Top of Form Lesson 1, Part 1: Foundations of American Government "Liberty, when it begins to take root, is a plant of rapid growth." -George Washington · The Declaration of Independence · The U.S. Constitution and its Bill of Rights · The Enlightenment and Political Philosophy Expected Outcomes To understand the philosophical principles behind the Declaration of Independence and the Constitution, and how these principles influence the structure and process of government. Overview The United States, as a nation, was born of the American Revolution of 1776. This revolution cut the political ties between England and its American colonies. Many "Americans" living in the colonies had complained about harsh British rule. King George of England had ruled over the colonies with a heavy hand, increasing taxes with the Stamp Act and the Sugar Act, for example. These abuses began to divide the "patriots" in favor of independence and the "loyalists" in favor of the English Crown. Tensions between the American colonials and British soldiers boiled over in the Boston Massacre, when a mob harassed British soldiers, who then fired their muskets into the crowd, killing three, mortally wounding two others, and injuring six. Another famous incident which helped inspire the American Revolution was the Boston Tea Party of 1773, launched as a protest to the British Tea Act. This Act gave the British East India Company a tea monopoly, shutting out American traders. Bostonians disguised themselves as Mohawk Indians, then boarded the British ships and dumped all 342 containers of tea into the harbor. Two years later, in 1775, there were more serious conflicts between colonials and British troops: the Battles of Lexington and Concord, the prelude for a full conflict. The American Revolutionary War was long, bloody and ended with the French-assisted victory of the American Continental Army in Yorktown in 1781. An understanding of American government and politics should consider two documents related to this war and its aftermath. The first is the Declaration of Independence, which launched the American Revolutionary War; and the second is the U.S. Constitution, which replaced the post-war Articles of Confederation and which remains the highest law of the land. This lesson analyzes these documents, noting how they were part of a trans-Atlantic Enlightenment movement with emphasis on reason, freethinking, natural law, popular sovereignty, and human equality. Many of these ideas are visible in the Declaration of Independence, written by Thomas Jefferson. These ideas provided the ideological and philosophical framework for the American Revolution. After the expulsion of the English monarchy, the Articles of Confederation - in effect from 1776 to 1787 - turned the former colonies into largely autonomous states with a weak federal government. However, many people thought that this decentralized system did not solve the problem of providing for a common defense or for ...

1. Top of Form
Lesson 1, Part 1: Foundations of American Government
"Liberty, when it begins to take root, is a plant of rapid
growth."
-George Washington
· The Declaration of Independence
· The U.S. Constitution and its Bill of Rights
· The Enlightenment and Political Philosophy
Expected Outcomes
To understand the philosophical principles behind the
Declaration of Independence and the Constitution, and how
these principles influence the structure and process of
government.
Overview
The United States, as a nation, was born of the American
Revolution of 1776. This revolution cut the political ties
between England and its American colonies. Many "Americans"
living in the colonies had complained about harsh British rule.
King George of England had ruled over the colonies with a
heavy hand, increasing taxes with the Stamp Act and the Sugar
Act, for example. These abuses began to divide the "patriots" in
favor of independence and the "loyalists" in favor of the
English Crown.
Tensions between the American colonials and British soldiers
boiled over in the Boston Massacre, when a mob harassed
British soldiers, who then fired their muskets into the crowd,
killing three, mortally wounding two others, and injuring six.
Another famous incident which helped inspire the American
Revolution was the Boston Tea Party of 1773, launched as a
protest to the British Tea Act. This Act gave the British East
India Company a tea monopoly, shutting out American traders.

2. Bostonians disguised themselves as Mohawk Indians, then
boarded the British ships and dumped all 342 containers of tea
into the harbor.
Two years later, in 1775, there were more serious conflicts
between colonials and British troops: the Battles of Lexington
and Concord, the prelude for a full conflict. The American
Revolutionary War was long, bloody and ended with the French-
assisted victory of the American Continental Army in Yorktown
in 1781.
An understanding of American government and politics should
consider two documents related to this war and its aftermath.
The first is the Declaration of Independence, which launched
the American Revolutionary War; and the second is the U.S.
Constitution, which replaced the post-war Articles of
Confederation and which remains the highest law of the land.
This lesson analyzes these documents, noting how they were
part of a trans-Atlantic Enlightenment movement with emphasis
on reason, freethinking, natural law, popular sovereignty, and
human equality. Many of these ideas are visible in the
Declaration of Independence, written by Thomas Jefferson.
These ideas provided the ideological and philosophical
framework for the American Revolution.
After the expulsion of the English monarchy, the Articles of
Confederation - in effect from 1776 to 1787 - turned the former
colonies into largely autonomous states with a weak federal
government. However, many people thought that this
decentralized system did not solve the problem of providing for
a common defense or for integrating state economies. Some
elites also hoped that a stronger central government could put
down local insurrections with more effect, thereby protecting
their property rights. These were just some of the concerns
behind the crafting of the U.S. Constitution, inspired by the
Federalist Papersand written by James Madison.
As the Constitution suggests, the United States was not
established to be a "pure democracy" in which people rule
themselves - some call this "mob rule" – but, rather a

3. representative democracy or a "constitutional republic"
characterized, in the United States, by the rule of law,
separation of powers, checks and balances, civil liberties and a
federalist division of power between national and state
governments. These items will be explained in this lesson.
The Declaration of Independence
The Declaration of Independence provided the ideological
framework for the American Revolution of 1776, a war of
independence against Britain that was eventually won by the
United States.
The sentiment behind the Declaration of Independence was
reflected by a Frenchman who served in George Washington's
Continental Army as a general, Marquis de Lafayette.
"When the government violates the people's rights, insurrection
is, for the people and for each portion of the people, the most
sacred of the rights and the most indispensable of duties."
-General Marquis La Fayette
The Declaration of Independence was produced by the Second
Continental Congress, on July 4, 1776, which formally declared
that the Thirteen Colonies were independent of Great Britain.
The text below is the actual text from the Declaration.
The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776
The unanimous Declaration of the thirteen united States of
America,
When in the Course of human events, it becomes necessary for
one people to dissolve the political bands which have connected
them with another, and to assume among the powers of the
earth, the separate and equal station to which the Laws of
Nature and of Nature's God entitle them, a decent respect to the
opinions of mankind requires that they should declare the
causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness. --That to secure these rights,

4. Governments are instituted among Men, deriving their just
powers from the consent of the governed, --That whenever any
Form of Government becomes destructive of these ends, it is the
Right of the People to alter or to abolish it, and to institute new
Government, laying its foundation on such principles and
organizing its powers in such form, as to them shall seem most
likely to effect their Safety and Happiness. Prudence, indeed,
will dictate that Governments long established should not be
changed for light and transient causes; and accordingly all
experience hath shown, that mankind are more disposed to
suffer, while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But when a
long train of abuses and usurpations, pursuing invariably the
same Object evinces a design to reduce them under absolute
Despotism, it is their right, it is their duty, to throw off such
Government, and to provide new Guards for their future
security. —Such has been the patient sufferance of these
Colonies; and such is now the necessity which constrains them
to alter their former Systems of Government. The history of the
present King of Great Britain is a history of repeated injuries
and usurpations, all having in direct object the establishment of
an absolute Tyranny over these States. To prove this, let Facts
be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and
necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and
pressing importance, unless suspended in their operation till his
Assent should be obtained; and when so suspended, he has
utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of
large districts of people, unless those people would relinquish
the right of Representation in the Legislature, a right
inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual,
uncomfortable, and distant from the depository of their public
Records, for the sole purpose of fatiguing them into compliance

5. with his measures.
He has dissolved Representative Houses repeatedly, for
opposing with manly firmness his invasions on the rights of the
people.
He has refused for a long time, after such dissolutions, to cause
others to be elected; whereby the Legislative powers, incapable
of Annihilation, have returned to the People at large for their
exercise; the State remaining in the mean time exposed to all
the dangers of invasion from without, and convulsions within.
He has endeavored to prevent the population of these States; for
that purpose obstructing the Laws for Naturalization of
Foreigners; refusing to pass others to encourage their
migrations hither, and raising the conditions of new
Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his
Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure
of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither
swarms of Officers to harass our people, and eat out their
substance.
He has kept among us, in times of peace, Standing Armies
without the consent of our legislatures.
He has affected to render the Military independent of and
superior to the Civil power.
He has combined with others to subject us to a jurisdiction
foreign to our constitution and unacknowledged by our laws;
giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any
Murders which they should commit on the Inhabitants of these
States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us, in many cases, of the benefits of Trial by
Jury:

6. For transporting us beyond Seas to be tried for pretended
offences:
For abolishing the free System of English Laws in a neighboring
Province, establishing therein an Arbitrary government, and
enlarging its Boundaries so as to render it at once an example
and fit instrument for introducing the same absolute rule into
these Colonies:
For taking away our Charters, abolishing our most valuable
Laws, and altering fundamentally the Forms of our
Governments:
For suspending our own Legislatures, and declaring themselves
invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his
Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns,
and destroyed the lives of our people.
He is at this time transporting large Armies of foreign
Mercenaries to complete the works of death, desolation and
tyranny, already begun with circumstances of Cruelty and
perfidy scarcely paralleled in the most barbarous ages, and
totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the
high Seas to bear Arms against their Country, to become the
executioners of their friends and Brethren, or to fall themselves
by their Hands.
He has excited domestic insurrections amongst us, and has
endeavored to bring on the inhabitants of our frontiers, the
merciless Indian Savages, whose known rule of warfare, is an
undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for
Redress in the most humble terms: Our repeated Petitions have
been answered only by repeated injury. A Prince whose
character is thus marked by every act which may define a
Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren.
We have warned them from time to time of attempts by their

7. legislature to extend an unwarrantable jurisdiction over us. We
have reminded them of the circumstances of our emigration and
settlement here. We have appealed to their native justice and
magnanimity, and we have conjured them by the ties of our
common kindred to disavow these usurpations, which, would
inevitably interrupt our connections and correspondence. They
too have been deaf to the voice of justice and of consanguinity.
We must, therefore, acquiesce in the necessity, which
denounces our Separation, and hold them, as we hold the rest of
mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the United States of
America, in General Congress, Assembled, appealing to the
Supreme Judge of the world for the rectitude of our intentions,
do, in the Name, and by the Authority of the good People of
these Colonies, solemnly publish and declare, That these United
Colonies are, and of Right ought to be Free and Independent
States; that they are Absolved from all Allegiance to the British
Crown, and that all political connection between them and the
State of Great Britain, is and ought to be totally dissolved; and
that as Free and Independent States, they have full Power to
levy War, conclude Peace, contract Alliances, establish
Commerce, and to do all other Acts and Things which
Independent States may of right do. And for the support of this
Declaration, with a firm reliance on the protection of divine
Providence, we mutually pledge to each other our Lives, our
Fortunes and our sacred Honor.
The signers of the Declaration represented the new states as
follows:
New Hampshire
Josiah Bartlett, William Whipple, Matthew Thornton
Massachusetts
John Hancock, Samuel Adams, John Adams, Robert Treat Paine,
Elbridge Gerry
Rhode Island
Stephen Hopkins, William Ellery
Connecticut

8. Roger Sherman, Samuel Huntington, William Williams, Oliver
Wolcott
New York
William Floyd, Philip Livingston, Francis Lewis, Lewis Morris
New Jersey
Richard Stockton, John Witherspoon, Francis Hopkinson, John
Hart, Abraham Clark
Pennsylvania
Robert Morris, Benjamin Rush, Benjamin Franklin, John
Morton, George Clymer, James Smith, George Taylor, James
Wilson, George Ross
Delaware
Caesar Rodney, George Read, Thomas McKean
Maryland
Samuel Chase, William Paca, Thomas Stone, Charles Carroll of
Carrollton
Virginia
George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin
Harrison,
Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton
North Carolina
William Hooper, Joseph Hewes, John Penn
South Carolina
Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr.,
Arthur Middleton
Georgia
Button Gwinnett, Lyman Hall, George Walton
This following phrase, found above, is vital to the Declaration:
"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness."
The identification of unalienable rights is what turns people
from "subjects" under governmental control to "citizens" who
lend governments their authority. Thus, the natural law referred

9. to by the Founders includes human equality and popular
sovereignty.
Popular sovereignty means that the authority and justification to
rule over a people emerges from the people themselves – rather
than being imposed from the top down, which is the case in a
monarchy or in an oligarchy. The central tenet is that legitimacy
of rule or of law is based on the consent of the governed, and
the thinkers who formalized this concept included Thomas
Hobbes and Jean-Jacques Rousseau.
Popular sovereignty, an Enlightenment idea, is normally
reflected by elections. Modern democracies are based on
universal citizenship and enfranchisement for all adults,
regardless of race, gender or other classifications.
By the way, many of these ideas about "natural law," the
"consent of the governed" and "limited government" originated
in back in England, with John Locke, who wrote the Second
Treatise of Civil Government in 1689.
In the Declaration of Independence, there is a sense that people
have an inherent right to overthrow a government – only,
however, when the ruling authority became extremely offensive
and intolerable. The Declaration of Independence reflects the
belief shared by Thomas Jefferson and a few other Founding
Fathers that political authority rested in the people, and that
government depended upon the consent of the governed.
Thomas Jefferson
Thomas Jefferson was the principal author of the Declaration of
Independence, the second Governor of Virginia and the 3rd
President of the United States.
"We hold these truths to be self evident: that all men are created
equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, and the
pursuit of happiness."
"Believing with you that religion is a matter which lies solely
between man and his God, that he owes account to none other
for his faith or his worship, that the legislative powers of
government reach actions only, and not opinions, I contemplate

10. with sovereign reverence that act of the whole American people
which declared that their legislature should 'make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof,' thus building a wall of separation between
church and State."
"I believe that banking institutions are more dangerous to our
liberties than standing armies."
"When the people fear their government, there is tyranny; when
the government fears the people, there is liberty."
Interestingly, the Declaration of Independence above also
contains language used by modern Christians and secularists to
advance their respective points of view. There is the reference
"Nature's God" and to a "Creator," suggestive of Deist,
monotheist or Christian beliefs. It is this Creator who imbued
people with unalienable rights.
However, American revolutionaries also challenged the "Divine
Right of Kings," which employed Biblical passages to suggest
that monarchs have a higher mandate. As Romans 13:1-2 states:
"Let every soul be subject unto the higher powers. For there is
no power but of God: the powers that be are ordained of God.
Whosoever therefore resisteth the power, resisteth the ordinance
of God: and they that resisteth shall receive to themselves
damnation."
From this perspective, the Declaration of Independence becomes
a complex document. It recognized a Creator, but it also
rejected the Biblical mandate and clerical authority. The
American Revolution, therefore, appears to have been inspired
both by Deist or Christian principles and, simultaneously, by
secular and anti-clerical ones. This dual legacy is evident today
with political controversies over school prayer and other issues.
The U.S. Constitution
The Constitutional Convention, 1789
There are two remarkable, little-known facts about the U.S.
Constitution.
First, it is the world's oldest working constitution. Despite

11. being a young society, the United States is the world's oldest
continuing republic. Most of Europe, for example, underwent a
complete political transformation after World War II, as did
China and Japan and, in fact, the rest of the world. The U.S.
continues to operate with a political system that was born in
1787.
Second, it is the world's shortest constitution. The U.S.
Constitution has just 4,400 words (excluding amendments).
Most countries have encyclopedic-style constitutions that work
against the interests of clarity and accessibility.
It is essential to view the emergence of the U.S. Constitution as
a solution to problems. The first 13 colonies, once independent,
were very loosely bound together in the Articles of
Confederation. The Articles of Confederation, a precursor to the
Constitution, gave each state considerable power – even the
power to print their own money, as shown below – but national
government (or federal government) was too weak, many
thought. A weak federal government would not be able to
defend the nation against aggression or stimulate commerce or
put down insurrections against the establishment, like Shay's
rebellion, when small farmers and merchants revolted against
foreclosures.
Shay's Rebellion, 1786
Shay's Rebellion was an armed uprising in Massachusetts in
1786. The rebels, led by Daniel Shays, were mostly small
farmers angered by crushing debt, taxes and debtor's prisons. A
private militia, organized by banks, eventually defeated the
rebel force on February 3, 1787. Many of the men who signed
the Constitution were wealthy and had a stake in protecting the
established order; thus, they sought to imbue a national
government with more power.
Indeed, it is also important to note that the Constitution would
classify African Americans as just 3/5ths of a person, for census
purposes, and it maintained the institution of slavery. In this
sense, the Constitution reflects elitist rather than populist
interests.

12. Paradoxically, this same Constitution – specifically its later
amendments (like the 14th Amendment and its "Equal
Protection Clause") - would eventually be used by African
Americans and other oppressed minorities to secure civil rights
and liberties. They would hold up the provisions of equality and
insist that the political system live up to its stated principles.
In sum, the delegates at the Constitutional Convention in
Philadelphia wanted the central government to become as
powerful as governments in Paris or London. So, with this
concern in mind, the framers of the Constitution – principally
James Madison – set out to create a stronger federal government
– but, not too strong.
James Madison, with other Founding Fathers, such as Alexander
Hamilton, elaborated upon several concepts in order to craft the
Federalist Papersand, eventually, the Constitution. However,
there were many who wrote in opposition to the Federalist
Papers, known as the Anti-Federalist Papers.
James Madison
James Madison was one of the three authors of the Federalist
Papers (along with Alexander Hamilton and John Jay), which
contained many of the ideas inspiring the U.S. Constitution. He
played a leading role in drafting the Constitution and became
the fourth President of the United States.
"The truth is that all men having power ought to be mistrusted."
"Since the general civilization of mankind, I believe there are
more instances of the abridgment of the freedom of the people
by gradual and silent encroachments of those in power than by
violent and sudden usurpation."
"The accumulation of all powers legislative, executive and
judicial in the same hands, whether of one, a few or many…
may justly be pronounced the very definition of tyranny."
Alexander Hamilton
Alexander Hamilton was one of the three principal authors of
the Federalist Papers, and served under President Washington as
the nation's first Secretary of the Treasury. He also founded the

13. Federalist Party.
"I have learned to hold popular opinion of no value."
"The voice of the people has been said to be the voice of God;
and, however generally this maxim has been quoted and
believed, it is not true to fact. The people are turbulent and
changing, they seldom judge or determine right."
"In framing a government which is to be administered by men
over men the great difficulty lies in this: You must first enable
the government to control the governed, and in the next place,
oblige it to control itself."
"Those who stand for nothing fall for anything."
"When the sword is once drawn, the passions of men observe no
bounds of moderation."
A. Preventing Tyranny of the Majority
The main goal of the U.S. Constitution was to create a federal
government that would be advantageous to the States and its
people, but one that would not evolve strong central powers and
become tyrannical.
The "paradox of democracy" is that it can produce a "tyranny of
the majority" where majority rule threatens individual rights.
Living up to one democratic value – the will of the majority –
can actually undermine another value – the rights of the
minority or individual. After all, if two men on a desert island
vote to cannibalize the third, that would still be democracy.
Let's take another example. Suppose that, for some reason,
society suddenly despised people with green eyes; that society
marginalized green-eyed people as part of the "out group;" that
people believed reports that green-eyed people were more likely
to become criminals, etc… And let's suppose that 51% of the
people voted to electronically monitor all green-eyed people
with radio frequency bracelets, and to restrict their movement,
and to tag them with longer mandatory sentences for minor
crimes, etc… These new laws restricting green-eyed people
would be "democratic." They would indeed reflect the will of
the majority.
If this scenario sounds far fetched, it might be worth

14. considering that Japanese-Americans (U.S. citizens who had
never been to Japan) were rounded up and placed into detention
centers during World War II. Most Americans supported the
idea at the time, and the U.S. Supreme Court even found the
detentions legal under Korematsu v. United States (1944)! In
this case, the system of separation of powers and checks and
balances on majority rule appeared to have failed, and by the
1990s the U.S. government officially apologized for the
detentions and paid monetary reparations to some of the
survivors.
Tyranny of the Majority?
Internment Camp for Japanese-Americans, WWII
James Madison believed that the Constitution should limit the
powers of the majority. Specifically, he was concerned about
the possibility that a majority would oppress a minority. He
called this scenario the "Tyranny of the Majority."
B. Separation of Powers & Checks and Balances
What was Madison's solution? It was, in part, a system of
"separation of powers." This meant that the power of
government would rather be divided among three separate
branches. That way, if a tyrannical faction wanted to capture
government, they would have to seize control of all three
branches. This would be difficult, though not impossible. The
three branches are:
· Legislative (the Congress, described in Article I)
· Executive (the President, the Vice President, 15 Cabinet
departments, and numerous boards, agencies, and commissions,
described in Article II)
· Judicial (the Supreme Court, 96 District Courts, 12 Appeals
Courts, and several special courts, described in Article III)
The powers, duties and responsibilities of each branch are
described in Articles I, II and III of the Constitution.
The Constitution also outlines a system of "checks and
balances," meaning that each branch of government can do
something to limit the others. For example, the president can
veto a bill emerging from Congress, but Congress can override

15. that veto with 2/3rds majority vote in each of its two chambers
(i.e., the House and Senate) within 10 days. This system of
checks and balances is what actually helps keep the three
branches separate.
Congress
The Founding Fathers anticipated that Congress would become
the most central and most vital branch. That's why its
responsibilities are found in Article I of the Constitution.
"But it is not possible to give to each department an equal
power of self-defense. In republican government, the legislative
authority necessarily predominates."
James Madison
In fact, because Madison foresaw Congress as being a bit more
central than the other branches of government, he proposed
dividing it into two houses. This idea, described in The
Federalist #51, emerged in the "Connecticut Compromise" at the
Constitutional Convention.
This compromise resolved the tension between the "Virginia
Plan," which favored a population-weighted representation in
the proposed National Legislature, and the "New Jersey Plan,"
which proposed a single-chamber legislature in which each
state, regardless of size, would have one vote, as under the
Articles of Confederation.
The U.S. Constitution provides for a bicameral legislature. The
upper chamber is the Senate. Each of the 50 states has two
senators who serve renewable terms of 6 years. The lower
chamber is the House of Representatives. Each of the 50 states
has a different number of representatives, depending upon their
relative population, and this is determined in the national
census conducted every 10 years. Today, there are 435
representatives who serve renewable terms of 2 years, with
California having the most.
Arguably, Congress was once the most powerful branch of
government, but the Great Depression of the 1930s, World War
II, the Cold War and the War on Terror have all served to

16. concentrate power in the Executive Branch.
Article I, Section 8, lists the powers of Congress, and these are
considerable, as they include the ability to pass any laws
"necessary and proper" to fulfill its charge. Congress also has
the power to declare war.
Finally, Congress is also empowered to override a presidential
veto (with two-thirds of the vote within each chamber, within
10 days), and to impeach the president for "high crimes and
misdemeanors." Furthermore, the Senate must confirm
numerous Executive Branch appointments, including justices to
the Supreme Court.
President
The Executive Branch, described in Article II, consists of the
president, his cabinet and numerous agencies. Today, the
president is entitled to serve only two full terms of four years
each.
The president is elected, not by the popular vote, but by the
electoral vote of the Electoral College, meaning that each state
has a certain number of electors. Today, there are 535 electoral
votes in play, and a candidate has to reach 270 to win the
election. California is the most valuable state because it is the
most populous; although John Kerry won California in 2004, he
still lost the overall election.
The 2000 Presidential ElectionGeorge W. Bush (Red) and Al
Gore (Blue)
It is still possible for a candidate to lose the popular vote and
win the electoral vote, as George W. Bush did in 2000. This is
partly because states with small populations, such as Wyoming,
hold 3 electoral votes, which is disproportionately high
compared to the voting power of a person in a more populous
state, such as California. These western and plains States have
recently voted Republican. While this electoral system is
unpopular with some Americans, it maintains a sense of
"sovereignty" for each of the States, and has remained in place
despite numerous efforts to remove it.

17. The president can veto legislation coming from Congress, and
can also, through the Cabinet and bureaucracy, challenge
congressional actions. The president also serves as Commander-
in-Chief of the nation’s armed forces.
The first president of the United States was, of course, George
Washington.
George Washington
George Washington was the Commander in Chief of American
forces in the American Revolutionary War, and first president
of the United States. In 1787, he presided over the
Constitutional Convention that drafted the United States
Constitution.
"Government is not reason; it is not eloquent; it is force. Like
fire, it is a dangerous servant and a fearful master."
"Guard against the impostures of pretended patriotism."
"Overgrown military establishments are under any form of
government inauspicious to liberty, and are to be regarded as
particularly hostile to republican liberty."
"As Mankind becomes more liberal, they will be more apt to
allow that all those who conduct themselves as worthy members
of the community are equally entitled to the protections of civil
government. I hope ever to see America among the foremost
nations of justice and liberality."
"If the freedom of speech is taken away then dumb and silent
we may be led, like sheep to the slaughter."
"The time is near at hand which must determine whether
Americans are to be free men or slaves."
Supreme Court
Finally, the judicial branch is concerned with settling disputes
that reach it from the bottom up, through an appeals process, or
with deciding more urgent cases that involved constitutional
questions.
Over time, the Supreme Court has built upon a power inherent
to it under the Constitution in Article III – the power of judicial
review- to provide the "last word" on the most pressing
constitutional questions. Basically, the responsibility of the

18. Supreme Court is to decide whether or not a law or action is
constitutional or unconstitutional.
The justices who form the majority opinion issue a written
explanation, called the "opinion." Sometimes, a single justice
will write this and the others sign their names; other times, the
justices write separate concurrent opinions to explain their
specific reasons for voting their way.
The justices who voted in the minority often issue a "dissent,"
either jointly or separately, explaining why they thought the
decision was wrong.
Supreme Court justices often circulate informal drafts amongst
each other to test out how and why the others will vote on a
pending case – a case "on the docket."
Marbury v. Madison (1801), McCulloch v. Maryland (1819) and
Gibbons v. Ogden (1824) enhanced the Supreme Court's power
of judicial review. These cases are examined in a later unit.
The Supreme Court is not democratically elected, its justices
being nominated by the president and confirmed by the Senate.
The number of justices was not set in the Constitution, but it
has evolved into nine, with appointments lasting the term of a
natural life or retirement.
As described above, each of the three branches of government
has some power over the others. This prevents one branch from
becoming too powerful and establishing a tyranny or
dictatorship based on arbitrary government. Interestingly, the
Supreme Court often has to rule on questions regarding checks
and balances.
Bill of Rights
One of the distinguishing features of the U.S. Constitution is a
Bill of Rights that was attached to the final document as a kind
of guarantee that government would not acquire too much power
over individuals. These amendments came into effect on
December 15, 1791, when ratified by three-fourths of the States.
The Bill of Rights plays a central role in American law, but it is
also a symbol of the freedoms and culture of the nation, with
such freedoms including the freedom of speech and the press,

19. etc.
The Bill was influenced by George Mason's 1776 Virginia
Declaration of Rights, the 1689 English Bill of Rights, works of
the Age of Enlightenment pertaining to natural rights, and
earlier English political documents such as the Magna Carta
(1215). The Bill was largely a response to the Constitution's
influential opponents, including prominent Founding Fathers,
who argued that it failed to protect the basic principles of
human liberty.
The United States Bill of Rights consists of the first ten
amendments to the United States Constitution. Among the
enumerated rights these amendments guarantee are the freedom
of speech, the freedom of the press, the freedom of assembly,
the free exercise of religion, the freedom to petition, the
people's right to keep and bear arms, and the rights to be free of
unreasonable search and seizure, cruel and unusual punishment,
and compelled self-incrimination.
In addition, the Bill of Rights states that "the enumeration in
the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people," and reserves
all powers not granted to the Federal government to the
citizenry or States.
A Supreme Court Justice Robert H. Jackson said it best:
"The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other fundamental
rights may not be submitted to vote; they depend on the
outcome of no elections."
There is one civil liberty the Founders thought was important
enough to include in the actual main body of the Constitution:
habeas corpus.
In legal terms, habeas corpus obliges a government to account

20. for a person's detention. "Habeas corpus" is Latin for "you have
the body." Kings and queens in England enjoyed the power to
lock someone up in a dungeon and throw away the key, but not
so easily after the Magna Carta of 1215.
After the American Revolution of 1776, the principle of habeas
corpus was found in most State constitutions, and more
importantly, it is found in the 1787 United States Constitution.
U.S. Constitution, Article I Section 9:
The privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.
This course returns to this Bill of Rights frequently in the
course, but it is reproduced here below. Please read/review the
following document:
Bill of Rights
Amendment I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances.
Amendment II
A well regulated militia, being necessary to the security of a
free state, the right of the people to keep and bear arms, shall
not be infringed.
Amendment III
No soldier shall, in time of peace be quartered in any house,
without the consent of the owner, nor in time of war, but in a
manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, hoU.S.es,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons

21. or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces, or
in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without
just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which
district shall have been 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 have compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
reexamined in any court of the United States, than according to
the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to

22. the states respectively, or to the people.
The Enlightenment and Political Philosophy
The Declaration of Independence and the U.S. Constitution were
not written in isolation; they were part of a much larger
movement – political, philosophical, and intellectual – called
the Enlightenment.
The Enlightenment, as mentioned earlier, emphasized reason,
freethinking, natural law, popular sovereignty, and human
rights. It challenged theocratic fundamentalism and hereditary
aristocracy. The Enlightenment was an idealistic movement in
that it believed in progress.
Benjamin Franklin is a good example of an Enlightenment-era
Renaissance man.
Benjamin Franklin
Benjamin Franklin was an inventor, scientist, Renaissance man,
Ambassador to France, and the only Founding Father who
signed all three of the major documents of the founding of the
United States: The Declaration of Independence, The Treaty of
Paris and the United States Constitution.
"Any society that would give up a little liberty to gain a little
security will deserve neither and lose both."
"A great empire, like a great cake, is most easily diminished at
the edges."
"All wars are follies, very expensive and very mischievous
ones."
"The Constitution only guarantees the American people the
right to pursue happiness. You have to catch it yourself."
The Enlightenment was a trans-Atlantic movement, and many of
the Founding Fathers were in communication with English and
French reformers and revolutionaries in Europe.
In France, for example, a revolutionary ideology was taking
hold, and "liberty, equality and fraternity" were viewed as
natural and inevitable forces propelling humankind forward.
Some of the French idealists crossed the ocean to participate in
the American Revolution.

23. Thomas Paine
Thomas Paine was born in England and died in America. He was
an intellectual, scholar, and Atlantic revolutionary. He wrote
Rights of Man and Common Sense.
"Government, even in its best state, is but a necessary evil; in
its worst state, an intolerable one."
"That government is best which governs least."
"Belief in a cruel God makes a cruel man."
"I believe in the equality of man; and I believe that religious
duties consist in doing justice, loving mercy, and endeavoring
to make our fellow-creatures happy."
"Moderation in temper is always a virtue; but moderation in
principle is always a vice."
"My country is the world, and my religion is to do good."
"Reason obeys itself; and ignorance submits to whatever is
dictated to it."
Jean-Jacques Rousseau
Jean-Jacques Rousseau was an Enlightenment philosopher and
his ideas about popular sovereignty and social contracts
influenced the French Revolution. He was friends with Diderot
and contributed to the scientific project of the Encyclopedists.
His remains are in the Pantheon, in Paris.
"Man is born free, and everywhere he is in chains."
"To renounce liberty is to renounce being a man, to surrender
the rights of humanity and even its duties. For he who
renounces everything no indemnity is possible. Such a
renunciation is incompatible with man's nature; to remove all
liberty from his will is to remove all morality from his acts."
"The world of reality has its limits; the world of imagination is
boundless."
Marquis de Lafayette
Marquis de Lafayette participated in both the French and
American Revolutions. He served as a Major General in the
Continental Army, under George Washington, his lifelong

24. friend. Lafayette's battles included Brandywine, Barron Hill,
Monmouth, and Yorktown.
Lafayette drafted the French Declaration of the Rights of Man
and of the Citizen. He argued for habeas corpus rights, religious
tolerance, popular representation, jury trials, the emancipation
of slaves, and freedom of the press.
"Humanity has won its battle. Liberty now has a country."
"If the liberties of the American people are ever destroyed, they
will fall by the hands of the clergy."
"True republicanism is the sovereignty of the people... There
are natural rights which an entire nation has no right to violate."
"When the government violates the people's rights, insurrection
is, for the people and for each portion of the people, the most
sacred of the rights and the most indispensable of duties."
Conclusion
Virtually all of the Founding Fathers believed in the general
principles of Enlightenment. It is also possible to identify, even
at this early stage, the antecedents of what modern Americans
consider "conservative" and "liberal" political ideologies or
cultures. Of course, the political parties representing liberal and
conservative views have changed names over the centuries and
even changed positions.
Modern American conservatism descends – in part – from the
ideas of the Federalist Party, influential from the 1790s to the
1820s. The party was formed by Alexander Hamilton. The
Federalists were nationalists who wanted a fiscally and
militarily strong nation state; and they believed in the tried and
tested over the new and unproven. Federalists also believed in
rule by a well-educated elite, and thus appealed to merchants,
bankers, lawyers, editors, landowners, and industrialists; one of
John Jay's favorite maxims was, "The people who own the
country ought to govern it." Its most powerful leader was
Hamilton, and its hero was George Washington.
Modern American liberalism descends – in part – from the ideas
of the Democratic-Republican Party, founded in the 1790s by

25. Thomas Jefferson and James Madison. In fact, this party was
first named the "Republican" Party, but it is actually the
ancestor of the modern Democratic Party. The populist-oriented
Democratic-Republican Party promoted the primacy of the
yeoman farmer over bankers, industrialists and merchants. It
opposed such Federalist policies as high tariffs, a navy, military
spending and a national bank.
Just as the Declaration of Independence contains both Deist and
secular principles, so too does the Constitution contain both the
conservative emphasis on traditional order, security and
continuity and the liberal emphasis on personal freedom,
egalitarianism and secularism.
This dual or complex characteristic of the Constitution allows
for that document to be interpreted in competing ways – in
terms of "original intent" by conservatives and "active liberty"
by liberals.
Indeed, there is not final interpretation regarding the
Constitution, and rival perspectives compete to this day.
Top of Form
Lesson 1, Part 2: Federalism
"I hold, that in contemplation of universal law,
And of the Constitution, the Union of these States is perpetual."
-Abraham Lincoln
Expected Outcomes: To understand the constitutional

26. distribution of power between federal and state governments,
and to appreciate how this tension, built into the Constitution,
manifests itself across important case studies.
Overview
Lesson 1 part one examined the separation of powers into three
branches (legislative, executive and judicial). It also examined
the system of "checks and balances" that keeps any one branch
from gaining too much power - from becoming tyrannical.
Lesson 1 part 2, by contrast, examines the division of
government between the "federal" government, also known as
the national government, with its capital in Washington D.C.,
and the "state" governments, of which there are 50 today.
While the Articles of Confederation gave enormous powers to
each of the original 13 states, the U.S. Constitution was written
in order to distribute power between the federal government and
the states. This system is known as "federalism."
Federalism
As mentioned above, "federalism" refers to the relative
distribution of power between the national or federal
government in Washington D.C. and each of the states.
The U.S. Constitution describes the powers that belong to the
federal or national government. These "delegated powers"
include the power to regulate inter-state commerce; the power
make treaties with foreign nations; the power to raise armies,
declare war, raise taxes, and so on.
Simultaneously, the Constitution describes the powers that
belong to the state governments. These "reserved powers" are
reserved to the states. It is also possible to speak of "concurrent
powers," which are shared between the federal and state
governments. Finally, it is possible to describe "powers denied"
to both federal and state governments, like the power to abridge
individual rights by restricting the right to vote.
In many ways, and by design, the Constitution contains a
tension between national and state power. This tension, never

27. fully resolved, has manifested itself in countless national-state
controversies.
The Constitution provides the United States Congress with a
great deal of authority in crafting the nation's laws, and this
authority is seen, among other places, in the "necessary and
proper clause" of Article I.
Article I, Section 8, "Clause" 18:
"The Congress shall have power …To make all laws which shall
be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this
Constitution in the government of the United States, or in any
department or officer thereof.
Furthermore, the Constitution gives the federal government in
Washington D.C. "supremacy" over the states. As seen below,
the "national supremacy clause" in Article VI of the
Constitution asserts the supremacy of federal laws over state
laws:
Article VI, Clause 2:
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws
of any state to the Contrary notwithstanding.
The federal government has indeed flexed its constitutional
muscles over the years. In fact, one of the major plot lines in
the history of American federalism is the steady growth of the
national federal government and the relative decline of state
power and states' rights.
Some scholars even go so far as to insist that "federalism" is an
antiquated concept and that what the U.S. actually has is a
national "unitary" system. The states, these scholars complain,
are left to decide only unimportant and mundane questions, such
as whether or not motorcycle riders should wear helmets.

28. Clearly, the federal power of national government is increasing;
state power is decreasing. Several historical events and trends
contributed to this:
· Supreme Court decisions regarding commerce and taxation
that elevated the power of federal government over states.
· The Civil War, which reinforced the primacy of the Union,
increased the importance of federal government.
· The Great Depression, which required a national or federal
effort to overcome and launched dozens of large bureaucracies.
The African-American Civil Rights Movement led to the federal
government intervening at the state level (in universities and
schools).
·
Modern War. As a result of World War II, the Cold War and
now the Global War on Terror, enormous amounts of political
power gravitated to the White House and the Pentagon.
Still, the states have specific constitutional rights. States' rights
are in fact built into the Constitution, as a kind of "default
setting," as seen in the Tenth Amendment:
Amendment X:
The powers not delegated to the United States by the
Constitution, nor prohibited by it by the states, are reserved to
the states respectively, or to the people.
Therefore, each of the 50 states has quite a bit of latitude in the
American system, especially to address new and unforeseen
issues, but none of them can constitutionally restrict an
individual's rights and liberties as described by, for example,
the Fourteenth Amendments, the latter of which is clear:
Amendment XIV:
… No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States…
As mentioned, the default setting of the U.S. Constitution is to
allow states to address the issues and controversies that are not
explicitly mentioned in the Constitution. This allows for some

29. state-to-state policy innovation before the issue reaches the
national stage, if it ever does.
What has been described above is the architecture of American
federalism: The federal government is supreme, but state
governments have a defined area of power - including those
areas not defined by the constitution.
The remainder of Lesson 2 examines how this federal-state
tension has played out in several important areas of public
policy.
Case Studies
· Interstate Commerce
· Civil Rights
· Euthanasia
· Medical Marijuana
Interstate Commerce
Interestingly, odd cases and sudden controversies have a way of
setting precedent and changing the nature of the federal-state
balance of power.
Consider, for example, the Supreme Court case of McCulloch v.
Maryland (1819). In 1818, the state of Maryland passed
legislation to impose taxes on a bank chartered by Congress, the
Second Bank of the United States, partly inspired by Alexander
Hamilton.
McCulloch v. Maryland (1819)
Facts of the Case
In 1816, Congress chartered The Second Bank of the United
States. In 1818, the state of Maryland passed legislation to
impose taxes on the bank. James W. McCulloch, the cashier of
the Baltimore branch of the bank, refused to pay the tax.
Question
The case presented two questions: Did Congress have the
authority to establish the bank? Did the Maryland law
unconstitutionally interfere with congressional powers?
Conclusion

30. In a unanimous decision, the Court held that Congress had the
power to incorporate the bank and that Maryland could not tax
instruments of the national government employed in the
execution of constitutional powers. Writing for the Court, Chief
Justice Marshall noted that Congress possessed unenumerated
powers not explicitly outlined in the Constitution. Marshall also
held that while the states retained the power of taxation, "the
constitution and the laws made in pursuance thereof are
supreme . . .they control the constitution and laws of the
respective states, and cannot be controlled by them."
The OYEZ Project, McCulloch v. Maryland, 17 U.S. 316 (1819)
The decision was a victory for the federal government and a
defeat for the states.
A similar outcome was achieved in the Supreme Court case
Gibbons v. Ogden (1824), when Chief Justice John Marshall
said that the federal commerce clause outranked a state law that
had granted a monopoly to one group of people to run
steamboats.
Steamboats and the Commerce Clause
Gibbons v. Ogden (1824)
Facts of the Case
A New York state law gave two individuals the exclusive right
to operate steamboats on waters within state jurisdiction. Laws
like this one were duplicated elsewhere which led to friction as
some states would require foreign (out-of-state) boats to pay
substantial fees for navigation privileges. In this case a
steamboat owner who did business between New York and New
Jersey challenged the monopoly that New York had granted,
which forced him to obtain a special operating permit from the
state to navigate on its waters.
Question
Did the State of New York exercise authority in a realm
reserved exclusively to Congress, namely, the regulation of
interstate commerce?
Conclusion

31. The Supreme Court found that New York's licensing
requirement for out-of-state operators was inconsistent with a
congressional act regulating the coasting trade. The New York
law was invalid by virtue of the Supremacy Clause. In his
opinion, Chief Justice Marshall developed a clear definition of
the word commerce, which included navigation on interstate
waterways. He also gave meaning to the phrase "among the
several states" in the Commerce Clause. Marshall's was one of
the earliest and most influential opinions concerning this
important clause. He concluded that regulation of navigation by
steamboat operators and others for purposes of conducting
interstate commerce was a power reserved to and exercised by
the Congress.
The OYEZ Project, McCulloch v. Maryland, 17 U.S. 316 (1819)
The majority opinion said that the U.S. Constitution had a
supremacy clause and a commerce clause that allowed the
federal government to regulate interstate commerce (between
two states). The Supreme Court extended this power to regulate
commerce within the borders of a single state.
Before the decision, it was thought that the federal government
had power over only interstate commerce. But the Court's
opinion said that the commerce clause also applied here. Thus,
the Supreme Court extended the definition of interstate
commerce and cemented the power of the federal government
over the states when laws conflicted.
Many of these same issues arose decades later when the
Franklin Delano Roosevelt administration attempted to prohibit
the use of child workers in the United States.
Child Labor in America
Child labor was common at the turn of the century, but it was
not without its critics. The Keating-Owen Child Labor Act of
1916 was an attempt to outlaw child labor for humanitarian
reasons. The Act was vigorously backed by women's groups and
progressives; it was opposed by industry and states' rights
advocates. The Keating-Owen Child Labor Act states, in part:

32. The Keating-Owen Child Labor Act
"That no producer, manufacturer, or dealer shall ship or deliver
for shipment in interstate or foreign commerce, any article or
commodity the product of any mine or quarry situated in the
United States, in which within thirty days prior to the time of
the removal of such product there from children under the age
of sixteen years have been employed or permitted to work, or
any article or commodity the product of any mill, cannery,
workshop, factory, or manufacturing establishment, situated in
the United States…"
The act was struck down as unconstitutional by the Supreme
Court just two years later because it overstepped the purpose of
the federal government's powers to regulate interstate
commerce. It was up to the states, the argument ran, to prohibit
child labor.
The Supreme Court found the Keating-Owen Child Labor Act to
be unconstitutional in Hammer v. Dagenhart (1918):
Hammer v. Dagenhart (1918)
"The power of Congress to regulate interstate commerce does
not extend to curbing the power of the states to regulate local
trade."
A constitutional amendment was soon proposed to give
Congress the power to regulate child labor, but it was stalled in
the 1920s by an effective campaign to discredit it.
Federal protection of children would not be obtained until
passage of the Fair Labor Standards Act in 1938, which was
also challenged before the Supreme Court before emerging
intact. In U. S. v. Darby (1941), the Supreme Court upheld the
constitutionality of the Fair Labor Standards Act, and it is still
in force today.
Justice Stone in U. S. v. Darby (1941)
"The power of Congress over interstate commerce is not
confined to the regulation of commerce among the states. It

33. extends to those activities intrastate which so affect interstate
commerce or the exercise of the power of Congress over it as to
make regulation of them appropriate means to the attainment of
a legitimate end, the exercise of the granted power of Congress
to regulate interstate commerce."
After World War II and continuing to present day, the Supreme
Court still hears many cases involving inter-state commerce.
While the basic parameters of the law are in place, individuals,
corporations, state governments and the federal government
often bring suits against one another, on constitutional grounds.
Civil Rights
The question of civil rights, particularly for African Americans,
lies at the center of the debate over federalism.
After the Civil War, and using the amendment process, the U.S.
federal government sought to set national standards for civil
rights. The 13th, 14th, and 15th amendments were instrumental
to this process in which the federal government trumped
individual states, particularly in the South, which had
historically oppressed African Americans.
The 13th Amendment is worded as follows:
Amendment XIII
Section 1
Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.
Section 2
Congress shall have the power to enforce this article by
appropriate legislation.
The 14th Amendment is worded as follows, and its Section 1
contains the famous "Equal Protection Clause."
Amendment XIV
Section 1
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and

34. of the state wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 5
The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
The 15th Amendment is worded as follows:
Amendment XV
Section 1
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any state on
account of race, color, or previous condition of servitude.
Section 2
The Congress shall have the power to enforce this article by
appropriate legislation.
After the Civil War, the Supreme Court grappled with civil
rights in a new constitutional framework. The decisions did not
always favor African Americans.
Consider United States v. Cruikshank (1876), a case that arose
out of the Colfax Massacre, when a group of white men
(including members of the Ku Klux Klan) clashed with members
of Louisiana's almost all-black state militia at the local
courthouse. The Fourteenth Amendment was held by the
Supreme Court of the United States to apply only to state
actions, not private acts of violence.
United States v. Harris (1883) held that the Equal Protection
Clause did not apply to an 1883 prison lynching since the
Fourteenth Amendment applied only to states, not to individual
criminal matters.
The Civil Rights Cases of 1883 allowed segregation by striking
down the Civil Rights Act of 1875, a statute that prohibited

35. racial discrimination in public accommodations. The Supreme
Court held that the Equal Protection Clause applied only to acts
done by states, not to those done by private individuals; because
the Civil Rights Act of 1875 applied to private establishments,
the Court said, it exceeded congressional power under section
five of the Fourteenth Amendment.
Consider, too, the Supreme Court case of Plessy v. Ferguson
(1896). That 1896 case concerned Homer Plessy, a light-skinned
African American. Homer sat down in the "whites only" car of a
Louisiana train, refused to move, and was arrested.
Plessy's defense rested on the unconstitutional infringement of
the Equal Protection clauses in the 14th Amendment. But the
Supreme Court, reluctant to go against the prevailing norms of
the day, disagreed. The Court, employing an "original intent" of
the Constitution argument, held that state law upholds racial
segregation. The Court further said that separate facilities for
races satisfied the 14th Amendment so long as they were equal.
(The actual phrase "separate but equal" was not part of the
opinion but it was implied).
Brown v. Board of Education (1954) broke with the history (or
precedent) of the Supreme Court. This case drove to the central
question: Does segregation in public schools violate the Equal
Protection of the 14th Amendment?
The Supreme Court said that it did. The Court found that
segregation in public education has a detrimental effect on
minority children, making them feel inferior. The Court focused
on the psychological impact of segregation. They also found
that the idea of "separate but equal" was inherently wrong
because, as Chief Justice Warren wrote: "Separate educational
facilities are inherently unequal."
During the civil rights movement of the 1950s and 1960s, states'
rights became strongly associated with Southern racial politics,
with proponents of racial segregation and Jim Crow laws (which
segregated the races) denouncing federal interference in these
state-level policies. Over time, however, the Supreme Court and
lower courts, pursuing what critics call "judicial activism," have

36. forced states to conform to the provisions in the 13th, 14th, and
15th amendments.
Abraham Lincoln
"That I am not a member of any Christian Church, is true; but I
have never denied the truth of the Scriptures; and I have never
spoken with intentional disrespect of religion in general, or any
denomination of Christians in particular."
"I am not a Know-Nothing. That is certain. How could I be?
How can any one who abhors the oppression of negroes, be in
favor of degrading classes of white people? Our progress in
degeneracy appears to me to be pretty rapid. As a nation, we
began by declaring that "all men are created equal." We now
practically read it "all men are created equal, except Negroes."
When the Know-Nothings get control, it will read "all men are
created equal, except Negroes and foreigners and Catholics.
When it comes to this, I shall prefer emigrating to some country
where they make no pretense of loving liberty - to Russia, for
instance, where despotism can be taken pure and without the
base alloy of hypocrisy."
"Labor is prior to, and independent of, capital. Capital is only
the fruit of labor, and could never have existed if labor had not
first existed. Labor is the superior of capital, and deserves much
the higher consideration."
Euthanasia
Euthanasia is another issue that raises questions over the
balance between national and state power; it has become an
issue that speaks to federalism. Euthanasia refers to assisted
dying, mercy killing or, in legal terms, to "doctor-assisted
suicide." Usually, euthanasia is relevant to patients with
terminal cancer or to those in a persistent vegetative state
(PVS). Euthanasia, then, is illegal in all 50 states. However,
physician-assisted suicide (PAS) is legal in four states....
Dr. Kevorkian
In the U.S., the topic of euthanasia was brought to the forefront
of politics by Dr. Kevorkian. He assisted in the deaths of more
than 100 people in less than 10 years. Often, the State of

37. Michigan tried to prosecute him for murder, but he managed to
convince juries to let him go. In 1999, however, Dr. Kevorkian
was convicted of administering a lethal injection to Thomas
Youk.
Case: Washington v. Glucksburg (1997)
In Washington v. Glucksburg (1997), Dr. Harold Glucksberg
and a nonprofit organization challenged the State of
Washington's ban on physician assisted-suicide. Washington
had criminalized the promotion of suicide attempts by those
who knowingly cause or aid another person to attempt suicide.
Glucksberg alleged that Washington's ban was unconstitutional.
While the case was decided on the Fourteenth Amendment's Due
Process Clause, it has clear implications for personal privacy
rights.
The Court held that the while individuals have a right to refuse
artificially-induced life extension, that the right to assisted
suicide is not a fundamental liberty.
Decision of the Court: 9 – 0
Opinion: Justice Rehnquist
More specifically, for over 700 years, the Anglo-American
common-law tradition has punished or otherwise disapproved of
both suicide and assisting suicide…
That suicide remained a grievous, though nonfelonious, wrong
is confirmed by the fact that colonial and early state legislatures
and courts did not retreat from prohibiting assisting suicide.
Swift, in his early 19th-century treatise on the laws of
Connecticut, stated that "[i]f one counsels another to commit
suicide, and the other by reason of the advice kills himself, the
advisor is guilty of murder as principal."
As the court below recognized, Washington's assisted suicide
ban implicates a number of state interests…
First, Washington has an "unqualified interest in the
preservation of human life."
Those who attempt suicide--terminally ill or not--often suffer
from depression or other mental disorders…
The State's interest here goes beyond protecting the vulnerable

38. from coercion; it extends to protecting disabled and terminally
ill people from prejudice, negative and inaccurate stereotypes,
and "societal indifference."…
Finally, the State may fear that permitting assisted suicide will
start it down the path to voluntary and perhaps even involuntary
euthanasia.
Conclusion
Physician-assisted suicide has again reached the Supreme Court
in Gonzales v. Oregon (2005). The case involves Oregon's
"Death with Dignity Act" passed by the state legislature. It
allows doctors to prescribe lethal doses of controlled drugs to
terminally-ill patients. Under the law, a capable adult Oregon
resident who has been diagnosed with a terminal illness by a
physician may request in writing a prescription for a lethal dose
of medication. The request must be confirmed by two witnesses,
one of whom cannot be related to the patient, be entitled to any
portion of the patient's estate, be the patient's physician, or be
an employee of a health care facility caring for the patient.
More specifically, Oregon's Act includes the following:
State of Oregon's description of the Death with Dignity Act:
The law states that, in order to participate, a patient must be: 1)
18 years of age or older, 2) a resident of Oregon, 3) capable of
making and communicating health care decisions for
him/herself, and 4) diagnosed with a terminal illness that will
lead to death within six (6) months. It is up to the attending
physician to determine whether these criteria have been met.
Attorney General John Ashcroft (then Alberto Gonzalez)
threatened to revoke the licenses of doctors involved. The State
of Oregon then sued Ashcroft (then, Gonzalez). The Ninth
Circuit Court of Appeals ruled for Oregon and against
Gonzalez, saying that the Attorney General had no jurisdiction
in the case. So, then the case went to the Supreme Court. It
needs to be noted that the Controlled Substances Act (CSA) is a
federal law that regulates the legal and illicit manufacture,

39. distribution, and possession of drugs, a physician may prescribe
controlled substances to patients only for a “legitimate medical
purpose.”
In a 6-3 opinion delivered by Justice Anthony Kennedy, the
Court held that Congress intended the CSA to prevent doctors
only from engaging in illicit drug dealing, not to define general
standards of state medical practice. Moreover, the CSA did not
authorize Attorney General John Ashcroft to declare a medical
practice authorized under state law to be illegitimate.
In Oregon at least, the Death with Dignity law was upheld.
Oregon appeared to have circumvented the earlier ruling by
emphasizing the voluntary and "self-administration" of lethal
medications by people, with doctors playing a more minor role.
Medical Marijuana
Medical marijuana raises fascinating constitutional issues. But
first, it is important to describe the use of marijuana for medical
reasons. The debate below revolves around whether or not
marijuana should be a legal remedy, one prescribed by doctors
for their patients. This is to be distinguished from its
recreational use, which since the 1960s has been common.
There is medical and scientific consensus that marijuana
stimulates the appetite of AIDS patients; that it relieves
pressure in the eyeball for glaucoma patients; and there is even
growing consensus that marijuana can lowers a person's blood
pressure over time.
Of course, it should be said that marijuana use has also been
associated with long-term memory loss, confusion, paranoia and
respiratory problems. Defenders of marijuana use claim that
these problems have been traditionally exaggerated by alarmist
propaganda such as the 1936 film Reefer Madness. For many
patients of AIDS and glaucoma, however, the benefits appear to
outweigh the costs – and many doctors agree.
Because of these reputed effects, 56% of California voters voted
in favor of Proposition 215 (the Compassionate Use Act) in
1996, legalizing the use of marijuana. This is the core of the

40. proposition:
Proposition 215: Text of Proposed Law
(A) To ensure that seriously ill Californians have the right to
obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended
by a physician who has determined that the person's health
would benefit from the use of marijuana in the treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which marijuana
provides relief.
(B) To ensure that patients and their primary caregivers who
obtain and use marijuana for medical purposes upon the
recommendation of a physician are not subject to criminal
prosecution or sanction.
However, Proposition 215, which passed in California,
conflicted with the Federal Controlled Substances Act.
Naturally, court cases soon followed to test the legality of the
California law. After all, the federal government began to arrest
doctors who prescribed marijuana. The California based Ninth
Circuit Court, however, ruled in favor of medical marijuana.
This court found that the federal government's commerce clause
power was weak, and that Congress lacked the power to enforce
federal law in this medical sphere.
The Ninth Court cited US v. Lopez (1995), a Supreme Court
case that restricted the federal government's right to control
firearms at the state level. This same reasoning would prevent
the federal government from interfering in medical marijuana
laws at the same level. Medical marijuana activists accused
conservatives of hypocrisy in their claim that states should be
allowed to set their own laws regarding guns (and civil rights)
but not when such state laws legalized marijuana (or same-sex
marriage).
In Gonzalez v. Raich (2005), the Supreme Court ruled against
the use of medical marijuana. Conservative judges who favored
states' rights in other circumstances had to stake out a rather

41. delicate position in order to rule against medical marijuana.
After all, the states had traditionally regulated and licensed the
practice of medicine, not the federal government.
The Court overturned California's medical marijuana laws not
for moral reasons but because legal marijuana might impact the
"interstate commerce" of a substance, some pointed out, that
was supposed to have no interstate commerce. Whatever one's
view of the decision, it was unusual that the Supreme Court
took into account the commercial effects of an underground
activity, that is, of commerce in a contraband substance.
Justice Stevens delivered the opinion:
The exemption for cultivation by patients and caregivers can
only increase the supply of marijuana in the California market.
The likelihood that all such production will promptly terminate
when patients recover or will precisely match the patients'
medical needs during their convalescence seems remote;
whereas the danger that excesses will satisfy some of the
admittedly enormous demand for recreational use seems
obvious. Moreover, that the national and international narcotics
trade has thrived in the face of vigorous criminal enforcement
efforts suggests that no small number of unscrupulous people
will make use of the California exemptions to serve their
commercial ends whenever it is feasible to do so. Taking into
account the fact that California is only one of at least nine
States to have authorized the medical use of marijuana, a fact
Justice O'Connor's dissent conveniently disregards in arguing
that the demonstrated effect on commerce while admittedly
"plausible" is ultimately "unsubstantiated," post, at 14, 16,
Congress could have rationally concluded that the aggregate
impact on the national market of all the transactions exempted
from federal supervision is unquestionably substantial.
Not all justices agreed.
Justice O'Connor wrote a dissent:
We would do well to recall how James Madison, the father of
the Constitution, described our system of joint sovereignty to
the people of New York: "The powers delegated by the proposed

42. constitution to the federal government are few and defined.
Those which are to remain in the State governments are
numerous and indefinite… The powers reserved to the several
States will extend to all the objects which, in the ordinary
course of affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement, and prosperity
of the State." The Federalist No. 45, pp. 292—293.
Relying on Congress' abstract assertions, the Court has endorsed
making it a federal crime to grow small amounts of marijuana in
one's own home for one's own medicinal use. This overreaching
stifles an express choice by some States, concerned for the lives
and liberties of their people, to regulate medical marijuana
differently. If I were a California citizen, I would not have
voted for the medical marijuana ballot initiative; if I were a
California legislator I would not have supported the
Compassionate Use Act. But, whatever the wisdom of
California's experiment with medical marijuana, the federalism
principles that have driven our Commerce Clause cases require
that room for experiment be protected in this case. For these
reasons I dissent.
John Calvin Jones, J.D., in "The War on Drugs is Still
Unconstitutional" found it amusing that medical marijuana was
banned on the largely grounds that legalizing it would impact
the price of regular marijuana.
John Calvin Jones
Note the parallel, as prostitution is banned, consensual sex can
be criminalized, because the more often that people have sex for
free – especially if they are married, the lower the price that
prostitutes will charge.
The Supreme Court has indeed prohibited medical marijuana,
but the enforcement of this decision remains problematic, as
tens of millions of Americans continue to break the federal law.
And, to make this issue even more controversial, both
Washington and Colorado recently passed state initiatives

43. legalizing personal recreational use of marijuana!
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Appendix 4A provides a detailed discussion of cost concepts in
transportation, including accounting, economic and social costs.
Review these costs, and in a three- to four-page paper in APA
format, be sure to address the following:
· Discuss how accounting, economic, and social costs can be
used in transportation to mitigate risks associated with these
costs.
· Analyze how the company’s focus can impact these costs and

44. impact risks.
· Provide at least one recommendation for each cost area that
could mitigate the risks of those costs.
Your paper must be three to four pages in length (not including
the title and reference pages) and must be formatted according
to APA style as outlined in the approved APA style guide. You
must cite at least three scholarly sources in addition to the
textbook.