Structures of Government
All states have a legislative, executive and
judicial branch based on the federal model, but
they vary within that structure
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Hamiltonian (strong executive) originally
predominant in the North
Jeffersonian (weak executive) originally
predominant in the South
Governors vary in their powers
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Gov. of NJ appoints other statewide officials
Gov. of NC didn’t have veto power until 1996, and
it’s still limited
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Southern legislatures tend to have more power, in
accordance with the Jeffersonian model (opposite of
executive)
Structure
 49 states have bicameral legislatures modeled on US
Congress (Senate + House of
Representatives/Delegates/Assembly)
 Nebraska has a unicameral legislature – abolished its
House of Reps. as a cost-saving measure during the
Depression, also made legislative process much more
efficient
 Nebraska is also the only nonpartisan legislature
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Full-time vs. part-time
 California legislators meet full-time, paid >$100K/yr.
 Wyoming’s legislature meets 60 days in two years
 New Hampshire legislators are paid $100/yr.
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Size of districts
 CA and TX state Senators represent more people than
US Representatives
 New Hampshire House has 400 members who each
represent about 3000 people
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State judges are chosen in different ways
Popular elections – may be partisan or
nonpartisan
Legislative election (VA and SC)
Gubernatorial appointment with Senate
confirmation (modeled on federal system)
Merit selection commissions
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Some states have much stronger party systems
than others, as a result of variation in state
election laws
Voter registration by party, or not
Open or closed primaries
Interest groups tend to be stronger in states
where party systems are weaker
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States vary in the amount of power they give to
local governments (home rule)
Every state except Alaska has counties
(although Louisiana calls them “parishes”)
In some states, counties are simply judicial
circuits and in others they are units for
purposes of government services and elections
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Rankings in various indicators of services
(education, welfare spending)
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As you remember, comparisons can be tricky
Rates of taxation
Economic development policies
Cost of living
Quality of life (wealth vs. poverty, education,
health, environmental protections)
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Every state has a Constitution
Every state divides power into legislative,
executive and judicial branches
Usually much more detailed than US
Constitution
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Constitutions differ in terms of organization, format
and longevity (D&M, pp. 30-31).
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State constitutions are much longer and more detailed than the
US Constitution because they make prescriptions for local
government that the USC doesn’t make for states.
Massachusetts uses its original Const. from 1780 (largely
written by John Adams)
Alabama’s is much longer than any other because it contains
numerous local provisions
Most ex-Confederate states adopted new Constitutions after the
Civil War and again after Reconstruction
Louisiana has had 11 different Constitutions
 LA is different because its legal system is based on French civil
law rather than on English common law as in the other states, so
things that can be changed by ordinary statute law elsewhere
require a Constitutional amendment in LA.
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Most state Constitutions rephrase part of the
Declaration of Independence or US
Constitution
Guarantees that rights are respected in state
laws and courts as well as federal, although
state courts may interpret these rights
differently than federal courts
Some states guarantee rights that are not found
in the US Constitution
South Carolina has a state constitutional right
to hunt and fish
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Incorporation of the Bill of Rights: principle
that B of R applies to the actions of state
governments as well as federal
This principle has been applied differently to
different amendments at different times
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When it says “Congress shall make no law
respecting an establishment of religion,” the SC state
government may also not establish a religion
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State Supreme Courts are the ultimate
authority on their state’s constitution and laws
unless a federal question is involved
The Florida Supreme Court’s decision in the
2000 election dispute was subject to appeal to
the US Supreme Court only because it involved
a presidential election conducted in accordance
with the US Constitution
The US Supreme Court would have had no
jurisdiction in a dispute over the election of the
Governor of Florida
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1669: John Locke, Fundamental Constitutions
of the Province of Carolina
1776: First state constitution, revised 1778 and
1780
1861: Confederate state constitution
1865, 1868: Reconstruction constitutions
1895: Benjamin Ryan Tillman, currently in
effect
Fundamental Constitutions of Carolina, 1669,
authored by John Locke
Constitution adopted after
Declaration of Independence, 1776
Constitution adopted as a Confederate state,
1861
Postwar Constitution, 1865
Postwar Constitution, 1868
Current Constitution, 1895
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Initiatives: Voters put questions on ballot by petition
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Many times, this may lead to unconstitutional legislation which
violates someone’s Constitutional rights; for example, many
states enacted same-sex marriage bans through initiatives
Good idea: Direct democracy and popular control of
government
Bad idea: Sometimes people have stupid or unconstitutional
ideas
Referendum: Action of legislature is put on ballot for
popular approval; all states but Delaware require that
constitutional amendments be approved this way
Recall: Voters may prematurely end the term of an
elected official (how Arnold Schwarzenegger became
Gov. of CA in 2003, recall attempt against Gov. Walker
of WI in 2012)
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The Constitution grants (and denies) specific
powers to both the national government and
the states
Most criminal activity is subject to state
jurisdiction unless federal law is involved or it
crosses a state line
The federal government has been supreme
since McCulloch v. Maryland, but didn’t become
a major player in most domestic policy until
the New Deal.
McCulloch v. Maryland (1815): The State of Maryland
attempted to tax the Baltimore branch of the Bank
of the United States, a US government agency. Mr.
McCulloch, the branch manager, refused to pay the
tax. The Supreme Court ruled that a state may not
tax an activity of the federal government. This is an
example of the Supremacy Clause of the US
Constitution (the federal law establishing the bank
takes precedence over the state law imposing the
tax).
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Taking power and policy responsibility away from
Washington and giving them to state and local
government
Trend began under Nixon, accelerated under Reagan
 Welfare reform in 1996 transformed AFDC, a federal
program, into TANF, which is primarily a state program
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Many current policy initiatives and reforms have
originated at the state level rather than federal
More recent Presidents have been Governors
(Carter, Reagan, Clinton, GW Bush) than
Washington officials, have tended to favor a
greater state role in policymaking
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Approaches to problem-solving can be tried
and tested on a smaller, state level before being
adopted on a federal level
Advantages of giving power and responsibility
to state governments:
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Those closest to the scene may be able to deal with
the problem more effectively; smaller units of
government may be more responsive, efficient and
cost-efficient.
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Disadvantages of giving power and responsibility to
state governments rather than federal:
Questions of equity: Should programs be uniform
throughout the country? Are wealthier states going to be
able to solve problems better than poorer, at the expense
of the poorer states’ citizens
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What if states want to use policy-making authority
to maintain status quo (slavery, segregation)?
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Grants-in-Aid
Categorical grants vs. block grants (D&M)
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Understand the difference and the significance
Policy categories (D&M)
Health care (Medicaid, etc.)
 Income security (welfare)
 Education
 Transportation (highways, mass transit)
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Unfunded mandate
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A federal law requires states to do something but
provides no funding to carry it out, now largely
impermissible
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Funding restrictions imposed if states don’t
make policy the way the federal government
wants them to
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Speed limit of 55 MPH in response to the energy
crisis of the 1970’s
Uniform drinking age of 21, 1980’s
Work requirements with federal funding for welfare
programs (the Obama Administration has offered
states waivers to some of these requirements)
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Dual Federalism
Cooperative Federalism
Centralized Federalism
New Federalism
Representational Federalism
Coercive Federalism
“Bottom-Up” Federalism
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These represent different eras in the relationship between
the federal and state governments
Understand the differences and the significance of each of
these
Pennsylvania Drinking Age
21
New
Jersey
Drinking
Age
18
\
Where I
went to
college
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Federal-state (federalism)
Interstate (confederalism)
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Interstate compacts:
South Carolina contracted with Connecticut and New
Jersey to allow their nuclear waste to be disposed of at the
Barnwell site; no other states could use it)
Students who live in certain counties in NC and SC may
qualify for in-state tuition for a program at a state
university in the other state if it isn’t offered in their home
state (UNC Charlotte and Winthrop)
Post-9/11 interstate security compacts, cooperation
among law enforcement from different jurisdictions
Environmental compacts: clean air, water use
 Pollution crosses state lines
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U.S. v. Lopez (1995) limited federal power
under the Interstate Commerce Clause (the
Gun Free Schools Act was unconstitutional
because this is a matter of state, not federal,
jurisdiction)
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Interstate:
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State-local
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There are national associations of governors,
legislators, state election officials, etc.
States may give local governments responsibility for
carrying out certain state policies
Local-local
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Cooperation among counties, cities, regional
councils of government
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North Carolina-South Carolina dispute over use of
water from the Catawba River (case was settled,
but would have been heard by US Supreme Court
under original jurisdiction)
Policies tend to spread regionally
State lotteries
Competition for economic development,
recruitment of factories and industry (should
Boeing build its new plant in WA or SC?)
“Race to the Bottom” – as states cut taxes and
otherwise offer economic incentives for business,
schools and social services may suffer
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States are required to recognize each other’s
legally binding acts and contracts
Until the U.S. Supreme Court declared a
national Constitutional right to same sex
marriage in June 2015, it was not resolved
whether states where was illegal were required
to recognize those marriages performed in
other states where it was legal.
1993: Hawaii Supreme Court rules that forbidding
same-sex couples to marry is unconstitutional sex
discrimination under the equal rights provisions of
the state constitution. This did not explicitly legalize
same-sex marriage.
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1996: Congress passes the Defense of Marriage
Act, prohibiting federal recognition of samesex marriages and allowing states to refuse to
recognize same-sex marriages which were legal
elsewhere (although no state had actually
legalized it yet).
2013: The Supreme Court strikes down the
DOMA ban on federal recognition of same-sex
marriages. This gives legally married couples
federal benefits like filing joint tax returns.
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Beginning in Massachusetts in 2004, 16 states
and the District of Columbia legalized samesex marriage either through referenda or
through court decisions which found that
restricting marriage to heterosexual couples
was unconstitutionally discriminatory.
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In 2014, several U.S. Circuit Courts (including
the 4th Circuit, which covers SC) struck down
state bans, and the Supreme Court declined to
hear the appeal, making same-sex marriage
explicitly or implicitly legal in a total of 36
states.
The 6th Circuit upheld the Ohio state ban, and
the Supreme Court took the case to resolve the
conflict between the lower courts’ decisions.
Section 1.
 All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and 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.
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Fourteen same-sex couples who were denied
marriage licenses, and two men who were
denied survivors’ benefits when their partners
died, sued the states of Michigan, Kentucky,
Ohio and Tennessee, which are in the 6th
Circuit and where the state bans were still in
effect.
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Even in areas where the states, not the federal
government, have legal authority, the states
must administer their own laws equally.
Public education is a state, not federal,
responsibility.
Brown v. Board of Education (1954): The U.S.
Supreme Court ruled that legally required
racially segregated schools were a violation of
the Equal Protection Clause (“separate but
equal is inherently unequal.”)
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The 21st Amendment, which repealed
Prohibition, gave states the authority to
regulate alcohol.
Craig v. Boren (1976): Oklahoma had a drinking
age of 18 for women and 21 for men.
Statistically, in this age group, men are far
more likely than women to drink and drive.
The distinction was made in the interests of
highway safety. The Supreme Court ruled that
this violated the Equal Protection Clause.
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The U.S. Supreme Court ruled that the Equal
Protection Clause grants the same right to
marry to same-sex couples that heterosexual
couples have. This struck down the remaining
state bans on same-sex marriage. (These laws
remain on the books until they are actually
repealed by legislative action or referendum,
but they are unenforceable). Same-sex marriage
is now legal throughout the United States.
Miller v. Davis
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In Kentucky, the county clerk (an elected position) is
responsible for issuing marriage licenses.
Rowan County Clerk Kim Davis objected on religious
grounds to issuing marriage licenses to same-sex
couples, and claimed that requiring her to do so
violates her First Amendment right to free exercise of
religion.
Her office then refused to issue marriage licenses to
anyone.
In July 2015, four couples (two gay, two straight) who
were denied licenses by her office sued. The U.S.
District Court for the Eastern District of Kentucky
ordered her to issue the licenses. She appealed and the
Supreme Court upheld the district court’s ruling.
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If she refused to issue marriage licenses only to
same-sex couples, she would be violating the
Equal Protection Clause.
If she refused to issue marriage licenses to
anyone, she’s failing to perform the legally
required duties of her office, which is a
violation of state law for which she may be
impeached.
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Davis continued to refuse to issue licenses and
the federal district court found her in contempt.
The U.S. Supreme Court upheld this finding.
She served five days in jail (ending Aug. 8). She
was released on condition that she not interfere
with the deputy clerks in her office issuing
marriage licenses.
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During her imprisonment, the deputy clerks in
her office (with the exception of her son) began
issuing licenses.
The forms have been changed so that the
clerk’s name no longer appears on them.
The Governor of Kentucky argued that these
licenses were legally binding even though they
didn’t have the County Clerk’s name on them.