#53:

Anti-federalists had argued that one-year House terms would be more "democratic" or "representative."

* Madison argues that Representatives in the House will need some knowledge of national affairs (how things work in the different states), as well as some minimal knowledge of foreign affairs. Because experience in the House counts here, two-year terms are appropriate.

#56, 57, 58:

Critics had charged that the House would be too small to be truly representative, or to have "...due knowledge of the interests of its constituents."

* Madison counters that the proposed size is appropriate because

#62 and 63:

* Madison contrasts the Senate with the House in the course of discussing the Senate's intended role in the system.

Important structural differences in the Senate include:

These characteristics give the Senate different responsibilities:

According to Madison, the Senate:

* For members of Congress, "the primary goal...is reelection."

Reelection is at the very least necessary and, for Fiorina, it is very often predominant. We should expect members of Congress, as individuals, to act accordingly, and we should expect members of Congress "to devise and maintain institutional arrangements which facilitate their electoral activities..."

· Fiorina begins with what he calls the "self-interest axiom" (human beings seek their own ends).

· Members of Congress engage in three types of activities:

(1) lawmaking

(2) pork barreling

(3) casework

· Lawmaking is Congress's main function. However, members will view lawmaking in light of their reelection incentive, and they find that governance often involves hard choices and ensures making enemies. It is difficult to claim credit of most forms of lawmaking (since many hands are involved and policies are usually of general applicability).

· Pork barreling and casework "are relatively less controversial," and better for credit-claiming.

· The growth of an activist federal government has stimulated a change in the mix of congressional activities: less effort is spent on programmatic activities (lawmaking), and more on porkbarrel and casework. This leads to increased bureaucratic activity.

Therefore, not the bureaucracy but Congress itself should be the target of criticism aimed at Washington. "Congress is the linchpin of the Washington establishment. . .Congress does not just react to big government, it creates it."

The "general, long-term welfare of the United States is no more than an incidental by-product of the system."

Fiorina writes that the primary incentive for members of Congress is:

Congress is like a kaleidoscope: a constantly shifting pattern of discrete pieces.

* Dodd argues that the multiplication of committees to satisfy individual incentives for power undermines the ability of Congress, as an institution, to make coordinated and longterm decisions in the national interest.

In turn, this encourages the Executive to intervene and provide coordination and leadership; Congress, Dodd argues, will reorganize and centralize to a degree, to counter the challenge for power from the President; the President will, in turn, back off; and Congress reverts to satisfying individual incentives by decentralizing power.

· Motive for members of Congress: the quest for personal power.

· This requires reelection:

· But reelection is usually not the sole preoccupation (this contrasts Fiorina); security comes from constituency-building (not from party).

· Dodd argues that members of Congress climb a four-stage "power ladder" over the course of their careers:

· The Power incentive affects Congressional structure:

· There are constraints on the committee system.

· There are several liabilities to the committee system:

According to Lawrence Dodd, which of the following is not an effect of the power incentive?

* Cook suggests that reporters and members of Congress, both "elites" of sorts, are engaged in a mutually beneficial relationship. "Making news...has become a crucial component of making laws."

This can lead the media and government to become "detached" from the people. Cook's solution involves what he calls "the democratization of political

news," and, more generally, "more participation by the people themselves in shaping the options and decisions of government."

· Making news has become more and more important to members and to the media.

· Members use the media

· The media uses members of Congress in generating the news.

· Media dependence on Congress:

· Effect on lawmaking:

Cook argues that:

* Cook uses Newt Gingrich's career to illustrate the way politicians use the media to get attention.

· Gingrich has created an uncommonly strong Speakership in the House based on an "outside" strategy utilizing the media and public opinion.

· Media strategies are not only aimed at the public: they also help efforts within Congress by creating opportunities for other members of Congress to get into the news and gain attention

· The Gingrich case is interesting because his leadership style is one usually associated with the Presidency; much of Gingrich's technique is borrowed from previous presidential administrations.

* A media strategy is a necessary part of focussing the attention of the public and of political actors. It can help influence the agenda and garner high visibility for issues.

* This strategy entails certain risks:

1) Gingrich's strong positions have hurt his popularity.

2) "[M]edia strategies are better for getting an issue onto the agenda than for getting something accomplished"-- Gingrich's strategy may result in "a quick fix with uncertain results."

According to Timothy Cook's assessment, which of the following is a result of Newt Gingrich's relationship with the media?

* Officials are elected for their judgment and experience, and should make decisions based on his own best ideas.

Government should be deliberative and carried out in the national interest.

· "Your representative owes to you [the constituents], not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."

In other words, the representative's duty is to follow his or her own mind, and not necessarily the opinions of constituents.

According to Edmund Burke, which of these is most important?

Polls show that the public holds Congress in low esteem; polls also show that voters tend to like their individual representatives more than they like the institution as a whole.

* Fenno argues that this is because a double standard exists in judging the institution and its members.

· Fenno offers three reasons which help explain the answer to the public's split attitudes:

(1) "[W]e apply different standards of judgment, those that we apply to the individual being less demanding than those we apply to the institution."

(2) These different standards reflect the fact that members of Congress "for their own reasons, spend a good deal more time and energy polishing and worrying about their individual performance than they do working at the institution’s performance."

(a) reelection (which is not always dominant)

(b) power in the body

(c) good public policy

(3) Hence, when "members think institutionally--as, of course, they must--they think in terms of a structure that will be most congenial to the pursuit of their individual concerns [the three types of individual incentives]. . .For these reasons, the members naturally think in terms of a very fragmented, decentralized institution, providing a maximum of opportunity for individual performance, individual influence, and individual credit." Congress' internal mechanisms are therefore very difficult to understand from the outside, and this helps explain public disenchantment.

· A more detailed or nuanced understanding can help us be more careful about what Congress' problems are and about how they might be solved. This leads to an analysis of the committee system, "the epitome of fragmentation and decentralization".

· Following his three types of individual incentives, Fenno posits three types of committees:

(a) reelection

(b) power

(c) good public policy

· Efforts at Congressional reform will have to harness individual incentives in the pursuit of institutional performance.

Fenno suggests that Congress:

* "Congress-bashing" depends to a very large extent on "whose ox is being gored."

One strong motivation for Congress-bashing is substantive (ideological) disagreement with what Congress is doing. Liberals bashed Congress a generation or two ago, and now conservatives do it more.

· Political disagreement ought not to lead to fooling around with the constitutional framework, especially devices central to the separation of powers.

· Three such bad reform ideas are (1) the line-item veto and (2) term limitations (both would undermine the separation of powers, giving even more power over to the Executive); and (3) limits on Congressional salaries.

According to Polsby, the line-item veto:

* For Mayhew, reelection is the paramount or overriding objective of members of Congress. Mayhew states: "Whether they are safe or marginal, cautious or audacious, congressmen must constantly engage in activities related to reelection."

· Members of Congress find it "electorally useful" to engage in three types of activities:

According to Mayhew, members of Congress are most interested in:

* Members of Congress need to be attentive both to their constituents and to politics in Washington.

Fenno notes two potentially competing orientations for members:

· Early in their careers, members tend to be more concerned with reelection than with the other two incentives.

· Over time (usually only after several terms), members want to shift their attention from merely getting reelected to power in the body and to good public policy.

· A tension often develops between these orientations and incentives. As constituent demands and legislative activities both increase, it is increasingly difficult to do both at the same time.

Richard Fenno writes that members of Congress engage in:

* The political environment continues to shift and change during the 1990s, creating new responsibilities for Congress and shifting dynamics between representatives and their constituents.

Three areas of analysis:

(1) Changes in the national agenda

· Implications:

* These ad hoc devices further fragment power and decrease overall coordination in Congress.

(2) Flux in the party system

· Implications:

* More emphasis on constituency service; uncertain future for the parties

(3) Divided government

According to Walter Oleszek, Congress' responsibilities in the post-Cold War world are:

* Hamilton's major theme in Federalist 78 is judicial independence.

If the Court is to police the boundaries generally marked out by "a limited constitution," it must be as independent of the other branches as practicable: "The complete independence of the courts of justice is peculiarly essential in a limited constitution."

· The Constitution ensures judicial independence:

· Hamilton argues that the Court and courts generally will be "the faithful guardians of the constitution" under the new plan.

Critics feared that the courts would be too independent: "who will guard us from the guardians?"

· Hamilton responds by arguing that the judiciary is "the least dangerous" branch. This is because it has neither "force" (the sword) nor "will" (legislative authority, or "the purse"), but only judgment (legal analysis and arguments).

Hamilton writes, in the Federalist, that the Court is the weakest of the branches because:

After the debates over whether the new Constitution should be ratified, the supporters of the new government divided during the 1790s. Hamilton and John Adams became the leaders of the Federalists. The Federalists favored a "loose" construction of the Constitution toward the ends of greater national power, commercial and industrial development, and expansion.

Madison increasingly supported Jefferson's opposition to the Federalists. The Jeffersonians (Democratic-Republicans) favored "strict" construction of the Constitution toward the ends of limiting national power in favor of local and state-level citizen-agrarian democracy.

Jefferson defeated President Adams in the election of 1800, and the Federalists come face to face with losing control of national institutions. In the closing days of Adams' administration, the Federalists passed legislation creating more lower federal courts, to which they could appoint Federalists (for life)-- thereby cementing their power in the judicial branch. Adams' Secretary of State, John Marshall, was appointed to sit as Chief Justice of the Supreme Court.

These late judicial appointments-- the "midnight judges"-- include William Marbury, who was appointed as judge of a municipal court for the District of Columbia. However, amid the Federalists’ hasty exit from the White House, the Secretary of State (Marshall) neglects to deliver Marbury his commission as a judge.

In the new administration, President Jefferson appoints James Madison as Secretary of State. Madison refuses to give Marbury the commission. Marbury sues, going directly to the Supreme Court because an act of Congress (Section 13 of the Judiciary Act of 1789) permits this--it provides for original jurisdiction and issuance of "writs of mandamus" in this kind of case. Marbury asks Marshall (now Chief Justice) to issue a writ of mandamus ordering Madison to deliver the commission.

* The Court exercises the power of judicial review and strikes down Section 13 of the Judiciary Act as inconsistent with the Constitution.

Chief Justice Marshall argues that Article III of the Constitution clearly provides for original jurisdiction in certain cases, and appellate jurisdiction in all others. The act of Congress is inconsistent with Article III of the Constitution because Congress added to the Court's original jurisdiction by allowing it to issue writs of mandamus in this type of case.

Marshall writes that a written constitution implies that it must be viewed as fundamental law. The Constitution, then, is a form of law, and it is "emphatically the province and duty of the judicial department to say what the law is."

· Judicial review

· Strength and independence of the judiciary

In Marbury v. Madison, John Marshall:

The distinction between "constitutional law" and "policymaking" is largely myth.

* The key to judicial restraint is self-limitation by judges themselves.

· The courts have enormous policy-making functions, and they are not limited by law and legal reasoning: ". . .in practice, it would be a clumsy judge indeed who could not, by a little skillful exegesis [interpretation, esp. of a text], adapt the Constitution to a necessary end." For Roche, the Court's policymaking role can be an important source of "reinvigoration" in our constitutional system.

· Roche discusses two methods of judicial self-limitation:

· Roche writes that political fragmentation encourages court activity in policymaking. Where "no cohesive majority" exists among people and organs of government, the Court has an opportunity to intervene.

John Roche argues that the best means of restraining the judiciary is:

Brennan provides an account of how the Supreme Court accepts and resolves cases. He wants to convey a sense of the seriousness with which the Justices take their duty "to decide according to law."

· Brennan contends that the Court is not charged with making social, political, economic and philosophical decisions. These decisions, Brennan says, if they are to be made at all, are for the "people's elected representatives." "The Justices are charged with deciding according to law."

· Brennan suggests that the intent of the framers was to speak in general terms amenable to flexible interpretation by future generations.

William Brennan argues that the Supreme Court:

Main Argument

* O'Connor's Joint Opinion reaffirms the "essential holding" of Roe v. Wade with a strong appeal to the strength of precedent.

This case challenged the Court to revisit Roe v. Wade, and provided an opportunity, if the Court so chose, to reverse that famous decision.

At issue are five provisions of Pennsylvania's 1982 Abortion Control Act (amended in 1988 and 1989). In brief, these are:

* O'Connor vigorously rejects the opportunity to overturn Roe.

* O'Connor lays great emphasis on the power of precedent, or stare decisis.

Tests to judge if a precedent should be overturned:

* O'Connor decides that the answers to these questions do not support overturning the earlier decision

· O'Connor reaffirms the basic holdings of Roe:

In Planned Parenthood v. Casey, the Supreme Court:

Chief Justice Rehnquist argues that "the Court in Roe read the earlier opinions upon which it based its decision much too broadly."

· No tradition ever existed to support the classification of the right to abortion as "fundamental"

Chief Justice argues that the Court's ruling that the right to terminate one's pregnancy was a fundamental right was:

* Abortion is not a liberty protected by the Constitution.

(1) "[T]he Constitution says absolutely nothing about it".

(2) American traditions have permitted abortion to be proscribed

* Scalia accuses the Court of holding to the original Roe decision with "czarist arrogance", in order to show how little it can be intimidated by opponents of its decisions -- even if that adherence to precedent upholds a clearly erroneous decision.

Antonin Scalia argues that the Court:

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