What makes a good research question?
Specificity & Conceptual Simplicity
• Whether the Yellowstone wolves should be protected when they
leave the park.
• Whether American combat forces should be withdrawn from Iraq.
• Whether the ANWR should be open to oil and gas development.
• Whether the president should comply with Congressional
subpoenas for all documents related to firing the 8 US attorneys.
• Whether acceptable progress in the No Child Left Behind Act
should be measured by the percentage of students making one
year’s academic progress in one year rather by the percentage
who are proficient at specific grade levels.
• NOT whether the American health care system should be
reformed.
System Bias
• The organization of politics has consequences.
• The rules, and institutions, and procedures by which we
organize our collective life as a nation are never neutral.
• Rather these rules, and institutions, and procedures allocate
advantages and disadvantages to individuals and groups.
• The concept of system bias encourages us to explore who
is advantaged and disadvantaged and whether those
advantages and disadvantages are consistent with our values
or with democratic theory or with the values of American
political culture.
American
Federalism
[which is secretly more about
the Constitution]
Today’s Case Study of
Federalism:
Same-Sex Marriage
• With respect to marriage, which
government is sovereign: national or
state?
• How do you know?
Today’s Case Study of
Federalism:
Same-Sex Marriage
•
•
•
•
In 2009, the Iowa Supreme Court unanimously decided that the
state law prohibiting same-sex marriage violated the State
Constitution, and same-sex marriages became legal in Iowa.
In November 2010, popular majorities ousted all three justices
who were subject to retention votes, and resurgent Republicans
threatened to impeach the rest and to enact a constitutional
amendment to overturn the court’s decision. The Democratic
leader of the Iowa Senate, where Democrats still hold a majority
has vowed to prevent a vote on a constitutional amendment, so
the court’s interpretation of the Iowa Constitution is likely to
survive – at least for the next several years.
Can the Iowa decision be appealed to the U.S. Supreme
Court?
Why or why not?
Can the Iowa decision be appealed to the
U.S. Supreme Court?
• Article III, Section 2: “The judicial power shall extend
to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and
treaties made, or which shall be made, under their
authority;--to all cases affecting ambassadors, other
public ministers and consuls;--to all cases of admiralty
and maritime jurisdiction;--to controversies to which
the United States shall be a party;--to controversies
between two or more states;--between a state and
citizens of another state [see 11th Amendment];-between citizens of different states;--between citizens
of the same state claiming lands under grants of
different states, and between a state, or the citizens
thereof, and foreign states, citizens or subjects.” (657658)
Must other States recognize
same-sex marriages under
Iowa law?
Anything in the Constitution that
addresses this question?
Must other States recognize
same-sex marriages under
Iowa law?
• U.S. Constitution: Article IV, Section 1.
• “Full faith and credit shall be given in each state
to the public acts, records, and judicial
proceedings of every other state. And the
Congress may by general laws prescribe the
manner in which such acts, records, and
proceedings shall be proved, and the effect
thereof.”
May Congress Intervene and
Decide this Question?
• U.S. Constitution: Article IV, Section 1.
• “Full faith and credit shall be given in each state
to the public acts, records, and judicial
proceedings of every other state. And the
Congress may by general laws prescribe the
manner in which such acts, records, and
proceedings shall be proved, and the effect
thereof.”
May Congress Intervene?
• Congress has already passed the Defense of
Marriage Act (DOMA).
• DOMA provides that no State shall be required
to recognize a law of any other State with
respect to a same-sex "marriage."
• DOMA limits the words "marriage" and "spouse"
for purposes of Federal law to unions of one
man and one woman.
Is DOMA Constitutional?
• Constitution: “Full faith and credit shall be
given in each state to the public acts,
records, and judicial proceedings of every
other state. And the Congress may by
general laws prescribe the manner in which
such acts, records, and proceedings shall be
proved, and the effect thereof.”
• Law: no State shall be required to give
effect to a law of any other State with
respect to a same-sex "marriage."
Which political party generally
considers itself the protector of
states’ rights against national
intrusion?
After the Massachusetts Supreme Court
overturned that state’s prohibition
against same-sex marriage, President
Bush proposed an Amendment to the
National Constitution to prohibit samesex marriage. Why would a Republican
do that?
After the Massachusetts Supreme Court
overturned that state’s prohibition
against same-sex marriage, President
Bush proposed an Amendment to the
National Constitution to prohibit samesex marriage. Why would a Republican
do that?
• Politics tends to be extremely results
oriented.
• Principles are often used to selectively in
order to justify a desired result.
• Federalism is no exception.
A Short History
of
American
Federalism
[A printable version is available on the class web site.]
Take Home Lessons
• The federalist language of the constitution is flexible,
and the Supreme Court is the chief interpreter.
• American federalism has been more about practical
results than about any kind of ideological purity.
• Traumatic events in the body politic have decided
the great issues of federalism with even greater
force and finality than have the decisions of the
Supreme Court.
• The historical trend has been for the federal balance
to shift toward the central government.
indestructible union 1789-1865
• 1791 -- Bill of Rights: powers not
delegated to the national government are
reserved to the states and the people
• 1791 -- Discussion of a National Bank
indestructible union 1789-1865
• 1819 -- McCulloch v. Maryland (national bank v.
state): broad reading of the necessary and proper
clause.
• Central government is given powers over taxes and
commerce, and while no mention is made of incorporating
banks, we cannot assume that the framers intended to
embarrass the government “by withholding the most
appropriate means.”
• “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 consistent with the letter and spirit of the Constitution,
are constitutional.”
• Citing Supremacy Clause, Marshall declares that “the
government of the Union, though limited in its powers, is
supreme within its sphere of action.” “The states have no
power, by taxation or otherwise,” to prevent the central
government from executing its policy.
indestructible union 1789-1865
• 1833 -- Barron v. Baltimore (wharf owner
v. city): the Bill of Rights protects people
only from the national government
• 1865 -- Civil War Ends: the indivisible
union perspective triumphs
dual federalism and laissez-faire
capitalism 1865-1937
• 1868 -- 14th Amendment: requires the states to
abide by basic civil rights and gives the federal courts
power to enforce compliance
• 1913 -- 16th Amendment: income tax makes
central government financially strong
• 1920 -- Missouri v. Holland (state v. national
official): federal laws that would otherwise be
unconstitutional, are constitutional if based on treaties
with other nations
interdependency and cooperative
federalism 1937 to present
• 1937 -- The Revolution of 1937: The
Supreme Court gives its seal of
approval to the New Deal. The Court
adopts an extremely broad view of the
Commerce Clause. Henceforth, virtually
anything that might “affect” interstate or
foreign commerce may be regulated by
Congress.
interdependency and cooperative
federalism 1937 to present
• 1964 -- Johnson's War on Poverty:
radical expansion of categorical grants in aid
(money with strings)
• 1969 -- Nixon's New Federalism:
general revenue sharing (money without
strings)
• 1981 -- Reagan's New Federalism:
responsibilities to be transferred to the states
(strings without money)
interdependency and cooperative
federalism 1937 to present
• 1987 -- South Dakota v. Dole (state v.
national official): the court reaffirmed that
(1) Congress can attach conditions to the
receipt of federal funds, and (2) Congress
may spend for the general welfare and in so
doing is not limited by the direct grants of
legislative power in the Constitution.
interdependency and cooperative
federalism 1937 to present
1994 -- Contract with America:
• responsibilities (generally those associated with
helping poor people) to be transferred to the states;
block grants would limit the pain in the short run, but
no guarantee that they would continue (permanent
strings with temporary money).
• An important piece of this agenda became law with
the 1996 welfare reform act that abolished federal Aid
to Families with Dependent Children in favor of block
grants to states (and ironically a whole bunch of
mandates about who would be eligible and how the
money would be spent.)
• In some respects this is Reagan's new federalism in a
new suit of clothes.
• One more important element: no new unfunded
mandates.
interdependency and cooperative
federalism 1937 to present
The Republican Court: Congress steps over the
line when it engages in noncommercial criminal
regulation of matters where the impact on commerce
is negligible.
• U.S. V. Lopez (1995) voided Gun Free Schools Act
• Printz v. U.S. (1997) voided Brady Bill requirement
that local law enforcement do background checks
• US. V. Morrison (2000) voided Violence against
Women Act
• Gonzales v. Raich (2005) upheld federal power over
California’s medical marihuana law.
• 11th amendment sovereign immunity of states held to
trump federal labor laws as applied to state
employees.
interdependency and cooperative
federalism 1937 to present
•
•
•
2000 – Presidential Campaign & Aftermath [Actions
speak louder…]
What We Say: During the campaign both candidates
promised to fix public education, and predictably the
Democrat proposed a plan that had more national standards
and the Republican a plan that relied more heavily on the
states.
What We Do: The Florida Vote Counting Fiasco was a
major dispute about federalism with an amazing and ironic
twist. In recent years the Democratic Party has been the
party of national power, the Republican Party the party of
states' rights. With the election in the balance, Democrats
argued for states' rights, and the Republican Party rushed to
the federal courts to overturn state law.
interdependency and cooperative
federalism 1937 to present
• 2001 -- War on Terrorism: Subsequent to
September 11th President Bush announced a war on
terrorism, a war without limits in terms of time or
geography, a war that may be fought on American soil
to a greater degree than any since the Civil War.
• 2004-present – Battle over Same-Sex Marriage:
Again, Democrats and Republicans find themselves on
the wrong sides of the federalism debate---which
brings us back to where we began.
Take Home Lessons
• The federalist language of the constitution is
flexible, and the Supreme Court is the chief
interpreter.
• American federalism has been more about
practical results than about any kind of
ideological purity.
• Traumatic events in the body politic have
decided the great issues of federalism with
even greater force and finality than have the
decisions of the Supreme Court.
• The historical trend has been for the federal
balance to shift toward the central
government.
Questions to Ponder
• Is this tipping of the balance toward the central
government a good thing or a bad thing?
• Does it make us more democratic or less
democratic?
• Does it make us more equal or less equal?
• Does it make us more free or less free?
• And who is “us”?
American
Federalism
Today
Budget Surplus Projections
SOURCE: Congressional Budget Office.