its failure to overturn the decision through new laws, Congress has maderepeated efforts to send a constitutional amendment banning ag burning to thestates.28 The House of Representatives has voted seven times since the early 1990s on anamendment prohibiting the physical desecration of the ag of the United States, butthe Senate has been unable to garner the necessary two-thirds vote. It came close to -succeeding in June 2006, but the vote fell one short of the number required to send theamendment to the states for rati cation.29 See Table 2 2 on how the amending powerhas been used.The second method for proposing amendments a convention called by Congressat the request of the legislatures in two-thirds of the states has never been used.Under Article V of the Constitution, Congress could call for such a convention withoutthe concurrence of the president. This method presents dif cult questions.30 First, canstate legislatures apply for a convention to propose speci c amendments on one topic,or must they request a convention with full powers to revise the entire Constitution?How long do state petitions remain alive? How should delegates to a convention bechosen? How should such a convention be run? Congress has considered bills toanswer some of these questions but has not passed any, in part because most membersdo not wish to encourage a constitutional convention for fear that once in session itmight propose amendments on any and all topics.Under most proposals, each state would have as many delegates to theconvention as it has representatives and senators in Congress. Finally, and cru-cially, a constitutional convention would be limited to considering only the subjectspecified in the state legislative petitions and described in the congressional callMethods of RatificationMethods of ProposalBy two-thirdsvote in both housesof CongressBy legislaturesin three-fourthsof the statesBy ratifyingconventions inthree-fourths ofthe statesBy nationalconstitutional conventioncalled by Congress at therequest of two-thirds of thestate legislaturesUsual methodusedMethod stillunusedMethod stillunusedUsed only once,for Twenty-FirstAmendment3/43/4FIGURE 2 2Four Methods of Amendingthe Constitution.Outside the 1984 Republican NationalConvention, Gregory Johnson burned anAmerican flag to protest the Reaganadministration s policies. The U.S.Supreme Court upheld his right to do so as aprotected form of expression underthe First Amendment.Changing the Letter of the Constitution * 43You Are Proposing aConstitutional Amendment
  • 74. 44 * CHAPTER 2 The Living ConstitutionTABLE2 2 The Amending Power and How It Has Been UsedLeaving aside the rst ten amendments (the Bill of Rights), the power of constitutional amendment has served a number of purposes:To Increase or Decrease the Power of the National GovernmentThe Eleventh took some jurisdiction away from the national courts.The Thirteenth abolished slavery and authorized Congress to legislate against it.The Sixteenth enabled Congress to levy an income tax.The Eighteenth authorized Congress to prohibit the manufacture, sale, or transportation of liquor.The Twenty-First repealed the Eighteenth and gave states the authority to regulate liquor sales.The Twenty-Seventh limited the power of Congress to set members salaries.To Expand the Electorate and Its PowerThe Fifteenth extended suffrage to all male African Americans over age 21.The Seventeenth took the right to elect U.S. senators away from state legislatures and gave it to the voters in each state.The Nineteenth extended suffrage to women over age 21.The Twenty-Third gave voters of the District of Columbia the right to vote for president and vice president.The Twenty-Fourth outlawed the poll tax, thereby prohibiting states from taxing the right to vote.The Twenty-Sixth extended suffrage to otherwise quali ed persons age 18 or older.To Reduce the Electorate s PowerThe Twenty-Second took away from the electorate the right to elect a person to the of ce of president for more than two full terms.To Limit State Government PowerThe Thirteenth abolished slavery.The Fourteenth granted national citizenship and prohibited states from abridging privileges of national citizenship; from denying persons life,liberty, and property without due process; and from denying persons equal protection of the laws. This amendment has come to be interpretedas imposing restraints on state powers in every area of public life.To Make Structural Changes in GovernmentThe Twelfth corrected de ciencies in the operation of the electoral college that the development of a two-party national system had revealed.The Twentieth altered the calendar for congressional sessions and shortened the time between the election of presidents and their assumption of of ce.The Twenty-Fifth provided procedures for lling vacancies in the vice presidency and for determining whether presidents are unable to perform their duties.for the convention. Scholars are divided, however, on whether Congress has theauthority to limit what a constitutional convention might propose.31Ratifying AmendmentsAfter Congress has proposed an amendment, the states must ratify it before it takeseffect. Again, the Constitution provides two methods, and Congress may choose:approval by the legislatures in three-fourths of the states, or approval by special ratifyingconventions in three-fourths of the states. Congress has submitted all amendmentsexcept one the Twenty-First (to repeal the Eighteenth, the Prohibition Amendment)to the state legislatures for rati cation.Seven state constitutions specify that their state legislatures must ratify a proposedamendment to the U.S. Constitution by majorities of three- fths or two-thirds of each cham-ber. Although a state legislature may change its mind and ratify an amendment after it hasvoted against rati cation, the weight of opinion is that once a state has rati ed an amend-ment, it cannot unratify it.32The Supreme Court has said that ratification must take place within a reason-able time, so that it is sufficiently contemporaneous to reflect the will ofthe people. 33 However, Congress approved ratification of the Twenty-SeventhAmendment, which had been before the nation for almost 203 years, so thereseems to be no limit on what it considers a reasonable time. In fact, ratificationordinarily takes place rather quickly (see Figure 2 3), and Congress will probablyThe History of ConstitutionalAmendmentsGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 75. THE CHANGING FACE OF U.S. POLITICSThe United States Racial HeritageDuring his rise as one of golf s greatestplayers, Tiger Woods has repeatedly re-fused to identify himself as a member of anyone race, be it white, African American, AsianAmerican, or Hispanic. Instead, Woods saysthat he decided as a child that he was aCablinasian, a reference to being Caucasian(white), Black, American Indian, and Asian.However, before the 2000 census (the censusis conducted every ten years as mandated bythe Constitution), he would not have been al-lowed to declare himself as a member ofmore than one race. He could have checkedonly one of the following boxes for raceCaucasian, African American, Asian, or NativeAmerican. Hispanics and Latinos were identi-ed separately.Starting in 2000, Woods and millions ofother multiracial citizens were able to identifythemselves more accurately in the census.Under federal rules adopted in 1998, theywere allowed to check off one or all of sevenboxes, including new categories for NativeHawaiian and other Paci c Islanders, whichused to be included in Asian. Once Woodsidenti ed himself as any race other thanwhite, he was also free to identify with one ormore of the following races, or with anotherrace entirely:* American Indian or Alaska Native* Asian Indian* Chinese* Filipino* Japanese* Korean* Vietnamese* Native Hawaiian* Guamanian or Chamorro* Samoan* Other Paci c IslanderThe new rules re ect the reality that theUnited States is becoming more diverseand now includes more people of mixedracial heritage. The census, which is usedto divide the states into congressional dis-tricts, is working to keep up with the chang-ing face of the United States, which meansthat citizens like Tiger Woods will be able tond a home in the portraits of the citizenry.Although the percentage of multiracial citi-zens is low, it still represents more thanseven million of the nation s 281 millionpeople.QUESTIONS1. How would you identify yourself?2. What kind of changes in survey partici-pation might we see with more optionsfor self-identi cation?Tiger Woods is one of an increasing numberof Americans of mixed racial heritage.NumberofYearsforRatification1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27Amendments01234203FIGURE 2 3The Time for Rati cation of the 27Amendments to the Constitution.45Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 76. continue to stipulate that it must occur withinseven years of the date it submits an amendmentto the states.Rati cation PoliticsThe failure of the Equal Rights Amendment (ERA)to be ratified provides a vivid example of the pit-falls of ratification. First introduced in 1923, theERA did not get much support until the 1960s. Aninfluential book by Betty Friedan, The FeminineMystique (1963), challenged stereotypes about therole of women. The National Organization forWomen (NOW), formed in 1966, made passage ofthe ERA its central mission. By the 1970s, the ERAhad overwhelming support in both houses ofCongress and in both national party platforms.Every president from Harry Truman to RonaldReagan, and many of their wives, endorsed theamendment. More than 450 organizations with atotal membership of more than 50 million were onrecord in support of the ERA.34 The ERA providedfor the following:Section 1. Equality of rights under the lawshall not be denied or abridged by the UnitedStates or by any State on account of sex.People came from every state in the union tomarch in support of the passage of the EqualRights Amendment.Debate about how to interpret the Constitution began almost immediately,and as we ve seen, it continues to this day, with very important practicalimplications for citizens.One kind of constitutional interpretation is the originalist approach.Originalists believe that the Constitution should be understoodaccording to the framers intent. Others believe that whenever possible,a strict reading of the text should guide decision making. But if theexact wording of the document does not provide a conclusive answer,originalists consider the context of the times in which it was writtenand interpret it in light of the history and writings of the time.Especially important are writings or speeches by the foundersthemselves or by proponents of subsequent amendments.A second approach to interpreting the Constitution sees it as achanging and evolving document that provides a basic framework forgovernment but that allows, and even encourages, new generations tointerpret ideas such as equal justice and due process in light of theneeds of their time. This adaptive approach may mean that subsequentgenerations will interpret the same document differently from priorgenerations.The adaptive approach makes the court a more powerful institution in U.S.government. The originalist approach forces people and institutions to adoptamendments if they want constitutional change.Should We Interpret theConstitution According toOriginal Intent or Today s Needs?DECIDEYOU WILLDECIDE46Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 77. 47Section 2. The Congress shall have power toenforce, by appropriate legislation, the provi-sions of this article.Section 3. This amendment shall take effecttwo years after the date of rati cation.35Soon after Congress passed the amendmentand submitted it to the states in 1972, many legisla-tures rati ed it sometimes without hearings andby overwhelming majorities. By the end of that year,22 states had rati ed the amendment, and itappeared that the ERA would soon become part ofthe Constitution. But because of opposition organ-ized under the leadership of Phyllis Schla y, aprominent spokesperson for conservative causes,the ERA became controversial.Opponents argued that women would not onlybe subject to the military draft but also assigned tocombat duty. Full-time housewives and motherswould be forced to join the labor force. Further,women would no longer enjoy existing advantages un-der state domestic relations codes and under laborlaw. 36 The ERA also became embroiled in the contro-versy over abortion. Many opponents contended thatits rati cation would jeopardize the power of statesand Congress to regulate abortion and would compelpublic funding of abortions.37State legislatures held lengthy hearings, andfloor debates became heated. Legislators hid be-hind parliamentary procedures and avoided mak-ing a decision for as long as possible. Opposition toratification arose chiefly in the same cluster ofsouthern states that had opposed ratification of theNineteenth Amendment, which gave women theright to vote. As the opposition grew more active,proponents redoubled their efforts.In the autumn of 1978, it appeared that theERA would fall three short of the necessary numberof ratifying states before the expiration of theseven-year limit on March 22, 1979. After an ex-tended debate, and after voting down provisions that would have authorized statelegislatures to change their minds and rescind ratification, Congress, by a simplemajority vote, extended the time limit until June 30, 1982. Nonetheless, by thefinal deadline, the amendment was still three states short of the 38 needed forratification.The framers intended that amending the Constitution should be dif cult, andthe ERA rati cation battle demonstrates how well they planned. Through interpreta-tion, practices, usages, and judicial decisions, the Constitution has proved a remark-ably enduring and adaptable governing document and one that is frequently used asa model for emerging democracies. But it is essential for citizens, individually andtogether, to keep watch that constitutional provisions are enforced and that changecomes when necessary. Not all efforts for constitutional change are successful, buteven failed drives for constitutional amendments can achieve a degree of successthrough the legislative process, in uence on the executive, or calls for action by thejudiciary, as the students from the Santa Fe Independent School District learnedrsthand.THINKINGTHINKING IT THROUGHDifferences between the adaptive and the originalist views do notnecessarily align with political labels such as conservative or liberal,though they may in particular cases. For example, Justice Antonin Scalia,who tends to be originalist in his approach, voted in Santa Fe IndependentSchool District v. Doe (the case discussed at the beginning of the chapter)to allow pregame prayer at public high school football games becauseaccording to his reading of the First Amendment, the activity does notamount to an establishment of religion. An originalist interpretation of theFirst Amendment requires only that Congress refrains from establishing anational religion and does not interfere with already established statechurches, many of which existed at the time the Constitution wasrati ed.Justice Stephen Breyer typically favors a more adaptive approach.He interpreted the same clause as aiming to lessen religious strife andavoid the social con ict, potentially created when government becomesinvolved in religious education. * He therefore ruled that the schooldistrict s policy violated the First Amendment and joined the Court smajority opinion striking it down.If the Constitution is indeed open to changing interpretations, areany constitutional principles absolute and not open to new interpretation?Or are the law and the courts largely ideological institutions? This dangerin the adaptive approach worries some because the selection of judges isonly indirectly democratic, and with lifetime appointments judges couldlose the people s con dence yet retain their power.There are problems with the originalist approach as well.A global economy, electronic and mass media, and the needto respond immediately to nationalsecurity threats are only someexamples of circumstancesthe founders could not consideror address in the Constitution.In other instances, such aswith privacy, for example,the original wording of theConstitution implies aninterpretation but does notexplicitly say it.Questions1. How do you think we shouldinterpret the Constitution?What are the best argumentsof both sides of this question?2. Why does it matter whether wetake an originalist or an adaptiveapproach to interpreting theConstitution?*Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Knopf, 2005),pp. 120 121.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 78. CHAPTER SUMMARY* Describe the basic structure of the Constitutionand its Bill of Rights.The U.S. Constitutions rst three articles establish thelegislature, the executive, and the judiciary. TheBill of Rights, the rst ten amendments to the Constitution,was added in 1791 and provides protections from federalgovernment infringement on individual liberties.+ Summarize the basic principles of government establishedby the Constitution.The U.S. Constitution, adopted in 1789, is the worlds oldest. Itboth grants and limits governmental power. The Constitutionsseparation of powers distributes authority among threebranches of government: the legislative, executive, and judi-cial. Checks and balances limit the power of each branch., Compare and contrast the three main branchesof the U.S. government.The Constitution separates power vested in the legislature,which has the power to create law; the executive, with thepower to enforce the law; and the judiciary, which inter-prets the law. None of the branches depends on the othersfor its authority, and each branch has the power to limitthe others.- Show how the system of checks and balances operatesamong the three branches of the U.S. government.Competing interests within our governmental structurecheck and balance one another. Political parties may some-times overcome the separation of powers, especially if thesame party controls both houses of Congress and the presi-dency. Typically, this is not the case, however, and a dividedgovernment intensi es checks and balances. Presidentialpower, which has increased over time, has sometimesovercome restraints the Constitution imposes on it.. Show how the use of judicial review strengthens the courtsin a separation of powers system.Judicial review is the power of the courts to strike downacts of Congress, the executive branch, and the states asunconstitutional. This authority provides the judiciary apowerful check on the other branches of government./ Analyze the effect of Marbury v. Madison on the role of thejudiciary.In deciding that it lacked the jurisdiction to order a judicial com-mission be delivered, the Supreme Court established its author-ity to rule an act of the federal legislature unconstitutional.TheCourts decision was politically savvy and greatly enhancedthe role of the judiciary in a separation-of-powers system.0 Explain how the meaning of the Constitution hasevolved over time.The Constitution is the framework of our governmental sys-tem. The constitutional system has been modi ed over time,adapting to new conditions through congressional elabora-tion, presidential practices, custom and usage, and judicialinterpretation, as was the case in Santa Fe Independent SchoolDistrict v. Doe (2000). The First Amendments brevity allowscourts to interpret it in light of changing circumstances, butalso engenders continuing debate about its meaning.1 Outline the way we make formal changes to the Constitution.Although adaptable, the Constitution itself needs to be alteredfrom time to time, and the framers provided a formal procedurefor its amendment. An amendment must be both proposedand rati ed: proposed by either a two-thirds vote in each cham-ber of Congress or by a national convention called by Congresson petition of the legislatures in two-thirds of the states; rati edeither by the legislatures in three-fourths of the states or byspecial ratifying conventions in three-fourths of the states.c. Federald.Corporal4. Write a persuasive essay (2 3 paragraphs) justifying theuse of executive privilege (p. 41) to protect the home-land. Be sure to address why this privilege might bequestioned.5. How does the legislative branch check the authority ofthe executive branch? List and brie y explain at leasttwo ways. ( pp. 32 33)6. Draw a diagram that shows how the different branchesof government check one another. (Table 2 1 canprovide useful examples.)Chapter Self-Test1. How many amendments does the U.S.Constitution have? (p. 30) Does this numberseem high or low to you? Why?2. Write two or three paragraphs to explain the waysthe writers of the constitution attempted to limitthe power of the branches in the federal govern-ment. (pp. 31 32)3. The Constitution re ects the Founders respectfor _______ law, which implies a universal senseof right and wrong. (p. 31)a. Naturalb. Formal48Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 79. 7. Describe the difference between an initiative and areferendum. (pp. 35 36)8. Many people are uncomfortable with what they termactivist judges. Explain the Constitutional grounds forand against judicial activism in 4 sentences or less. (p. 38)9. Describe the details of Marbury v.Madison and who themajor actors were. Explain why the case was heard in therst place. Describe the impact of the decision. (pp. 38 40)10. Explain why nominations to the Supreme Court are oftenso contentious. (p. 40)11. Describe a writ of mandamus. Give an example of anoccasion when it might be appropriate for the court toissue such a writ. (p. 39)12. What are some of the advantages of having a writtenconstitution? List 4 or 5. Can you think of anydisadvantages? (p. 37)13. The chapter lists two ways to propose amendments.Name these two ways and describe how they aredifferent. How is an amendment rati ed? (pp. 42 43)14. Write a brief essay detailing the dif culties that politicianswould face in holding a new constitutional convention.Which individuals or groups might be opposed to a newconvention?What are some of the procedural hurdlessupporters would have to overcome? (pp. 43 44)15. How many states would need to agree to hold a newconstitutional convention? (p. 43)Further ReadingAKHILL REED AMAR, Americas Constitution:A Biography (Random House, 2005).LANCE BANNING, The Sacred Fire of Liberty:James Madison and the Founding of theFederal Republic (Cornell UniversityPress, 1995).CAROL BERKIN, A Brilliant Solution:Inventing the American Constitution(Harcourt, 2002).STEPHEN BREYER, Active Liberty: InterpretingOur Democratic Constitution (Knopf, 2005).JAMES MACGREGOR BURNS, The Vineyardof Liberty (Knopf, 1982).NEIL H. COGAN, The Complete Bill of Rights:The Drafts, Debates, Sources, and Origins(Oxford University Press, 1997).MICHAEL KAMMEN, A Machine That WouldGo of Itself: The Constitution in AmericanCulture (Knopf, 1986).KEN I. KERSCH, Constructing CivilLiberties: Discontinuities in theDevelopment of AmericanConstitutional Law (CambridgeUniversity Press, 2004).PHILIP B. KURLAND AND RALPH LERNER,The Founders Constitution, 5 vols.(University of Chicago Press, 1987).LIBRARY OF CONGRESS, CONGRES-SIONAL RESEARCH SERVICE, JONNYKILLIAN, ED., The Constitution of theUnited States of America: Analysis andInterpretation (U.S. GovernmentPrinting Office, 2006).Key Terms49ANTONIN SCALIA, A Matter ofInterpretation: Federal Courts and theLaw (Princeton University Press, 1997).CASS SUNSTEIN, Designing Democracy:What Constitutions Do (OxfordUniversity Press, 2001).JOHN R.VILE, ED., Encyclopedia ofConstitutional Amendments, ProposedAmendments, and Amending Issues,1789 2002 (ABC-Clio, 2003).KEITH E.WHITTINGTON, PoliticalFoundations of Judicial Supremacy:The Presidency, the Supreme Court,and Constitutional Leadership inU.S. History (Princeton UniversityPress, 2007).natural law, p. 31separation of powers, p. 32checks and balances, p. 32divided government, p. 34partisanship, p. 34direct primary, p. 35initiative, p. 36referendum, p. 36recall, p. 36judicial review, p. 38writ of mandamus, p. 39congressional elaboration, p. 41impeachment, p. 41executive order, p. 41executive privilege, p. 41impoundment, p. 41Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
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  • 81. More than 218 years after its rati -cation, our Constitution remainsthe operating charter of our repub-lic. It is neither self-explanatory nora comprehensive description ofour constitiutional rules. Still, itremains the starting point. ManyAmericans who swear by theConstitution have never read itseriously, although copies can befound in most American govern-ment and American history text-books.Justice Hugo Black, whoserved on the Supreme Court for34 years, kept a copy of theConstitution with him at all times.He read it often. Reading theConstitution would be a good wayfor you to begin (and then rereadagain to end) your study of thegovernment of the United States.We have therefore included a copyof it at this point in the book.Please read it carefully.51On Readingthe ConstitutionGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 82. The PreambleThe Constitutionof the United States4Modi ed by the 17th Amendment3Repealed by the 17th Amendment2Replaced by Section 2, 14th Amendment1Modi ed by the 16th AmendmentPlantations one, Connecticut ve, New-York six, New Jerseyfour, Pennsylvania eight, Delaware one, Maryland six, Virginiaten, North Carolina ve, South Carolina ve, and Georgia three.Clause 4 When vacancies happen in the Representationfrom any State, the Executive Authority thereof shall issueWrits of Election to ll such Vacancies.Clause 5 The House of Representatives shall chuse theirSpeaker and other Of cers; and shall have the sole Power ofImpeachment.Senate Composition:Quali cations, Impeachment TrialsSECTION 3Clause 1 The Senate of the United States shall be composedof two Senators from each State, chosen by the Legislaturethereof,3 for sixYears; and each Senator shall have oneVote.Clause 2 Immediately after they shall be assembled inConsequence of the first Election, they shall be divided asequally as may be into three Classes. The Seats of the Sena-tors of the first Class shall be vacated at the Expiration of thesecond Year, of the second Class at the Expiration ofthe fourth Year, and of the third Class at the Expiration of thesixth Year, so that one third may be chosen every secondYear; and if Vacancies happen by Resignation, or otherwise,during the Recess of the Legislature of any State, the Execu-tive thereof may make temporary Appointments until thenext Meeting of the Legislature, which shall then fill suchVacancies.4Clause 3 No person shall be a Senator who shall not haveattained to the Age of thirty Years, and been nine Years a Citi-zen of the United States, and who shall not, when elected, bean Inhabitant of that State for which he shall be chosen.Clause 4 The Vice President of the United States shall bePresident of the Senate, but shall have no Vote, unless they beequally divided.Clause 5 The Senate shall chuse their other Of cers, andalso a President pro tempore, in the Absence of the Vice Presi-dent, or when he shall exercise the Of ce of President of theUnited States.We the People of the United States, in Order to form amore perfect Union, establish Justice, insure domesticTranquility, provide for the common defense, promote thegeneral Welfare, and secure the Blessings of Liberty to our-selves and our Posterity, do ordain and establish thisConstitution for the United States of America.Article I The Legislative ArticleLegislative PowerSECTION 1 All legislative Powers herein granted shall be vestedin a Congress of the United States, which shall consist of a Sen-ate and House of Representatives.House of Representatives: Composition;Quali cations; Apportionment; Impeachment PowerSECTION 2Clause 1 The House of Representatives shall be composedof Members chosen every second Year by the People of theseveral States, and the Electors in each State shall have theQuali cations requisite for Electors of the most numerousBranch of the State Legislature.Clause 2 No Person shall be a Representative who shallnot have attained to the Age of twenty five Years, and beenseven Years a Citizen of the United States, and who shall not,when elected, be an inhabitant of that State in which heshall be chosen.Clause 3 Representatives and direct Taxes1 shall be appor-tioned among the several States which may be included withinthis Union, according to their respective Numbers, which shallbe determined by adding to the whole Number of free Persons,including those bound to Service for a Term of Years, andexcluding Indians not taxed, three fths of all other Persons.2The actual Enumeration shall be made within three Years afterthe rst Meeting of the Congress of the United States, andwithin every subsequent Term of ten Years, in such Manner asthey shall by Law direct. The Number of Representatives shallnot exceed one for every thirty Thousand, but each State shallhave at Least one Representative; and until such enumerationshall be made, the State of New Hampshire shall be entitled tochuse three, Massachusetts eight, Rhode-Island and ProvidenceGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 83. The Constitution of the United States * 53Clause 6 The Senate shall have the sole Power to try allImpeachments. When sitting for that Purpose, they shall be onOath or Af rmation.When the President of the United States istried, the Chief Justice shall preside: And no Person shall beconvicted without the Concurrence of two thirds of the Mem-bers present.Judgment in Cases of Impeachment shall not extend fur-ther than to removal from Of ce, and disquali cation to holdand enjoy any Of ce of honor, Trust or Pro t under the UnitedStates; but the Party convicted shall nevertheless be liable andsubject to Indictment, Trial, Judgment and Punishment,according to Law.Congressional Elections:Times, Places, MannerSECTION 4 The Times, Places and Manner of holding Electionsfor Senators and Representatives, shall be prescribed in eachState by the Legislature thereof; but the Congress may at anytime by Law make or alter such Regulations, except as to thePlaces of chusing Senators.The Congress shall assemble at least once in every Year,and such Meeting shall be on the rst Monday in December,unless they shall by Law appoint a different Day.5Powers and Duties of the HousesSECTION 5Clause 1 Each House shall be the Judge of the Elections,Returns and Quali cations of its own Members, and a Majorityof each shall constitute a Quorum to do Business; but a smallerNumber may adjourn from day to day, and may be authorizedto compel the Attendance of absent Members, in such Manner,and under the Penalties as each House may provide.Clause 2 Each House may determine the Rules of its Pro-ceedings, punish its Members for disorderly Behaviour, and,with the Concurrence of two thirds, expel a Member.Clause 3 Each House shall keep a Journal of its Proceed-ings, and from time to time publish the same, excepting suchParts as may in their Judgment require Secrecy; and the Yeasand Nays of the Members of either House on any questionshall, at the Desire of one fth of those Present, be entered onthe Journal.Clause 4 Neither House, during the Session of Congress,shall, without the Consent of the other, adjourn for more thanthree days, nor to any other place than that in which the twoHouses shall be sitting.Rights of MembersSECTION 6Clause I The Senators and Representatives shall receive aCompensation for their Services, to be ascertained by Law,and paid out of the Treasury of the United States. They shall in5Changed by the 20th Amendmentall Cases, except Treason, Felony and Breach of the Peace, beprivileged from Arrest during their Attendance at the Sessionof their respective Houses, and in going to and returning fromthe same; and for any Speech or Debate in either House, theyshall not be questioned in any other Place.Clause 2 No Senator or Representative, shall, during thetime for which he was elected, be appointed to any civil Of ceunder the Authority of the United States, which shall havebeen created, or the Emoluments whereof shall have beenincreased during such time; and no Person holding any Of ceunder the United States, shall be a Member of either Houseduring his Continuance in Of ce.Legislative Powers: Bills and ResolutionsSECTION 7Clause 1 All Bills for raising Revenue shall originate in theHouse of Representatives; but the Senate may propose or con-cur with Amendments as on other Bills.Clause 2 Every Bill which shall have passed the House ofRepresentatives and the Senate, shall, before it becomes a Law,be presented to the President of the United States; if heapprove he shall sign it, but if not he shall return it, with hisObjections to that House in which it shall have originated,who shall enter the Objections at large on their Journal, andproceed to reconsider it. If after such Reconsideration twothirds of that House shall agree to pass the Bill, it shall be sent,together with the Objections, to the other House, by which itshall likewise be reconsidered, and if approved by two thirds ofthat House, it shall become a Law. But in all such Cases theVotes of both Houses shall be determined by yeas and Nays,and the Names of the Persons voting for and against the Billshall be entered on the Journal of each House respectively. Ifany Bill shall not be returned by the President within ten Days(Sundays excepted) after it shall have been presented to him,the Same shall be a Law, in like Manner as if he had signed it,unless the Congress by their Adjournment prevent its Return,in which Case it shall not be a Law.Clause 3 Every Order, Resolution, or Vote to which theConcurrence of the Senate and House of Representatives maybe necessary (except on a question of Adjournment) shall bepresented to the President of the United States; and before theSame shall take Effect, shall be approved by him, or being dis-approved by him, shall be repassed by two thirds of the Senateand House of Representatives, according to the Rules andLimitations prescribed in the Case of a Bill.Powers of CongressSECTION 8Clause 1 The Congress shall have Power To lay and collectTaxes, Duties, Imposts and Excises, to pay the Debts and pro-vide for the common Defence and generalWelfare of the UnitedGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 84. 54 * The Constitution of the United StatesStates; but all Duties, Imposts and Excises shall be uniformthroughout the United States.To borrow Money on the credit of the United States;To regulate Commerce with foreign Nations, and amongthe several States, and with the Indian Tribes;To establish an uniform Rule of Naturalization, and uni-form Laws on the subject of Bankruptcies throughout theUnited States;To coin Money, regulate the Value thereof, and of foreignCoin, and x the Standard of Weights and Measures;To provide for the Punishment of counterfeiting the Secu-rities and current Coin of the United States;To establish Post Of ces and post Roads;To promote the Progress of Science and useful Arts, bysecuring for limited Times to Authors and Inventors the exclu-sive Right to their respective Writings and Discoveries;To constitute Tribunals inferior to the supreme Court;To de ne and punish Piracies and Felonies committed onthe high Seas, and Offences against the Law of Nations;To declare War, grant Letters of Marque and Reprisal, andmake Rules concerning Captures on Land and Water;To raise and support Armies, but no Appropriation ofMoney to that Use shall be for a longer Term than two Years;To provide and maintain a Navy;To make Rules for the Government and Regulation of theland and naval Forces;To provide for calling for the Militia to execute the Laws ofthe Union, suppress Insurrections and repel Invasions;To provide for organizing, arming, and disciplining theMilitia, and for governing such Part of them as may beemployed in the Service of the United States, reserving to theStates respectively, the Appointment of the Of cers, and theAuthority of training the Militia according to the disciplineprescribed by Congress;Clause 2 To exercise exclusive Legislation in all Caseswhatsoever, over such District (not exceeding ten Milessquare) as may, by Cession of particular States, and the Accep-tance of Congress, become the Seat of the Government of theUnited States, and to exercise like Authority over all Placespurchased by the Consent of the Legislature of the State inwhich the Same shall be, for the Erection of Forts, Magazines,Arsenals, dock-Yards; and other needful Buildings; AndClause 3 To make all Laws which shall be necessary andproper for carrying into Execution the foregoing Powers, andall other Powers vested by this Constitution in the Governmentof the United States, or in any Department or Of cer thereof.Powers Denied to CongressSECTION 9Clause 1 The Migration or Importation of such Personsas any of the States now existing shall think proper to admit,shall not be prohibited by the Congress prior to the Year onethousand eight hundred and eight, but a Tax or duty may beimposed on such Importation, not exceeding ten dollars foreach Person.Clause 2 The privilege of the Writ of Habeas Corpus shallnot be suspended, unless when in Cases of Rebellion or Inva-sion the public Safety may require it.Clause 3 No Bill of Attainder or ex post facto Laws shall bepassed.Clause 4 No Capitation, or other direct, Tax shall be laid,unless in Proportion to the Census or Enumeration hereinbefore directed to be taken.6Clause 5 No Tax or Duty shall be laid on Articles exportedfrom any State.Clause 6 No Preference shall be given by any Regulationof Commerce or Revenue to the Ports of one State over thoseof another; nor shall Vessels bound to, or from, one State, beobliged to enter, clear, or pay Duties in another.Clause 7 No Money shall be drawn from the Treasury, butin Consequence of Appropriations made by Law; and a regularStatement and Account of the Receipts and Expenditures of allpublic Money shall be published from time to time.Clause 8 No Title of Nobility shall be granted by theUnited States; And no Person holding any Of ce of Pro t orTrust under them, shall, without the Consent of Congress,accept of any present, Emolument, Of ce, or Title, of any kindwhatever, from any King, Prince, or foreign State.Powers Denied to the StatesSECTION 10Clause 1 No State shall enter into any Treaty, Alliance, orConfederation; grant Letters of Marque and Reprisal; coinMoney; emit Bills of Credit; make any Thing but gold and silverCoin a Tender in Payment of Debts; pass any Bill of Attainder,ex post facto Law, or Law impairing the Obligation of Con-tracts of grant any Title of Nobility.Clause 2 No State shall, without the Consent of the Con-gress, lay any Imposts or Duties on Imports or Exports,except what may be absolutely necessary for executing itsinspection Laws: and the net Produce of all Duties andImposts, laid by any State on Imports or Exports, shall be forthe Use of the Treasury of the United States; and all suchLaws shall be subject to the Revision and Controul of theCongress.Clause 3 No State shall, without the Consent of Con-gress, lay any Duty of Tonnage, keep Troops, or Ships of Warin time of Peace, enter into any Agreement or Compact withanother State, or with a foreign Power, or engage in War,unless actually invaded, or in such imminent Danger as willnot admit of Delay.6Modi ed by the 16th AmendmentGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 85. The Constitution of the United States * 55Article II The Executive ArticleNature and Scope of Presidential PowerSECTION 1Clause 1 The executive Power shall be vested in a Presi-dent of the United States of America. He shall hold his Of ceduring the Term of four Years and, together with the Vice Presi-dent, chosen for the same Term, be elected as follows:Clause 2 Each State shall appoint, in such Manner as theLegislature thereof may direct, a Number of Electors, equal tothe whole Number of Senators and Representatives to whichthe State may be entitled in the Congress: but no Senator orRepresentative, or Person holding an Of ce of Trust or Pro tunder the United States, shall be appointed an Elector.Clause 3 The Electors shall meet in their respective States,and vote by Ballot for two Persons, of whom one at least shallnot be an Inhabitant of the same State with themselves. Andthey shall make a List of all the Persons voted for, and of theNumber of Votes for each; which List they shall sign and cer-tify, and transmit sealed to the Seat of the Government of theUnited States, directed to the President of the Senate. ThePresident of the Senate shall, in the Presence of the Senate andHouse of Representatives, open all the Certi cates, and theVotes shall then be counted. The Person having the greatestNumber of Votes shall be the President, if such Number be aMajority of the whole Number of Electors appointed; and ifthere be more than one who have such Majority and have anequal Number of Votes, then the House of Representativesshall immediately chuse by Ballot one of them for President;and if no Person have a Majority, then from the ve highest onthe List the said House shall in like Manner chuse the Presi-dent. But in chusing the President, the Votes shall be taken byStates, the Representation from each State having one Vote; Aquorum for this Purpose shall consist of a Member or Mem-bers from two thirds of the States, and a Majority of all theStates shall be necessary to a Choice. In every Case, after theChoice of the President, the person having the greatest Num-ber of Votes of the Electors shall be the Vice President. But ifthere should remain two or more who have equal Vote, theSenate shall chuse from them by Ballot the Vice President.7Clause 4 The Congress may determine the Time of chusingthe Electors, and the Day on which they shall give their Votes;which Day shall be the same throughout the United States.Clause 5 No Person except a natural born Citizen, or a Cit-izen of the United States, at the time of the Adoption of thisConstitution, shall be eligible to the Of ce of President; nei-ther shall any Person be eligible to that Of ce who shall nothave attained to the Age of thirty ve Years, and been fourteenYears a Resident within the United States.Clause 6 In Case of the Removal of the President fromOf ce, or of his Death, Resignation, or Inability to discharge thePowers and Duties of the said Of ce, the same shall devolve onthe Vice President, and the Congress may by Law provide forthe Case of Removal, Death, Resignation, or Inability, both ofthe President and Vice President, declaring what Of cer shallthen act as President, and such Of cer shall act accordingly,until the Disability be removed, or a President shall be elected.8Clause 7 The President shall, at stated Times, receive for hisServices, a Compensation, which shall neither be increased nordiminished during the Period of which he shall have beenelected, and he shall not receive within that Period any otherEmolument from the United States, or any of them.Clause 8 Before he enter on the Execution of his Of ce,he shall take the following Oath or Af rmation: I dosolemnly swear (or af rm) that I will faithfully execute theOf ce of President of the United States, and will to the best ofmy Ability, preserve, protect and defend the Constitution ofthe United States.Powers and Duties of the PresidentSECTION 2Clause 1 The President shall be the Commander in Chief ofthe Army and Navy of the United States, and of the Militia of theseveral States, when called into the actual Service of the UnitedStates, he may require the Opinion, in writing, of the principalOf cer in each of the executive Departments, upon any Subjectrelating to the Duties of their respective Of ces, and he shallhave the Power to grant Reprieves and Pardons for Offencesagainst the United States, except in Cases of Impeachment.Clause 2 He shall have Power, by and with the Advice andConsent of the Senate to make Treaties, provided two thirds ofthe Senators present concur; and he shall nominate, and byand with the Advice and Consent of the Senate, shall appointAmbassadors, other public Ministers and Consuls, Judges ofthe supreme Court, and all other Of cers of the United States,whose Appointments are not herein otherwise provided for,and which shall be established by Law: but the Congress mayby Law vest the Appointment of such inferior Of cers, as theythink proper in the President alone, in the Courts of Law, or inthe Heads of Departments.Clause 3 The President shall have Power to ll up allVacancies that may happen during the Recess of the Senate,by granting Commissions which shall expire at the End oftheir next Session.SECTION 3 He shall from time to time give to the CongressInformation of the State of the Union, and recommend to theirConsideration such Measures as he shall judge necessary andexpedient; he may, on extraordinary Occasions, convene bothHouses, or either of them and in Case of Disagreementbetween them, with Respect to the Time of Adjournment, hemay adjourn them to such Time as he shall think proper; heshall receive Ambassadors and other public Ministers; he shall8Modi ed by the 25th Amendment7Changed by the 12th and 20th AmendmentsGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 86. 56 * The Constitution of the United Statestake Care that the Laws be faithfully executed, and shall Com-mission all the Of cers of the United States.SECTION 4 The President,Vice President and all civil Of cers ofthe United States, shall be removed from Of ce on Impeach-ment for, and Conviction of, Treason, Bribery, or other HighCrimes and Misdemeanors.Article III The Judicial ArticleJudicial Power, Courts, JudgesSECTION 1 The judicial Power of the United States, shall bevested in one supreme Court, and in such inferior Courts asthe Congress may from time to time ordain and establish. TheJudges, both the supreme and inferior Courts, shall hold theirOf ces during good Behaviour, and shall, at stated Times,receive for their Services, a Compensation, which shall not bediminished during their Continuance in Of ce.JurisdictionSECTION 2 The judicial Power shall extend to all Cases, in Lawand Equity, arising under this Constitution, the Laws of theUnited States, and Treaties made, or which shall be made,under their Authority; to all Cases affecting Ambassadors,other public Ministers and Consuls; to all Cases of admiraltyand maritime Jurisdiction; to Controversies to which theUnited States shall be a Party; to Controversies between twoor more States; between a State and Citizens of anotherState;9 between Citizens of different States; between Citi-zens of the same State claiming Lands under Grants of differ-ent States, and between a State, or the Citizens thereof, andforeign States, Citizens, or Subjects.In all Cases affecting Ambassadors, other public Ministersand Consuls, and those in which a State shall be Party, thesupreme Court shall have original Jurisdiction. In all the otherCases before mentioned, the supreme Court shall have appel-late Jurisdiction, both as to Law and Fact, with such Excep-tions, and under such Regulations as Congress shall make.The Trial of all Crimes, except in Cases of Impeachment,shall be by Jury; and such Trial shall be held in the State wherethe said Crimes shall have been committed; but when notcommitted within any State, the Trial shall be at such Place orPlaces as the Congress may by Law have directed.TreasonSECTION 3 Treason against the United States, shall consistonly in levying War against them, or in adhering to their Ene-mies, giving them Aid and Comfort. No Person shall be con-victed of Treason unless on the Testimony of two Witnesses tothe same overt Act, or on Confession in open Court.The Congress shall have Power to declare the Punishment ofTreason, but no Attainder of Treason shall work Corruption ofBlood, or Forfeiture except during the Life of the Person attainted.Article IV Interstate RelationsFull Faith and Credit ClauseSECTION 1 Full Faith and Credit shall be given in each State tothe public Acts, Records, and judicial Proceedings of everyother State. And the Congress may by general Laws prescribethe Manner in which such Acts, Records and Proceedings shallbe proved, and the Effect thereof.Privileges and Immunities; Interstate ExtraditionSECTION 2Clause 1 The Citizens of each State shall be entitled to allPrivileges and Immunities of Citizens in the several States.Clause 2 A person charged in any State with Treason,Felony or other Crime, who shall ee from Justice, and befound in another State, shall on Demand of the executiveAuthority of the State from which he ed, be delivered up, tobe removed to the State having Jurisdiction of the Crime.Clause 3 No person held to Service or Labour in oneState, under the Laws thereof, escaping into another, shall, inConsequence of any Law or Regulation therein, be dis-charged from such Service or Labour, but shall be deliveredup on Claim of the Party to whom such Service or Labourmay be due.10Admission of StatesSECTION 3 New States may be admitted by the Congress intothis Union; but no new State shall be formed or erected withinthe Jurisdiction of any other State; nor any State to be formedby the Junction of two or more States, or Parts of States, with-out the Consent of the Legislatures of the States concerned aswell as of the Congress.The Congress shall have Power to dispose of and make allneedful Rules and Regulations respecting the Territory or otherProperty belonging to the United States; and nothing in thisConstitution shall be so construed as to Prejudice any Claimsof the United States, or of any particular State.Republican Form of GovernmentSECTION 4 The United States shall guarantee to every State inthis Union a Republican Form of Government, and shall pro-tect each of them against Invasion; and on Application of theLegislature, or of the Executive (when the Legislature cannotbe convened) against domestic Violence.Article V The Amending PowerThe Congress, whenever two thirds of both Houses shall deem itnecessary, shall propose Amendments to this Constitution, or,on the Application of the Legislatures of two thirds of severalStates, shall call a Convention for proposing Amendments,10Repealed by the 13th Amendment9Modi ed by the 11th AmendmentGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 87. The Constitution of the United States * 57which, in either Case, shall be valid to all Intents and Purposes,as Part of this Constitution, when rati ed by the Legislatures ofthree fourths of the several States, or by Conventions in threefourths thereof, as the one or the other Mode of Rati cation maybe proposed by the Congress; Provided that no Amendmentwhich may be made prior to the Year One thousand eighthundred and eight shall in any Manner affect the rst andfourth Clauses in the Ninth Section of the rst Article; and thatno State, without its Consent, shall be deprived of its equalSuffrage in the Senate.Article VI The Supremacy ActClause 1All Debts contracted and Engagements entered into, before theAdoption of this Constitution, shall be as valid against the UnitedStates under the Constitution, as under the Confederation.Clause 2This Constitution, and the Laws of the United States whichshall be made in Pursuance thereof; and all Treaties made, orwhich shall be made, under the Authority of the United States,shall be the supreme Law of the Land; and the Judges in everyState shall be bound thereby, any Thing in the Constitution orLaws of any State to the Contrary notwithstanding.Clause 3The Senators and Representatives before mentioned, and theMembers of the several State Legislatures, and all executiveand judicial Of cers, both of the United States and of theseveral States, shall be bound by Oath or Af rmation, tosupport this Constitution; but no religious Test shall ever berequired as a Quali cation to any Of ce or public Trust underthe United States.Article VII Rati cationThe Rati cation of the Conventions of nine States, shall besuf cient for the Establishment of this Constitution betweenthe States so ratifying the Same.Done in Convention by the Unanimous Consent of theStates present the Seventeenth Day of September in the Yearof our Lord one thousand seven hundred and Eighty sevenand of the Independence of the United States of America theTwelfth In Witness whereof We have hereunto subscribedour Names.AmendmentsThe Bill of Rights[The rst ten amendments were rati ed on December 15,1791, and form what is known as the Bill of Rights. ]Amendment 1Religion, Speech, Assembly, and PoliticsCongress shall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof; or abridgingthe freedom of speech, or of the press; or the right of thepeople peaceably to assemble, and to petition the governmentfor a redress of grievances.Amendment 2Militia and the Right to Bear ArmsA well-regulated Militia, being necessary to the security of afree State, the right of the people to keep and bear Arms, shallnot be infringed.Amendment 3 Quartering of SoldiersNo Soldier shall, in time of peace be quartered in any house,without the consent of the Owner, nor in time of war, but inmanner to be prescribed by law.Amendment 4 Searches and SeizuresThe right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches andseizures, shall not be violated, and no Warrants shall issue, butupon probable cause, supported by Oath or af rmation, andparticularly describing the place to be searched, and thepersons or things to be seized.Amendment 5 Grand Juries,Self-Incrimination, Double Jeopardy, Due Process,and Eminent DomainNo person shall be held to answer for a capital, or otherwiseinfamous crime, unless on a presentment or indictment of aGrand jury, except in cases arising in the land or naval forces,or in the Militia, when in actual service in time ofWar or publicdanger; nor shall any person be subject for the same offence tobe twice put in jeopardy of life or limb; nor shall be compelledin any criminal case to be a witness against himself, nor bedeprived of life, liberty, or property, without due process oflaw; nor shall private property be taken for public use, withoutjust compensation.Amendment 6Criminal Court ProceduresIn all criminal prosecutions, the accused shall enjoy the rightto a speedy and public trial, by an impartial jury of the Stateand district wherein the crime shall have been committed,which district shall have been previously ascertained by law,and to be informed of the nature and cause of the accusation;to be confronted with the witnesses against him; to havecompulsory process for obtaining Witnesses in his favor, andto have the Assistance of Counsel for his defence.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 88. 58 * The Constitution of the United StatesAmendment 7 Trial by Jury in Common Law CasesIn Suits at common law, where the value in controversy shallexceed twenty dollars, the right of trial by jury shall bepreserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according tothe rules of the common law.Amendment 8 Bail, Cruel and Unusual PunishmentExcessive bail shall not be required, nor excessive nesimposed, nor cruel and unusual punishments in icted.Amendment 9 Rights Retained by the PeopleThe enumeration in the Constitution, of certain rights, shall notbe construed to deny or disparage others retained by the people.Amendment 10 Reserved Powers of the StatesThe powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved tothe States respectively, or to the people.Amendment 11 Suits Against the States[Rati ed February 7, 1795]The Judicial power of the United States shall not be construedto extend to any suit in law or equity, commenced orprosecuted against one of the United States by Citizens ofanother State, or by Citizens or Subjects of any Foreign State.Amendment 12 Election of the President[Rati ed June 15, 1804]The Electors shall meet in their respective states, and vote byballot for President and Vice-President, one of whom, at least,shall not be an inhabitant of the same state with themselves;they shall name in their ballots the person voted for asPresident, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons votedfor as President, and of all persons voted for as Vice-President,and of the number of votes for each, which lists they shall signand certify, and transmit sealed to the seat of the government ofthe United States, directed to the President of the Senate; ThePresident of the Senate shall, in presence of the Senate andHouse of Representatives, open all the certi cates and the votesshall then be counted; The person having the greatestnumber of votes for President, shall be the President, if suchnumber be a majority of the whole number of Electorsappointed; and if no person have such majority, then from thepersons having the highest numbers not exceeding three onthe list of those voted for as President, the House ofRepresentatives shall choose immediately, by ballot, thePresident. But in choosing the President, the votes shall betaken by states, the representation from each state having onevote; a quorum for this purpose shall consist of a member ormembers from two-thirds of the states, and a majority of allstates shall be necessary to a choice. And if the House ofRepresentatives shall not choose a President whenever theright of choice shall devolve upon them, before the fourth dayof March next following, then the Vice-President shall act asPresident, as in the case of the death or other constitutionaldisability of the President.11 The person having the greatestnumber of votes as Vice-President, shall be the Vice-President,if such a number be a majority of the whole numbers ofElectors appointed, and if no person have a majority, then fromthe two highest numbers on the list, the Senate shall choose theVice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of thewhole number shall be necessary to a choice. But no personconstitutionally ineligible to the of ce of President shall beeligible to that of Vice-President of the United States.Amendment 13 Prohibition of Slavery[Rati ed December 6, 1865]SECTION 1 Neither slavery nor involuntary servitude, exceptas a punishment for crime whereof the party shall have beenduly convicted, shall exist within the United States, or anyplace subject to their jurisdiction.SECTION 2 Congress shall have power to enforce this article byappropriate legislation.Amendment 14 Citizenship, Due Process, and EqualProtection of the Laws[Rati ed July 9, 1868]SECTION 1 All persons born or naturalized in the UnitedStates, and subject to the jurisdiction thereof, are citizens ofthe United States and of the State wherein they reside. No Stateshall make or enforce any law which shall abridge the privi-leges or immunities of citizens of the United States; nor shallany State deprive any person of life, liberty, or property, with-out due process of law; nor deny to any person within its juris-diction the equal protection of the laws.SECTION 2 Representatives shall be apportioned among theseveral States according to their respective numbers, countingthe whole number of persons in each State, excluding Indiansnot taxed. But when the right to vote at any election for thechoice of electors for President and Vice President of theUnited States, Representatives in Congress, the Executive andJudicial of cers of a State, or the members of the Legislaturethereof, is denied to any of the male inhabitants of such State,being twenty-one12 years of age, and citizens of the UnitedStates, or in any way abridged, except for participation inrebellion, or other crime, the basis of representation thereinshall be reduced in the proportion which the number of such12Changed by the 26th Amendment11Changed by the 20th AmendmentGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 89. The Constitution of the United States * 59male citizens shall bear to the whole number of male citizenstwenty-one years of age in such State.SECTION 3 No person shall be a Senator or Representative inCongress, or elector of President andVice President, or hold anyof ce, civil or military, under the United States, or under anyState, who, having previously taken an oath, as a member ofCongress, or as an of cer of the United States, or as a member ofany State legislature, or as an executive or judicial of cer of anyState, to support the Constitution of the United States, shallhave engaged in insurrection or rebellion against the same, orgiven aid or comfort to the enemies thereof. But Congress mayby a vote of two-thirds of each House, remove such disability.SECTION 4 The validity of the public debt of the United States,authorized by law, including debts incurred for payment of pen-sions and bounties for services in suppressing insurrection orrebellion, shall not be questioned. But neither the United Statesnor any State shall assume or pay any debt or obligation incurredin aid of insurrection or rebellion against the United States, orany claim for the loss or emancipation of any slave; but all suchdebts, obligations and claims shall be held illegal and void.SECTION 5 The Congress shall have power to enforce, byappropriate legislation, the provisions of this article.Amendment 15 The Right toVote[Rati ed February 3, 1870]SECTION 1 The right of citizens of the United States to vote shallnot be denied or abridged by the United States or by any Stateon account of race, color, or previous condition of servitude.SECTION 2 The Congress shall have power to enforce thisarticle by appropriate legislation.Amendment 16 Income Taxes[Rati ed February 3, 1913]The Congress shall have power to lay and collect taxes onincomes, from whatever source derived, without apportionmentamong the several States, and without regard to any census orenumeration.Amendment 17 Direct Election of Senators[Rati ed April 8, 1913]The Senate of the United States shall be composed of twoSenators from each State, elected by the people thereof, for sixyears; and each Senator shall have one vote. The electors ineach State shall have the quali cations requisite for electors ofthe most numerous branch of the State legislatures.When vacancies happen in the representation of any State inthe Senate, the executive authority of such State shall issue writsof election to ll such vacancies: Provided, That the legislature ofany State may empower the executive thereof to make temporaryappointment until the people ll the vacancies by election as thelegislature may direct.This amendment shall not be so construedas to affect the election or term of any Senator chosen before itbecomes valid as part of the Constitution.Amendment 18 Prohibition[Rati ed January 16, 1919. Repealed December 5, 1933 byAmendment 21]SECTION 1 After one year from the rati cation of this article themanufacture, sale, or transportation of intoxicating liquorswithin, the importation thereof into, or the exportation thereoffrom the United States and all territory subject to the jurisdic-tion thereof for beverage purposes is hereby prohibited.SECTION 2 The Congress and the several states shall have con-current power to enforce this article by appropriate legislation.SECTION 3 This article shall be inoperative unless it shall havebeen rati ed as an amendment to the Constitution by the leg-islatures of the several states, as provided in the Constitution,within seven years from the date of the submission hereof tothe States by the Congress.13Amendment 19 For Womens Suffrage[Rati ed August 18, 1920]The right of the citizens of the United States to vote shall not bedenied or abridged by the United States or by any State onaccount of sex.Congress shall have power, by appropriate legislation, toenforce the provision of this article.Amendment 20 The Lame Duck Amendment[Rati ed January 23, 1933]SECTION 1 The terms of the President and Vice President shallend at noon on the 20th day of January, and the terms of the Sena-tors and Representatives at noon on the 3rd day of January, of theyears in which such terms would have ended if this article had notbeen rati ed, and the terms of their successors shall then begin.SECTION 2 The Congress shall assemble at least once in everyyear, and such meeting shall begin at noon on the 3rd day ofJanuary, unless they shall by law appoint a different day.SECTION 3 If, at the time xed for the beginning of the term ofthe President, the President elect shall have died, the VicePresident elect shall become President. If a President shall nothave been chosen before the time xed for the beginning ofhis term, or if the President elect shall have failed to qualify,then the Vice President elect shall act as President until aPresident shall have quali ed; and the Congress may by lawprovide for the case wherein neither a President elect nor aVice President elect shall have quali ed, declaring who shallthen act as President, or the manner in which one who is toact shall be selected, and such person shall act accordinglyuntil a President or Vice President shall have quali ed.13Repealed by the 21st AmendmentGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 90. 60 * The Constitution of the United StatesSECTION 4 The Congress may by law provide for the case of thedeath of any of the persons from whom the House of Representa-tives may choose a President whenever the right of choice shallhave devolved upon them, and for the case of the death of any ofthe persons from whom the Senate may choose a Vice Presidentwhenever the right of choice shall have devolved upon them.SECTION 5 Sections 1 and 2 shall take effect on the 15th day ofOctober following the rati cation of this article.SECTION 6 This article shall be inoperative unless it shall havebeen rati ed as an amendment to the Constitution by the leg-islatures of three-fourths of the several States within sevenyears from the date of its submission.Amendment 21 Repeal of Prohibition[Rati ed December 5, 1933]SECTION 1 The eighteenth article of amendment to the Con-stitution of the United States is hereby repealed.SECTION 2 The transportation or importation into any State,Territory, or Possession of the United States for delivery or usetherein of intoxicating liquors, in violation of the laws thereof,is hereby prohibited.SECTION 3 This article shall be inoperative unless it shall havebeen rati ed as an amendment to the Constitution by conven-tions in the several States, as provided in the Constitution,within seven years from the date of the submission hereof tothe States by the Congress.Amendment 22 Number of Presidential Terms[Rati ed February 27, 1951]SECTION 1 No person shall be elected to the of ce of the Pres-ident more than twice, and no person who has held the of ceof President, or acted as President, for more than two years ofa term to which some other person was elected President shallbe elected to the of ce of the President more than once. Butthis Article shall not apply to any person holding the of ce ofPresident when this article was proposed by the Congress, andshall not prevent any person who may be holding the of ce ofPresident, or acting as President, during the term within whichthis Article becomes operative from holding the of ce of Presi-dent or acting as President during the remainder of such term.SECTION 2 This Article shall be inoperative unless it shall havebeen rati ed as an amendment to the Constitution by the legis-latures of three-fourths of the several states within seven yearsfrom the date of its submission to the States by the Congress.Amendment 23 PresidentialElectors for the District of Columbia[Rati ed March 29, 1961]SECTION 1 The District constituting the seat of government ofthe United States shall appoint in such manner as the Con-gress may direct:A number of electors of President and Vice Presidentequal to the whole number of Senators and Representatives inCongress to which the District would be entitled if it were aState, but in no event more than the least populous State; theyshall be in addition to those appointed by the States, but theyshall be considered for the purposes of the election of Presi-dent and Vice President, to be electors appointed by a State;and they shall meet in the District and perform such duties asprovided by the twelfth article of amendment.SECTION 2 The Congress shall have power to enforce thisarticle by appropriate legislationAmendment 24 The Anti-Poll Tax Amendment[Rati ed January 23, 1964]SECTION 1 The right of citizens of the United States to vote inany primary or other election for President or Vice President,for electors for President or Vice President, or for Senator orRepresentative in Congress, shall not be denied or abridged bythe United States or any state by reason of failure to pay anypoll tax or other tax.SECTION 2 The Congress shall have power to enforce thisarticle by appropriate legislation.Amendment 25 PresidentialDisability,Vice Presidential Vacancies[Rati ed February 10, 1967]SECTION 1 In case of the removal of the President from of ceor his death or resignation, the Vice President shall becomePresident.SECTION 2 Whenever there is a vacancy in the of ce of theVice President, the President shall nominate a Vice Presidentwho shall take the of ce upon con rmation by a majority voteof both Houses of Congress.SECTION 3 Whenever the President transmits to the Presidentpro tempore of the Senate and the Speaker of the House ofRepresentatives his written declaration that he is unable todischarge the powers and duties of his of ce, and until hetransmits to them a written declaration to the contrary, suchpowers and duties shall be discharged by the Vice President asActing President.SECTION 4 Whenever the Vice President and a majority ofeither the principal of cers of the executive departments, orof such other body as Congress may by law provide, transmitto the President pro tempore of the Senate and the Speaker ofthe House of Representatives their written declaration thatthe President is unable to discharge the powers and duties ofhis of ce, the Vice President shall immediately assume thepowers and duties of the of ce as Acting President.Thereafter, when the President transmits to the Presidentpro tempore of the Senate and the Speaker of the House ofRepresentatives his written declaration that no inabilityexists, he shall resume the powers and duties of his of ceGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 91. The Constitution of the United States * 61unless theVice President and a majority of either the principalof cers of the executive departments, or of such other body asCongress may by law provide, transmit within four days to thePresident pro tempore of the Senate and the Speaker of theHouse of Representatives their written declaration that thePresident is unable to discharge the powers and duties of hisof ce. Thereupon Congress shall decide the issue, assemblingwithin forty-eight hours for that purpose if not in session. Ifthe Congress, within twenty-one days after receipt of the lat-ter written declaration, or, if Congress is not in session, withintwenty-one days after Congress is required to assemble, deter-mines by two-thirds vote of both houses that the President isunable to discharge the powers and duties of his of ce, theVice President shall continue to discharge the same as ActingPresident; otherwise, the President shall resume the powersand duties of his of ce.Amendment 26 Eighteen-Year-Old Vote[Ratified July 1, 1971]SECTION 1 The right of citizens of the United States, who are 18years of age, or older, to vote shall not be denied or abridged bythe United States or by any state on account of age.SECTION 2 The Congress shall have power to enforce thisarticle by appropriate legislation.Amendment 27 Congressional Salaries[Rati ed May 7, 1992]No law, varying the compensation for the services of theSenators and Representatives, shall take effect, until anelection of Representatives shall be intervened.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 92. 3chapterGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 93. Since the founding of the Republic, American citizens have debated the relationshipof the national government to the states.1 In 1787, members of what would becomethe Federalist Party defended the creation of a strong national government, whereasthe Antifederalists warned that a strong national government would overshadow thestates. The great debate over which level of government best represents the people con-tinues to rage.State governments have often complained that the national government is eithertaking over their responsibilities or controlling too much of what they do. At the sametime, in policy areas such as civil rights, educational opportunities for people with dis-abilities, and handgun control, the states have been slow to respond to citizens, andthe national government has taken steps.In recent years, the national government has given states more freedom to act onissues such as health care and global warming, and removed some restrictions onstates management of national programs such as welfare.2 At the same time, stateshave been pushing hard to be what Supreme Court justice Louis Brandeis called labo-ratories of democracy. 3Impatient with the lack of action in Washington, D.C., for example, Californiaacted to set emissions standards on cars and trucks in 2002. Under the new law,the first in the nation designed to curtail greenhouse gases, automobile manufac-turers have to cut car and light truck emissions of carbon dioxide by 30 percentstarting in 2009.The automobile industry argues that the California law will add $3,000 to the aver-age cost of a car or truck.4 It also claims that the law illegally assumes responsibilities ofthe national government and its Environmental Protection Agency (EPA), which setsemission standards for the entire nation. The Alliance of Automobile Manufacturersimmediately sued to stop the law, threatening to take the issue all the way to the U.S.Supreme Court. In turn, California has sued the EPA for permission to set a higher stan-dard than the national law permits. In 2003, for example, the agency ruled that carbondioxide was not a pollutant and could not be regulated. However, California includescarbon dioxide among its regulated gases.California is not alone in the ght to end global warming. As of 2007, 28 states haddeveloped action plans to reduce greenhouse gases; 12 had taken steps to lower emis-sions of carbon dioxide by power plants, cars, and/or state governments; and 12 hadjoined California in ghting the EPA for permission to set higher standards.However, California has long been a leader in enacting environmental laws be-cause of its large size when California raises emission standards, automobilemanufacturers raise their standards for all states. Otherwise, they would have tomake two different models of every car and light truck, which would be enormouslyexpensive.Californias ongoing effort to improve the environment shows just how importantthe people can be in shaping the future, not only at the national level, but within theirstates as well. Environmental groups have concentrated on state legislatures and evenlocal governments for new laws. In doing so, they have taken advantage of theConstitutions protections of state rights, even if it means a dispute with the nationalgovernment that will be decided by the highest court in the nation.63American FederalismLEARNING OBJECTIVES* Compare and contrast the differentinterpretations of federalism.+ Show how federalism protectscitizens., Differentiate between the types ofnational and state powers.- Describe and compare theconstitutional pillars of nationalpower.. Analyze the role of the nationalcourts in regulating federalism./ Compare and contrast thearguments of decentralists andcentralists.0 Analyze the differences between grantsand mandates.1 Establish the link between thegrowth of the national governmentand federalism.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 94. 64 * CHAPTER 3 American FederalismLEARNING OBJECTIVE* Compare and contrast the differentinterpretations of federalism.federalismA constitutional arrangement in which poweris distributed between a central governmentand subdivisional governments, called statesin the United States. The national and thesubdivisional governments both exercisedirect authority over individuals.In this chapter, we rst de ne federalism and its advantages. We then look at theconstitutional basis for our federal system and how court decisions and politicaldevelopments have shaped, and continue to shape, federalism in the United States.Throughout, you should think hard about how you in uence the issues you careabout, even in your local city council or mayors of ce. The Constitution clearly en-courages, indeed depends on you to express your view at all levels of government,which is why action in a single state can start a process of change that spreads to otherstates or the national government.De ning FederalismScholars have argued and wars have been fought over what federalism means. Onescholar recently counted 267 de nitions of the term.5Federalism, as we de ne it, is a form of government in which a constitution distrib-utes authority and powers between a central government and smaller regional govern-ments usually called states, provinces, or republics giving to both the national and theregional governments substantial responsibilities and powers, including the power tocollect taxes and to pass and enforce laws regulating the conduct of individuals.When weuse the term federalism or federal system, we are referring to this system of nationaland state governments; when we use the term federal government, we are referring tothe national government headquartered inWashington, D.C.The mere existence of both national and state governments does not make a sys-tem federal. What is important is that a constitution divides governmental powersbetween the national government and smaller regional governments, giving clearlyde ned functions to each. Neither the central nor the regional government receives itspowers from the other; both derive them from a common source the Constitution.No ordinary act of legislation at either the national or the state level can change thisconstitutional distribution of powers. Both levels of government operate through theirown agents and exercise power directly over individuals.Our de nition of federalism is broad enough to include competing ideas of it aswell as the range of federal systems around the world. Here are some of the leadinginterpretations of federalism.California and other states sued the national government in 2008 to impose higher gas milleagestandards on automobiles and light trucks. The Hummer is considered a light truck.CHAPTER OUTLINE* De ning Federalism* The Constitutional Structureof American Federalism* The Federal Courts andFederalism* Regulatory Federalism* The Politics of Federalism* The Future of FederalismGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 95. Defining Federalism * 65unitary systemA constitutional arrangement that concentratespower in a central government.* Dual federalism views the Constitution as givinga limited list of powers primarily foreign policyand national defense to the national government,leaving the rest to sovereign states. Each level ofgovernment is dominant within its own sphere. TheSupreme Court serves as the umpire between thenational government and the states in disputes overwhich level of government has responsibility for aparticular activity. During our rst hundred years,dual federalism was the favored interpretation givenby the Supreme Court.* Cooperative federalism stresses federalism as a sys-tem of intergovernmental relationships in deliver-ing governmental goods and services to the peopleand calls for cooperation among various levels ofgovernment.* Marble cake federalism, a term coined by political sci-entist Morton Grodzins, conceives of federalism as amixed set of responsibilities in which all levels of gov-ernment are engaged in a variety of issues and pro-grams, rather than a layer cake, or dual federalism,with xed divisions between layers or levels of gov-ernment.6* Competitive federalism, a term rst used by politicalscientist Thomas R. Dye, views the national govern-ment, the 50 states, and the thousands of local governments as competing witheach other over ways to put together packages of services and taxes. Applyingthe analogy of the marketplace, Dye emphasizes that at the state and local lev-els, we have some choice about which state and city we want to use, just as wehave choices about what kind of telephone service we use.7* Permissive federalism implies that although federalism provides a sharing ofpower and authority between the national and state government, the states sharerests upon the permission and permissiveness of the national government. 8* The new federalism, championed by Ronald Reagan, Justices Antonin Scalia andClarenceThomas, former chief justiceWilliam Rehnquist, and former justice SandraDay O Connor, presumes that the power of the federal government is limited in fa-vor of the broad powers reserved to the states. Strict federalism presumes that everypower not delegated to the national government is reserved for the states. Reaganwas particularly important to supporting what he called this new federalism.Constitutionally, the federal system of the United States consists of only the nationalgovernment and the 50 states. Cities are not, the Supreme Court reminded us, sover-eign entities. But in a practical sense, we are a nation of almost 88,000 governmentalunits, from the national government to the school board district.9 This does not make fora tidy, ef cient, easy-to-understand system; yet as we shall see, it has its virtues.Alternatives to FederalismAmong the alternatives to federalism are unitary systems of government, in which aconstitution vests all governmental power in the central government. The central gov-ernment, if it so chooses, may delegate authority to constituent units, but what it dele-gates, it may take away. China, France, the Scandinavian countries, and Israel haveunitary governments. In the United States, state constitutions usually create this kindof relationship between the state and its local governments.President Ronald Reagan was deeply committed to returning responsibilities tothe states, but he was unable to achieve much of his new federalism agenda.Comparing Federaland Unitary SystemsGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 96. 66At the other extreme from unitary governments are confederations, in which sov-ereign nations, through a constitutional compact, create a central government butcarefully limit its authority and do not give it the power to regulate the conduct of indi-viduals directly. The central government makes regulations for the constituent govern-ments, but it exists and operates only at their direction. The 13 states under theArticles of Confederation operated in this manner, as did the southern Confederacyduring the Civil War. The European Union is another example, though debates over itsintegration continue.10Why Federalism?In 1787, federalism was a compromise between centrists, who supported a strong na-tional government, and those who favored decentralization. Confederation had provedunsuccessful. A unitary system was out of the question because most people were toodeeply attached to their state governments to permit subordination to central rule.Many scholars think that federalism is ideally suited to the needs of a diverse peoplespread over a large continent, suspicious of concentrated power, and desiring unity butnot uniformity. Federalism offered, and still offers, many advantages for such a people.One of the reasons federalism ourishesin the U.S. system of government is thatthe closer the government is to the people,the greater their trust. Most U.S. citizenstrust local governments most.Members of Generation Next feel the same.According to the Pew Research Center s 2007A Preference for Local GovernmentGENERATION NEXTsurvey of the nation s political landscape,younger U.S. adults are just as likely as anyother age group to agree that the federalgovernment should run only those things thatcannot be run at the local level.Members of Generation Next do not allagree on this issue, however. Members ofminority groups are much less likely to favorlocal government over national government,perhaps because they see the national gov-ernment as an essential guarantor of theircivil liberties and civil rights. Independentsare more likely to favor national action, too,perhaps because they have less con dencein the two parties to represent them. Finally,conservatives favor local action, in part be-cause they see the national government asa source of big spending and meddling inlocal affairs.As a group, members of Generation Nextare not signi cantly different from other gen-erations in their preference for local govern-ment. All generations tend to have greaterfaith in the governments they know best,which are the ones closest to home.QUESTIONS1. How does local government give youmore say in the issues you care about?2. What issues do you think the federalgovernment might be better suited todeal with? Why?3. Why is the national government some-times the best level of governmentaction for achieving change in issuessuch as global warming or access tohealth care?confederationA constitutional arrangement in whichsovereign nations or states, by compact,create a central government but carefully limitits power and do not give it direct authorityover individuals.Percentage of 18- to 29-Year-Olds Who Completely Agree That the Federal GovernmentShould Run Only Those Things That Cannot Be Run at the Local Level.0 10 20 30 40 50GenderRacePoliticalPartyIdeologyMaleFemaleWhiteNonwhiteDemocratIndependentRepublicanVeryconservativeConservativeModerateLiberalVery liberalSOURCE: Used by permission of The Pew Research Center for the People & the Press.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 97. Defining Federalism * 67Federalism Checks the Growth of Tyranny Although in the rest of the world, federalforms have not always prevented tyranny (Germanys federal constitution did not, forexample, prevent Hitler from seizing power in the 1930s), U.S. citizens tend to associatefederalism with freedom.11 When one political party loses control of the nationalgovernment, it is still likely to hold of ce in a number of states and can continue tochallenge the party in power at the national level. See Figure 3 1 for the number ofgovernments in the United States.Such diffusion of power creates its own problems. It makes it dif cult for a nationalmajority to carry out a program of action, and it permits those who control state govern-ments to frustrate the policies enacted by Congress and administered by federal agen-cies. To the framers, these obstacles were an advantage. They feared that a single interestgroup might capture the national government and suppress the interests of others.Federalism Allows Unity Without Uniformity National politicians and parties do nothave to iron out every difference on every issue that divides us, whether it be abortion,same-sex marriage, gun control, capital punishment, welfare nancing, or assistedsuicide. Instead, these issues are debated in state legislatures, county courthouses, andcity halls. But this advantage of federalism is becoming less signi cant today as manylocal issues quickly move to the national level. Information about state action spreadsquickly from government to government, especially during periods when the nationalgovernment is relatively slow to respond to pressing issues such as global warming.Federalism Encourages Experimentation As Justice Louis Brandeis once argued,states are laboratories of democracy. If they adopt programs that fail, the negativeeffects are limited; if programs succeed, they can be adopted by other states and by thenational government. Georgia, for example, was the rst state to permit 18-year-olds tovote; Wisconsin was a leader in requiring welfare recipients to work; California movedrst on global warming; Massachusetts created one of the rst state programs to providehealth insurance to all its citizens. Not all innovations, even those considered successful,become widely adopted.Federalism Provides Training for National Of cials While encouraging experimentsin public policy, federalism also provides a training ground for state and local politiciansto gain experience before moving to the national stage. Before becoming president,Jimmy Carter, Ronald Reagan, Bill Clinton, and George W. Bush served as governors ofNationalStatesCountiesMunicipalitiesTownships or townsSchool districtsSpecial districts1503,03419,42916,50413,50635,052FIGURE 3 1Number of Governments in theUnited States, 2007.SOURCE: U.S. Bureau of the Census, Statistical Abstractof the United States, OBJECTIVE* Show how federalism protectscitizens.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 98. 68 * CHAPTER 3 American FederalismGeorgia, California, Arkansas, and Texas respectively. Three governors and one mayorran for the presidential nomination in 2008, but all were defeated.Federalism Creates Opportunities for Future National Candidates Whileencouraging experiments in public policy, federalism also provides a trainingground for state and local politicians to gain experience before moving to thenational stage. Presidents Jimmy Carter, Ronald Reagan, Bill Clinton, and George W.Bush previously served as governor of the respective states of Georgia, California,Arkansas, and Texas. In addition, three governors and one mayor ran for theRepublican Party nomination for president in 2008, and another governor, AlaskasSarah Palin, was selected as the Republican vice presidential candidate. Althoughall were defeated, they are already front-runners to challenge President BarackObama in 2012.Federalism Keeps Government Closer to the People By providing numerous arenasfor decision making, federalism engages many people in the process of governmentand helps keep government closer to the people. Every day, thousands of U.S. adultsserve on city councils, school boards, neighborhood associations, and planningcommissions.The Constitutional Structure of AmericanFederalismThe division of powers and responsibilities between the national and state govern-ments has resulted in thousands of court decisions, as well as hundreds of books andendless speeches to explain them and even then the division lacks precise de ni-tion. Nonetheless, it s helpful to have a basic understanding of how the Constitutiondivides these powers and responsibilities and what obligations it imposes on eachlevel of government.States such as Wisconsin were leaders in help-ing welfare recipients nd work long before thefederal government became involved. Here arecipient receives training for her move off thewelfare rolls.LEARNING OBJECTIVE* Differentiate between the types ofnational and state powers.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 99. 69The constitutional framework of our federal system is relatively simple:1. The national government has only those powers delegated to it by the Constitution(with the important exception of the inherent power over foreign affairs).2. Within the scope of its operations, the national government is supreme.3. The state governments have the powers not delegated to the central government,except those denied to them by the Constitution and their state constitutions.4. Some powers are speci cally denied to both the national and state governments;others are speci cally denied only to the states or to the national government.Powers of the National GovernmentThe Constitution delegates legislative, executive, and judicial powers to the nationalgovernment. In addition to these delegated powers, such as the power to regulate in-terstate commerce and to appropriate funds, Congress has assumed constitutionallyimplied powers, such as the power to create banks, which are inferred from delegatedpowers. The constitutional basis for the implied powers of Congress is the necessaryand proper clause (Article I, Section 8, Clause 3). This clause gives Congress the rightFor most of the twentieth century, the high-est percentage of immigrants to theUnited States came from Europe. Today LatinAmericans and Asians exceed Europeans asimmigrants.The number of immigrants arriving in theUnited States has been growing. Many enterthe country illegally and join the workforce.According to the Pew Hispanic Center, in2005 the United States had 35.7 million for-eign-born residents, of whom 61 percentwere legal permanent residents and 29 per-cent were undocumented migrants.*The majority of undocumented aliens canbe found in California, Texas, Florida, NewYork, Illinois, and New Jersey. However, al-most two in ve undocumented aliens now re-side in other states, which makes the issue ofimmigration relevant in almost every electionas the total number increases, including chil-dren who were born in theUnited States or crossedthe border with a parent.Whereas 1.3 million illegalimmigrants came to theUnited States in the1980s, 5.8 million came inthe 1990s, and 3.1 millionarrived in 2000 2004.As a result of the sub-stantial recent growth inillegal immigration, bro-ken borders and the ris-ing unemployment rateamong U.S. citizenshave become very con-troversial issues. Manyobject to undocumentedImmigrants and Federal, State,and Local ResponsesTHE CHANGING FACE OF U.S. POLITICSworkers taking jobs away from U.S. citi-zens, and the children of illegal immigrantsoften receive education and health bene ts.The controversy is complex, and there isno consensus about how to resolve it. Morethan 50 immigration bills have been intro-duced in Congress, and another 1,562 billswere introduced in state legislatures in 2007alone. They address many solutions to immi-gration issues such as extending visas forhighly educated workers in hard-to-recruitprofessions, establishing new procedures forlegalizing undocumented workers, providingsome form of amnesty for illegal immigrantswho have been living in the United States foryears, and increasing border security.QUESTIONS1. Why does the number of undocumentedaliens provoke such controversy acrossthe nation even though most immigrantslive in California, Illinois, New York,Texas, and Florida?2. Should the nation deny public bene tssuch as access to schools, health care,and housing to undocumented alienswho are children? Why or why not?*Jeffrey S. Passel, Estimates of the Size and Characteristics of the Undocumented Population, Pew Hispanic Center report, March 21, 2005, p. 7.National Conference of State Legislatures, 2007 Enacted State Legislation Related to Immigrants and Immigration, Immigrant Policy Project, November 29,2007, p. 1.delegated powersPowers given explicitly to the national govern-ment and listed in the Constitution.implied powersPowers inferred from the express powers thatallow Congress to carry out its functions.Menaged 18 39:4.5 million43%Womenaged 18 39:3.0 million29%Adultsaged40 and over:1.1 million11%Childrenunder 18:1.7 million17%Age and Sex of Undocument Aliens, 2004.necessary and proper clauseThe clause in the Constitution (Article I,Section 8, Clause 3) setting forth the impliedpowers of Congress. It states that Congress, inaddition to its express powers, has the right tomake all laws necessary and proper to carryout all powers the Constitution vests in thenational government.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 100. 70 * CHAPTER 3 American FederalismLEARNING OBJECTIVE* Describe and compare theconstitutional pillars of make all Laws which shall be necessary and proper for carrying into Execution theforegoing Powers, and all other Powers vested. . . in the Government of the UnitedStates. These delegated powers are sometimes labeled express powers, which meansthey are expressly noted in the Constitution.In foreign affairs, the national government has inherent powers. The nationalgovernment has the same authority to deal with other nations as if it were the centralgovernment in a unitary system. Such inherent powers do not depend on speci cconstitutional provisions. For example, the government of the United States may ac-quire territory by purchase or by discovery and occupation, though no speci cclause in the Constitution allows such acquisition. See Table 3 1 for examples of fed-eral and state powers.Together, these express, implied, and inherent powers create a exible system thatallows the Supreme Court, Congress, the president, and the people to expand the cen-tral government s powers to meet the needs of a modern nation in a global economyand confront threats of international terrorism. This expansion of central governmentfunctions rests on four constitutional pillars.These constitutional pillars the national supremacy article, the war power, thecommerce clause, and especially the power to tax and spend for the general welfarehave permitted a tremendous expansion of the functions of the national govern-ment. Despite the Supreme Court s recent declaration that some national lawsexceed Congresss constitutional powers, the national government has, in effect,almost full power to enact any legislation that Congress deems necessary, so long asit does not con ict with the provisions of the Constitution designed to protect indi-vidual rights and the powers of the states. In addition, Section 5 of the FourteenthAmendment, rati ed in 1868, gives Congress the power to enact legislation toremedy constitutional violations and the denial of due process and the equal protec-tion of the laws.The National Supremacy Article One of the most important constitutional pillars isfound in Article VI: This Constitution, and the Laws of the United States which shall bemade in Pursuance thereof; and all Treaties made. . . under the Authority of the UnitedStates, shall be the supreme Law of the Land; and the Judges in every State shall bebound thereby; any Thing in the Constitution or Laws of any State to the Contrarynotwithstanding. All of cials, state as well as national, swear an oath to support theConstitution of the United States. States may not override national policies; thisrestriction also applies to local units of government, because they are agents of thestates. National laws and regulations of federal agencies preempt the eld, so thatcon icting state and local regulations are unenforceable.The War Power The national government is responsible for protecting the nationfrom external aggression, whether from other nations or from international terrorism.inherent powersThe powers of the national government inforeign affairs that the Supreme Court hasdeclared do not depend on constitutionalgrants but rather grow out of the veryexistence of the national government.TABLE3 1 The Federal Division of PowersExamples of PowersDelegated to the NationalGovernmentExamples of PowersReserved for StateGovernmentsExamples of Concurrent PowersShared by the National and StateGovernmentsRegulate tradeand interstatecommerceDeclare warCreate post of cesCoin moneyEstablish national courtsCharter localgovernmentsPolice citizensOversee primaryand elementaryeducationTake land for public useImpose and collect taxes and feesBorrow and spend moneyEstablish courtsEnact and enforce lawsProtect civil rightsConduct electionsProtect health and welfareexpress powersPowers that the Constitution speci callygrants to one of the branches of the nationalgovernment.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 101. The Constitutional Structure of American Federalism * 71commerce clauseThe clause in the Constitution (Article I,Section 8, Clause 1) that gives Congress thepower to regulate all business activities thatcross state lines or affect more than one stateor other nations.Each state is responsible for maintaining itsown militia called a National Guard. However,the national government provides all the fundsfor maintaining each state s National Guard unit.A state s National Guard can be mobilized byeither the state or national government.The governments power to protect national security includes the power to wage war. Intodays world, military strength depends not only on the presence of troops in the eld,but also on the ability to mobilize the nations industrial might and apply scienti c andtechnological knowledge to the tasks of defense. As Charles Evans Hughes, who becamechief justice in 1930, observed: The power to wage war is the power to wage warsuccessfully. 12 In short, the national government has the power to do almost anythingnot in direct con ict with constitutional guarantees.The Power to Regulate Interstate and Foreign Commerce Congressional authorityextends to all commerce that affects more than one state. Commerce includes theproduction, buying, selling, renting, and transporting of goods, services, and properties.The commerce clause (Article I, Section 8, Clause 1) packs a tremendous constitutionalpunch; it gives Congress the power to regulate Commerce with foreign Nations, andamong the several States, and with the Indian Tribes. In these few words, the nationalgovernment has found constitutional justi cation for regulating a wide range of humanactivity, because few aspects of our economy today affect commerce in only one stateand are thus outside the scope of the national governments constitutional authority.The landmark ruling of Gibbons v. Ogden in 1824 af rmed the broad authority ofCongress over interstate commerce. There, in interpreting the commerce clause, ChiefJustice John Marshall asserted national interests over those of the states and laid thebasis for the subsequent growth in congressional power over commerce and over ac-tivities that affect interstate commerce as the nation steadily expanded. See Figure 3 2for a map showing the major events in this growth.Gibbons v. Ogden arose from a dispute over a monopoly to operate steamboats inNew York waters that the state of New York had granted to Robert Livingston and RobertFulton. Livingston and Fulton in turn licensed to Aaron Ogden the exclusive right tooperate steamboats between New York and New Jersey. Ogden sued to stop ThomasGibbons from running a competing ferry. Gibbons countered that his boats were licensedunder a 1793 act of Congress governing vessels in the coasting trade and sheries. NewYork courts sided with Ogden in holding that both Congress and the states may regulatecommerce, just as each has the power to tax. Congress, therefore, had not preemptedNewYork from granting the monopoly. Gibbons appealed to the Supreme Court.The stakes were high in Gibbons v. Ogden, for at issue was the very concept ofinterstate commerce. May both Congress and the states regulate interstate commerce?And when con icts arise between national and state regulations, which prevails?Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 102. Chief Justice Marshall asserted that national interests prevail and astutely de nedinterstate commerce as intercourse that affects more states than one. Unlike thepower of taxation, Congresss power over interstate commerce is complete and over-rides con icting state laws.13Gibbons v. Ogden was immediately heralded for promoting a national economiccommon market, in holding that states may not discriminate against interstate trans-portation and out-of-state commerce. Marshalls brilliant de nition ofcommerce as intercourse among the states provided the basis clausefor national regulation of things in commerce 14 and an expandingrange of economic activities, including the sale of lottery tickets,15 pros-titution,16 radio and television broadcasts,17 and telecommunicationsand the Internet.More recently, the Court has limited congressional power toaddress similar harms when it did not nd a substantial connectionwith interstate commerce. In United States v. Lopez,18 for example, theSupreme Court struck down the Gun-Free School Zones Act, whichmade it a federal crime to possess a rearm within 1,000 feet of a school,because the justices did not nd a substantial connection between vio-lence in schools and the national economy. However, in Gonzales v.Raich (2005), the Court upheld Congresss power to criminalize the useof marijuana, even for medicinal purposes by seriously ill people, as tenstates had permitted.19 The Court ruled that the aggregative impact ofsuch individual marijuana usage had a substantial connection to, andwould undercut the regulation of, marijuana in interstate commerce.The Power to Tax and Spend Congress lacks constitutional authorityto pass laws solely on the grounds that they will promote the generalwelfare, but it may raise taxes and spend money for this purpose.For example, Congress lacks the power to regulate education oragriculture directly, yet it does have the power to appropriate money to72 * CHAPTER 3 American FederalismSome states such as California legalized the use of marijuana tohelp people with cancer endure chemotherapy. The SupremeCourt ruled in 2005 that the federal law prohibiting the use ofmedical marijuana was an appropriate application of the com-merce clause.Florida1819Philippines1898 1946Guam1899Hawaii1898Puerto Rico1899U.S. Virgin Islands1917Oregon1846Alaska1867 AmericanSamoa1900Texas1845GadsdenPurchase1853MexicanCession1848LouisianaPurchase1803FIGURE 3 2An Expanding Nation. The dates indicate when each area became part of the United States.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 103. The Constitutional Structure of American Federalism * 73federal mandateA requirement the federal government imposesas a condition for receiving federal funds.reserve powersAll powers not speci cally delegated to thenational government by the Constitution. Thereserve power can be found in the TenthAmendment to the Constitution.concurrent powersPowers that the Constitution gives to both thenational and state governments, such as thepower to levy education or to pay farm subsidies. By attaching conditions to its grants ofmoney, Congress may thus regulate what it cannot directly control by law.When Congress provides the money, it determines how the money will be spent. Bywithholding or threatening to withhold funds, the national government can in uence orcontrol state operations and regulate individual conduct. For example, Congress hasstipulated that federal funds should be withdrawn from any program in which any per-son is denied bene ts because of race, color, national origin, sex, or physical handicap.Congress also used its power of the purse to force states to raise the drinking age to 21 bytying such a condition to federal dollars for building and maintaining highways.Congress frequently requires states to do certain things for example, provide serv-ices to indigent mothers and clean up the air and water. These requirements are calledfederal mandates. Often Congress does not supply the funds required to carry outunfunded mandates (discussed later in the chapter). Its failure to do so has become animportant issue as states face growing expenditures with limited resources. The SupremeCourt has also ruled that Congress may not compel states through unfunded mandatesto enforce or implement particular laws such as handgun registration.20Powers of the StatesThe Constitution reserves for the states all powers not granted to the national govern-ment, subject only to the limitations of the Constitution. Only the states have thereserve powers to create schools and local governments, for example. Both are powersnot given exclusively to the national government by the Constitution or judicial inter-pretation, as long as the exercise of those powers does not con ict with national law.The national and state governments also share powers. These concurrent powerswith the national government include the power to levy taxes and regulate commerceinternal to each state.In general, states may levy taxes on the same items the national governmenttaxes, such as incomes, alcohol, and gasoline, but a state cannot, by a tax, unduly bur-den commerce among the states, interfere with a function of the national govern-ment, complicate the operation of a national law, or abridge the terms of a treaty of theUnited States. Where Congress has not preempted the eld, states may regulate inter-state businesses, provided these regulations do not cover matters requiring uniformnational treatment or unduly burden interstate commerce.Who decides which matters require uniform national treatment or what actionsmight place an undue burden on interstate commerce? Congress does, subject to nal re-view by the Supreme Court. When Congress is silent or does not clearly state its intent, thecourts ultimately, the Supreme Court decide whether there is a con ict with the na-tional Constitution or whether a state law or regulation has preempted federal authority.Constitutional Limits and ObligationsTo ensure that federalism works, the Constitution imposes restraints on both the na-tional and the state governments. States are prohibited from doing the following:1. Making treaties with foreign governments2. Authorizing private persons to prey on the shipping and commerce of other nations3. Coining money, issuing bills of credit, or making anything but gold and silver coinlegal tender in payment of debts4. Taxing imports or exports5. Taxing foreign ships6. Keeping troops or ships of war in time of peace (except the state militia, nowcalled the National Guard)7. Engaging in war, unless invaded or in such imminent danger as will not admit of delayGovernment by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 104. In turn, the Constitution requires the national governmentto refrain from exercising its powers, especially its powers to taxand to regulate interstate commerce, in such a way as to inter-fere substantially with the states abilities to perform their re-sponsibilities. But politicians, judges, and scholars disagreeabout whether the national political process speci cally inCongress and the presidency or the courts should ultimatelyde ne the boundaries between the powers of the national gov-ernment and the states. Some argue that the states protectionfrom intrusions by the national government comes primarilyfrom the political process, because senators and representa-tives elected from the states participate in the decisions ofCongress.21 Others maintain that the Supreme Court shouldlimit the national government and defend the states.22The Court has held that Congress may not command states toenact laws to comply with or order state employees to enforce un-funded federal mandates; for example, as we noted earlier, Printzv. United States held that Congress may not require local lawenforcement of cials to make background checks prior to hand-gun sales.23 It has also ruled that the Eleventh Amendments guar-antee of states sovereign immunity from lawsuits forbids stateemployees from suing states in federal and state courts to forcestate compliance with federal employment laws.24 AlthoughCongress may not use those sticks, it may still offer the carrot of federal funding if statescomply with national policies, such as lowering the minimum drinking age.The Constitution also obliges the national government to protect states againstdomestic insurrection. Congress has delegated to the president the authority todispatch troops to put down such insurrections when the proper state authorities re-quest them.Interstate RelationshipsThree clauses in the Constitution, taken from the Articles of Confederation, requirestates to give full faith and credit to each others public acts, records, and judicial pro-ceedings; to extend to each others citizens the privileges and immunities of their owncitizens; and to return persons who are eeing from justice.Full Faith and Credit The full faith and credit clause (Article IV, Section 1), one of themore technical provisions of the Constitution, requires state courts to enforce the civiljudgments of the courts of other states and accept their public records and acts asvalid.25 It does not require states to enforce the criminal laws or legislation andadministrative acts of other states; in most cases, for one state to enforce the criminallaws of another would raise constitutional issues. The clause applies primarily toenforcing judicial settlements and court awards.Interstate Privileges and Immunities Under Article IV, Section 2, states must extendto citizens of other states the privileges and immunities they grant to their owncitizens, including the protection of the laws, the right to engage in peacefuloccupations, access to the courts, and freedom from discriminatory taxes. Because ofthis clause, states may not impose unreasonable residency requirements; that is,withhold rights to American citizens who have recently moved to the state and therebyhave become citizens of that state.Extradition In Article IV, Section 2, the Constitution asserts that when individualscharged with crimes have ed from one state to another, the state to which they haveed is to deliver them to the proper of cials on demand of the executive authority of thestate from which they ed. This process is called extradition. The obvious objective of74 * CHAPTER 3 American FederalismThe U.S. Supreme Court ruled that the national government cannotdemand that states enforce the federal law requiring handgun dealersto run background checks on potential buyers. States are free, however,to use a national registry of criminals in doing background checks, whichalmost all do.full faith and credit clauseThe clause in the Constitution (Article IV,Section 1) requiring each state to recognizethe civil judgments rendered by the courts ofthe other states and to accept their publicrecords and acts as valid.extraditionThe legal process whereby an alleged criminaloffender is surrendered by the of cials of onestate to of cials of the state in which the crimeis alleged to have been committed.Government by the People, 23/e 2009 Edition, by David B. Magleby and Paul C. Light. Published byLongman. Copyright © 2009 Pearson Education Inc.
  • 105. HOW OTHER NATIONS GOVERNDifferent Visions of FederalismThere is no single model for dividing authoritybetween the national and smaller regionalgovernments of the other nations covered inthis book. Some have no federal system at all,while others have different variations of powersharing between the national and smaller re-gional governments.Britain s government is divided into threetiers: national, county, and district govern-ments. County and district governments deliverroughly one- fth of all government services, in-cluding education, housing, and police and reprotection. As a rule, most power is reservedfor the central government on the theory thatthere should be territorial justice, whichmeans that all citizens should be governed bythe same laws and standards. In recent years,however, Great