Creating a Constitutional Democracy
Roche – The Constitution was the product of a reform caucus in action. It is the product of
compromise (Connecticut Compromise) not great vision.
Beard – Framers were businessmen and property-owners. For this reason, the Constitution was
concerned with property rights (property requirements for voting, clauses protecting property)
and preventing majority rule (Senators were selected, didn’t want the majority redistributing
wealth). Beard argues that it is probable that many members of the convention didn’t understand
what they were ratifying.
Petersen – The Constitution was a codification of what was acceptable to the electorate at the
time.
Madison 10 – Madison is concerned about majority faction control. Argued for a republican
form of government (intermediate agents) and division of power (checks and balances) in order
to prevent majority faction control.
The American Political Tradition
American Creed (Huntington) – American are comfortable with holding conflicting values like
liberty, equality, individualism, democracy, and constitutionalism. Each citizen manages his or
her own balance of these ideas but almost all Americans approve of these values. The American
Creed forms the national identity (nationality and ideology are fused). Being American is
independent of ethnicity.
American Exceptionalism (Steinmo) – American government does less to address social
problems than European government. Steinmo argues that it is institutionally rooted (constitution
prevents strong parties, weak labor movement, Congressional fragmentation, accountability of
individual Congressman to their electorate).
Five Aspects of American Political Culture:
1. Liberty – Our freedoms are codified in the Bill of Rights.
2. Equality – Political equality and equality of opportunity (not so much equality of
result or economic equality). Most Americans value liberty over equality.
3. Anti-authoritarianism – Deep cynicism against politics and politicians.
4. Populism – Americans like the everyman.
5. Individualism – Belief in work ethic, hostility to welfare, government shouldn’t get in
the way of individual achievement.
Public Opinion
Low-Information Rationality and Information Shortcuts (Popkin) – Popkin argues that
voters use low-information rationality to make decisions and that education should try to
improve shortcuts rather than eliminate them (political knowledge is not necessarily textbook
knowledge). Voters rely on information shortcuts (everyday activities like retirement and taxes,
friends and family, media). Voters use proxy information (party allegiance, past behavior,
character and symbolic actions).
Collective Deliberation (Page and Shapiro) – People become politically informed through
collective deliberation (information spread through society’s elaborate social networks). Page
and Shapiro argue that public opinion is stable in the long-run and changes only in response to
major events. The commonly held perception that voters are fickle is a symptom of the media’s
constant focus on changing public opinion.
Legitimacy Paradox – In a time when political leaders are even more attentive and sophisticated
in gauging public opinion, the public has become even more alienated from the political process.
Political Participation
Explanations for Voting:
Rational Voter Theory – People weigh the costs and benefits of voting. This theory predicts that
no one would vote because the costs are greater than the impact of voting in a large democracy.
Adjusts for the reality of voting by arguing that we vote to minimize our regret expectation (in
case the other guy wins). Weak theory.
Alienation Theory – Political apathy and cynicism turns people off from voting.
Social Psychology Theory – Interacting with people where voting is the norm will make you
want to vote. If your spouse votes, you are more likely to vote.
Structural Theory – Voting patterns depend on the rules of voting (structural factors).
Education – Education correlates highly with voting (more likely to be informed, more imbued
with civic values, less fearful of putting their name in the system, more leisure time, group
norms).
Age – Old people are more touched by government action and are more likely to vote.
Explanations for Decline in Voter Turnout since 1960s:
1. More young people (young people are less likely to vote).
2. Political parties are in decline (no more ward bosses to get out the vote).
3. Decline in civic participation (less likely to be mobilized by church, neighbors, etc.)
Bowling Alone (Putnam) – Social capital is tied to civic engagement (voluntary associations,
social organizations, etc.) The decline in civic participation is rooted in generational change. Our
generation is more individualistic, more involved in large, national, tertiary organizations
(checkbook) rather than local, cooperative, active ones (meeting-based).
Dark Side of Civic Engagement (Fiorina) – Civic engagement is not always a good thing. Rise
in participatory democracy has been led by extremists, leading to gridlock and political apathy
among Americans. Middlesex case study demonstrates the costs of extremists dominating
politics.
Interest Groups
Collective Action Problem – If you don’t contribute, you will still receive the benefits from
public goods. Possible solutions: coercion, social movement, selective benefits (only benefit if
you belong to the organization). Political entrepreneurs are willing to take the lead in setting up a
group even if people are going to free-ride.
The Courts
Reading the Constitution (Brennan) – Two possible approaches—framers’ intent (inferring
what the intent of the Framers was) and democratic lubricant (Constitution as a plan of
government rather than an expression of “overarching principles,” decisions should be made by
the elected branches). Brennan argues that the Court must do both—it must translate the
generalities of the Bill of Rights into concrete constraints on officials dealing with the problems
of the 20th century.
Marbury v. Madison – Established doctrine of judicial review (power to declare null and void
laws and legislature that is found to be unconstitutional). Marbury demanded that the Court issue
of a writ of mandamus forcing Madison to deliver the judicial commission. Marshall ruled that
the Judiciary Act (which allowed the writ of mandamus) was unconstitutional and established
that a law repugnant to the constitution is void.
Borking – Politicizing the Supreme Court nomination process through an organized campaign
that portrays the nominee as a dangerous extremist (Reagan’s nominee Robert Bork was borked
by liberal campaign).
Plenary Session – Session in which all the appeals judges in the circuit participate.
Statutory Interpretation – Judicial act of interpreting and applying the law to particular cases.
Congress passes vague language in order to get a majority and the courts are needed to sort out
the meaning.
Remand – Supreme Court usually remands a case to a lower court for implementation after it
has made its decision.
Judicial Activism v. Judicial Restraint – Judicial activism says that stare decisis should
sometimes be sacrificed in order to adapt the Constitution to changing conditions, while judicial
restraint says that courts should avoid overturning a prior decision.
Restorationist – Judge who thinks that stare decisis must be ignored until liberal decisions have
been reversed and the original meaning of the Constitution can be restored.
Selective Incorporation – Supreme Court has used a case-by-case incorporation of the Bill of
Rights into the due process clause of the 14th Amendment (over the years, only the 2nd
Amendment hasn’t been incorporated).
Dynamic v. Constrained Court Views (Rosenberg)
Dynamic Court View
-
Judges are free from electoral constraints (do not need to pander to politics).
Judges are appointed for life (can maintain a long-term perspective).
Court decisions can act as a catalyst for public opinion change (media coverage, etc.)
Example: Wiesenfeld case provided a catalyst for destroying the separate-spheres
attitude toward women.
Constrained Court View
-
Limited nature of constitutional rights (limits the sorts of claims that can be made,
justices are reluctant to make large changes, concerned with the specifics of the case).
Reluctance to move away from public opinion (chosen by the President and approved by
the legislature).
Lack of policy-creation and implementation power (as Hamilton says, the judiciary has
power over neither “the purse nor the sword.”
Evidence: The Court’s ruling in Brown was not effective until Congress and the
Executive acted with the Civil Rigths Act in 1964 (Rosenberg).
Federalism
McCulloch v. Maryland – Marshall affirms the Necessary and Proper Clause (Congress has the
power to take all actions “necessary and proper” to the carrying out of its delegated powers) and
the Supremacy Clause (federal laws supercede state laws). Marshall defends the constitutionality
of a federal bank and views the Necessary and Proper Clause as a granting of power rather than a
limitation.
Dual Sovereignty – Hobbes said that you can only have one sovereign or else you will have war.
Framers argued that dual sovereignty (in which both national and state governments have final
authority) is better because it prevents a tyranny of the majority. In the early years of the
republic, there was conflict over whether states had the power to nullify federal laws. McCulloch
v. Maryland asserted the supremacy of federal law through the Supremacy Clause but this issue
was not resolved until the civil war. Over the years, dual sovereignty was weakened by the
Necessary and Proper Clause, the Commerce Clause, and the Spending Clause. In the 1960s,
dual sovereignty was replaced with marble-cake federalism, which holds that all levels of
government should work together. In the 1990s, the Court began to rule more often in favor of
states’ rights. New York v. U.S. put a damper on the elastic clause by ruling that Congress cannot
give direct orders to states (U.S. ordered New York to take care of its radioactive waste).
Dillon’s Rule – Local governments are in legal terms mere “creatures of the state.” A state
legislature can at any time abolish local governments.
Line Item Veto – Power of governors to reject specific parts of bills rather than rejecting entire
bills.
Categorical Grant – Categorical grants have strong restrictions on the use of funds. Proponents
(primarily Democrats) argue that they are necessary to achieve national purposes (NIMBY
problem), help avoid “race to the bottom” in welfare programs, helps sustain the program (it is
easier for the federal government to abandon responsibility for the program).
Block Grant – Block grants have minimal restrictions on the use of funds. Proponents (primarily
Republicans) argue that categorical grants are inefficient (state and local governments have a
better understanding of local conditions), create powerful interest groups (by focusing services
on specific groups), and impose unfunded mandates (see below).
Unfunded Mandates – Federal regulations that impose burdens on state and local governments
without appropriating enough money to cover the costs.
Marble-Cake Federalism – Federal power to tax and spend provided the basis for marble-cake
federalism which argues that all government performs functions together on many levels. This is
because compromises are reached by officials elected by different officials and officials share
many values.
Implementation – Scholars focused on the way in which intergovernmental grants were
administered on the local level and found that marble-cake federalism poses problems (national
and local officials serve different constituencies, delays result from so many agencies being
involved, federal policy often makes unrealistic expectations).
Civil Liberties
Lochner v. New York – Lochner claimed that the Bakeshop Act violated the Fourteenth
Amendment by depriving him of due process (substantive due process allowed Courts to
examine the content of legislation). Lochner set precedent for invalidating any type of state
legislation determined to be in conflict with a right protected by the Constitution.
Griswold v. Connecticut – Couple was prosecuted for using contraceptives. Supreme Court
upheld right to privacy (substantive due process).
Roe v. Wade – Majority argued that anti-abortion laws violated a woman’s right to privacy
which they located in the Due Process Clause of the Fourteenth Amendment.
Planned Parenthood of Southeastern PA v. Casey – Majority opinion upheld Roe, arguing that
it would raise concerns about the Court’s legitimacy and make it appear that the justices were
capitulating to political pressures.
Bowers v. Hardwick – The majority refused to extend the right to privacy to homosexual sex,
arguing that homosexual sex was not a “fundamental right.”
Lawrence v. Texas – Court included sexual privacy as a part of the fundamental right to
privacy.
New York Times v. Sullivan (1964) – Court held that untruthful statements about public figures
were not libel unless the errors were made knowingly or with reckless disregard for the truth.
Civil Rights
Plessy v. Ferguson – Court ruled that as long as facilities are “separate but equal” the equal
protection clause of the 14th Amendment is met. Brown v. Board of Education argued that
“separate but equal” doctrine didn’t apply to schools because of the psychological impact that
segregation has on children.
Milliken v. Bradley – Court declared a law busing whites into Detroit unconstitutional, arguing
that the Constitution does not require racial balance.
Regents v. Bakke – Court declares the UC quota system unconstitutional. Powell emphasizes
the Harvard system (diversity without quotas) while others argue that diversity is just a quota by
another name.
Grutter v. Bollinger – Court reaffirms Powell’s opinion in Bakke, writing that quotas are
unconstitutional but diversity is a legitimate goal.
Women, Politics, and the Law
Separate-Spheres Philosophy (Ginsburg) – Ruth Bader Ginsburg discusses the history of
women’s rights in the Supreme Court. In Hoyt v. Florida, the Warren Court refused to grant
Hoyt female jurors arguing that women were better suited for “home and family life.” In the
1970s, the notion of separate-spheres with women as the fairer, weaker, and more dependent sex
crumbled. Women began to pursue work opportunities outside the home. In Wiesenfeld, the
Court ruled that Wiesenfeld should receive benefits for himself and his son after the death of his
wife (not dependent but equal).
Meritor Savings Bank v. Vinson (1986) – Court held that sexual harassment was only illegal if
it caused psychological damage to the victim.
Harris v. Forklift Systems (1993) – Title VII of the Civil Rights Act made it illegal for an
employer to discriminate based on sex. Harris was a manager at Forklift Systems and filed
complaints about being sexually harassed by her boss. A district court found that she was not
protected by Title VII because she had not suffered any psychological injury on the job. The
Harris opinion held that a person need not be damaged psychologically to demonstrate sexual
harassment. Courts had to examine all the conditions—frequency of discriminatory conduct,
severity of the conduct, and whether it was physically threatening or humiliating. Harris made it
easier for women to allege harassment without having to prove that they were psychologically
damaged (expanded Meritor).
U.S. v. Virginia (1996) – Court brought an end to all-male education at VMI, arguing that the
practice violated the Equal Protection Clause of the Fourteenth Amendment. The VMI decision
used “intermediate scrutiny” (statute has to produce an exceedingly persuasive justification)
rather than “strict scrutiny” (statute has to be narrowly tailored to further compelling state
interest).
Strict Scrutiny – Strict scrutiny is only applied to regulations that impact fundamental rights
(due process, penumbra, implicit in the concept of ordered liberty). If a fundamental right is at
stake, the regulation must be narrowly tailored to further compelling state interest.
Rational Basis – If the regulation does not impact fundamental rights, then the rational basis test
is applied, in which a regulation must be rationally related to a legitimate state interest.
Due Process Clause – Fourteenth Amendment says that no state can deprive a person of life,
liberty, or the pursuit of happiness without due process of law.
Equal Rights Amendment – Proposed amendment to the Constitution that banned gender
discrimination failed to ratify. Landmark Supreme Court decisions followed the ERA (Monitor,
Harris, VMI).
Political Parties
Realignment (Sundquist) – Large-scale shift in group support for political parties arises when
an issue cuts across lines of party cleavage. In the later half of the 20th century, white
Southerners shifted from the Democrats to the Republicans. Group affiliation changes suddenly
and rapidly.
Issue Evolution (Adams) – Party loyalty stems not from realignment crises but from issue
evolution, in which a simple issue remains on the public agenda for a long time and eventually
causes a shift in party loyalty. For example, initially more Republican voters were pro-choice,
but party loyalty has shifted as Republican elites have become more pro-life. Group affiliation
changes slowly.
SMSP – Single-member, simple plurality divides the country into geographic districts and the
candidate with the plurality of votes is elected. Puts all minorities, racial and otherwise, at a
disadvantage.
Proportional Representation – Electoral system in which parties receive a share of seats in
parliament that is proportionate to the popular vote they receive.
Decline of Political Parties – Lost ability to fill patronage jobs (civil service reform). Lost
control over nominations (candidates put themselves forward). Media makes people no longer
dependent on the party for campaigning.
Voting Rights Act and the Politics of Race
Reasons for the Extension of Voting Rights to Blacks:
1. Civil Rights movement.
2. Cold War. Hypocritical of U.S. to fight for democracy without black suffrage at
home.
3. Economic prosperity. Post-WWII boom reduces class tensions.
4. Party interests. Democrats were motivated by the potential for the black vote.
5. Federal intervention. Eliminates state control over suffrage.
Racial Gerrymandering – Redistricting used by southern conservatives to isolate certain racial
groups in a small number of districts and reduce their political impact.
Cracking – Drawing district lines to split a group’s constituency.
Stacking – Containing all members of a group within one district.
Voting Rights Act of 1965 – Gave the judiciary the right to oversee changes in covered
jurisdiction (regions where black turnout was less than 50% or literacy tests were in place) in
order to make sure that they were making appropriate strides.
Majority-Minority Districts – Affirmative action redistricting. Districts that have a majority of
minorities in order for them to have representation in Congress. Court ruled that they can take
race into account but it can’t be the only criteria—districts should be compact and contiguous.
Now state legislatures are confused as to what to do.
The Media
Equal-Time Rule – Requires that any station selling time to a candidate to sell time to other
candidates at comparable rates.
Fairness Doctrine – Required stations to carry some public affairs programming and to balance
the points of view expressed.
Selective Perception – Tendency to ignore information that is inconsistent with predispositions.
Agenda Setting – Media affects the issues and problems people think about even if does not
determine what positions they take (lead-stories have an agenda setting effect).
Priming – Media affects the standards people use to evaluate political figures or the severity of a
problem (In 1991, media primed Americans to think about the Gulf War in their approval of
Bush. In 1992, it moved on to the economy and Bush’s approval ratings fell).
Framing – Media induces to think about an issue from one standpoint rather than from others (if
crime is framed as a problem that government can deal with versus an uncontrollable by-product
of family breakdown then it has more of a political effect).
Persuasion – Persuasion is rare. Media is limited in its persuasion by low levels of attention
(people don’t pay that much attention to the news), socialization (people are more affected by
their friends and family), and selective perception (people tend to screen out ideas that don’t
confirm with their own predispositions).
Ideological Bias – Journalists tend to be more Democratic and thus have a slight liberal bias.
However, most journalism is unbiased and stronger against incumbents than conservatives.
Moreover, most owners and publishers are conservative and the weakening of network
dominance has led to more conservative cable and radio programs (Fox News).
Selection Bias – Media tends to focus on the negative rather than the positive (a politician doing
a bad job rather than a good one), tends to emphasize specific exciting events rather than large
conditions or long-term crises (not interested in homelessness), tends to focus on conflict (will
focus on the second-place candidate rather than the front-runner) and scandals, tends to focus on
the President and other personalities rather than the government, and is unwilling to deal with
complexity (S&L crisis ignored until after government action).
Production Bias – Depend on experts and government officials for news (more often than not,
news represents the opinions of elected officials), competitive pressure emphasizes the
entertainment-value of news and “pack journalism” (don’t want to miss the new big story).
Electing the President
Momentum (Bartels) – Momentum is rooted in the demonstration effect of important primary
victories. Carter parleyed early primary victories into media coverage and popular support
(momentum). New nomination system is dominated by momentum (candidates and media),
whereas
Closed v. Semi-Closed Primaries – Closed primaries are ones in which only party members can
vote, while semi-closed primaries allow independents to vote.
McGovern-Fraser Commission – Before the commission, party bosses controlled delegates’
voting patterns. The Commission rejected the notion that nomination was the business of party
leaders, and concluded that registered Democrats should have “maximum opportunity to
participate in the delegate selection process.”
The President in Office
Neustadt – Presidential power rests in his ability to persuade others into following his agenda
(bully pulpit). Teddy Roosevelt is his example. Prevalence of speeches has grown considerably
since the Civil War. President Reagan used television more effectively than any other president.
Howell – Presidential power rests in unilateral action (already endowed with enough power,
executive orders, etc.) George Bush is his example.
Pocket Veto – Presidential veto after congressional adjournment, executed by simply not signing
a bill into law.
Line Item Veto – Presidential authority to negate specific provisions of a law, passed by
Congress in 1996, but struck down by the Supreme Court in 1998.
National Constituency – The President is the only position elected by a national constituency
(can therefore claim a popular mandate). But once things go wrong, this can prove to be a
liability (blamed for things beyond their control, such as the economy).
Dignified Aspect (Bagehot) – The aspect of the presidency, including ceremony and rhetoric
that generates citizen respect and loyalty.
Executive Order (Inherent Executive Powers) – Directives that carry the weight of law even
though they were not enacted by Congress. May not run counter to congressional legislation and
may be overturned by Congress. Roosevelt used national monument power to establish National
Parks.
Executive Priviledge (Inherent Executive Powers) – The right of the president to deny
Congress information because the activities of the executive branch must be kept confidential.
Cannot be invoked to cover up criminal conduct (Watergate).
What makes Presidents great? Barber said high energy and an enjoyment of the job.
Skowronek said Presidents only become great when they use a new approach to escape the past
(during a pivotal election or time of crisis).
Electing Congress
Reapportionment – Reallocation of House seats to the states after every ten years. In the past
half century, northeastern and Midwestern states have lost more than 60 house seats.
Safe Seats – Congressional district certain to vote for the candidate of one party.
Duties of Congressmen – Lawmaking and constituency service— district service (making sure
districts get pork), constituent assistance (helping people when they have problems with federal
agencies).
Coattails – Positive electoral effect of a popular president on the candidates of his party.
Wesberry v. Sanders (1964) – Court ruled that congressional districts must be of nearly equal
population.
Fenno’s Congress Career Phases – First, expansionist (trying to expand base of regular
supporters at home), then protectionist (trying to maintain the voter base).
Incumbency Advantage – The electoral advantage of being an incumbent. Incumbents secure
90% of House seats.
Congressional Decision Making
Fenno’s Puzzle – Americans hate Congress but love their Congressman. Why? Americans judge
Congress by how well it solves major problems while judging their own representatives by how
well they respond to their own interests. Members run for Congress by running against Congress
(criticizing the institution, claiming they are different).
Bureaucratic Politics in a Federal System
Spoils System – System of government employment in which workers are hired based on their
party loyalty (Mayor Daley).
Pendleton Act (1883) – Created the Civil Service Commission charged with reforming the
bureaucracy into a meritocracy.
Hatch Act (1939) – Prohibited federal employees from engaging in political campaigning or
solicitation.
In-and-outers – Political appointees who come and go with each change in administration.
Rooted in the executive’s patronage. Creates a government that lacks the continuity necessary for
sustained focus. Makes the civil service a less attractive career (you can’t rise to the top on
merit).
Senatorial Courtesy – Informal right for senior senators to confirm patronage jobs. Senate will
not confirm nominees for positions within a state without the approval of the senior senator of
the state.
Earmark – Very specific designation of the way money is to be spent by an agency. Reviewed
by oversight hearings.
Iron Triangle – Close, stable connections between agencies, interest groups, and congressional
committees (Veterans Groups support congressmen in the Congressional Committee for
Veterans’ Law who support the work of the Department of Veterans).
Issue Network – Loose, competitive relationship among policy experts, interest groups,
congressional committees, and government agencies (nuclear energy policy attracted the
attention of environmental, safety, antinuclear groups in addition to energy companies, creating
conflict between the agencies and committees).
Inner Cabinet – State, Treasury, Justice and Defense departments.
Muddling Through (Branch Method) – Administrators begin by looking at the present
situation and building upon it by small degrees. Does not rely on theory but on policy
experience.
Social Policy
Stages of Policy Making – Agenda setting (making an issue visible), policy deliberation (debate
and discussion), policy enactment (passage of law), policy implementation (translation of
legislation into government programs or regulations), policy outputs (provision of services to
citizens or regulation of their conduct), policy outcome (ultimate effect).
Aid to Families with Dependent Children (AFDC) – Welfare. Replaced by TANF.
Temporary Assistance for Needy Families (TANF) – 1996 welfare reform law dramatically
cut welfare programs and capped block grants. Subjected welfare programs to limitations (no
family could receive more than two years of assistance).
Social Security – Federal social insurance program for senior citizens. Popular because it is
universal and because you pay into the system (gives everyone a reason to support the system).
Hidden Welfare State – Most people recognize the visible welfare state (Social Security,
Medicare, social assistance programs) but don’t recognize the hidden welfare state (government
loans, home mortgage interest deductions, 401ks, and earned income tax credits).
Foreign Policy
Washington Doctrine – Washington meant that our alliances should shift depending on the
circumstances (no permanent alliances) but was interpreted to mean that we should steer clear of
all alliances.
U.S. v. Curtiss-Wright (1936) – Court held that Congress could delegate foreign policy
responsibilities to the President because the president had more authority over foreign affair
matters.
Youngstown Steel v. Sawyer (1952) – Court ruled that Truman’s seizure of private steel mills
by executive order was unconstitutional. President could not authorize a seizure without
congressional permission. Jackson said that presidential powers are weakest when congress
refuses (Truman’s actions were unauthorized by Congress). This holding served as precedent for
other efforts to restrain the executive branch.
Tonkin Gulf Resolution – Congressional resolution giving the President full authority to send
troops to Vietnam.
War Powers Resolution – After Vietnam War, Congress repealed the Tonkin Gulf Reoslution
and passed the War Powers Resolution, which required that the president formally notify
Congress any time he orders troops into military action. Congress also has to approve the
military action within 60 days or else the troops must be withdrawn.
Two Presidency Theory (Wildavsky) – Explains why presidents exercise greater power over
foreign affairs than domestic policy. On domestic affairs, presidents are subject to pressure
politics and congressional checks. On foreign policy, the president benefits from rally round the
flag effects, weak interest groups, urgency of the situation, and Congressional deference.
Realism – Ideology that says U.S. foreign policy must serve to protect U.S. economic and
military strength (Hamilton).
Idealism – Ideology that says U.S. foreign policy should be guided by democratic principles and
act to spread liberty, equality and human rights (Wilson).
Economic Policy