PART I

PART I

THE SETTING OF THE AMERICAN SYSTEM

CHAPTER 1

CONSTITUTIONAL GOVERNMENT

1. John Locke

Second Treatise, Of Civil Government (1690)

Main Argument and Locke's Reasoning:

Individuals have the natural right to "life, liberty and property."

-- "natural rights" exist prior to entering into civil society or to agreeing to be bound by the authority of government (individuals have "natural rights" in a "state of nature").

However, for protection of rights in a state of nature, "there are many things wanting."

* Individuals enter into society and consent to government in order to protect rights. Legitimate government is based on consent, and it remains legitimate only insofar as it furthers these ends (protection of life, liberty and property).

Significance:

· Foundation for US Constitution:

-- Locke's work, with its emphasis on natural law and natural rights, constitutes an important precursor to eighteenth century beliefs in reason and scientific progress.

-- The framers' establishment of a constitutional democracy owes much to Locke.

· Legislative Supremacy and the Right to Revolt:

-- These premises (natural rights, consent) imply legislative supremacy (laws made by representatives). If government violates the trust placed by the people, then "the people shall judge." (In other words, there is a right to revolution against illegitimate government).

Sample Question

Human beings have natural rights:

a) before they enter into the social compact.

b) only after they enter into the social compact.

c) only when in a state of revolution.

d) only under an established government.

2. John P. Roche
The Founding Fathers: A Reform Caucus in Action

Main Argument:

* Roche sees the Constitutional Convention as a democratic reform caucus.

Roche's Reasoning:

· The principles of the Constitution were based on political tradeoffs among state interests.

-- Framers were all nationalists, and therefore ideologically similar.

-- The Convention was a compromise to reach a consensus result that could be sold to the people back home.

Significance:

· Roche revises two previous notions of the Constitutional framers:

-- as all-wise Platonic guardians adhering to abstract principles of political theory.

-- as an economic elite protecting their economic interests.

Sample Question

John Roche interprets the Constitutional Convention as:

a) a meeting of elite leaders seeking to limit popular rebellion.

b) a caucus of like-minded people aimed at strengthening the national government.

c) a gathering of wise political theorists adhering to abstract notions of government.

d) a mixed group of people with a wide variety of intentions for government.

3. Charles Beard
Framing the Constitution

Main Argument:

* The framers were an economic elite out to protect their own property against popular majorities.

Beard's Reasoning:

· The framers were an elite consisting of landholders, creditors, merchants, lawyers and public bondholders.

Significance:

· The Constitution is antimajoritarian.

· Roche and Beard disagree on the motivations and actions of the Constitution's framers.

· Beard's evidence does not support his argument.

Sample Question

Charles Beard's argument:

a) is at odds with John Roche's interpretation of the Constitutional Convention.

b has been criticized because its evidence is not sound.

c) sees the framers of the Constitution as a self-interested elite.

d) all of the above.

4. James Madison
Federalist 47, 48, 51

Main Argument (# 47):

* The separation of powers protects liberty.

Criticism and Madison's Response:

Critics of the proposed Constitution allege that the new document does not adhere to the above maxim, because in it, legislative, executive and judicial powers are intertwined.

· On the contrary, Madison argues, the separation of powers does not mean total separation. Separation requires only that one branch not be able to control another completely. Giving each branch "partial agency"-- overlapping powers-- in the others is essential to the Madisonian framework.

Main Argument (# 48):

* Creating "parchment barriers" in the Constitution won't be enough to maintain separation of powers and the liberty protected by separation of powers.

Madison fears that in a government founded on popular sovereignty, the legislative branch will be the most powerful.

Main Argument (# 51):

* "Ambition must be made to counteract ambition."

Madison’s Reasoning:

· Each branch of government should have a will of its own and be as independent as possible. Each branch must also be given the means to resist encroachments from the others.

-- For example, since the legislature is the most to be feared, Madison points out that the framers divided it into two houses (bi-cameralism), and the executive was given a veto over legislation.

· The ambition of each branch to protect its power and its independence, together with overlapping responsibilities among the branches, ensures that no branch will become dominant and dangerous.

-- Madison's view of human nature, seen in Federalist 10, is best described as realistic or skeptical, but not completely pessimistic (people may sometimes act as "angels," but one can't count on it).

Sample Question

According to Madison, the three branches of government:

a) must be completely separate.

b) should never be encouraged to compete with each other.

c) can share powers and jurisdictions.

d) are subordinate to the authority of the states.

5. Lawrence Tribe and Michael C. Dorf

How Not to Read the Constitution

Main Argument:

* Interpreting the Constitution necessarily involves "looking beyond the specific views of the Framers."

Tribe and Dorf's Reasoning:

· The Constitution is a framework for "balancing liberty against power."

· Adapting the Constitution's framework to our changing needs and values is difficult and complex.

· However, the difficulty in interpreting our constitutional tradition doesn't suggest that judges should simply impose their own views.

Sample Question

Tribe and Dorf see the Constitution as:

a) a set of firm rules for ordering society.

b) a framework for dealing with complex questions.

c) relatively unimportant in contemporary life.

d) ambiguous to the point that judges must use their own ideas to give it substance.

CHAPTER 2:

FEDERALISM

6. Alexander Hamilton
Federalist 16 and 17

Main Argument (# 16):

The current confederacy is near anarchy and therefore close to death. No national authority can pursue national interests; those seeking to pursue national aims quickly confront the prospect of war between the states.

* A new federal government is required to remedy current defects.

-- Defects include the lack of national executive and judicial authority, lack of tax power, lack of power to regulate interstate commerce.

The new national authority must operate directly upon individuals, not just upon "states"; it must "carry its agency to the persons of the citizens."

Criticism and Response (# 17):

Critics feared that the national government would be too powerful, and that it might absorb the states.

· Hamilton responds by arguing that the state governments will be closer to the people and have authority over a wider sphere of human activity than the national government.

Sample Question

Hamilton argues that the new national government:

a) will not absorb the states because the states are closer to the people.

b) must have all of the states' former powers in order to save the union.

c) is unnecessary, and that the nation should return to the Articles of Confederation.

d) should act only upon the states, and leave the people alone.

7. James Madison
Federalist 39

Main Argument:

* The new national government is both "federal" and "national."

By "federal," Madison means "based on the states as sovereign political entities."

By "national," he means "based on a direct link between the national government and the individual citizen."

In other words, the national government's relationship to the states makes it federal while its relationship to the people makes it national.

Madison's Reasoning:

· Madison demonstrates this federal v. national distinction in different parts of the Constitution:

(1) the foundation of the new government, or how it will be ratified: ratification is by the states, and is therefore federal

(2) source of ordinary powers:

(a) The House's powers are from the people, therefore national

(b) The Senate's powers come from the states, therefore federal

(3) the operation of government:

-- when the national government acts, it acts directly on the people--it is national

(4) the extent of national government powers:

-- they are limited by the states' powers--therefore, federal

(5) process of amending the Constitution (See Article V):

-- again, both federal and national characteristics

· Madison also notes the ways in which the Constitution conforms to republican principles.

Sample Question

Madison argues that the new government under the Constitution is:

a) national, in that it is based on a direct link to citizens.

b) federal, in that it is based on the states as sovereign political entities.

c) both A and B

d) neither A nor B

8. James Bryce

The Merits of the Federal System

Main Argument:

* Bryce outlines the advantages of an American-style federal system of government.

Advantages of the Federal System:

I. Federalism in general:

-- unites commonwealths under one national government "without extinguishing their separate administrations, legislatures, and local patriotisms."

-- supplies the best means of developing a new and vast country; in other words, it provides an excellent system in support of American expansion

-- prevents the rise of an overpowering, and threatening, central government

II. Benefits of preserving local self-government:

-- Bryce offers several reasons demonstrating how federalism keeps citizens active and interested in local affairs

-- administration of local affairs benefits because local citizens are in charge

III. Other Benefits:

-- federalism allows experimentation at local levels, without the risks of trying new projects on a national level

-- federalism insulates other parts of the nation from upheavals and mistakes in isolated areas (he compares this function to the role played by watertight holds of a ship)

-- federalism relieves the national government of many local tasks, which would otherwise overburden the central government

* Bryce also argues that these factors, which are on the order of mechanical devices, would still be unsuccessful if not for the moral and material influences: the love of self-government and a "sense of community in blood, in language, in habits and ideas, a common pride in the national history and the national flag."

Sample Question

American Federalism, according to James Bryce, is beneficial because:

a) it protects local administration.

b) it relieves the central government of many local tasks.

c) it provides a system that supports expansion.

d) all of the above

9. McCulloch v. Maryland (1819)

Background:

Congress set up the Second National Bank in 1816. The State of Maryland levied a tax upon the bank. The bank refused to pay the tax.

Issues:

(1) Does Congress have the power under the Constitution to set up a national bank?

Yes: even though this power is not explicitly in the text of the Constitution, it is implied by the "necessary and proper" clause-- the national bank is a necessary means to other ends that are explicitly stated in the Constitution.

-- "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. . . . "

(2) Can the State of Maryland tax the bank?

No: because the power to tax is the power to destroy-- the states have no business taxing a national bank set up by Congress.

Significance:

· Loose Construction

McCulloch v. Maryland is an example of "loose", or "elastic", interpretation of constitutional provisions. Here, specifically, we find a loose construction of the "necessary and proper" clause contained in Article I, Section 8, of the Constitution.

· National Supremacy

The interpretation here, in an opinion by Chief Justice John Marshall, expands national power at the expense of the states.

Sample Question

The decision in McCulloch striking down Maryland's attempt to tax the national bank:

a) relied on a strict reading of the text of the Constitution.

b) was eventually overturned by the Supreme Court.

c) was John Marshall's final decision.

d) furthered the interests of national supremacy over the states.

10. United States v. Lopez (1995)

Background:

In 1990, Congress passed the Gun-Free School Zones Act, which essentially made it a federal crime to possess a gun in a school zone.

Congress argued that it was regulating interstate commerce under the authority of the Constitution's Commerce Clause.

Congress' reasoning:

(1) possessing a firearm in a school zone may result in violent crime

(a) Violent crime can be costly to society because of the cost of insurance

(b) Violent crime scares people from traveling to certain areas

-- both (a) and (b) affect interstate commerce

(2) guns in schools negatively affect education, which has an adverse effect on citizens' productivity

The Decision:

* The Court ruled that the Gun-Free School Zones Act of 1990 exceeds Congress' authority to regulate commerce among the states.

The Issues and the Court's Reasoning:

· The Court looked at the implications of Congress' argument, and decided

(1) Congress' reasoning would let it regulate all activities that might lead to violent crime, "regardless of how tenuously they relate to interstate commerce"

(2) Congress' reasoning would let it regulate any activity that affected the "productivity" of citizens

--there would be, therefore, few areas where Congress could not regulate, regardless of traditional local and state sovereignty

· Breyer, Stevens, Souter, and Ginsburg dissented, arguing that the statute falls within the scope of the Commerce Clause

they argue that Congress might have reasonably concluded that guns affect interstate commerce, and therefore the statute should stand

Sample Question

The Supreme Court ruled the Gun-Free School Zones Act of 1990:

a) violated the First Amendment.

b) exceeded Congress' authority under the Commerce Clause.

c) was within Congress' Commerce Clause authority.

d) should be authorized or rejected by the State legislatures.

11. Morton Grodzins
The Federal System

Main Argument:

Federalism involves shared powers and functions among federal, state, and local governments, with all seeking to influence the others.

* Grodzins looks behind the formal notion of "separate levels" of government (a layer cake), to the informal arrangements by which all levels are simultaneously involved in the governmental process (a marble cake).

Grodzins' Reasoning:

· Grodzins argues that this has always been the case. He thus disagrees with the commonly held view that in the 19th century we had "dual federalism" (substantial separateness), and in the 20th we moved to "cooperative federalism" (substantial interconnections with national dominance).

· While acknowledging modern centralization, Grodzins points to current decentralizing forces in our system: especially the nature and characteristics of our parties and our party system and the resulting fragmentation in Congress.

Sample Question

Morton Grodzins' image of the marble cake helps explain:

a) the decentralizing forces in American government.

b) the complex relationships between federal, state, and local governments.

c) the informal nature of American federalism.

d) all of the above

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