The Founding & Constitution
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Lessons from the Revolution about
protest/independence movements in general
Articles of Confederation (1777-1789)
1.) Bad reputation deserved? Understandable?
2.) Why they were bad for business?
--the post-Revolution debt problem: Shay's
Rebellion
3.) Why were they bad for security?
4.) Why was the Confederation govt.
inefficient/ineffective/unpopular?
Constitution
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Achieving 4 main objectives of Convention
1.) Settling questions of representation
---why representation was so impt.
---the Great Compromise & the 3/5ths Compromise
---reasons for bicameralism other than the Great
Compromise
2.) Enhancing government power, while reconciling
majority rule with minority/individual rights
---Multilayered protection for rights: separation of
powers, checks & balances, federalism, and an “extended
republic” (Fed. 10)
Constitution
3.) Making the US better for business
4.) Increasing legitimacy of US government
a.) GW's role
b.) Closer link to the public (esp. House)
c.) Constitution was a procedural but not a policy
document, difficult but not impossible to amend
Constitution
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THINGS PEOPLE ARE SURPRISED TO
LEARN ARE (or ARE NOT) in CONSTITUTION
1.) No term limits for anybody (not even
President)
2.) Senate's original mode of election
3.) Ambiguity about Electoral College, no WTA
4.) Runner-up becomes VP
5.) Bill of Rights not in original text---but there
are some restrictions on Congress
6.) States guaranteed republican form of govt.
Constitution
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7.) Where's all men are created equal? Where's God?
Where's the size of the Supreme Court? Where's judicial
review? Where are the other federal courts? Where are
the parties?
8.) Congress can restrict SC's jurisdiction
9.) Census mandated in Constitution
10.) Immunity for members of Congress
11.) Congress could restrict importation of slaves after
1808
12.) Never-used method of proposing and ratifying
amendments
13.) Complete presidential oath of office is in there
Constitution
1.) Ratification method designed
to make success more likely
(technically illegal)
 2.) What successful Amendments
have been about
3.) Supreme Court as informal
amender
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Federalism
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Definition: includes the concept of dual sovereignty
Federalism is somewhere between a “unitary
system” and a “confederation”
Current examples of unitary, confederal, and federal
systems: what kinds of countries are good
candidates for federalism?
Federalism is consistent with two major themes of
Constitutional Convention: pragmatic compromise,
and multilayered protection of individual and
minority rights
Federalism
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Vertical (as oppposed to horizontal) separation of
powers, conducive to “forum shopping”
Key Constitutional provisions re federalism---supremacy clause
--10th Amendment
--Article IV provisions, including “full faith and
credit” and “privileges and immunities”
--Commerce clause
--”necessary and proper” (“elastic”) clause
Evolution of Federalism: Changes in
Constitutional Interpretation
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CJ John Marshall, friend of the Feds
1.) McCulloch v. Maryland (1819) involving Bank
of the United States
---”the power to tax = power to destroy”
2.) Gibbons v. Ogden (1824) involving steamboats
and the Commerce Clause
Revenge of the States
1.) Dred Scott decision (1857)
2.) US v. EC Knight Co. (1895): manufacturing
monopolies intrastate or interstate commerce?
3.) Hammer v. Dagenhart (1918): child labor
Evolution of Federalism: Changes in
Constitutional Interpretation
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Why not leave child labor, minimum wage, 8-hr.
Day, environmental regs, etc. to the states?
Answer: potential for “race to the bottom”
Confrontation over the New Deal: the Courtpacking plan, and “the switch in time that saved
nine”
NLRB v. Jones & Laughlin Steel Co. (1937): new,
broader interpretation of the commerce clause
Constitutional basis for Civil Rights Act of 1964
Evolution of Federalism: Changes
in Constitutional Interpretation
Is the pendulum swinging back to the
states?
1.) US v. Lopez (1995)---guns near
schools
 2.) US v. Morrison (2000): violence
against women act
 3.) Use of “sovereign immunity” to
protect states from lawsuits
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Evolution of Federalism: Fiscal
Federalism
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Why increasing state dependence on Federal $$$?
1.) The Feds got the income tax first
(1913)
2.) Feds find it easier to deficit
spend/borrow
3.) Great Depression established new
govtal responsibilities, more than states
could afford
Evolution of Federalism: Fiscal
Federalism
Types of Federal Aid to States
1.) Categorical grants – competitive or
noncompetitive
2.) Block grants – usually allocated by
“formula”-----fewer (but not without)
strings
 3.) Revenue sharing – why dead?
Who likes what?
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Random but Important Federalism
Stuff
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1.) Famous federalism metaphors
---Layer cake
---Marble cake
---Picket fence
2.) Immigration the next big federalism
battleground?
3.) Testing the “race to the bottom” theory – how
do we know (pp. 126-128)
CIVIL LIBERTIES
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Distinguishing “civil rights” from “civil liberties”
---CL more about govt. restraint or “hands off”; CR often
more about govt. action or “hands on”
---CL more about individual freedom, CR more about
equality (14th Amendment: CL more about “due process,”
CR more about “equal protection”)
What the Bill of Rights is mostly about: freedom of
expression and thought, and rights of the accused
---Does the USA “coddle” accused criminals?
Victims rights movement
http://www.ncvc.org/ncvc/Main.aspx
GENERAL THEMES ABOUT CIVIL
LIBERTIES
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1.) Although they are often expressed in absolute terms, they are
never absolute (why not?)
---Federal courts must engage in “line-drawing” and “rule-making”
in the enforcement of CL
2.) Circumstances and context often determine limits on CL, so
they vary over time
3.) Federal Courts are the dominant policymakers on CL; (court
precedents rather than legislation) legislatures mainly reactive (and
not always successful)
***4.) After Barron v. Baltimore (1833) failed to apply
BoR to States, 14th Amendment has been used to
nationalize/incorporate most of the BoR into state
constitutitons in 20th Century (p. 148, Table 5-3) –but
what about guns?
Civil Liberties: First Amendment
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FREEDOM OF PRESS/SPEECH
---No “prior restraint” (ex. Pentagon Papers case)
---Symbolic speech protected (ex. Flag burning)
Exceptions?
1.) slander/libel: different standards for public
figures
2.) security risks
---”clear and present danger” standard: WWI
(Schenck v. US, 1919)
---”gravity of the danger” standard: Cold War Era
(Dennis v. US, 1951)
---liberalization in 1960s and beyond
Civil Liberties: First Amendment
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3.) “Fighting words”
4.) Obscenity
--Roth v. US (1957)
--Miller v. California (1973)
--Unsuccessful attempts to restrict access to
“indecent” material on the internet
--PROTECT Act – US v. Williams (2008) on child
pornography
FREEDOM OF RELIGION
Tension between “establishment clause” and “free
exercise” clause
Civil Liberties: First Amendment
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The case of school prayer
--Engel v. Vitale (1962)
--Moment of silence?
--Different standards for different ages
I. Establishment Clause: The “Lemon” threepronged test
(Lemon v. Kurzman, 1971)
Federal aid to religious schools and faith-based
social services programs
Religious displays (10 commandments, baby Jesus
in manger, etc.)
Civil Liberties: First Amendment
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II. Free Exercise Clause
a.) Before 1990: “balancing” standard
b.) Employment Division v. Smith (1990):
“neutrality” standard
c.) Congress Strikes Back: RFRA (1993)
d.) The Supreme Court Strikes Back: RFRA
invalid as applied to state governments
e.) Congress Strikes Back (again): balancing
standard enforced for state programs receiving
Federal aid
Civil Liberties: Rights of the
Accused
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4th AMENDMENT SEARCH & SEIZURES
---The exclusionary rule: applied to Feds in 1914,
states in 1961 (Mapp v. Ohio)
---Exclusions to the exclusionary rule
5th AMENDMENT SELF-INCRIMINATION
---Miranda v. Arizona ( 1966)
---Recent interesting case Berguis v. Thompkins
(2010) http://www.nytimes.com/2010/06/02/us/02scotus.html
6th AMENDMENT RIGHT TO COUNSEL
---Expanded in many ways over time: govt.
obligation, venue, crime, timeframe
Civil Liberties: Rights of the
Accused
8th AMENDMENT Cruel and Unusual Punishment
--The death penalty: cruel, unusual, or both?
--Brief nationwide moratorium 1972-1977
--Some recent state moratoria
RIGHT TO PRIVACY – does it exist? Where does it
come from ?
--Griswold v. Connecticut (1965), was cited in Roe
v. Wade (1973); the “undue burden” rule on first
trimester abortion regulations
--Texas v. Lawrence (2003) sexual privacy
CIVIL RIGHTS
The Civil War Amendments: 13th, 14th, 15th
1.) Required for Southern readmission to the Union
2.) Included unusual provision authorizing Congress to pass
appropriate enforcement legislation
3.) Brief period of black political participation and civil
rights enforcement in South, ended in 1877 as part of 1876
“deal”
--Civil Rights Act of 1875 banned private discrimination,
overturned by Supreme Court in 1883
--Plessy v. Ferguson (1896) legalized ‘separate but equal’
--Systematic discrenfranchisement of blacks thru various
methods
CIVIL RIGHTS
Underlying 20th Century Developments Leading to
Civil Rights Movement of the 1950s-1960s
1.) Gradual movement of African-Americans to
northern (mostly urban) areas
2.) 20 years of FDR/Truman led to more pro-civil
rights Supreme Court
3.) Both parties competed for black votes in the
North
***4.) Effective use of political strategy by procivil rights groups (NAACP, etc.)
CIVIL RIGHTS
--a.) Focus on Federal executive and judicial, rather
than legislative action
--b.) In the courts, gradual chipping away at the
“separate but equal” doctrine
Culminating in Brown v. Board of Education (1954)
--Basis for Supreme Court overturning itself:
increased importance of education, social science
evidence on effects of segregation
Difficulties in implementing Brown, North & South
---De facto (residential) v. de jure segregation
---Busing as remedy? -- Other remedies
CIVIL RIGHTS
c.) Careful selection of venues and techniques for
protest, and associated messages (invoke FFs)
Civil Rights Act of 1964
---(in part) response to tumultuous events of 1963
---ended discrimination/segregation in “public
accommodations” using ICC
---ended discrimination in Federally funded private
and state programs
---political impact (1964 “mini-realignment”)
CIVIL RIGHTS
Voting Rights Act of 1965
--Federally supervised voter registration
--”Preclearance” procedure for areas with a history
of voting discrimination (now includes
redistricting)
“Affirmative Action”
--Justification; why it often degenerates into quotas
--Regents of U. California v. Bakke (1978)
--2003 SC decisions involving U. of Michigan
(undergraduate v. law school admissions)
CIVIL RIGHTS
GENDER EQUALITY
--Ratification of 19th Amendment (1920)
--Civil Rights Act of 1964 also applied to gender
--New (or renewed) feminist movement of 1970s
--Title IX of Higher Education Act (1972)
---initial confusion over interpretation
---impact on women’s college athletics
--Equal pay v. “comparable worth”