Every Student Succeeds Act

1 American Politics and Founding Principles

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Learning Objectives

By the end of this chapter, you should be able to

• Define and compare the political philosophies of liberalism and republicanism.
• Outline the core American values of life, liberty, and the pursuit of happiness.
• Analyze the role political philosophy and competing ideologies played in developing founda-

tional documents such as the U.S. Declaration of Independence and the Constitution.
• Define politics, and analyze what constitutes American politics.
• Explain why the term “American values” means different things to different people.
• Analyze the relationship between competing interpretations of core values and competing polit-

ical ideologies, and describe how they shape American politics.

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In March 2010, Congress passed, and the president signed, the Patient Protection and Afford-
able Care Act (PPACA, or ACA), a sweeping reform of the nation’s health care system. Accord-
ing to the U.S. Department of Health and Human Services, “The Affordable Care Act increases
access to care, makes health insurance more affordable, strengthens Medicare, and ensures
that Americans have more rights and protections—and more security that health insurance
coverage will be available when it is needed” (2015).

The plan requires employers to pro-
vide insurance to their employees or
face a fine. It also requires individu-
als to purchase health insurance, with
those unable to pay for it receiving
government assistance to do so. Indi-
viduals with plans valued at more than
$18,000 for family coverage pay a fee to
help pay the cost of assistance. Individ-
uals whose incomes exceed $200,000
and families whose incomes exceed
$250,000 pay additional fees, which
many criticize as being akin to a tax.

Debates over the proposed law were
intense and divided along ideological
lines. Liberal (left-leaning) supporters
maintain that a wealthy industrialized
nation such as the United States owes

its citizens some measure of universal health care. They argue that individuals lacking insur-
ance, either because their employers do not provide it or because they cannot afford it, should
not be denied basic health care. Other industrialized nations, including Canada and Mexico,
provide universal health care to citizens and non-citizens alike. Universal health care sup-
porters generally believe that a just society does not allow its citizens to starve, nor does it
allow its citizens to go bankrupt because they get sick. The liberal view thus holds that health
care reform furthers the core American values of liberty and individual independence by pro-
viding greater security.

Conservative (right-leaning) opponents, however, view the legislation as a government take-
over of the nation’s health care industry and an example of encroachment upon the liberties
of its citizens. Opponents are concerned that tax increases and greater regulation of health
care limits opportunities for individuals and businesses to choose from among health care
options such as the benefits that employers choose to extend to employees. Moreover, con-
servative opponents argue that the law is unconstitutional because it effectively requires indi-
viduals to purchase something in the private marketplace.

Both sides have taken opposite positions even though their arguments are grounded in the
same American values of life, liberty, and the pursuit of happiness. This case thus illustrates
how American politics is based in competing interpretations of the same core principles.

© JIM LO SCALZO/epa/Corbis

Is the government’s role in the health care debate a
government intrusion, or does it promote the gen-
eral welfare of the population?

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Section 1.1 The Classical Roots of American Government: Liberalism and Republicanism

1.1 The Classical Roots of American Government:
Liberalism and Republicanism

The United States of America’s core principles—life, liberty, and the pursuit of happiness—
are explored in depth in the next section. To understand where those ideas came from, we
first need to explore certain political philosophies that originated in the ancient world and
then saw renewed appreciation in 17th- and 18th-century Europe. The two most notable phi-
losophies that influenced the Framers of the United States’ key founding documents were
liberalism and republicanism (which differ from today’s liberals and Republicans, as we shall
soon see). Contemporary American politics in many respects represents a combination of
these two philosophical traditions.

Liberalism and the Basis for Limited Government

The political philosophy of liberalism
emphasizes individual liberty, or free
will, and equal rights. Classical liberal-
ism focuses on both political and eco-
nomic freedom and is derived from the
17th-century English philosopher John
Locke (1632–1700). Classical liberalism
was a response to the idea, common in
continental Europe during the Middle
Ages (500–1500), that the authority of
both kings and the Church was absolute,
based on divine right. In other words,
absolute authority came from God. Simi-
larly, the average person’s place in society
was also determined by God. Therefore,
individuals did not get to decide for them-
selves what constituted a good life, and
the notion that they were entitled to life,
liberty, and the pursuit of happiness was
unthinkable. Moreover, political author-
ity could not be challenged because doing
so would be like defying God’s will.

John Locke rejected this argument and
argued that individuals are the true basis
of legitimate government, a concept
known as popular sovereignty. Popular
sovereignty is the idea that the authority
of the government comes from the people. Locke’s view that all people are entitled to life,
liberty, and the pursuit of happiness relates to popular sovereignty in that the people elect
leaders to support and enhance natural rights. Locke’s ideas about natural rights are found in
the U.S. Declaration of Independence.

World History Archive/SuperStock

English philosopher John Locke outlined the
position that became known as “classical liberal-
ism.” Classical liberalism emphasized the value
of individuals in the political system and rejected
divine authority in favor of popular sovereignty.

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Section 1.1 The Classical Roots of American Government: Liberalism and Republicanism

Under a system of popular sovereignty, “the people” held political authority and leaders could
not govern without their consent. Furthermore, many have concluded that Locke advocated
limited government. This meant that the function of government was only to protect indi-
vidual rights. This also meant that the role of public policy would be limited, because too
much state power would threaten individual liberty.

Republicanism and the Basis for Representative Democracy

Although Americans often claim that their government is a democracy, this is not technically
the case. Democracy refers to rule by the people. Rather, the American system is more accu-
rately described as an indirect or representative democracy, which means that individual
citizens elect representatives to speak and make decisions for them. Elected legislatures make
policy; in a representative democracy, those policies will reflect the public will. The Framers
set the government up this way because they were concerned that direct democracy, which
would involve all citizens debating and voting on issues, would lead to mob rule.

The concept of representative democracy has its roots in republicanism, which is a political
philosophy that stresses popular sovereignty. Republicanism held that the government was
a commonwealth, which was defined as a civil society of men and literally meant “for the
common good.” In fact, the concept of republican government comes from the Latin phrase
res publica, which means “public matter.”

Partnership of Citizens
Republicanism rests on the belief that individuals are free and equal and have a public respon-
sibility and a personal stake in promoting a better society. In a classical republican society,
the public interest is known and understood by all because the community is small and made
up of members who share a common culture and background. Further, individuals share the
concept of citizenship, or the idea of belonging to a political community. Citizenship in the
republican mindset required the pursuit of virtue. In fact, the attainment of virtue was the
central goal of the political community.

The public good could not revolve around the desires of one ruler because that would be the
basis for a despotic government, such as the USSR (commonly known as the Soviet Union)
under Joseph Stalin between 1929 and 1953 and Haiti under Francois Duvalier between 1957
and 1971, in which the leaders seek to serve only their interests and potentially fall to corrup-
tion. Rather, in republicanism, each individual values the common good more highly than his
or her own individual good, and this forms the basis of virtue.

However, women, children, and minorities were not generally included in this partnership
of citizens. Classical republics, dating back to ancient Rome, limited citizenship to free men.
The American republic in the beginning would recognize both free white men and women
as citizens, although citizenship rights differed between men and women. The early Ameri-
can republic restricted voting, running for office, and serving on juries to white men who
owned property. Only property owners, the thinking went, had a stake in society and could be
trusted to promote the public good.

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Section 1.1 The Classical Roots of American Government: Liberalism and Republicanism

Separation of Powers
The ancient political philosophers, particularly Aristotle, believed that a successful republic
could best be achieved through a mixed constitution (also called a mixed government). A
mixed constitution system divides power among a monarch, a legislature, and the aristocracy.
Politically, this approach entailed the separation of powers into distinct branches of govern-
ment. This system also allowed the branches to influence decisions made in other branches
so that one branch could prevent another from tyrannizing the majority. Separation of pow-
ers creates the opportunity for checks and balances. The tendency toward abuse of power,
such as with despotism and corruption, would be limited because of the checks placed on
power across the branches of government.

But it was not enough to have checks and balances among different branches of government;
there also had to be checks and balances within the legislative branch—the branch of gov-
ernment that represents the people and passes laws. Republicanism specifically called for a
bicameral legislature (“bi” means two, while “camera” means chamber), which was the divi-
sion of the legislative body into two chambers.

Key Influences on the Framers’ Ideas About Government

Many of the ideas put forth in the U.S. Declaration of Independence, including the references
to life, liberty, and the pursuit of happiness, were originally included in John Locke’s Second
Treatise of Government, which was published in 1690. The expression that Locke used was
“life, liberty, and the preservation of prop-
erty.” “Happiness” was Thomas Jeffer-
son’s (1743–1826) substitution for
Locke’s “property,” in part because he
wanted to downplay the emphasis on pri-
vate property.

The Social Contract
Also put forth in Locke’s Second Treatise
was the idea that the individual existed
in a state of nature. In the hypothetical
state of nature, there is no human law or
government, while individuals are born
with unalienable or natural rights that
are derived from nature or from God.
All individuals are equal, especially with
their capacity to decide for themselves
what type of life they would like to live
(this is the concept of human agency,
which is the notion that individuals have
the capacity to make their own choices).
The state of nature can be dangerous
because, without laws and government,
violent behavior may continue. For exam-
ple, persons thinking about stealing their

SuperStock/SuperStock

Signed on July 4, 1776, the U.S. Declaration of
Independence stated the nation’s core values and
declared its separation from Great Britain. Many
of the ideas presented were originally included in
John Locke’s Second Treatise.

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Section 1.1 The Classical Roots of American Government: Liberalism and Republicanism

neighbor’s property might reconsider if they know that they might be arrested or jailed if
they are caught and prosecuted. Locke observed that individuals come together in a social
contract and form a government to protect themselves and their rights in order to offset con-
cerns associated with a state of nature.

The idea of a state of nature as a dangerous place, and the remedy of a social contract, was
expressed even earlier, in a 17th-century work called Leviathan, by another English philoso-
pher, Thomas Hobbes (1617–1700). Hobbes (1651/1962) argued that life in a state of nature,
where predatory and survival instincts dominated human behavior, was “nasty, brutish, and
short.” While individuals might enjoy liberty to do as they pleased, they were not free from
the threat of harm from others, which included the possibility of an untimely death. The rem-
edy for this was to surrender liberty to a monarch with absolute authority who would pro-
vide protection in exchange for loyalty to the monarch. Locke ultimately sought to use this
argument to justify the political structure known as a constitutional monarchy—a govern-
ment where the monarch has to share power with a legislative body such as a parliament or
congress.

Because government was created through a social contract, its legitimacy stemmed from pop-
ular sovereignty. The central thrust of Locke’s Second Treatise can be briefly summed up as
the idea that a community of equal individuals has the right to resist authority that has ceased
to be legitimate.

The Importance of Property
For Locke, individuals surrender their liberties in exchange for political freedom, or the free-
dom to do what they want within certain, defined limits set by government. Individuals sur-
render only enough of their liberty so that the government can protect the most fundamental

Stock Montage/SuperStock

In Leviathan, English philosopher Thomas Hobbes (left) argued that life in the state of nature
was “nasty, brutish, and short” and that people should surrender their liberty to a monarch
who would protect them. The image on the right is an illustration that appeared in the first
edition of Leviathan.

Pantheon/SuperStock

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Section 1.2 Core American Values: Life, Liberty, and the Pursuit of Happiness

rights to property, which includes land but also all physical possessions. In Locke’s time, prop-
erty was viewed as an extension of the individual because the property’s value was derived
from the labor that the individual put into it. Limiting property rights would be taken as lim-
iting personal freedoms. If the government violated individuals’ property rights, the people
would be within their rights to rise up and dissolve or overthrow the government because it
had failed to protect their fundamental right to property. Locke’s use of the term “property”
defended against the arbitrary exercise of power by any part of government.

The Rule of Law Versus the Rule of Man
The Framers of the Constitution believed that the arbitrary exercise of power—usually by the
rule of man—could be checked through the rule of law. This was an important distinction:
Men will act in an arbitrary manner when pursuing their passions. Under the rule of law, the
passions of men are checked because the law establishes what people may or may not do.

The distinction between the rule of man and the rule of law is important. Greek philosopher
Aristotle (362 BC–322 BC) argued that the “law should govern.” This principle suggests that
the law limits the behavior of individual citizens whether or not they are part of the govern-
ment. The rule of law suggests that government officials are limited by the law as much as
those whom they govern are. Putting lawmakers above the law invites the abuse of power.

1.2 Core American Values: Life, Liberty,
and the Pursuit of Happiness

The U.S. Declaration of Independence, written primarily by Thomas Jefferson and signed on
July 4, 1776, is one of the nation’s foundational documents. A short statement intended to
separate the American colonies from Great Britain, the Declaration establishes the nation’s
core values. It is also a statement of classical liberal philosophy. American core values can be
found in the following section:

We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable rights, that among
these are Life, Liberty, and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just powers from the
consent of the governed. That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter or to abolish it,
and to institute new Government, laying its foundation on such principles and
organizing its powers in such form, as to them shall seem most likely to effect
their Safety and Happiness.

Jefferson echoes Locke when he says that individuals are created equal with rights that were
granted to them by their Creator (“unalienable”). Rights given by the individuals’ Creator can
be taken away only by their Creator and not by government. Among these unalienable rights
are life, liberty, and the pursuit of happiness. The right to life means that people control their
bodies and that they have the right to life by virtue of their existence. The right to liberty

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Section 1.2 Core American Values: Life, Liberty, and the Pursuit of Happiness

refers to people’s freedom to make decisions about how they want to live their lives. In short,
people are free to pursue their self-interests. People’s right to pursue happiness refers to
their ability to make choices that will be satisfying to them, whether it be pursuing property
or some other passion.

Hobbes and Locke shared the view that individuals and lawmakers should be guided by rea-
son, an idea that greatly influenced the Framers. Governments based on reason are based in
law and not arbitrary opinions.

The Influence of Locke on Jefferson

As individuals born with unalienable rights, American colonists came together to create a
government whose legitimacy was derived from their consent. By stating that a just govern-
ment was based on the consent of the governed, Jefferson challenged the idea that the king’s
authority was derived from God. In fact, Jefferson argued that because the king’s authority
was not based on popular sovereignty, it lacked legitimacy. The colonists were therefore
within their rights to reject the king’s authority. The American Revolution essentially dis-
solved a government that, as Jefferson argued in the Declaration, had ceased to be
legitimate.

Employing Lockean language of the
right of the people to overthrow a gov-
ernment that fails to fulfill its obliga-
tions, Jefferson listed the British Crown’s
abuses of power. These abuses included
the king’s refusal to abide by laws, tax-
ing the people without them having rep-
resentation in government, quartering
troops in people’s homes, maintaining
standing armies without the consent
of the colonial congress, making judges
dependent on the king’s will, denying
colonists trial by jury, taking colonists
back to England for trial before hostile
juries, and other abuses.

The Importance of
Republicanism in Shaping
the American System
of Government

Republicanism in the American colonies
was a specific response to the corrupt
British political system. It was so corrupt,

Courtesy of the Diplomatic Reception Rooms,
U.S. Department of State

Thomas Jefferson was heavily influenced by John
Locke’s Second Treatise of Government in writing
the Declaration of Independence. Like Locke, he
rejected the notion that divine authority was the
basis of legitimate political authority.

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Section 1.2 Core American Values: Life, Liberty, and the Pursuit of Happiness

reports historian Gordon Wood, that 18th-century Americans did not believe it would be pos-
sible to reform or renew the British Constitution. Americans created their own common-
wealths, which they believed would embody virtue because power was divided between the
two houses of the legislature and an executive whose power would not be granted through
heredity. By dividing power, it was assumed that virtue would balance the natural tendency
toward corruption.

Power was further divided within the legislature by adopting the bicameral division of the
two houses. The lower chamber, the House of Representatives, represents the people. It was
seen as more susceptible to corruption because the people were assumed to be driven by
their irrational passions rather than reason. The upper chamber, or Senate, represents the
elite and was thought to be driven by reason. The legislative chamber most susceptible to
corruption would be checked by the Senate.

Individuals who owned property were thought to be more skilled and talented than others
because they were responsible for upholding the economy and the common good. Yet their
representatives were regularly exposed to the temptations of power and corruption. Repre-
sentatives, therefore, needed to stand for frequent elections, which would help hold them
accountable to the people. The U.S. Constitution reflects this view in that members of the U.S.
House of Representatives serve for 2-year terms, while senators serve for 6-year terms.

In considering the construction of the U.S. Constitution, it is apparent that the Framers were
very much influenced by both classical liberal and republican ideologies. The notion that
a constitutional system—a system that follows a written set of rules that outline the core
ideas about government and the structure of government institutions—would protect liberty
was certainly a classical liberal value. That this value could best be protected through the
separation of powers was a republican idea. The Constitution Preamble suggests that the
United States is liberal (“We the People of the United States, in Order to form a more perfect
Union, . . . secure the Blessings of Liberty to ourselves and our Posterity”), while the Constitution
mandates that the new nation be republican. For example, Article IV, Section 4 states, “The
United States shall guarantee to every State in the Union a Republican Form of Government.”
In practical terms, this means that every state will have separation of powers and checks and
balances. All states except Nebraska have a bicameral legislature. Nebraska has a unicameral
legislature.

The U.S. Constitution: Institutionalizing American Values

The Declaration of Independence puts forth many core American values. However, these val-
ues must be established, which is where the U.S. Constitution comes into play. Even though it
does not mention “Life, Liberty, and the Pursuit of Happiness,” the Constitution creates insti-
tutions that reflect and uphold those values. The principal institutions outlined in the Consti-
tution, which have also become values unto themselves, are the separate branches of govern-
ment. The Constitution creates three branches: the bicameral legislature, which passes laws;
the executive, which implements and administers laws; and the judiciary, which determines
the constitutionality of those laws.

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Section 1.3 What Is the Nature of U.S. Politics?

The Framers assumed that power was to be measured and contained, and they believed it
needed to be divided among these separate institutions. This separation of powers ensures
that no one branch of government has enough power to infringe upon citizens’ liberties.
The separation of powers is the key theme of American constitutional government, and it
results in government by consensus, whereby there is general agreement among the actors
involved in governing. Separation of powers also effectively reflects the principle of rule of
law. Additionally, as will be seen in later chapters, government may struggle with achieving
consensus that protects the rights and liberties of its citizens by protecting them from arbi-
trary use of government power.

1.3 What Is the Nature of U.S. Politics?

Politics functions within government, although they are not the same. There are some who
argue that politics is “decisions made in an environment of conflict,” while others, including
political scientist Harold Lasswell (1936), suggest that politics is “who gets what, when, and
how.” These definitions are related in that they both involve conflict and share the notion that
government decisions affect who is impacted, and how.

The notion that politics encompasses “who gets what, when, and how” captures the connec-
tion between politics and power. Who gets what says something about who has power. When
one gets what one wants says something about how important that individual or group is,
and just how much power the person or group has. How the power is obtained speaks to the
strength of the individual or groups involved. In a political system where scarce resources are
to be distributed, various groups will compete to determine who gets what, how much they
get, and under what circumstances they get it. This usually means that if one group derives
benefits, others bear costs. Public policies are those laws that government makes within the
context of a political process.

The casual observer need only look at the opposing views that routinely occur in policy-
making arenas including city councils, state legislatures, and the U.S. Congress to see this in
action. In the case of health care reform, those who were previously uninsured will be insured
because higher-income persons will pay an additional tax. Patients, taxpayers, and insurance
companies are each affected differently.

Some argue that those involved in the conflict are considered actors while those who sit on
the sidelines and observe are spectators. Considering the roles of actors and spectators in the
political process means that politics becomes a mobilization of bias where actors attempt to
show spectators why they should care about and become actively involved with the conflict.
This way, the actors build a base of support for their cause and achieve victory if they are able
to mobilize enough people to join them. Efforts to reform immigration policy are an example
of the mobilization of bias. Groups seeking to open U.S. borders to more immigrants have
brought non-immigrant groups to their side by showing how immigration divides families.
Some who advocate stricter border patrol suggest that less restrictive immigration controls
increase unemployment in various economic sectors such as agriculture and blue-collar labor.

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Section 1.3 What Is the Nature of U.S. Politics?

Another example may be found in the teaching of creationism such as was explored in Selman
et al. v. Cobb County School District et al. (2005). A small-town school board may respond
to the wishes of the majority seeking to have creationism taught in schools. Creationism is
a literal reading of the Bible that states that the world was created in 6 days. Creationism
opposes evolution, the idea that all organisms, including humans and animals, change over
time as a result of natural selection and other factors. The minority that wanted evolution
taught sought to shape the conflict by arguing that this school board decision was an example
of government violating the constitutional concept of separation of church and state. Evolu-
tion supporters hoped that those who live in large cities would become involved in an effort
to preserve this fundamental value, while those seeking to teach creationism argued that this
was a local matter with which outsiders should not be involved. The side that proved to be
more persuasive would succeed in getting what it wants, when it wants it, and how it wants it.

A key factor in this understanding of politics is that resolution is achieved through peaceful
means. It is when conflict becomes violent that politics can be said to have failed.

How Is American Politics Characterized by Regulation, Distribution,
and Redistribution?

American politics certainly involves the related notions of who gets what, when, and how in a
decision-making environment. Political scientist Theodore Lowi (1964) identified three types
of activities characteristic of American politics: regulation, distribution, and redistribution.

Regulation involves restricting the activities, or limiting the rights, of some for the benefit—
usually the protection—of others. In other words, one group will bear a cost so that another
group can enjoy a benefit. In this vein, regulation is considered to be zero sum, because for
every winner, there is a loser. As an example, the government seeks to regulate air pollution
by requiring power plants to include scrubbers in their emissions stacks. The power plants
incur a cost because they have to spend money that they otherwise would not while those
who live near the plants derive the benefit of cleaner air even though they did not pay any
more for the cleaner air than did others who live further away.

By contrast, distribution involves the political system providing benefits to whatever group
makes a request. The costs of distribution are not borne by any clearly identifiable group, but
instead are passed on to everyone. Consider the following scenario: Congress passes a budget
in which farmers receive millions of dollars from the federal government, banks receive mil-
lions more, and a variety of other groups receive something. Because the payouts all ultimately
come from tax dollars, all taxpaying citizens cover the cost. This is considered distributive.

Redistribution involves taking from one group in society—usually in the form of a tax—and
giving to others—usually in the form of a program. An example of this might be a tax on indi-
viduals with annual incomes above a certain level, such as $1 million, to pay for a health care
program that benefits the poor. As with regulation, with redistribution it is clear who benefits
and who bears the cost.

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Section 1.3 What Is the Nature of U.S. Politics?

How Is American Politics Rooted in Core American Values?

We can look further into what lies beneath these ideas. Politics over who gets what, when, and
how, or regulation, distribution, and redistribution, is really the public and practical expres-
sion of disagreements about the meaning of core values. For instance, some argue that regu-
lating pollution may deprive manufacturers of their liberties or property rights while others
argue that regulating pollution preserves the public’s right to breathe clean air and maintain
health. As we will see, each conception of liberty has some validity, and it is different con-
structions of these and other concepts that shape the conflict around which American politics
is made.

If you were to stop average Ameri-
cans on the street and ask what Amer-
ica stands for, most would probably
answer with some combination of lib-
erty; democracy; the right to pursue
individual economic interest; the right
to free speech, peaceable assembly,
and religious practice; and a constitu-
tional government. Americans do not
all agree on exactly what those con-
cepts mean, but each likely believes
strongly in his or her own interpreta-
tions. As a result, the way these con-
cepts are interpreted in society is a
matter of politics.

The concepts surrounding what America stands for are all rooted in the values of life, liberty,
and the pursuit of happiness expressed in the Declaration of Independence. Consider that
an American’s right to “life” often means that he or she has a right to physical protection.
More than that, it means that the state may not take a citizen’s life without due process of
law. This type of liberty is known as negative liberty. Negative liberty means that limita-
tions are placed on state action, as the government is required to protect liberty by ensuring
that it cannot be infringed upon. Freedom to travel is a negative liberty. But, as passage of the
health care law illustrates, the right to “life” could also mean that the state has an obligation to
ensure that people live long and healthy lives. Therefore, it is not enough to limit the actions of
the government so that a person can live; the state must actually provide people with health
care services. This type of liberty is known as positive liberty. Positive liberty means that
the state takes active steps to guarantee that citizens’ liberties will have meaning. An example
of positive liberty is the right to counsel, as found in the Sixth Amendment and reinforced in
Gideon v. Wainwright (1963). Many claim that conservatives favor negative liberty while liber-
als favor positive liberty.

As a further example, imagine that you are looking for a job. Negative liberty, in this scenario,
means that the state cannot stop you from taking a job that is offered in the marketplace. But
positive liberty means that the government must provide you with a job if you are unable to
find one on your own. Both views are captured in the Declaration of Independence and in the
promotion of the general welfare that appears in the Constitution’s preamble and elsewhere

Yugofuchiwaki/iStock/Thinkstock

Though the concept of liberty is foundational to the
American government, it means different things to
different people.

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Section 1.4 Contemporary American Politics

in the U.S. Constitution. Although American politics is characterized by various definitions of
politics, it also revolves around competing interpretations of core values that ask what “life,
liberty, and the pursuit of happiness” really mean.

1.4 Contemporary American Politics

Listening to talk radio these days, one could easily get the impression that American poli-
tics is driven by two ideological extremes: the liberal left, which wants an all-encompassing
government controlling people’s lives, and the conservative right, which wants to limit gov-
ernment in favor of individual liberty and free markets. Liberals and progressives generally
respond to these claims by arguing that government can be a force for bringing about a fair
and equitable society. They do not seek to infringe upon individual liberty; rather, they seek
to ensure a level playing field so that those with limited incomes also enjoy the full fruits of
liberty. Whereas the right sees only government as a threat to individual liberty, the left sees
private interests, including big corporations, as posing a similar threat. On both sides of the
political spectrum, the loudest voices fail to accurately capture the range of issues and opin-
ions that their opponents care about.

While the preamble to the U.S. Constitution states that the government’s purpose is to pro-
mote the “general welfare,” the meaning of that phrase is not clear. It was perhaps inevitable,
then, that rooted in today’s American politics is a contest among different groups, driven by
different ideologies, to define the concept of “general welfare” for all people. The fight over
the 2010 health care law outlined at the beginning of this chapter illustrates the politics that
can surround the interpretation and application of core American values.

How Does Contemporary Liberalism Compare
With Classical Liberalism?

Classical liberalism stressed limited government in an era when society was largely agricul-
tural and people mostly worked on farms and in small towns rather than in offices and facto-
ries in big cities. This meant that one person’s private activity likely did not affect another’s.
Modern liberalism, however, is usually associated with big government and large social
programs; it stresses a more expansive role for government precisely because society is no
longer as simple as it once was. In particular, the modern, complex economy produces market
failures that have as much capacity to deprive individuals of their life, liberty, and pursuit of
happiness as does government itself.

Further, modern liberalism understands corporate power to be as threatening to individual
liberty as state power. Therefore, the state needs to regulate private affairs to (1) protect
individuals from harm caused by others and (2) maintain a framework in which individuals
can freely choose for themselves the lives they would like to live. This may involve both distri-
bution and redistribution of resources. Again, this is all a matter of interpretation. Different
groups seeking to obtain power will interpret these matters in a way that best furthers their
objectives.

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Section 1.4 Contemporary American Politics

One might ask how liberal political philosophy changed over time. Understanding the dis-
tinction between classical and modern liberalism is critical to understanding the nature of
contemporary American politics (see Table 1.1 for a comparison). Both versions of liberalism
stress the ability of individuals to decide how they want to live their lives. American liberal-
ism promotes citizens’ freedom to pursue their self-interest in the marketplace, and to a large
extent the American public interest is based on every individual following her or his private
interests.

Table 1.1: Classical liberalism versus modern liberalism

Classical Modern Common thread

Human agency Human agency People all have the individual capacity
to make choices.

Individual liberty Restraints on some individual liberty
for protection of community

Liberty remains important within the
context of the public interest.

Limited government Active government because complex
society requires it

The notion of limited government
depends on the context of changing
individual needs.

Pursuit of self-interest Pursuit of self-interest so long as it
does not cause harm to others

The definition of harm is a question of
the complexity of society.

Private property as a
natural right

Property as defined by positive law Property is important for creating
zones of protection around national
interests.

Individual
responsibility

Individual behavior affected by larger
forces beyond one’s control

Individual behavior is a function of
social environment. Therefore, there
is a presumption in favor of individual
responsibility so long as there are no
other forces affecting it.

The Harm Principle
Classical liberalism, even as Locke conceived it, allowed for government regulation if it was
to protect the public interest. In the 19th century, English philosopher John Stuart Mill (1806–
1873) put forth the “harm principle” as the basis for governmental interference with individ-
ual liberty: A person cannot pursue his or her own interests to the point where it causes harm
to an individual or the general community. Mill believed that the sole role of government was
the preservation of liberty. In his classic work On Liberty (1859/1956), he stated that

the sole end for which mankind are warranted individually or collectively, in
interfering with the liberty of action or any of their number is self protection.
That the only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to
others.

Photos.com/ThinkStock

English philosopher John Stuart Mill argued that
persons have liberty to pursue their own inter-
ests but not to the point that it causes harm to
another individual or community.

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Section 1.4 Contemporary American Politics

This principle has been used to define
the appropriate use of the state’s regula-
tory power. The standard interpretation
has been that government may regulate
individual liberty to protect the health,
welfare, and morals of the community. In
19th-century America, harm meant only
physical harm. Consider that in Locke’s
time, when most of the economy was
agrarian (based on farming), someone
farming a plot of land was not likely to
cause harm to his neighbor on the adja-
cent plot of land. In Mill’s time, which
occurred during a period of industrializa-
tion when more of the economy was based
on manufacturing, a group of people could
be harmed in the town downstream from
a polluting factory because the manufac-
turing waste products might be disposed
of in that stream and run through several
towns. By the 1930s, when the country
was in the throes of the Great Depression,
harm could be caused by the market forc-
ing the layoff of millions of workers. More
recently, the United States experienced a
recession between 2007 and 2009. According to the Bureau of Labor Statistics, some states
experienced unemployment rates that exceeded 10% during that time while the national
unemployment rate exceeded that of most industrialized countries. Job openings declined
by 44%. As unemployment increases and job openings decline, individuals have less money
to spend in the marketplace, which causes a ripple effect throughout other economic sectors.

The evolution of liberalism from its classical conception to its modern-day version involved a
shift in how people interpreted the words “harm” and “public health and welfare.” Arguably,
the core values that informed the creation of the American republic are very much the same,
and sorting out what those values mean and how they apply to current circumstances is ulti-
mately what makes American politics distinctive.

Marriage of Liberalism and Republicanism
An ongoing debate throughout American history has been whether the nation is liberal or
republican. That is, are the country’s values more in line with classical liberalism or with clas-
sical republicanism? In fact, the American constitutional system is a marriage of both. The
influence of the two is evident in the nature of contemporary American political discourse.
Each contemporary political ideology on some level represents a belief system. Individuals
express their passions in ideological debate. Consider that the American political system is
composed of 50 states and one national government. Each state is a republic (representative
government) unto itself. Each state has its own distinctive political culture—its own beliefs

The Harm Principle
Classical liberalism, even as Locke conceived it, allowed for government regulation if it was
to protect the public interest. In the 19th century, English philosopher John Stuart Mill (1806–
1873) put forth the “harm principle” as the basis for governmental interference with individ-
ual liberty: A person cannot pursue his or her own interests to the point where it causes harm
to an individual or the general community. Mill believed that the sole role of government was
the preservation of liberty. In his classic work On Liberty (1859/1956), he stated that

the sole end for which mankind are warranted individually or collectively, in
interfering with the liberty of action or any of their number is self protection.
That the only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to
others.

Photos.com/ThinkStock

English philosopher John Stuart Mill argued that
persons have liberty to pursue their own inter-
ests but not to the point that it causes harm to
another individual or community.

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Section 1.4 Contemporary American Politics

and value system. For example, the political culture of Texas differs from the political cultures
of either New York or California.

The key difference between liberalism and republicanism is that liberalism is more tolerant
of diversity and is thus more heterogeneous (made up of dissimilar parts) while republican-
ism prefers small governance units and assumes more homogeneity (a makeup of similar
parts). Take, for instance, the difference between a large city like New York or Los Angeles
and a small town somewhere in New England. In the city, there is great diversity of people
and beliefs. One of the best ways to maintain unity is to have a tolerant, liberal framework.
But tolerance often comes about by rejecting moral absolutes. In the larger liberal framework
with its great diversity, the public interest that emerges is generally based on consensus and
represents a compromise position of multiple interests. In the small New England town, there
is probably very little diversity, as there is a shared culture with shared beliefs. Because there
is greater homogeneity in the small town, there is greater agreement regarding the public
interest.

The Constitution encourages states to retain their respective cultural uniqueness as expres-
sions of their own sovereignty. Each state may define the public interest differently. At the
same time, each state is represented in the national government within the federal system
where power is shared between the national and the state governments. Thus, the Constitu-
tion is effectively a liberal framework open to diversity across states. Consequently, national
decision making often reflects the public interest as an achieved consensus among the states.
It is in this vein that the American Constitution is a marriage between liberalism and repub-
licanism. Still, conflict and tension do exist, and it is around that conflict and tension that
American politics revolves.

What Does Liberalism Mean in Practice?

Returning to the Declaration of Independence, the premise that individuals are born with
unalienable rights means that on a political level all individuals are equal before the law. This
means that the state cannot show favoritism toward one citizen over another. In practical
terms, liberalism as a political philosophy rests on this conception of equality. Life, liberty, and
the pursuit of happiness correspond to the liberalism belief that each person can choose what
a “good life” means and then choose a path that makes this conception a reality. The state is
prohibited from choosing one person’s good over another, as this violates liberal equality. The
liberal state, in essence, places limits on government action so that the individual will be free
to pursue his or her own happiness.

The modern United States is very different from colonial America and consequently requires
government action from time to time. Colonial Americans idealized economic independence.
In the modern United States, most people work for others and have little control over their
own destinies. Had the farmer in an earlier period decided to plant a crop that perhaps was
not profitable, the impact would most likely have been felt only by that farmer and his family.
But if the management of an automobile factory in a Midwestern city opts to move manufac-
turing from that factory to a factory somewhere in Central America, thousands of people in
the United States might lose their jobs. Because more Americans are likely to be hurt by forces
outside of their direct control in the modern United States, government may have to act to
protect their interests. This action is justified on the grounds that it is essential to the

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Section 1.4 Contemporary American Politics

maintenance of the United States’ core values of liberty, equality, individualism, democracy,
and rule of law. It should also be remembered that because the republican tradition stresses
the public good as taking precedence over individual interests, the state has a right to take
action to ensure the public good. In the instance described here, the automobiles manufac-
tured in the Central American country may cost less because workers may be paid less than
they would be paid to do the same work in the United States. Using the argument that it is
protecting the United States’ core values, the government may tax, or impose a tariff on, the
imported cars to make the price of the automobiles more competitive with those of U.S.-made
cars.

Political battles often arise over compet-
ing interpretations of how best to serve the
public good. People do not all agree on what
their core values mean even if they agree
on the same values. The political process in
the United States is essentially a liberal one
because it is open to a multitude of inter-
ests, each lobbying for a position based on
competing ideological commitments. At the
same time, the American political process is
republican because it has established inter-
mediaries in the form of interest groups and
political parties that these competing ideolo-
gies have to go through. The modern conser-
vative seeks to conserve the traditions of the
past. If liberalism traditionally meant lim-
ited government, then conservatives seek to
maintain that tradition.

The Importance of
Constitutional Debates

Many of the tensions in modern American
politics—including the tensions between
conservatives and liberals—are, at their
core, disagreements about the meaning of
liberalism. This tension is contained in the
wording of the U.S. Constitution, which may be unclear on some points. For example, while
Congress has the power to declare war, it is the president who is the commander in chief.
What is the president allowed to do to protect the nation if Congress fails to declare war?
Understanding constitutional ambiguities, as we will see later, is also essential to understand-
ing the nature of American politics.

The Constitution establishes the parameters for who gets what, when, and how. But consti-
tutionality is also important because when the U.S. Supreme Court determines a matter to
be constitutional, it effectively validates the ideological position that fought for that issue.
On many issues of policy, the Constitution does not give specific guidance, and ultimately the
answer gets hashed out in the Supreme Court.

Associated Press/Tony Dejak

Health care reform in the United States would
allow people who were previously uninsured
to derive benefit. That some will have to pay
an additional tax to bear additional costs is a
classic example of politics as “who gets what,
when, and how” to connect politics and power.

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Section 1.4 Contemporary American Politics

The Role of Government Today

Until the 1930s, the federal government’s primary duties were to deliver the mail, provide
for the national defense, and maintain foreign policy. Public assistance, if there was any, was
the province of the states, and so, too, was education. But as Table 1.2 suggests, the role of the
federal government is now quite extensive. It regulates any number of activities and provides
considerable services. Average Americans purchase stamps in a federal post office, send their
children to public schools, and obtain local permits to expand their homes. Government—
whether it be national, state, or local—is a larger presence in citizens’ lives than was sup-
posed by the language of the Declaration of Independence.

Table 1.2: Selected functions of the federal government

Department name
Year

created Website and notes

State 1789 www.state.gov
Originally named Department of Foreign Affairs in July 1789
Renamed Department of State in September 1789

Treasury 1789 www.treasury.gov

Justice 1789 www.justice.gov
Originally named the Office of Attorney General
Named the Department of Justice in 1870

Defense 1791 www.defense.gov
Originally named the Department of War
Named the Department of the Army in 1947
Named the Department of Defense in 1949

Interior 1849 www.doi.gov

Agriculture 1862 www.usda.gov

Commerce 1903 www.commerce.gov
Originally named the Department of Labor and Commerce
Renamed Department of Commerce when the Department of Labor was
created in 1913

Labor 1913 www.dol.gov

Health and Human
Services

1953 www.hhs.gov
Originally named the Department of Health, Education and Welfare
Renamed the Department of Health and Human Services when a separate
Department of Education was created in 1979

Housing and Urban
Development

1965 www.hud.gov

Transportation 1966 www.transportation.gov

Energy 1977 www.energy.gov

Education 1979 www.ed.gov

Veterans Affairs 1988 www.va.gov

Homeland Security 2003 www.dhs.gov

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Summary and Resources

Summary and Resources

Chapter Summary
The key points established in this chapter will guide our understanding throughout the
remainder of the book. Politics is defined as who gets what, when, and how in an environment
of conflict. A political universe is typically composed of various groups or interests, with each
seeking government attention. When a group is able to beat out others to get what it wants,
it can say that it truly has power. The same applies to the competing definitions of a nation’s
core values because how they are defined will affect a particular group’s interests.

American politics revolves around the core values of life, liberty, and the pursuit of happiness
articulated in the Declaration of Independence. It also revolves around what it means to pro-
mote the general welfare, as stated in the preamble to the U.S. Constitution. These core ideas,
to which we may add equality, constitutionalism, rule of law, and the pursuit of self-interest
in a free marketplace, are very much rooted in two distinct, but not mutually exclusive, politi-
cal ideologies: liberalism and republicanism. Over time, both have shaped the way Americans
interpret their core values and principles.

Think about the example that opened this chapter. Taxpayers earning more than $250,000
who will pay higher taxes to cover health care have expressed their opposition in terms of
liberty. High-income taxpayers contend that the Health Care and Education Affordability Rec-
onciliation Act infringes on that liberty. They want lower taxes and express their concerns
with language that exhibits the core beliefs found in the Declaration of Independence. Their
interpretation of those core beliefs shape who gets what, when, and how. Others will argue
that if health care offers greater security to the larger public, it gives their liberty more mean-
ing, especially if it frees low-income Americans from bankruptcy. They will further argue that
those with more should pay for those with less because the system organized around liberty
enabled the wealthy to acquire what they have. Their broader argument will be that health
care is a matter of “the general welfare.”

If politics is understood in terms of coalition building and the building of those coalitions
through the concept of the mobilization of bias, it is the appeal to ideology that becomes the
vehicle for that mobilization. American politics is distinctive because various groups in the
American political arena mobilize bias through specific appeals to core American values con-
tained in the nation’s founding documents.

Key Ideas to Remember

• The Framers of the Constitution were influenced by many ideas in 16th- and 17th-
century political thought. The most important of these were the political philoso-
phies of liberalism and republicanism.

• Politics is defined as who gets what, when, and how in an environment of conflict.
• American politics specifically revolves around core values of liberty, equality, indi-

vidualism, and democracy, which have different meanings to different people.
• Core American values can be found in the Declaration of Independence in the phrase

“life, liberty, and the pursuit of happiness.” These ideas are the basis of a liberal
political philosophy that underlies American political culture and politics.

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Summary and Resources

• The Framers sought to create a republican form of government that would protect
Americans’ basic liberties to pursue their own self-interests and believed that if gov-
ernment left people alone, the overall public interest would be served.

• To protect individual liberty, the Framers of the Constitution believed that power
should be divided up through a separation of powers, which was very similar to the
British mixed constitution.

• The U.S. Constitution talks about promoting the general welfare but does not specify
what those words mean; therefore, American politics ends up being a question of
who gets to define what it means and how a particular definition furthers a particu-
lar set of interests.

Questions to Consider

1. What are the core values of Americans?
2. What is the basis for those beliefs?
3. What is the difference between classical liberalism and republicanism, and why is

each important to American identity?
4. Is the Health Care and Education Affordability Reconciliation Act consistent with

American values or contrary to them? Explain your answer.
5. In light of John Stuart Mill’s “harm principle”—a person cannot pursue his or her

own interests to the point where it causes harm to others—what is the government’s
role in regulating guns?

Key Terms

bicameral legislature A legislature divided
into two chambers: an upper house and a
lower house.

checks and balances When one branch of
government influences the actions of other
branches.

citizenship The idea that one belongs to a
political community.

classical liberalism Liberalism of the 17th
century, based on the writings of John Locke
and focused on both political and economic
freedom.

commonwealth A civil society where the
ultimate goal is to serve the common good.

constitutional When an action or law is
in agreement with the written constitution,
a written set of rules that outline the core
ideas about government and the structure of
government institutions.

democracy Rule by the people.

distribution The granting of public goods
to every individual.

executive The person or branch of govern-
ment that implements and administers laws
passed by a legislative body.

government by consensus When there
is general agreement among the actors in
government and decision making.

human agency The idea that all people
have the capacity to think for themselves
and determine how best to live their lives.

judiciary The branch of government that
uses the courts to determine whether acts of
the government are constitutional.

legislative The branch of government that
represents the people and passes laws.

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Summary and Resources

liberalism The political philosophy that
emphasizes individual liberty and equal
rights.

limited government The concept of small
government that is limited in its function
and only protects individual rights.

mixed constitution A constitution that
combines democracy, aristocracy, and
monarchy.

mobilization of bias Getting people who
are not part of a cause to support it.

modern liberalism A current version of
liberalism that stresses more active govern-
ment because society is more complex than
it was during the 17th century.

natural rights Rights that people are born
with.

negative liberty A type of liberty, or free-
dom, that is based on limiting what govern-
ment can do.

political freedom The idea that in a politi-
cal community the individual can do what he
or she wants within certain limits.

popular sovereignty The idea that the
people are the basis of legitimate authority
and power.

positive liberty A type of liberty, or free-
dom, that is guaranteed by the government
actively providing power and resources.

redistribution When government takes
from one group to give to another.

regulation When government restricts the
rights of one group for the benefit of others
or all the people.

representative democracy When the peo-
ple pick representatives to govern on their
behalf; also known as indirect democracy.

republicanism A political philosophy that
stresses personal independence for the sake
of the community’s public interest.

rule of law When government officials are
restrained by reason and law.

rule of man When government officials
govern on the basis of irrational passion and
do so arbitrarily.

separation of powers The division of
power into distinct branches of government.

social contract The idea that individuals
come together to form a government for the
sake of protection.

state of nature A term used in political
philosophy to describe the hypothetical
condition of humanity before the creation of
governing states.

unalienable rights See natural rights.

Further Reading
Hartz, L. (1955). The liberal tradition in America: An interpretation of American political thought since the revolu-

tion. New York, NY: Harcourt Brace Jovanovich.

Hobbes, T. (1962). Leviathan. M. Oakshott (Ed.). New York, NY and London: Collier Books.

Huntington, S. P. (1983). American politics: The promise of disharmony. Cambridge, MA: Harvard University Press.

Huntington, S. P. (2005). Who are we: The challenges to America’s national identity. New York, NY: Simon &
Schuster.

Lasswell, H. (1936). Politics—Who gets what, when, how. New York, NY: McGraw-Hill.

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© 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution.

Summary and Resources

Lipset, S. M. (1996). American exceptionalism: A double-edged sword. New York, NY: W. W. Norton & Co.

Locke, J. (1988). Two treatises of government. P. Laslett (Ed.). Cambridge, UK and New York, NY: Cambridge Uni-
versity Press.

Lowi, T. J. (1964). American business, public policy, case-studies, and political theory. World Politics, 16(4),
677–715.

Lowi, T. J. (1979). The end of liberalism: The second republic of the United States. New York, NY: W. W. Norton & Co.

Mill, J. S. (1956). On liberty. C. V. Shields (Ed.). Indianapolis, IN: Bobbs-Merrill Co.

Pangle, T. L. (1988). The spirit of modern republicanism: The moral vision of the American founders and the phi-
losophy of Locke. Chicago, IL: University of Chicago Press.

Pocock, J. G. A. (2003). The Machiavellian moment: Florentine political thought and the Atlantic republican tradi-
tion. Princeton, NJ: Princeton University Press.

Schattschneider, E. E. (1975). The semisovereign people: A realist’s view of democracy in America. Boston, MA:
Cengage Learning.

Wood, G. S. (1972). The creation of the American Republic, 1776–1787. New York, NY: W. W. Norton & Co.

Wood, G. S. (1993). The radicalism of the American Revolution. New York, NY: Vintage Books.

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3 Federalism

© Ron Chapple/Corbis

Learning Objectives

By the end of this chapter, you should be able to

• Analyze the division of power and authority between the states and the national government.
• Describe and interpret the concept of federalism.
• Describe contemporary federalism as intergovernmental relations.
• Outline the historical phases of federalism.
• Analyze the meaning of federalism today.
• Describe the future of federalism.

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Section 3.1 Federal Division of Power and Authority

In April 2010, Governor Jan Brewer of Arizona signed a statute requiring state and local
police to enforce the existing federal immigration law. The statute was passed because state
legislators and the Arizona governor believed it was time to reduce the number of Mexican
immigrants illegally crossing the U.S. border into Arizona. While federal law requires that
immigrants carry proof of either citizenship or documents proving their right to be in the
United States, under the new state law, officers who suspect someone of being in the United
States illegally can demand to see the appropriate papers and, if warranted, make an arrest.

Federal officials objected to the new Arizona law because they maintained that only the fed-
eral government may create immigration policy, and Arizona has no business interfering
with federal authority. A federal district court upheld some but not all sections of the state
statute. The state of Arizona appealed the ruling, and the case was later heard by the U.S.
Supreme Court. At issue was the rightful power and authority of state governments in rela-
tionship to federal authority. In June 2012, the U.S. Supreme Court ruled in Arizona v. United
States in a 5–3 decision (Associate Justice Elena Kagan took no part in the case) to uphold the
state-level requirement that state and local police could check immigration status during law
enforcement stops. The U.S. Supreme Court struck down three other provisions of the statute
because they violated the U.S. Constitution’s Supremacy Clause requiring that state laws may
not conflict with national laws.

This case nicely illustrates several questions about the meaning of federalism, a term that
describes the U.S. system of dividing power and authority, derived from the people, between
the national and state governments. Does Arizona have the authority to enact the statute that
it did, or does federal authority over immigration limit or deny states the right to enact stat-
utes where state interests overlap with federal authority? Because Arizona shares its south-
ern border with Mexico, the governor argued, Arizona had the right to enact state-level immi-
gration legislation. The Supreme Court sided with Arizona; Arizona’s statute did not violate
the Supremacy Clause.

3.1 Federal Division of Power and Authority

The Constitution was written in very general language, which has resulted in ambiguity about
where national power and authority end and state power and authority begin, and vice versa.
Figure 3.1 illustrates how state and national governments both have their own powers but
also share the authority to perform some of the same functions. In other words, the Constitu-
tion has a built-in tension between the national government and the states. That tension has
long been part of the American experience, and it continues to be the source of political
conflict.

Figure 3.1: Chart of U.S. federalism

This figure illustrates the separate and shared powers of the national and state governments.

© 2013 Mr. Kindred’s U.S. History Blog.

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Section 3.1 Federal Division of Power and Authority

National Power

The U.S. Constitution sets up a system where national power is shared with state govern-
ments. This is called a federal system. The national government is part of a federal system.
When addressing the national government, one is referring specifically to the highest level of
government in a federal system. At the same time, the phrase “federal government” is used
interchangeably with “national government” when referring to the highest level of govern-
ment in a federal system. The two principal bases for national power are found in the Com-
merce Clause and the Supremacy Clause of the Constitution. The Commerce Clause, found in
Article I, Section 8, gives Congress the power to “regulate Commerce with Foreign Nations, and
among the several states,” which allows the national government to regulate various activities
related to interstate commerce. For example, the national government may create environ-
mental regulations because pollution crosses state lines.

The Supremacy Clause gives the Constitution and national laws authority over the states:

This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to be Contrary notwithstanding.

The Supremacy Clause addresses those times when state or local laws conflict with national
laws or the U.S. Constitution. In these instances, the Constitution and the national laws prevail.

In April 2010, Governor Jan Brewer of Arizona signed a statute requiring state and local
police to enforce the existing federal immigration law. The statute was passed because state
legislators and the Arizona governor believed it was time to reduce the number of Mexican
immigrants illegally crossing the U.S. border into Arizona. While federal law requires that
immigrants carry proof of either citizenship or documents proving their right to be in the
United States, under the new state law, officers who suspect someone of being in the United
States illegally can demand to see the appropriate papers and, if warranted, make an arrest.

Federal officials objected to the new Arizona law because they maintained that only the fed-
eral government may create immigration policy, and Arizona has no business interfering
with federal authority. A federal district court upheld some but not all sections of the state
statute. The state of Arizona appealed the ruling, and the case was later heard by the U.S.
Supreme Court. At issue was the rightful power and authority of state governments in rela-
tionship to federal authority. In June 2012, the U.S. Supreme Court ruled in Arizona v. United
States in a 5–3 decision (Associate Justice Elena Kagan took no part in the case) to uphold the
state-level requirement that state and local police could check immigration status during law
enforcement stops. The U.S. Supreme Court struck down three other provisions of the statute
because they violated the U.S. Constitution’s Supremacy Clause requiring that state laws may
not conflict with national laws.

This case nicely illustrates several questions about the meaning of federalism, a term that
describes the U.S. system of dividing power and authority, derived from the people, between
the national and state governments. Does Arizona have the authority to enact the statute that
it did, or does federal authority over immigration limit or deny states the right to enact stat-
utes where state interests overlap with federal authority? Because Arizona shares its south-
ern border with Mexico, the governor argued, Arizona had the right to enact state-level immi-
gration legislation. The Supreme Court sided with Arizona; Arizona’s statute did not violate
the Supremacy Clause.

3.1 Federal Division of Power and Authority

The Constitution was written in very general language, which has resulted in ambiguity about
where national power and authority end and state power and authority begin, and vice versa.
Figure 3.1 illustrates how state and national governments both have their own powers but
also share the authority to perform some of the same functions. In other words, the Constitu-
tion has a built-in tension between the national government and the states. That tension has
long been part of the American experience, and it continues to be the source of political
conflict.

Figure 3.1: Chart of U.S. federalism

This figure illustrates the separate and shared powers of the national and state governments.

© 2013 Mr. Kindred’s U.S. History Blog.

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Section 3.1 Federal Division of Power and Authority

State Power

The 10th Amendment states that all powers not delegated, or specifically given, to the federal
government become powers held by the states. Put differently, if the authority to do something
is not expressly given to the national government, that power falls to the states: “The powers not
delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.” Fittingly, this is known as the “reserved powers”
clause. In contrast, federal powers are listed, or enumerated, in Article I, Section 8 of the U.S.
Constitution. Many argue that these powers may be interpreted in a way that expands them
beyond those listed in Article I, Section 8 through the Necessary and Proper Clause found at the
end of Article I, Section 9. This means that state powers may be limited by the national govern-
ment even if those federal powers are not enumerated in Article I, Section 8.

As we have seen, the defining fea-
ture of the American federal sys-
tem is that states share power and
authority with the national govern-
ment. In fact, the Bill of Rights was
intended to protect the civil liber-
ties of the people and state sov-
ereignty by imposing limitations
on national authority. However, in
1925, the U.S. Supreme Court began
applying key provisions of the 14th
Amendment to the states and inter-
preting some state laws to be in
violation of the Bill of Rights. These
interpretations have expanded the
power of the national government
while limiting state power.

Federal–state relations often hinge
on the tension between these

national and state bases of power. Consider the national No Child Left Behind Act (2001). In an
effort to improve students’ educational outcomes, this law limits states in how they regulate
education, assess student learning, and respond to student learning gains among other con-
cerns, even though public education has been provided and regulated by the states for more
than 200 years. Regulating education has long been considered to be a reserved power under
the 10th Amendment: Absent provisions that both grant express (or enumerated) powers to
Congress and withhold them from the states, the 10th Amendment means that it is assumed
that the states are given those powers unless those powers are given specifically to Congress.

State Sovereignty Versus National Unity

What are the limits of states’ rights? The answer is not clear, as the Supremacy Clause, the
10th Amendment, and the 14th Amendment all speak to national and state power. When a
state’s interest interferes with a national interest, there are limits placed on state power.
The language of the 10th Amendment appears to limit national authority unless that national
authority is spelled out in the Constitution. According to this view, if the states are sovereign,

© Reuters/Corbis

The 10th Amendment states that all powers not del-
egated, or specifically given, to the federal government
become powers held by the states. Put differently, if the
authority to do something is not expressly given to the
national government, that power falls to the states.

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Section 3.1 Federal Division of Power and Authority

there can be no national authority that interferes with that sovereignty. And yet, if there is no
national authority to limit state sovereignty, then the United States cannot be a united nation.

Recall from the discussion in Chapter 2 that there was great concern among states’ rights advo-
cates that the states might lose their sovereignty to the national government following consti-
tutional ratification. This was apparent with the issue of representation and the division
between free states and slave states when the Constitution was being designed. James Madison
proposed that the Three-Fifths Clause be included in the Constitution to calm fears that South-
ern states would become more powerful than others when counting slaves as whole persons
for the purposes of representation. Slave states were concerned that as more territories were
admitted to the union as free states, power among slave states would become diluted. Beyond
that concern, if the number of free states admitted to the union were to far outnumber slave
states, then the free states might support a constitutional amendment outlawing slavery.

John C. Calhoun (1782–1850), a South Caro-
lina statesman, wrote a famous pamphlet
titled A Disquisition on Government, which
was published shortly after his death. Cal-
houn expressed concern that over time the
Southern states would be outnumbered. To
preserve state sovereignty, he proposed two
mechanisms to assert states’ rights: nullifi-
cation and interposition. Both mechanisms
would allow a state to effectively decide that
a federal action does not apply to it.

Nullification would grant veto power to each
state, similar to that held by the president.
Calhoun suggested that for a bill to become
law, a majority of each state legislature, in
addition to a majority of both houses of Con-
gress, would have to pass it. In other words, if
the legislature of just one state voted against
the measure, it would not become law.

Nullification would also allow any state to veto anti-slavery legislation. For example, the states
would be able to veto the Missouri Compromise (1820), which allowed territories above the
368 30’ north parallel to be admitted as free states and those below it to be admitted as slave
states.

Given that each state has different interests and priorities, the likely consequence of nullifica-
tion would be to effectively paralyze and limit the authority of the national government. Nul-
lification would make the national government under the U.S. Constitution no more powerful
than it was under the Articles of Confederation.

Interposition was a less drastic proposal, but it too would have meant a weakened federal
system. With interposition, a state would have the right to oppose federal actions that it con-
sidered unconstitutional. Interposition would allow a state to assert its sovereignty by placing
a barrier between itself and the national government and deciding that a national law passed
by both houses of Congress and signed by the president does not apply within that state’s

© Corbis

South Carolina statesman John C. Calhoun
(1782–1850) was a strong advocate of states’
rights.

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Section 3.2 Understanding Federalism

borders. The state would, in effect, exempt itself from following that national law. Interposi-
tion would have allowed free states admitted above the 368 30’ north parallel to declare that
the prohibition of slavery did not apply to them.

Neither nullification nor interposition ever took firm root, although the fact that the two ideas
were even suggested demonstrates the tensions organized around state and national sover-
eignty. Calhoun’s argument highlights the tensions built into the U.S. Constitution.

3.2 Understanding Federalism

The last chapter outlined how separation of powers serves as the cornerstone of the U.S. Con-
stitution. Federalism is another cornerstone. As suggested by its preamble, which begins with
“We the People,” the Constitution declares that sovereignty, or the ultimate authority to gov-
ern, rests with the people. Through the Constitution, the people distribute their sovereignty
to the units of government (national and state) in a federal system.

The concept of federalism can be interpreted in multiple ways. For example, federalism might
suggest that the national government has supreme and equal authority over all 50 states.
Alternatively, federalism can mean that the national government and states enjoy equal sov-
ereignty. The second interpretation was the dominant approach taken in the United States
from the Constitutional Convention up until the 1930s. During this period, the national gov-
ernment could not tell the states what to do, nor could the national government dominate the
states. Rather, the states and the national government cooperated. Beginning in the 1930s,
the federal government became more involved in domestic policy functions, and federalism
came to be understood as a relationship where the states were subordinate to the supreme
power and authority of the national government. This understanding, however, is not abso-
lute; rather, federalism should be viewed on a scale where strict states’ rights are found on
one end while absolute national authority is found on the other end. Depending on the pub-
lic’s needs, a pendulum swings back and forth between the two ends of the scale.

The Framers’ Vision

The idea of coequal state and
national sovereignty lies at the
core of the American consti-
tutional system. Recall from
Chapter 2 that the Constitution
is a contract between the states
and the national government.
The 13 original states agreed
to enter into that contract with
the understanding that they
would not surrender their sov-
ereignty. The phrase “We the
People,” which establishes the
principle of popular sover-
eignty, also refers to the people

Robert Harding/SuperStock

By establishing a federal system, the Framers rejected the
concentration of power and authority in the hands of a
central government.

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Section 3.2 Understanding Federalism

of the original 13 states coming together, thus maintaining the concept of state sovereignty.
Providing a common defense, as noted in the Preamble, required state governments to give
up their power to a strong national government.

The Framers believed that a federal system would secure individual liberties. The division
of power between a sovereign national government and individual sovereign states would
distribute power while the separation of powers among three branches of government would
ensure that citizen rights and liberties would not be easily violated. By establishing a federal
system, the Framers rejected the concentration of power and authority in the hands of a cen-
tral government. Each phase of federalism is discussed in detail later in this chapter.

Contemporary Federalism as Intergovernmental Relations (IGR)

If the Framers were alive today, they might not recognize the federal system, because they
conceived of it as a formal division of power and authority between the states and the national
government. Today, federalism is thought of less in terms of formal divisions and more in
terms of working partnerships between the states and the national government. In fact, when
we talk about federalism today, we talk in terms of intergovernmental relations (IGR),
whereby the states and the national government must work together to achieve a common
public purpose.

The working relationship is not always easy
or smooth. The tension between state and
national sovereignty continues, although states
must work with the national government in
order to fulfill citizen needs. Unless it is part
of its enumerated constitutional powers found
in Article I, Section 8, the national government
should not direct state actions. The national
government lacks authority other than to use
the power of the purse to enforce compliance.
Consider the vignette that opened this chapter.
The federal government is obligated to enforce
immigration policy by patrolling the borders.

Grant-in-Aid
Despite the built-in tension, the national gov-
ernment has several tools at its disposal to
help ensure cooperation from the states. One
tool is grant-in-aid, or sums of money the
national government gives to the state or local
governments to do something. If the national
government gives the state of Colorado money
to repair highways, for instance, that money is
usually considered to be a grant-in-aid. Not all
grants-in-aid are the same. There are two basic
types: categorical grants and block grants.

Associated Press/Roger Alford

A categorical grant is money given to a state
by the federal government for a specific
purpose.

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Section 3.2 Understanding Federalism

A categorical grant is money given to a state by the federal government for a specific pur-
pose or function, such as to build or repair roads. Categorical grants allow no flexibility or
discretion. Through categorical grants, the federal government is able to wield influence over
both states and localities. By contrast, block grants offer states more flexibility than categori-
cal grants do. Whereas the categorical grant is single purpose, the block grant is multipur-
pose. A block grant is actually a group of several categorical grants that are related to one
another. Within the block are several separate programs, and the recipient of the grant can
choose which programs to fund and can move money around from one program to another.

Preemption
The national government can seek state compliance through the courts. A court that issues a
judgment against a state has no real enforcement power, although states may comply with
judgments against them if only because they have been ruled against. At the same time, the
national government may utilize preemption, which is the federal government’s right to
prevent state and local governments from enforcing their own laws because those state and
local laws conflict with the Supremacy Clause. Either scenario is less likely today than it was
in the early republic. A tradition of respecting and abiding by judgments of courts has evolved
over time.

Use of Federal Marshals
The national government may,
though not frequently, use troops as a
last resort to enforce court decisions
against state governments. As an
example, the Supreme Court held in
Brown v. Board of Education (1954)
that Kansas’ racial segregation of
the schools violated 14th Amendment
equal protection guarantees and was
therefore unconstitutional. A year
later, the Court ruled that schools
nationwide would have to integrate,
which meant that there could no lon-
ger be separate schools for White
and Black students.

Many states, particularly in the
South, refused to comply with these
Supreme Court rulings. One conflict
came to a head in 1957 in Little Rock,
Arkansas. Arkansas Governor Orval

Faubus refused to comply with the U.S. Supreme Court’s 1954 decision in Brown v. Board
of Education mandating school desegregation in Little Rock. Instead, he had the Arkansas

© Bettmann/Corbis

In 1957, President Eisenhower used federalized
troops to force the Little Rock, Arkansas, schools to
comply with the Supreme Court’s ruling in Brown v.
Board of Education. Here, the troops are moving pro-
testors away from the high school.

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Section 3.3 Historical Phases of Federalism

National Guard block nine Black students from entering a local Little Rock high school. Presi-
dent Dwight D. Eisenhower “federalized” the Arkansas National Guard, which in effect shifted
their command from the governor to the president. President Eisenhower then ordered the
Arkansas National Guard to escort and protect the nine Black students integrating Central
High School. Such events can add tension to the federal–state relationship.

3.3 Historical Phases of Federalism

Like the U.S. Constitution and core American values, approaches to federalism have changed
over time. From the Dual Federalism (1789 to the 1930s) period through the Cooperative
Federalism (1930s to 1960s) period (which included Creative Federalism [mid-1960s]), the
balance of power shifted from the states to the national government. New Federalism is char-
acterized by an attempt to rebalance the distribution of power between the states and the
federal government in the 1970s and 1980s.

Dual Federalism, 1789–1933

Dual Federalism dominated between the time of the ratification of the Constitution and
1933, when the national government became more active during the time of the New Deal, a
legislative package intended to help Americans suffering during the Great Depression. During
the Dual Federalism period, there was a division of labor between the states and the national
government. While the national government was responsible for national concerns such as
securing borders, defending the nation, and maintaining foreign policy and mail delivery,
states were responsible for local law enforcement, education, and maintaining roads and
waterways.

Cooperative Federalism,
1933–1960s

As the national government assumed
more responsibility for domestic pol-
icy during the Great Depression, the
states were responsible for imple-
mentation. This Cooperative Feder-
alism phase involved the states and
the national government working
together to implement public policy,
which brought the era of intergov-
ernmental relations.

© Bettmann/Corbis

People line up for food during the Great Depression.
The end of the Great Depression ushered in the era of
Cooperative Federalism.

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Section 3.3 Historical Phases of Federalism

As an example, when Social Security was enacted in 1935, it created a retirement program
for senior citizens and public assistance for the poor originally called Aid to Dependent Chil-
dren (ADC) (and in the 1960s came to be known as Aid to Families with Dependent Children
[AFDC]). The national government created guidelines for implementing ADC and funded it
while the states implemented it. States could determine who would be eligible to receive
assistance and how much they would receive based on national criteria.

In the Dual Federalism period, the states and the national government operated separately,
while under Cooperative Federalism the states and the national government worked together.
Americans now looked to the national government for solutions to their problems largely
because the states did not have the resources to address them, although the states also looked
to the national government to address their concerns. One result was that the states lost
power under Cooperative Federalism.

Creative Federalism, 1963–1969

Creative Federalism began in 1963 with the Johnson administration. Creative Federal-
ism represented a shift of power from the states to the federal government through use of
grants-in-aid and increased regulation. The national government sought to create new pro-
grams through numerous grants-in-aid programs to both states and localities under Creative
Federalism.

But Creative Federalism also used crossover sanctions to achieve state compliance. A cross-
over sanction occurs when the national government withholds funding in one program area
to ensure compliance in other areas. As an example, when Congress passed the Voting Rights
Act in 1965 and prohibited racial discrimination in allowing people to vote, many states chose
not to enforce it. Using the crossover sanction, the national government threatened to with-
hold promised subsidies, such as funding for highway repairs, for states that failed to enforce
the act. Subsidies refer to special assistance from the government for a program or project,
such as a social program. Initially, there were some strongly segregationist states that were
adamantly opposed to allowing African Americans to vote and were thus willing to forfeit
highway subsidies. Arguably, the national government could have sent in federal marshals to
protect voting rights, but doing so would have heightened the tension between the national
government and the states. Crossover sanctions persuaded Southern states to comply with
the Voting Rights Act.

New Federalism I, 1972–1980

In response to the growth in grants-in-aid, the Nixon administration introduced New Fed-
eralism, which was intended to restore the traditional balance between the states and the
national government. The real objective was to cut many of the social programs that had been
connected to President Johnson’s domestic policy and anti-poverty programs enacted during
the 1960s under Creative Federalism.

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Section 3.3 Historical Phases of Federalism

Initially, the Nixon administration
sought to combine categorical grants
into block grants. But Nixon’s New
Federalism introduced general rev-
enue sharing, which involves the
national government giving money
to the states without restrictions on
how those monies would be spent.
Nixon reasoned that this approach
would be politically feasible as,
instead of cities applying directly to
the national government for categor-
ical grants, they could get lump sums
to use for themselves. Suburban
areas often received more money
than central cities did.

New Federalism II, 1982–
Present

Although states had more discretion under the New Federalism/general revenue sharing
arrangement, the balance of power favored the national government. Governors complained
that the traditional balance of power between the states and the national government was
distorted because the states were limited in determining their spending priorities.

The Reagan administration (1981–
1989) promised to end the big gov-
ernment era and restore the balance
of power between the states and the
national government. As with Nixon
before him, Reagan confronted Dem-
ocratic majorities in Congress who
resisted cutting social programs. The
means to reform this system came
to be known as New Federalism II,
which featured the Great Swap and
the Super Trust Fund.

The Great Swap, as proposed,
involved the national government
trading responsibilities with the
states. The national government
would maintain responsibility for
Medicare (health insurance for the
elderly), while states would have
responsibility for Medicaid (health
insurance for the poor and people with certain disabilities). Until this point, Medicaid was
jointly funded by both the national government and the states.

© Bettmann/Corbis

President Ronald Reagan outlined his version of New
Federalism in his 1982 State of the Union address.
The states and federal government would trade some
responsibilities. For instance, the states would be
responsible for Medicaid and the national govern-
ment for Medicare.

Associated Press

President Richard M. Nixon introduced New Federal-
ism. In it, cities applying for federal categorical grants
receive monies in a lump sum to allocate to their com-
munities as they see fit.

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Section 3.3 Historical Phases of Federalism

Further, the national government would provide temporary funding for the states’ new
responsibilities through a Super Trust Fund, which would be established for almost $30 bil-
lion and expire after 4 years. After the funds ran out, states could either discontinue their
programs or manage them with state funds.

Reagan reasoned that without national funding, governors would have no choice but to cut
Medicaid and other state social programs. Governors initially liked the idea because they
would have full discretion over their programs and budgets.

New Federalism II, however, never really emerged as New Federalism I did. States did assume
responsibility for Medicaid while the national government maintained responsibility for
Medicare. A trust fund was set up, but it was not easily phased out because a big recession set
in during the early 1980s and the governors resisted losing federal funds. The states became
increasingly dependent on the national government for support, as they could not meet the
needs of the people. Figure 3.2 illustrates the rising costs of Medicaid for the federal and state
government.

Figure 3.2: State and federal costs of Medicaid

With the Great Swap and the Super Trust Fund, President Ronald Reagan switched primary
responsibility for Medicaid from the national to the state governments.

Adapted from “Figure 1. Medicaid Enrolling and Spending, FY 1966-FY 2013,” by Medicaid and CHIP Payment and Access Commission
(MACPAC), 2014 (https://www.macpac.gov/wp-content/uploads/2015/01/Figure-1.-Medicaid-Enrollment-and-Spending-FY-1966-
FY-2013.pdf ).

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Section 3.4 The Meaning of Federalism Today

Unfunded Mandates

Arguably, New Federalism paved the way to the era of unfunded mandates. An unfunded
mandate works similarly to Creative Federalism as, with unfunded mandates, the federal gov-
ernment does not provide the states with needed funding, which forces the states to pay for
nationally mandated programs on their own.

As an example, each state provides unemployment benefits that its finances with its respec-
tive state unemployment insurance trust funds, into which employers have paid premiums.
Most states provide unemployment benefits for 26 weeks, although during severe recessions
the federal government may extend benefits for 13 weeks or more. When Congress votes to
extend unemployment benefits, it appropriates money for the additional coverage, but not
enough to cover the entire cost. The portion that is left to the states to pay is an unfunded
mandate.

Congress passed the Unfunded Mandates Reform Act of 1995, which was intended to limit
the number of unfunded mandates imposed upon the states. Under the law, mandates could
not be imposed unless federal funding was included in the mandate to help state and local
governments fulfill mandate requirements.

3.4 The Meaning of Federalism Today

Federalism has come to be understood as intergovernmental relations where the lines that
divide national and state sovereignty are less clear than they were in the past. Multiple images
help us understand contemporary American federalism.

Layer Cake Theory of Federalism

In constitutional terms, the national government interacts with the states and the states
interact with their respective local governments. In traditional federalism, there is no interac-
tion between the national government and localities. This type of a federalism system is often
compared to a layer cake with three layers, one on top of the other. The reality is far more
complicated, as both the national government and localities have found ways to bypass the
states.

Marble Cake Theory of Federalism

Some argue that, because of the constant interaction between the states and the national gov-
ernment, the federal system can be thought of as a marble cake rather than a layer cake (see
Figure 3.3). In a marble cake, the flavors are integrated and blend into one another. No one
flavor stands on its own.

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Section 3.4 The Meaning of Federalism Today

If we think of the different layers or parts of a layer cake (Dual Federalism) or marble cake
(Cooperative Federalism, Creative Federalism) representing different strands of sovereignty
and authority, it becomes clear that states cannot function without the national government
and the national government cannot function without the states. This was certainly true in
the era of Cooperative Federalism. To meet the needs of their citizens, the states needed the
assistance of the national government, while the national government needed the assistance
of the states to deliver goods and services to the people. Public policy in the form of public
programs became a joint effort.

In contemporary federalism, formal divisions between national and state governments are
harder to explain. Consider the following examples: With clear divisions, a person committing
a state crime such as murder would be tried in state court after the crime had been investi-
gated by local police. Meanwhile, if the same person had committed a federal crime, such as
terrorism, the crime would be investigated by the Federal Bureau of Investigation (FBI) and
tried in federal court. Here, there is a clear distinction between levels of government, like lay-
ers of a cake.

With the marble cake, however, it is not always clear who is responsible for what. When
terrorists attacked the World Trade Center in New York City on September 11, 2001, there
were questions as to who was responsible for the ensuing investigation. Because the attack
occurred in New York City, it would normally fall under the jurisdiction of the New York City
Police Department. But given the high-profile target, the motivation for the attack, and the
great loss of life and destruction, the city needed additional resources, so the New York State

Figure 3.3: American federalism

The federal system of government can be thought of as similar to a marble cake, because all levels
(flavors) are mixed and one level cannot function without the other.

From http://theroledex.wordpress.com/2010/10/17/rigidity-in-the-crime-complex-by-ny-and-ljd/

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Section 3.4 The Meaning of Federalism Today

police were called in. The fact that the attack was also an act of terrorism made it a matter of
concern for the FBI and the Central Intelligence Agency (CIA).

One might hope that all levels of government would cooperate despite uncertainty over issues
of jurisdiction, which speaks to the marble cake nature of the federal system. In most cases,
there tends to be great confusion, while in other cases there are too few resources for states
to address emergency situations. For instance, when Hurricane Katrina wiped out most of
New Orleans in 2005, the state of Louisiana did not have the resources to address the prob-
lem. Local and state officials, including the Louisiana National Guard, were needed to evacu-
ate some people, rescue others, and prevent looting. The federal government, through the
Federal Emergency Management Agency (FEMA), was needed to provide relief and assistance
to residents who were displaced from their homes.

Adding to these approaches to
federal–state relationships is that
there are some powers that are held
by both the federal and the state gov-
ernments. These powers are called
concurrent powers. In these situa-
tions, both the federal and the state
governments hold specific pow-
ers, but that does not always mean
that they will be exercised at both
levels, nor do the federal and state
governments need to work together
when using their concurrent pow-
ers. For example, the power to tax is
held by the federal and by the state
governments.

States as Laboratories
of Democracy

Federalism today is often understood as a tug of war between those seeking more uniform
national standards and those seeking more flexibility for the states. The question is often
whether the notion of state sovereignty in the 21st century has any real meaning when the
states increasingly rely on the national government to provide them with financial assistance.
Some might argue that the U.S. government should be thought of as a unitary system with
a central authority that delegates authority and power to administrative subdivisions. Yet
states continue to have a vital role to play. Supreme Court Justice Louis Brandeis (1856–1941)
famously observed that states in the federal system are laboratories of democracy—they
represent places to experiment with policy before it is tried out on the nation as a whole.

Wisconsin’s welfare-to-work program in the 1990s provides an example. The program
required that those receiving public assistance benefits work at least 20 hours a week. Those
needing training received it, while those requiring child care to participate also received
it. Participants could continue receiving Medicaid. The idea was to transition people from

© James Pinsky/U.S. Navy/Corbis

The marble cake theory of federalism was exempli-
fied in the aftermath of Hurricane Katrina, when the
state of Louisiana and the city of New Orleans did not
have enough resources to deal with the emergency.
The Federal Emergency Management Agency (FEMA)
stepped in to assist residents who were displaced
from their homes.

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Section 3.4 The Meaning of Federalism Today

dependence on welfare to independence in the labor force. As the number of families on wel-
fare declined, federal officials and policy planners wondered if the success of the Wisconsin
program could be duplicated at the national level.

Following Wisconsin’s example, President Clinton signed a sweeping reform law in 1996
requiring welfare recipients to work in exchange for their benefits. As part of the reform,
the national government established a new program called Temporary Assistance for Needy
Families (TANF). States received TANF funds in the form of block grants and could distribute
the money as they saw fit. At the heart of the reform were the welfare-to-work programs
that each state would create. Some states might provide little help in finding employment,
while others might provide substantial help for job seekers, including résumé writing, inter-
view training, and general skills training. States wanting to reduce their welfare rolls (also
a requirement of the law) could find ways to disqualify recipients, which forced them into
the labor market and to accept whatever jobs available to them. Wisconsin’s welfare-to-work
program is an example of a laboratory of democracy. Clinton’s federal welfare reform pro-
gram was democratic because it emerged from grassroots experimentation.

Local Autonomy

Within the federal system, local govern-
ments are very different from states.
While the Constitution makes no men-
tion of local governments, it assumes
that municipalities function within, and
are governed by, their respective states.
Today, the federalist model extends to
local government, and local govern-
ments have only as much power and
independence as their states want them
to have.

Dillon’s Rule Versus Home-Rule
Charters
The guiding principle regarding local
autonomy versus state oversight is
known as Dillon’s Rule. In 1868, Iowa Circuit Judge Forrest Dillon expressed this opinion
regarding a dispute between the state of Iowa and a city:

Municipal corporations owe their origin to, and derive their powers and rights
wholly from, the legislature. It breathes into them the breath of life, without
which they cannot exist. As it creates, so may it destroy. If it may destroy, it
may abridge and control.

Cities, in other words, are creatures of the state. Disputes between municipalities and states
are decided in favor of the state. Cities have only those powers expressly granted to them by
state governments.

Associated Press/Richard Drew

An example of Dillon’s Rule was the New York
City mayor’s plan to reduce traffic congestion by
requiring drivers to pay a surcharge when they
entered the city. The plan, proposed by the city,
required approval by the state legislature.

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Section 3.5 The Future of Federalism

Most cities have home-rule charters, which establish the limits of local authority. A city with
a home-rule charter is generally more sovereign than a city without one. Charters are granted
by either state legislatures or provisions in state constitutions. Cities without home-rule char-
ters are assumed to be governed by Dillon’s Rule, which gives state legislatures much more
power over them.

Types of Local Government
There are more than 3,000 local governments of different types and with different respon-
sibilities in the United States. Each state constitution provides for local entities, including
counties, municipalities, and special districts. County governments are generally responsible
for record keeping such as births, deaths, and land transfers; the administration of elections
including voter registration; construction and maintenance of local and rural roads; zoning;
building code enforcement; and the administration of justice. The functions of counties vary
from state to state.

Municipalities are incorporated cities, towns, or villages within a county that have their
own governing and taxing authority. Some municipalities take up an entire county, such as
San Francisco and Jacksonville. Some cities, such as Chicago, are the principal cities in their
respective counties (Chicago is in Cook County, Illinois) while others, such as New York City,
span several counties. Finally, special districts operate independently of other local govern-
ments and are usually established to serve a specific purpose within a geographic region. As
such, special districts often have their own taxing authorities.

3.5 The Future of Federalism

Questions concerning the future of federalism often focus on whether federalism as it is cur-
rently known is really viable. As citizens ask the national government to do more, there would
appear to be less of a need for the traditional division of power and authority between the
states and the national government. History, particularly where civil rights are concerned,
has shown that people cannot rely on the states to protect them. The argument for national
authority is that it is necessary to achieve uniformity of standards. If left up to the states, each
will do things as it sees fit.

Consider the example of the federal minimum wage. The federal minimum wage was set at
$7.25 in July 2009. Without a national uniform standard, one or more states might have mini-
mum wages below that standard, or none at all. Uniformity of standards requires a strong cen-
tralized authority at the national level, as well as states that will comply with that authority.

There remains a strong rationale for maintaining the federal system. During the late 1800s,
Lord James Bryce argued that federalism prevents the rise of despotic governments that
would absorb other powers and threaten the private liberties of citizens. Federalism ensures
that power and authority are well distributed.

Federalism also provides the best means for developing a growing country, principally because
it allows for experimentation. The forms of self-government that occur within smaller units

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Summary and Resources

of governance may stimulate citizens’ interest in local affairs. This is because government is
closer to home and feels more relevant to citizens. For example, people tend to be more con-
cerned with their community’s decision to build a local sports stadium than with a congres-
sional debate over whether to try terrorists in civilian courts or military tribunals. Because
local government is closer to citizens, they can keep more of a watchful eye on what is going
on. Additionally, when governance is spread out widely, something that goes wrong in one
place will not adversely affect the rest of the nation. Finally, by creating many local legisla-
tures with broad powers, federalism relieves the national legislature of functions and respon-
sibilities that may prove too burdensome.

This was the argument that Madison made in Federalist No. 10, where he suggested an expan-
sive republic would both dilute the power of states and make them the centers of local politi-
cal activity. While all of this may be true, we must also remember that the future shape of the
federal system is whatever the people want it to look like.

Summary and Resources

Chapter Summary
Federalism is the formal division of authority and power between states and the national
government. In the American federal system, the states and the national government are
assumed to be equal in sovereignty. The American federalism system has evolved through
several phases. The first phase was Dual Federalism, which implied dual spheres of sover-
eignty within the national and state governments’ respective domains. For the most part, the
national government was limited to foreign affairs, and the states were responsible for domes-
tic functions. As the states found themselves unable to meet the needs of their citizens during
the Great Depression in the 1930s, the national government assumed more responsibility
for domestic policy and programs. What emerged was Cooperative Federalism, whereby the
states and national government worked together to deliver public goods and services to the
people. With the advent of Cooperative Federalism, the relationship between the states and
the national government changed from one of formal division of power and authority to one
of intergovernmental relations. The national and state governments had to work together to
get things done.

The third phase of federalism was Creative Federalism. The national government sought to
create new programs and treated the states and localities as subordinate and not coequal
governments. The national government offered grants on a two-for-one matching basis to
create programs around the country. This transformed state and local spending priorities. In
response to Creative Federalism, two separate phases of New Federalism occurred whereby
the national government sought to return power and authority to the states.

To a large extent, the evolution of federalism speaks to another unique feature of American
politics. The five phases reflect different conceptions about what the nature of the relation-
ship between the states and the national government ought to be. Much of American politics
revolves around these competing conceptions. The politics of federalism is often about which
unit of governance has greater authority, and which has jurisdiction in a particular policy
matter. Ultimately, this makes for a dynamic federal system. Tensions between the two fre-
quently play out on the national stage.

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Summary and Resources

Key Ideas to Remember

• Federalism is understood to be the formal division of power and authority between
the national government and the states. Both the national government and the states
are understood to be sovereign entities even though the ultimate source of sover-
eignty is the American people.

• Claims to both national authority and states’ rights are rooted in the U.S. Con-
stitution. Claims to national authority are based on the Supremacy (Article VI)
and Commerce (Article I) Clauses, while claims to states’ rights are based on the
10th Amendment.

• The politics of federalism revolve around whether the national government has
authority over the states, or whether the principle of states’ rights effectively limits
national authority.

• The federal relationship in the Constitution deals mainly with the relationship
between the states and the national government; it does not deal with local govern-
ments, as local governments fall under the purview of their respective states. At
best, they can be autonomous through a home-rule charter, but they can never be
sovereign as the states are.

• American federalism has evolved over time from Dual Federalism, whereby the
states and the national government were each sovereign in their own spheres of
authority, to a situation where the national government has greater authority and
the states are, in effect, subordinate to it. This new relationship has been expressed
in Cooperative and Creative Federalism and more recently finds expression in the
principle of unfunded mandates.

• Although states are understood to be sovereign and cannot be forced to comply with
national authority, the national government can encourage compliance through the
use of the power of the purse, including grants-in-aid and crossover sanctions.

• There are arguments about the distribution of power in a federal system, although
most argue that federalism preserves individual liberty by dividing power and
preventing its centralization in one government. It also allows the states to serve as
laboratories of democracy—arenas for experimenting with policy before trying it
out at the national level.

Questions to Consider

1. How would you define federalism?
2. How has federalism changed over the years?
3. Is a federal system still necessary, or has it outlived its usefulness?
4. What are the benefits and detriments of having strong states’ rights?
5. What are some of the benefits and detriments of the layer cake versus the marble

cake approach to federalism?
6. What is the constitutional basis for Arizona to assert the right to check immigrants’

documentation?
7. Is it appropriate for local governments to use the Fifth Amendment’s “eminent

domain” power to promote urban renewal? Explain your answer.

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Summary and Resources

Dual Federalism: for example, the national
government delivers the mail and states
maintain roads.

1799–1933

Congress passes the Social Security
Act, which has a public assistance
component to be jointly administered
by states and national government.

1935

Congress passes the Voting Rights Act.

1965

President Reagan introduces another
version of New Federalism in his State of
the Union Address.

1982

Congress passes the No Child Left
Behind Act.

2002

Cooperative Federalism

1933–1960s

Creative Federalism

1960–1972

President Nixon introduces New Federalism.

1972

Unfunded mandates become sources of
tension between states and national

government.

1990s

1
8
0
0

2
0
1
5

Photo credits (top to bottom): James Steidl/iStock/Thinkstock, SuperStock/SuperStock, KenTannenbaum/iStock/Thinkstock, ©
Bettmann/Corbis, Associated Press/Evan Vucci.

Timeline: Federalism

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Summary and Resources

block grant A type of grant-in-aid that
comes in a general category and allows
recipients to choose the programs and
the category on which they want to spend
money.

categorical grant A grant-in-aid given for
a specific purpose that can be spent on only
that purpose.

Commerce Clause A provision in Article I,
Section 8 of the U.S. Constitution stating that
Congress can regulate commerce between
the states.

concurrent powers Powers that are held
both by the federal government and by the
state governments.

Cooperative Federalism A phase of feder-
alism that began during the Great Depres-
sion, during which the federal government
designed and funded programs that were
then implemented by the states.

county A type of local government respon-
sible for record keeping, the administration
of elections, road construction and main-
tenance, zoning, and the administration of
justice.

Creative Federalism A phase of federalism
when the national government used grants-
in-aid and crossover sanctions to encourage
creative solutions and state compliance with
national mandates.

crossover sanction When the national gov-
ernment withholds funding in one program
area to ensure compliance in another.

Dillon’s Rule A judge’s ruling that cities are
creatures of their states.

Dual Federalism A phase of federalism
when both the states and national govern-
ments were sovereign in their respective
spheres of influence.

enumerated Listed, or numbered, one
by one; in the U.S. Constitution, used to
describe powers that are listed, such as Con-
gress’s powers in Article I, Section 8.

federalism A government system where
power and authority are shared by national
and state governments with ultimate author-
ity derived from the people.

general revenue sharing When the
national government gives the states a por-
tion of national revenue, which they can
spend as they choose.

grant-in-aid Money given by the national
government to the states for various uses.

home-rule charters Grants of authority by
state legislatures or state constitutions for
cities to govern themselves.

intergovernmental relations (IGR) Rela-
tionships and regular dealings between dif-
ferent units of governance.

interposition When a state places its sover-
eignty between itself and a national action to
argue that the national action does not apply
to that state.

laboratories of democracy The idea,
first articulated by Justice Louis Brandeis,
that states are useful places to experiment
with policies before trying them out at the
national level.

Medicaid Government-run medical insur-
ance program for the poor and people with
certain disabilities.

Medicare Government-run medical insur-
ance program for the elderly.

municipalities Cities that are incorporated.

Key Terms

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Summary and Resources

New Federalism A phase in federalism
when the national government sought to
restore the traditional balance of power
and authority between the states and the
national government.

nullification When a state can effectively
veto national law.

preemption The judicial principle sug-
gested by the Supremacy Clause where
federal legislation is supreme over state
legislation conflicting with it.

special districts Local governments estab-
lished for a specific purpose.

subsidies Special assistance or aid given
by a government to support a program or
project, such as a social program.

Supremacy Clause Provision in Article
VI of the U.S. Constitution that states that
laws passed by Congress and signed by the
president are the supreme laws of the land;
it places supremacy of the law in the U.S.
Constitution and the national government.

unfunded mandates When the national
government imposes a program or cost on a
state or local government without providing
the money to fund that program.

Further Reading
Alston, L. J., & Ferrie, J. P. (1999). Southern paternalism and the American welfare state: Economics, politics, and

institutions in the South, 1865–1965. Cambridge, UK and New York, NY: Cambridge University Press.

Anton, T. J. (1989). American federalism and public policy: How the system works. Philadelphia, PA: Temple Univer-
sity Press.

Beer, S. H. (Ed.). (1982). Federalism: Making the system work. Washington, D.C.: Center for National Policy.

Beer, S. H. (1993). To make a nation: The rediscovery of American federalism. Cambridge, MA: Harvard University
Press.

Berman, D. R. (2003). Local government and the states: Autonomy, politics and policy. Armonk, NY: M. E. Sharpe.

Elazar, D. (1984). American federalism: A view from the states (3rd ed.). New York, NY: Harper & Row.

Feiock, R. C., & Scholz, J. T. (Eds.). (2010). Self-organizing federalism collaborative mechanisms to mitigate institu-
tional collective action. Cambridge, UK and New York, NY: Cambridge University Press.

Gerston, L. N. (2007). American federalism: A concise introduction. Armonk, NY: M. E. Sharpe.

Grodzins, M. (1974). The American system. Chicago, IL: Rand McNally.

Kettl, D. (1987). The regulation of American federalism. Baltimore, MD: The Johns Hopkins University Press.

Nugent, J. D. (2009). Safeguarding federalism: How states protect their interests in national policymaking. Norman,
OK: University of Oklahoma Press.

Ryan, E. (2011). Federalism and the tug of war within. New York, NY: Oxford University Press.

Wright, D. S. (1982). Understanding intergovernmental relations. Monterey, CA: Brooks/Cole.

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2 The U.S. Constitution

Roel Smart/iStock/Thinkstock

Learning Objectives

By the end of this chapter, you should be able to

• Describe early forms of American government, and explain how they formed the basis for the
U.S. Constitution.

• Explain the weaknesses of the Articles of Confederation, and describe how these weaknesses
helped lead to the Constitutional Convention.

• Describe the Constitutional Convention, and analyze the various proposals presented.
• Analyze separation of powers and checks and balances.
• Describe the debate between Federalists and Anti-Federalists over the inclusion of a bill of

rights in the U.S. Constitution.

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On October 1, 2013, the U.S. government shut down. This meant that “non-essential” govern-
ment services—parks and museums, certain regulatory agencies, and other services—were
suspended while federal employees who performed non-essential services were instructed
not to work. These services did not resume until October 17, 2013.

What normally causes a government shutdown is a failure between the president and Con-
gress to agree on a budget. While the Constitution does not require a budget, the government
cannot function without one. The budget is a legislative process like any other—majorities
within each house of Congress must pass the same budget while the president must sign
it for it to take effect. If no agreement is made, then the government cannot operate and is
effectively shut down, normally in early October because Congress’s budget designations for
a given fiscal year expire on September 30.

Because Congress has the “power of the purse,” many believe that the budget originates in
Congress. However, for many years now the practice has been that the president collects bud-
get estimates and requests from all the agencies and departments in the executive branch,
puts them together, and then submits a budget proposal to Congress. Following much debate
and many modifications, Congress then passes a budget, appropriating, or designating, what
funds can be spent for a specific purpose. The budget then goes back to the president for his
or her signature. In essence, when the president presents the proposed budget to Congress,
the president signals to Congress that if the proposed budget is passed as presented it will not
be vetoed and government will continue to function without interruption.

In 2013, the U.S. House of Representatives, dominated by Republicans, disagreed with the
U.S. Senate, composed of a majority of Democrats, on an appropriations continuing resolution
that would have kept the government running. House Republicans wanted to delay or defund
the Patient Protection and Affordable Care Act (PPACA) (discussed in Chapter 1) in exchange
for supporting a budget resolution. The Democratic-led Senate refused and passed several
resolutions that would maintain current funding levels and spending cuts. Even if the Senate
had agreed to House demands, President Barack Obama had threatened to veto any budget
that delayed the PPACA. The Constitution requires that the president must either accept the
budget as it is or reject the budget because the president may not veto any part of the budget.
The president may not accept some parts of the budget and reject others. These fundamental
disagreements caused the government to shut down until a budget resolution was passed.

Certainly, both sides pointed fingers blaming the other for the government shutdown—
Republicans blamed Democrats, the House blamed the Senate, the Senate blamed the House,
and the House blamed the president. In some respects, this was for good reason: The U.S. Con-
stitution provides that both houses of Congress and the president cannot operate without the
cooperation of the others. The Framers intended Congress to have the “power of the purse,”
or control of the nation’s finances. The president can propose a budget, but he or she cannot
spend public monies unless Congress has appropriated them. However, the appropriation of
money cannot be final until the president signs it into law. If no agreement is made, then the
government cannot operate and is effectively shut down.

Why did the Framers not make it easier for the government to maintain operations? Because
they wanted to incorporate a system of checks and balances, as well as a system of separa-
tion of powers. If each branch could act on its own without the agreement of the others, each
might have sufficient power to limit individual liberties. By dividing power, it would be much

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Section 2.1 Early American Government

more difficult for government to act on much of anything, thus preserving individual liber-
ties. Checks and balances, as we will see, are the cornerstone of the American constitutional
system.

As the 2013 shutdown illustrates, there are two ways to look at checks and balances. One is to
say that the system is a prescription for endless gridlock—in essence, a political stalemate—
and ineffective government. Another is to view it as a prescription for government by consen-
sus, because everybody needs to work together to get things done.

In this chapter, we look at the U.S. Constitution, the process by which it was formed, and the
rights and restrictions that it provides to the states and to the American people. As one of the
nation’s foundational documents, the Constitution establishes the framework for the federal
government. It also functions as a contract between the national government and the states
that created it.

2.1 Early American Government

The U.S. Constitution is actually modeled on the earlier governments found in the colonies.
Specifically, it has roots in the early American settlements of the 1600s. American govern-
ment as it is known today began as something small and private and evolved into a larger
self-government.

The First English Settlements

The first English settlements in colo-
nial America began as private compa-
nies composed of individuals seeking
economic gain. The first successful
English settlement began in James-
town, Virginia, in 1607, after King
James I granted a charter to the Virginia
Company to establish a settlement in
the Chesapeake region. The Virginia
Company in turn encouraged people
to settle the new colony by offering to
pay their travel expenses. In exchange,
the settlers were expected to send the
company a share of their profits. (The
settlers hoped to find gold, but in the
colony’s early years they primarily col-
lected lumber, tar, pitch, and iron for
export back to England.) By granting
the charter, the king gave the company authority over the colony, and by sending profit shares
back to the company, the settlers effectively paid taxes. Because the company was based in
England, the settlers had no more voice in their government than if the king himself retained
absolute rule.

© Bettmann/Corbis

Colonists arrive in Jamestown, Virginia. King James I
granted a charter to the Virginia Company, which
offered to pay potential settlers’ traveling expenses
to the New World.

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Section 2.1 Early American Government

In the years following the initial Jamestown settlement, more settlers came to the New World,
and by 1619 there were 11 settlements in Virginia. The Virginia Company, however, wanted
the colony to grow even faster. To induce more people to come, the company gave property-
owning male settlers the right to vote and elect their own assembly, known as the House of
Burgesses. This was the beginning of American self-government.

Colonial Assemblies

A striking feature of American colonial development was the lack of control by the British
government. All but one of the colonies had originally been companies of shareholders or
proprietorships whose authority was based in charters granted by the Crown. While the
company that received the charter was able to pick a governor for the colony, the principal
governing institutions were actually the assemblies elected by the colonists. The assemblies
wielded considerable power, including the right to raise troops, to levy taxes, and to pass
laws. The one colony that did not develop along these lines was Georgia. Georgia was the last
colony founded. Its purpose was to serve as a place for debtors recently released from prison
to go to get a fresh start. Georgia was also established to serve as a buffer between Florida and
South Carolina to guard against Spanish expansion from Florida. The name of this last colony
was selected to honor King George II, who granted the charter for establishing the colony.

The colonies never thought of them-
selves as subservient to the Crown.
Rather, they viewed themselves as
commonwealths, with the assemblies
being the locus of rightful power and
authority. In Plymouth, Massachu-
setts, for instance, the Pilgrims estab-
lished a system of self-government
based on the Mayflower Compact, an
agreement they made on their way to
America in 1620. Under the Mayflower
Compact, the settlers agreed to abide
by the decisions of the majority and
conduct their affairs without outside
interference, especially from the Brit-

ish. The physical distance between America and England left the colonial assemblies with a
great deal of autonomy.

Injustice, Rebellion, and the Continental Congress

Beginning around 1700, the colonies found themselves absorbed into the larger conflicts
plaguing Europe. From 1689 through 1763, a series of wars was fought on the European con-
tinent and had much to do with French expansionist ambitions. But a component of those
wars was fought in the colonies by British troops. Conflicts extended into the colonies as part
of the larger fight between colonial factions for more power and spheres of control.

SuperStock/SuperStock

The Mayflower Compact was a governing document
written by the Pilgrims as they traveled to America.

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Section 2.1 Early American Government

During the late 1700s, the British Crown attempted to impose its authority and restrict the
liberties of the colonists mostly by imposing new taxes to help pay for the wars. But some
of the restrictions were limitations on colonial trade as the British government sought to
protect industry at home. The British Parliament, for instance, passed the Wool Act in 1699,
which not only increased taxes but also increased control over colonial trade and production.
American colonies were prohibited from exporting wool to markets outside the colonies. The
Crown also limited imports of wools and linens from other areas in the British Empire.

Most colonists saw themselves as good English subjects who were entitled to the same rights
as their countrymen anywhere else in the world. In England itself, the English people (but not
the colonists) were represented in the House of Commons, part of the British Parliament. In
the same vein, the colonists saw the colonial assemblies as their own representative bodies. It
was one thing for the assemblies to pass laws affecting them. But it was quite another for the
British Parliament to impose laws on people who were not represented in that body.

The rallying cry for the American Revolution was “No taxation without representation,” and
one of the first taxes that would pave the way for war was the Sugar Act of 1764, which drew
colonists’ anger more because of its economic impact than because of its political signifi-
cance. The tax hit the colonies during a depression, which many attributed to the tax itself.

The Stamp Act of 1765 represented an attempt by the British government to force the colo-
nies to shoulder some of the expense of providing defense during the French and Indian War.
Colonists had to pay a tax on all printed materials, including books, newspapers, magazines,
and legal documents, all of which were required to bear an embossed stamp.

Following the Stamp Act, Parliament passed the Townshend Acts of 1767, which were even
harsher. Named after Charles Townshend, chancellor of the British Exchequer (the British
Treasury), these acts imposed new taxes on glass, lead, paper, paint, and tea. The Townshend
Acts were further reinforcement of Britain’s absolute power to enact any laws to govern the
colonies. The colonists protested these and other taxes with boycotts and other forms of pro-
test, including violence. Many violent protests centered on Boston, and they prompted the
British to send in troops to pacify the city.

Ultimately, most of these taxes were repealed, except for the tax on tea. Still, the protests con-
tinued, culminating in the Boston Tea Party of 1773. Because officials refused to return three
shiploads of tea to Britain, a group of colonists boarded English ships in Boston and dumped
hundreds of chests of tea into Boston Harbor to protest the tax. This became known as the
Boston Tea Party.

In response to the Boston Tea Party, Parliament passed a series of laws that colonists called
the Intolerable Acts. The purposes of these acts included closing the port of Boston until all
of the damage caused by the Tea Party was repaid, putting Massachusetts under military rule
with more troops arriving in that colony, making it illegal for royal officials to be brought to
trial in the colonies (and instead holding their trials in England), ending colonial government
in Massachusetts and allowing the royal governor to appoint the colonial legislature, and giv-
ing land claimed by Massachusetts, Connecticut, and Virginia to Canada.

Meanwhile, by 1774, the colonies had established the first continental legislative body, or
Continental Congress. The British responded by sending even more troops. The Congress

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Section 2.2 Why a New Constitution?

met briefly in Philadelphia in 1774 and consisted of 56 delegates from all 13 colonies. Most of
the delegates were not ready to separate from the British; rather, they wanted both the king
and Parliament to treat the colonies more fairly. Early the following year, however, skirmishes
between armed colonists and British troops turned deadly. By the time the second Continen-
tal Congress met in May of 1775, the American Revolutionary War had begun. Although there
were still those who wanted to work something out with Britain, there was now a growing
movement for independence.

Independence and Confederation

The colonies declared their independence on July 4, 1776, with the signing of the Declaration
of Independence. The Declaration was nothing more than a statement announcing separa-
tion—it did not form a government. Actual independence came only through military vic-
tory, which required, at a minimum, that the newly independent states remain united. The
Continental Congress raised an army and placed it under the command of George Washing-
ton (1732–1799). The following year, the Congress drafted the Articles of Confederation to
unite the states. The Articles were the first U.S. constitution. Born from a revolutionary spirit
suspicious of strong central government, in which authority would be concentrated in a
single entity, the Articles of Confederation created a “firm league of friendship” (a phrase from
Article III of the Articles) among the states.

The Articles invested the greatest power in the individual states and left the new national
government weak and powerless. The revolution was a rebellion against strong centralized
power; therefore, it was inevitable that the colonists would not form a government with
strong central authority. But the Articles proved inadequate to maintain unity, and, shortly
after the War of Independence was over, the confederation began to unravel.

2.2 Why a New Constitution?

The Articles had three fatal flaws. First and foremost, they failed to give the national govern-
ment the power of the purse, meaning that they granted the government neither the power
to levy taxes directly on the people nor the power to force the states to pay their share of
expenses. The national government could not even tax to pay its war debts. Second, any
amendments to the Articles required the unanimous approval of the state legislatures. And
third, they did not provide for a chief executive to carry out essential tasks and deal with
crises.

The main problem with the Articles of Confederation was the absence of strong central
authority. This meant that the United States would have no common defense if it were
attacked. An individual state could easily be overrun by a foreign government. The absence of
central authority was a problem for another reason as well. The new government could not
regulate commerce, and that threatened the development of a national economy.

Associated Press

The Articles of Confederation, shown here, were
adopted by the Continental Congress in 1777.
However, wariness of central authority resulted
in a weak, unworkable national government,
and many agreed the Articles would need to be
revised.

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Section 2.2 Why a New Constitution?

The Constitutional Convention, where
delegates would meet to revise the Arti-
cles and eventually draft the U.S. Con-
stitution, was actually preceded by the
Annapolis Convention. A small group of
delegates met at Annapolis, Maryland, in
September 1786 to address another one
of the failings of the Articles: the lack of
authority to impose uniform commercial
regulations among the states. This meet-
ing had been called into session by the
Continental Congress but was not really
a proper convention. Only 12 delegates
from five of the 13 states showed up,
which meant that the delegates had no
authority to do anything and their deci-
sions would not represent the will of all
of the states.

Those who did show up had some
strong views about what needed to be
done. James Madison (1751–1836) and
Edmund Randolph (1753–1813), both
of Virginia, and Alexander Hamilton
(1755–1804) of New York, all of whom
would attend the Constitutional Conven-
tion, were convinced that the new nation
needed much stronger central authority.
Hamilton wrote to the Continental Con-
gress on behalf of Madison, Randolph,
and himself, requesting that the states
appoint commissioners to meet in Philadelphia to consider these matters. Those in Annapo-
lis, especially Madison and Hamilton, wanted to overhaul the Articles and create a whole new
government.

Some of the Framers were also concerned that a fragmented confederation would make it
more difficult, if not impossible, to create a national economy. Without a central authority reg-
ulating interstate commerce, each state was free to establish its own tariffs. These applied
equally to the other states, just as they did to other nations. A national economy would require
uniform standards and a central authority empowered to enforce them.

In the early 20th century, historian Charles Beard (1913) argued that the Constitution was
more about serving the economic interests of the Framers than the lofty philosophical and
ethical principles found in the Declaration of Independence. As far as Beard was concerned,
the Framers sought to promote commerce and protect their property from radical state leg-
islatures. It is certainly true that those who participated in the Constitutional Convention
were wealthy men who were concerned about the absence of national regulatory authority
on matters of commerce.

met briefly in Philadelphia in 1774 and consisted of 56 delegates from all 13 colonies. Most of
the delegates were not ready to separate from the British; rather, they wanted both the king
and Parliament to treat the colonies more fairly. Early the following year, however, skirmishes
between armed colonists and British troops turned deadly. By the time the second Continen-
tal Congress met in May of 1775, the American Revolutionary War had begun. Although there
were still those who wanted to work something out with Britain, there was now a growing
movement for independence.

Independence and Confederation

The colonies declared their independence on July 4, 1776, with the signing of the Declaration
of Independence. The Declaration was nothing more than a statement announcing separa-
tion—it did not form a government. Actual independence came only through military vic-
tory, which required, at a minimum, that the newly independent states remain united. The
Continental Congress raised an army and placed it under the command of George Washing-
ton (1732–1799). The following year, the Congress drafted the Articles of Confederation to
unite the states. The Articles were the first U.S. constitution. Born from a revolutionary spirit
suspicious of strong central government, in which authority would be concentrated in a
single entity, the Articles of Confederation created a “firm league of friendship” (a phrase from
Article III of the Articles) among the states.

The Articles invested the greatest power in the individual states and left the new national
government weak and powerless. The revolution was a rebellion against strong centralized
power; therefore, it was inevitable that the colonists would not form a government with
strong central authority. But the Articles proved inadequate to maintain unity, and, shortly
after the War of Independence was over, the confederation began to unravel.

2.2 Why a New Constitution?

The Articles had three fatal flaws. First and foremost, they failed to give the national govern-
ment the power of the purse, meaning that they granted the government neither the power
to levy taxes directly on the people nor the power to force the states to pay their share of
expenses. The national government could not even tax to pay its war debts. Second, any
amendments to the Articles required the unanimous approval of the state legislatures. And
third, they did not provide for a chief executive to carry out essential tasks and deal with
crises.

The main problem with the Articles of Confederation was the absence of strong central
authority. This meant that the United States would have no common defense if it were
attacked. An individual state could easily be overrun by a foreign government. The absence of
central authority was a problem for another reason as well. The new government could not
regulate commerce, and that threatened the development of a national economy.

Associated Press

The Articles of Confederation, shown here, were
adopted by the Continental Congress in 1777.
However, wariness of central authority resulted
in a weak, unworkable national government,
and many agreed the Articles would need to be
revised.

fin82797_02_c02_023-052.indd 29 3/24/16 1:39 PM

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Section 2.3 The Constitutional Convention

Others, such as Alexander Hamilton, stressed the public interest of what they called a “com-
mercial republic,” the view that the nation’s public interest was in part defined by free trade
and commercial activity, and that this interest could be served by individuals freely pursuing
their economic self-interests unfettered by government. By crafting a document that estab-
lished the authority of Congress to regulate interstate commerce while establishing that laws
coming from Congress would be the supreme laws of the land, the Framers could create a
national government with real power. These views represented Hamilton’s views about gov-
ernment regulation of the economy.

2.3 The Constitutional Convention

The Constitutional Convention convened in Philadelphia during the summer of 1787 at the
direction of the Continental Congress, although the deliberations were kept secret. Dele-
gates were charged only with revising the Articles, but it was out of this convention that the
U.S. Constitution would emerge.

Who Came to the Convention?

Many of those attending the Convention had already achieved great prominence. Several were
older and wealthy, while others were relatively young. Because the convention debates were
held in secret, only a few people recorded the proceedings. One of these persons was James
Madison, who is commonly regarded as the father of the U.S. Constitution. Madison devel-
oped, among other provisions, the constitutional system of checks and balances. He, along
with Hamilton, pushed for strong national authority.

Most of the other convention delegates came with
a strong sense of duty to represent their respec-
tive states. Although there was general agreement
that the Articles were unworkable, disagreements
arose over how to replace them. Madison, for
instance, wanted to overturn equal representation
of the states. Others argued the need for a strong
executive. Delegates from slave states wanted
their slaves to be counted in the population so that
their states would enjoy greater representation in
the as-yet-undeveloped national legislature.

In addition to a strong central government, del-
egates to the Constitutional Convention wanted
a system that employed checks and balances. The
delegates did not trust the masses to govern them-
selves yet believed that a legitimate government
could exist only if it rested on popular sovereignty.
The delegates wanted a government that would
be close to the people while at the same time free
to make decisions on behalf of the nation without

The White House Historical Association

Like Hamilton, James Madison believed
in a strong central government. He
helped formulate the Virginia Plan.

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Section 2.3 The Constitutional Convention

securing public approval for those decisions. To the extent that they sought to establish a
democracy, it was to be a representative democracy consistent with republican principles.
They outlined these goals in large part due to their experiences with the British government.

At the same time, the delegates wanted to create a durable system of government that would
withstand the test of time. They could achieve this goal if they created a general and broad
document that avoided specifics. In this way, the Constitution could be applied to future cir-
cumstances. The Preamble of the Constitution declares the basic goals of government, while
the seven articles of the Constitution that follow the Preamble establish general rules by
which government institutions would operate, but the Framers purposely avoided establish-
ing procedures for governing.

Initial Constitutional Proposals

Most of the Framers wanted to create a republican government, but different factions still had
different ideas of what they wanted to accomplish, as well as how everyone’s interests should
be represented. For example, the delegates confronted the contentious issue of how both the
large and small population states would be represented in the legislature. Under the Articles,
each state was represented in the legislature by one vote, which put all states, regardless of
population, on equal footing. Should the new constitution continue providing equal represen-
tation for each state regardless of size or population, or would representation be proportion-
ate to population, with larger states having more votes than less populous ones?

Democratic principles required that larger states have greater representation. But that was
a more difficult issue than it appeared. Many large states, such as Virginia, were also slave
states. Would the slave population in those states contribute to the population numbers that
determined their representation? Slaves were not considered citizens, and to have them
included would, at least in the minds of the small states, give the large states an unfair advan-
tage. There was also the issue of state sovereignty, or self-determination. For each state to
have one vote, as they did under the Articles of Confederation, was for each state to be equal
in its sovereignty. This meant that each state had equal power to participate in national deci-
sions. Would state sovereignty be similarly respected in the new national government? Small
states believed that if they lost their equality in the legislature that their residents would also
lose their political voice, or sovereignty, in the national government. If the large states gained
power in the new government (and if this new power was enhanced by counting slaves among
the state populations), the small states would be overshadowed by the large states and resi-
dents of the small states would lose their sovereignty in the proposed system.

Related to this question was the issue of the chief executive and how powerful that executive
would be. A powerful national chief executive could also threaten state sovereignty because
the chief executive would govern the nation despite state-level differences. For some, the idea
of a chief executive evoked images of a king with centralized power and authority who could
call on national troops to force his will on the states, something not provided for in the Arti-
cles. But the absence of the legislature during a time of crisis meant that no one could act.

In the previous chapter, we defined politics as who gets what, when, and how, and the Con-
stitution would determine exactly that. As lofty as the principles and values of the Framers
may have been, each delegate to the Constitutional Convention was also concerned with the
interests and relative positions of his state.

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Section 2.3 The Constitutional Convention

Virginia Plan
During the convention, James Madison joined with two of Virginia’s other delegates, George
Washington and Governor Edmund Randolph, to introduce a system that provided for a
strong central government. The proposal came to be known as the Virginia Plan, which
was drafted by Madison and presented to the convention by Edmund Randolph. (Because
Randolph presented it, it also came to be known as the Randolph Plan.) Under the plan, the
people would select the House of Representatives as a practical expression of democracy. Its
members would be close to the people and would stand for regular elections. Because the
number of representatives each state had in the House was to be determined by its popula-
tion, the plan favored large states such as Virginia. The legislature’s upper chamber, the Sen-
ate, would be selected by the House of Representatives, and the legislature as a whole would
choose the president.

The Virginia Plan did not specify terms of office, but it did seek to limit the executive and
members of the House to one term. Moreover, it called for an independent judiciary. The plan
included other checks and balances. It allowed for legislative acts to be vetoed by a council
composed of the executive and selected members of the judicial branch. Their veto could, in
turn, be overridden by an unspecified legislative majority.

Large states supported the Virginia Plan because it would grant them greater representation.
The smaller states were generally opposed because they were afraid that they would lose
substantial power in the national government. Among the provisions that worried many of
the states was one that would have empowered the national government to use military force
against those states that might otherwise refuse to comply with national authority.

The New Jersey Plan
Those opposed to the Virginia Plan favored an
alternative that arose from the New Jersey delega-
tion. One member of that delegation, William Pat-
erson (1745–1806), intended to block any nation-
alist plan to overhaul the Articles of Confederation.
He launched an assault on the Virginia Plan. He
was particularly concerned about proportional
representation—the idea that large states would
have more representatives than the small ones. He
believed that the large states would dominate the
small states and that Virginia specifically intended
to undermine the other states’ sovereign powers.

As a counterproposal, he, along with David Brear-
ley of New Jersey, Roger Sherman of Connecticut,
Luther Martin of Maryland, and John Lansing of
New York, offered what came to be known as the
New Jersey Plan. Whereas the Virginia Plan called
for a supreme national government, the New Jer-
sey Plan called for one that would be distinctly

© Bettmann/Corbis

William Paterson was the main architect
of the New Jersey Plan. The plan called
for a federal government, with pow-
ers divided between national and state
governments.

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Section 2.3 The Constitutional Convention

federal, with carefully listed powers divided between national and state governments. This
meant that a federal government would be the combination of the states and the national gov-
ernment, whose power and authority would, in effect, be shared. Under this proposal, there
would be a single-chamber national legislature in which each state, regardless of size, would
have one vote.

Paterson’s intention was to protect the power of smaller states. While the plan would grant
the new government the power to levy taxes on imports and to regulate trade and commerce,
the representation of individual states would be no different from how it had been under
the Articles of Confederation. Under the New Jersey Plan, the “federal executive” would be
elected by the individual states represented in Congress. Again, this was consistent with the
executive committee system under the Articles. Nationalists such as Madison thought that
the proposal represented a backward step. For a full month, the Convention was deadlocked
between large-state nationalists and small-state defenders.

Connecticut Plan and the Great Compromise

As a compromise, Roger Sherman and Oliver Ellsworth of Connecticut proposed the Con-
necticut Plan (also known as the Great Compromise), which, like the Virginia Plan, would
create a bicameral legislature. This plan was designed to please both nationalists and states’
rights proponents. As with the Virginia Plan, representation in the House of Representatives
would be based on population, with each member representing a district of a specified num-
ber of persons. Larger states would have more representatives than smaller states would. To
foster closeness between representatives and the people, House members would serve for
2 years and then stand for reelection. The Connecticut Plan also indicated that all bills for
raising taxes had to originate in the House of Representatives. To ensure that each state would
get the number of representatives to which it was entitled, a census of all inhabitants of the
United States was to be taken every 10 years.

The Senate was designed to be similar to the body
proposed by the New Jersey Plan. The Senate would
specifically represent the states. In recognition of
their equal sovereignty, each state would have two
seats, regardless of population. Contrary to the Vir-
ginia Plan, which envisioned the House selecting
senators, the Connecticut Plan allowed for members
to be directly chosen by their respective state legis-
latures (a practice that would be replaced by the 17th
Amendment, ratified in 1913, which provided for
the popular election of U.S. senators). Senators
would serve for terms of 6 years. A 6-year term
would suggest that senators would not have to
worry about reelection soon after taking office, so
they would have greater opportunity to think about
the larger public interest. Senate terms would also
be staggered so that one third of the Senate would
be up for election every 2 years. Elections would

Universal Images Group/Getty Images

The Connecticut Compromise, painted
by Bradley Stevens, depicts Roger
Sherman, left, and Oliver Ellsworth
drafting the Connecticut Plan, which
called for senators to be appointed by
their respective legislatures.

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Section 2.3 The Constitutional Convention

take place in even-numbered years. Because only a portion of the Senate could potentially be
replaced, there would be stability and continuity. Figure 2.1 compares the Virginia Plan, the
New Jersey Plan, and the Great Compromise.

Figure 2.1: Comparing the plans

The Great Compromise included elements of both the Virginia and the New Jersey Plans.

Adapted from http://chogger.com/fhMeb/great-compromise

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Section 2.3 The Constitutional Convention

The Electoral College
Madison initially wanted the executive to be chosen by the legislative body. He believed that,
because the executive implements legislative actions, the executive should be responsive to
it. Further, the concept of a president was that of somebody who presided over legislative
hearings. Opponents claimed that this proposal was inconsistent with republican principles
of separation of powers. The Framers were also not ready to allow the people to directly elect
the president because they were not convinced that the people could make rational, dispas-
sionate decisions. Meanwhile, the states wanted a say in selecting the president even though
the Framers believed that the states would have too much power if they chose the president.

As a compromise, the Framers created the Electoral College as the body responsible for elect-
ing the president. The U.S. Constitution does not outline how electors are chosen, nor does
it state what role, if any, the popular vote will play in determining how electors vote when
selecting the president. Almost all states require the candidate who wins the popular vote in
the state to earn all of that state’s Electoral College votes (the “winner-take-all” system, which
is in place in 48 states), while other states (Nebraska and Maine) use a district system for allo-
cating Electoral College votes based on the popular vote. The number of members of Congress
representing any state equals the number of electors representing that state in the Electoral
College. In practical terms, then, the president is indirectly chosen by the people.

The Framers actually hoped that this peculiar system would not work. To win the presidency,
a candidate would have to receive a majority of electoral votes. In the elections of 1796 and
1800, this meant that a minimum of 70 electoral votes were needed to win a presidential
election. (Today, out of 538 electors, 270 are needed to win; see Figure 2.2. The number of
available electoral votes has been 538 since 1964 because the District of Columbia was given
three electoral votes with the 23rd Amendment in 1961. There are 435 members of the U.S.
House of Representatives and 100 senators.) At the time, a presidential election consisted
of several candidates. The candidate receiving the second-highest number of electoral votes
became the vice president. The Constitution provides that if the Electoral College fails to
select a president, the House of Representatives selects the president and the Senate selects
the vice president. Each state receives one vote in both decisions. Virginia Plan supporters
wanted presidential elections to happen this way.

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Section 2.3 The Constitutional Convention

Figure 2.2: The Electoral College

The Constitution called for the national executive to be chosen by the Electoral College rather than being
directly elected by the people. Note that North Carolina and Rhode Island had not yet ratified the
Constitution by the 1789 election, and New York did not choose electors for this election.

Data from “2012 Presidential General Election Results,” by D. Leip, 2012 (http://uselectionatlas.org/RESULTS/index.html) and “U.S.
Electoral College,” by National Archives and Records Administration, n.d. (http://www.archives.gov/federal-register/electoral-college
/votes/1789_1821.html#1788).

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Section 2.3 The Constitutional Convention

The Three-Fifths Compromise
The Connecticut Plan also offered a
compromise between free and slave
states. Slave states, such as Virginia,
had larger populations because they
had slaves (see Figure 2.3). William
Paterson was particularly opposed to
including slaves in the state’s popula-
tion because doing so would indirectly
encourage the slave trade. The Con-
tinental Congress had initially pro-
posed a three-fifths ratio for counting
“all other persons” (to avoid using the
term “slave”; persons, whether free or
slave, included men, women, and chil-
dren for Census purposes) as the basis
for apportioning legislative representation. In pointing this out at the Convention, Paterson
called attention to the hypocrisy of the Virginia delegation, which viewed slaves as people
only when it came to demanding more representation. The hypocrisy irked him all the more
deeply, perhaps, because Paterson himself was a slave owner. Stepping into the breach, Rufus
King of Massachusetts asked the delegates to reaffirm their earlier support of the three-
fifths ratio. As King saw it, Northern commercial states would benefit from a more powerful
national government that could regulate trade. In return, Paterson was willing to offer the
South some representation for their slave wealth.

This imperfect bargain recognized a hard political reality between states seeking to main-
tain slavery and those that preferred to fashion a new constitution without it. What followed
was a debate focusing on individual state interests rather than moral concerns about slavery.
Under the Three-Fifths Clause, every five slaves were counted as though they were three free
citizens for the purposes of increasing representation in slave states. The 13th Amendment
abolished slavery, which nullified the Three-Fifths Clause.

SuperStock/SuperStock

The Connecticut Plan offered a compromise
between slave and free states by counting each slave
as three fifths of a person.

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Section 2.3 The Constitutional Convention

What the Framers Attempted to Achieve

Consider that the Framers wanted a government that would be durable. There was a high
probability that the Constitution, being an experiment in liberty, would fail. Durability, they
believed, would be achieved through the republican principle of separation of powers. By
dividing power among three branches of government, checks and balances could be insti-
tuted so that no one branch would have enough power to govern without the cooperation
of the others. And, no one branch would have sufficient power to violate individual liberties.
Ultimately, the Framers sought to create a constitutional system that would govern through
consensus. The U.S. Constitution’s survival for more than 200 years demonstrates that the
Framers’ work was nothing short of remarkable.

Figure 2.3: Slave populations

Because slaves made up a substantial portion of the population in many slave-holding states, delegates
from those states pushed to count those individuals toward their total population. Members from non-
slave-holding states objected on the grounds that it would result in disproportionate representation and
possibly encourage the continuation of slavery. In the end, both sides agreed to the Three-Fifths Clause as
part of the Great Compromise.

Joeryancivilwar.com

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Section 2.3 The Constitutional Convention

The U.S. Constitution requires that laws be enacted with the approval of both legislative
chambers. The check of a bicameral legislature makes consensus difficult because each
chamber represents different constituencies. A senator takes a statewide approach, while a
House member represents 30,000 persons in a single district. Achieving consensus through
separation of powers ideally results in a government achieving some republican virtue. Coop-
eration is further achieved through the shared functions of appointments and treaty mak-
ing. The executive initiates both actions, although both require Senate approval. Because of
the requirement for elected senators to approve these actions, the president’s opportunities
to impose his or her will and abuse his or her power through these processes are limited.
Rejected treaties (e.g., the Treaty of Versailles, which formed the League of Nations in 1920)
or nominations (e.g., U.S. Supreme Court Associate Justice nominee Robert Bork in 1987) can-
not be vetoed or overturned.

The Constitution retains strict separation between the branches by prohibiting dual office
holding. One may not hold an executive branch position while still holding a seat in Congress
or on the U.S. Supreme Court. Members of Congress who are appointed by the president to
serve in the Cabinet or on the Supreme Court must resign their legislative positions.

Continuity and Change With the British Constitution

The Framers sought to create
a constitutional system similar
to the constitutional monarchy
from which they had separated.
They wanted something that
would reflect the mixed consti-
tution they knew while devel-
oping the separation of powers
to accomplish this objective.
The institutions they created
were not radically different
from their British counterparts.
The U.S. House of Represen-
tatives resembled the British
House of Commons, while the
U.S. Senate reflected the elite
notion of the British House of
Lords. The U.S. executive par-
alleled the British monarchy,
although the U.S. executive
would not hold a hereditary
title. What the Framers accom-
plished, then, was a cleansing of
British institutions built on republican foundations while maintaining continuity with what
they saw as the best of British traditions.

Juergen Schonnop/iStock/Thinkstock

The Framers created institutions that were not radically
different from those of the British Parliament. The U.S.
House of Representatives was modeled on the British
House of Commons, while the Senate was similar in some
ways to the House of Lords.

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Section 2.4 The Three Branches of Government

2.4 The Three Branches of Government

The U.S. Constitution is structured around the fundamental principle of separation of powers,
the idea that one way to prevent abuse of power, or tyranny, is to separate government pow-
ers. The lawmaking process is the greatest of government powers. Consequently, Article I, the
legislative branch, is introduced first, followed by the executive branch outlined in Article II.
It is the responsibility of the executive branch to enforce the laws enacted by the legislative
branch. The judiciary branch, outlined in Article III, is responsible for resolving legal disputes
and adjudicating the laws. Table 2.1 provides a brief listing of some of the branches’ different
functions, or powers.

Table 2.1: Branch powers

Legislative Executive Judicial

• Coin money
• Levy taxes
• Raise armies
• Regulate interstate commerce
• Declare war
• Confirm presidential

appointments
• Ratify treaties
• Impeach and remove presi-

dents and judges
• Do what is “necessary and

proper”

• Act as commander in chief of
the military forces

• Execute laws
• Negotiate treaties
• Appoint judges
• Appoint ambassadors
• Issue pardons
• Veto legislation
• Conduct foreign policy
• Do what is “necessary and

proper”

• Review laws made by the
legislative branch

• Engage in constitutional
review

• Settle disputes between states
and national government

The Legislative

Congress, the legislative branch, is considered the first branch of government. Article I estab-
lishes that the Congress will be composed of two chambers: a House of Representatives and
a Senate.

Article I, Section 8 deals with the expressed powers of Congress. Among other powers, the
U.S. Constitution gives Congress the authority to

• impose and collect duties and other taxes necessary to pay national debt and pro-
vide for the common defense;

• borrow money on U.S. credit;
• regulate commerce with foreign nations and among the states of the union;
• establish uniform rules of naturalization and bankruptcy;
• coin money and determine its value;
• establish post offices and post roads;
• promote the progress of science and useful arts by issuing patents;

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Section 2.4 The Three Branches of Government

• create courts and tiers of courts below the Supreme Court;
• declare war, raise and support armies, and provide and maintain a navy;
• establish rules for government and regulations of land and naval forces;
• call forth the militia to execute laws of the union and suppress insurrections and

defend against foreign invasions;
• organize, arm, and discipline the militia;
• exercise exclusive legislation in all cases whatsoever over the district that is to

become the national seat of government (Washington, D.C.); and
• “make all Laws which shall be necessary and proper for carrying into Execution the

foregoing Powers, and all other Powers vested by this Constitution in the Government
of the United States, or in any Department or Officer thereof.”

This last power forms the basis for expansive congressional authority, known as the implied
power. The implied power means that, lacking expressed power, Congress may take action if
it is “necessary and proper” for fulfilling its expressed powers and obligations. One example
is a national bank. While Article I does not empower Congress to create a national bank, Con-
gress has inferred that right on the grounds that doing so would be necessary for Congress to
fulfill its expressed power of coining money.

The Executive

The executive branch is considered the second branch of government. Article II of the Consti-
tution establishes that executive power shall be vested in the president of the United States,
whose term of office will be 4 years. It then establishes the procedures for presidential selec-
tion through the Electoral College.

When the president enters office,
he or she is required to take the fol-
lowing oath: “I do solemnly swear (or
affirm) that I will faithfully execute
the Office of President of the United
States, and will to the best of my Abil-
ity, preserve, protect, and defend the
Constitution of the United States.”
Article II, Section 2 establishes the
president as the commander in chief
of the armed forces. As commander
in chief, the president is said to have
the power of the sword, which has
also come to reflect the president’s
power and authority to enforce
national laws. The president’s com-
mander in chief power has histori-
cally been the basis for presidential
prerogative, which will be discussed

Scott Andrews-Pool/Getty Images

Supreme Court Chief Justice John Roberts adminis-
ters the presidential oath of office to Barack Obama
on January 20, 2013. The president’s principal pow-
ers are to serve as commander in chief of the armed
forces, enforce the laws passed by Congress, and pro-
tect and defend the Constitution.

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Section 2.4 The Three Branches of Government

further in Chapter 5. For example, during the Civil War (1861–1865), President Abraham Lin-
coln did not have the stated authority to use military force against states that sought to leave
the union. He justified his action by arguing that preserving and protecting the Constitution
would be meaningless if there were no union.

Article II also gives the president the authority to make treaties with foreign governments
subject to the advice and consent of the Senate (ratification) and to make Cabinet appoint-
ments and ambassador and judicial appointments, all of which require Senate confirmation.
The president is also required to give Congress information on the state of the union “from
time to time.” By tradition, this has been an annual report. (Since 1913, with President Wood-
row Wilson, the state of the union has been delivered in a speech before a joint session of
Congress. Prior to that, presidents would typically send a written report and a clerk would
read it before the Congress.)

Article I, Section 7 gives the president the power to veto bills passed by Congress. Hamilton
viewed the presidential veto as a protection against legislative overreach, such as when Con-
gress abused its power in the legislative process. The first presidents rarely used the veto.
George Washington vetoed two bills, while James Madison used the power five times. More
recently, President George W. Bush (2001–2009) vetoed 12 bills, while President Bill Clinton
(1993–2001) used it 37 times. Congress can override a presidential veto with a two-thirds
vote in both chambers.

One key feature of the separation of powers is the procedural due process level of cooperation
needed to remove an executive from office. Unlike a parliamentary system, such as in contem-
porary England, where the head of the government can be removed through a no-confidence
vote, the only mechanism for removing the president is conviction following impeachment,
or an accusation of wrongdoing. The president may be removed for “Treason, Bribery, or other
high Crimes and Misdemeanors.” The U.S. House of Representatives has the power of impeach-
ment, while the U.S. Senate holds trials that may lead to conviction.

Removing a president requires a coordinated effort between the House and the Senate. The
House of Representatives first votes on articles of impeachment. If passed, the president is
tried by the U.S. Senate with the U.S. Supreme Court chief justice presiding. Conviction requires
a two-thirds vote in the Senate. If convicted, the president is removed from office, and the vice
president is sworn in. The bar for impeachment is so high that it is rarely implemented. Only
two presidents (Andrew Johnson in 1868 and Bill Clinton in 1998) have been impeached, and
both were acquitted by the Senate. Still, members of Congress may threaten the president
with initiating impeachment proceedings in hopes that the president’s behavior will change.

The Constitution also provides for electing the vice president. Electing the president and vice
president together on the same ticket did not originate with the Constitution, which was writ-
ten to give the presidency to the person with the most electoral votes and the vice presidency
to the person coming in second. In 1804, the Constitution was amended so that the president
and vice president would be chosen together on a single ticket.

The Judiciary

Article III outlines the national court system and establishes that the judicial power be vested
in one Supreme Court and other lower courts as determined by Congress. Supreme Court

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Section 2.4 The Three Branches of Government

authority extends to all cases in law arising under the Constitution, the laws of the United
States, and treaties. Cases involving disputes between the national and state governments, or
between the national government and foreign governments, are heard by the Supreme Court.
The president appoints Supreme Court justices for life “with good behavior.” Senate confirma-
tion requires a majority vote. This is simply another example of the Framers’ system of checks
and balances (see Figure 2.4 for an illustration of how the three branches check and balance
one another).

The Constitution says little else about the judiciary or its authority, in part because the Fram-
ers thought that this branch would be little used. We commonly associate the Court’s power
of judicial review with the Constitution. However, the Supreme Court gave itself the power of
judicial review in 1803, after the Constitution took effect. While the Framers expected the
judiciary branch would be the weakest of the three branches, we now look at the national
court system as being extremely powerful.

Figure 2.4: The three branches of government

Forming three separate branches of government, the executive, the legislative, and the judicial, ensures
that the rights and liberties of the people are protected, and no one branch has too much power. The
legislative branch (which includes the Senate and House of Representatives) creates the laws; the
executive branch (which includes the president, vice president, and Cabinet) carries out the laws; and
the judicial branch (which includes the Supreme Court and other federal courts) evaluates the laws. Each
government branch checks another, thus establishing a strong and fair national government.

Used with permission from David Miller.

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Section 2.5 Ratifying the Constitution

The Basis for National Power

The Constitution establishes national power through both the Supremacy Clause in Article VI
and the Commerce Clause in Article I. The Supremacy Clause states that laws passed by Con-
gress and signed by the president are the supreme laws of the land. The Commerce Clause
allows Congress to regulate the movement of goods across state lines, seeking to solve one of
the problems experienced under the Articles of Confederation. Both of these clauses will be
discussed in more detail in Chapter 3.

The American Constitution as a Living Document

Article V of the Constitution provides a constitutional amendment process, although the pro-
cess is not easy, because it requires supermajorities to succeed. The Constitution provides
for amendments to be proposed by a two-thirds vote in each house of Congress or at a con-
vention called by two thirds of the states. Amendments may be ratified by three fourths of
the state legislatures or three-fourths ratifying conventions in the states. The Congress-state
legislature combination has been used for 26 of the 27 ratified amendments.

The Framers also designed the Constitution to maintain a degree of continuity. Unlike many
state constitutions, which are long and detailed, the U.S. Constitution is short and ambiguous.
This allows for its interpretation and reinterpretation. The Constitution is as relevant today
as it was when it was written more than 200 years ago, despite the vast differences between
then and now.

2.5 Ratifying the Constitution

There was considerable debate over how the Constitution should be ratified. Some believed
that it should be ratified through the unanimous approval of the states (after all, it would
amend, quite significantly, the Articles of Confederation, which required unanimous approval).
Others argued that each state should hold its own convention to approve it. The latter argu-
ment prevailed. The next question considered how many states would be needed to approve
it. Requiring that all 13 states approve the Constitution might make ratification impossible, as
one state could withhold its approval to undermine the entire process (that Rhode Island did
not send a representative to the Constitutional Convention should be noted; it feared losing
power if the Articles of Confederation changed). Roger Sherman of Connecticut argued that at
least 10 states ratifying was needed to be legitimate. Madison proposed a complicated formula
where ratification would occur with any seven states entitled to at least 33 members of the
House of Representatives. This approach favored large states. The delegates agreed to nine
states (roughly two thirds). By deciding on nine states and using specially elected conventions,
the delegates made ratification easier, though some argued that requiring the support of only
nine states violated the spirit of the resolution that authorized the Convention in the first place.

Federalists Versus Anti-Federalists

One critical debate surrounding the ratification of the new constitution occurred between
Federalists and Anti-Federalists over the issue of the national Bill of Rights. Federalists

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Section 2.5 Ratifying the Constitution

argued that a national bill of rights was unnecessary because many states already had bills of
rights in their own constitutions. Protecting individual rights would occur at the state level.
The federal government, they argued, would be concerned only with relations between the
states and the national authority.

The Federalists maintained that a
national bill of rights would threaten
individual liberties because the Con-
stitution created a blueprint for lim-
ited government. To include a sepa-
rate bill of rights implied that the
national government had powers
and authority that were not speci-
fied in the Constitution. If the Con-
stitution had to spell out what the
national government could not do,
the implication was that anything
not covered would then be allowed.
The Anti-Federalists countered that,
because many states already had
bills of rights, it was that much more
important to have a national bill of
rights in order to protect the states.
Including a bill of rights would make
it clear what the national govern-
ment could not do.

Consider freedom of speech. To pro-
hibit the government from infring-

ing on free speech does not imply that the government could infringe on free speech in the
absence of an express prohibition, Anti-Federalists argued. Rather, the authority to prohibit
speech could be assumed based on the Constitution’s silence on questions of free speech.
Put differently, the national government would assume that it had specific powers unless the
Constitution clearly prohibited them. In the minds of the Anti-Federalists, the absence of a
bill of rights would enable the national government to violate individual rights as well as
states’ rights. Moreover, the Anti-Federalists stated that they would oppose ratification unless
there was a bill of rights. Ultimately, James Madison promised to seek ratification of the Bill of
Rights 2 years after the Constitution was ratified.

The Bill of Rights

The Bill of Rights consists of 10 amendments (see Figure 2.5) that establish rights of expres-
sion (speech, press, peaceable assembly, petitioning the government, and religious exercise
and that Congress will not establish a national religion), the rights of those accused of crimes
(including, but not limited to, the right to jury trials and counsel in criminal cases, due pro-
cess, and protection from unreasonable search and seizure, self-incrimination, and cruel and
unusual punishment), the right to bear arms, and states’ rights. When ratified in 1791, the Bill
of Rights applied only to the national government (note that the first word of the Bill of Rights
is “Congress,” the national legislature), although U.S. Supreme Court decisions since then

Superstock/Superstock

The original Bill of Rights. Federalists argued that a
bill of rights was unnecessary, while Anti-Federalists
argued against ratification without one.

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Section 2.5 Ratifying the Constitution

have applied provisions of the Bill of
Rights to the states on a case-by-case
basis, beginning in 1925 with Gitlow
v. New York.

Or consider the Second Amendment,
which states, “A well-regulated Mili-
tia, being necessary to the security of
a free State, the right of the people
to keep and bear Arms, shall not be
infringed.” The Anti-Federalists con-
sidered these rights to be crucial to
the integrity of state sovereignty
because they meant that the national
government could not interfere with
the right of the people to bear arms
individually and as members of their
state’s militia.

The purpose of the Bill of Rights, then,
was to protect state sovereignty. By
prohibiting the national government
from only certain actions, the states
were free to do what they wanted
unless they were forbidden to do so
by the Constitution or the Supremacy
Clause. The 10th Amendment, known
as the states’ rights amendment, says,
“The powers not delegated to the United
States by the Constitution, nor prohib-
ited by it to the States, are reserved
to the States respectively, or to the
people.” In essence, the 10th Amend-
ment allows the states to do what they
want unless they are forbidden by the
national government to do so.

Interpretation of the Bill of Rights by
the U.S. Supreme Court began to change
dramatically following ratification of
the 14th Amendment in 1868. The
Supreme Court has since established
that no state may deny citizens their
privileges and immunities and equal
protection of the law. Since ratification
of the 14th Amendment, the Supreme
Court applies the Bill of Rights to the
states on a case-by-case basis (called
“selective interpretation”).

Superstock/Superstock

The Second Amendment gives the right for state
residents to bear arms. In effect, it means that the
national government cannot disarm the states, and it
cuts to the core of the issues of state sovereignty.

Figure 2.5: Summary of the Bill
of Rights

The first 10 amendments to the U.S. Constitution are
collectively known as the Bill of Rights.

Adapted from U.S. Const. amend. I–X.

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Summary and Resources

The Federalist Papers

The debates over what to include in the Constitution and how to ratify it inspired a set of essays
known as The Federalist Papers. These essays were penned by John Jay (1745–1829), Alexan-
der Hamilton, and James Madison, who were concerned about New York’s reluctance to ratify
the Constitution. The Federalist Papers were published anonymously as a series of editorials in
New York newspapers. (They used the pseudonym “Publius,” which is derived from the Latin
“publicus,” meaning “of the people.”) The authors’ objective was to persuade the people of New
York that the proposed constitu-
tion was in their best interest. If the
people were persuaded, they in turn
would petition their state conven-
tions to support ratification. These
85 editorials were collected and
came to be known as The Federalist
Papers, or simply The Federalist.

The Federalist Papers were not
typical opinion pieces; they were
lengthy and thoughtful essays
focusing on various aspects of the
proposed constitution, such as the
problems of the Articles of Con-
federation, the structure of each
branch of government, and the
characteristics of the new gov-
ernment and the proposed Bill
of Rights. It was clear that, being
published in newspapers, The Fed-
eralist Papers were intended for
an educated, literate audience. As
better educated, more affluent per-
sons were also those with political
rights, it was expected that readers
would pressure their state govern-
ment to support ratification.

Summary and Resources

Chapter Summary
The Framers came to Philadelphia in 1787 to form a more perfect union, provide for the com-
mon defense, and promote the general welfare. They convened the Constitutional Convention
because the Articles of Confederation proved to be unworkable. Under the Articles, there was
no national unity; rather, the confederation was a loose collection of sovereign states. The cen-
tral government had no real authority and had no power to respond to a crisis. Because the
issue of a new constitution was controversial, the convention had to be held in secret. Once it
was under way, several proposals were put forth, but the one that was ultimately adopted was
the Connecticut Plan. It established separation of powers on the basis of republican principles.

The National Gallery of Art

John Jay, along with Alexander Hamilton and James
Madison, anonymously published a series of editori-
als in New York papers in an effort to persuade New
Yorkers that it was in their best interest to ratify the
Constitution. The articles were later published as The
Federalist Papers.

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Summary and Resources

Although there is separation of powers among the legislative, executive, and judicial branches
of government, as put forth in Articles I, II, and III, there are also considerable shared func-
tions. Still, there was concern over the issue of state sovereignty, which was expressed in the
debate between the Federalists and Anti-Federalists over the inclusion of a bill of rights. As
ultimately adopted, the Bill of Rights was designed to preserve state sovereignty and states’
rights and limit national authority.

Meanwhile, to calm the fears of some, three Framers argued for ratification through The Fed-
eralist Papers. James Madison argued in Federalist No. 10 that the federal system would dilute
the power of factions. The Federalist Papers argued the case for ratifying and supporting the
proposed Constitution. See Timeline: Path to the Constitution for major milestones in the cre-
ation of the U.S. Constitution.

Key Ideas to Remember

• The U.S. Constitution is modeled on earlier forms of governments that existed in the
colonies prior to the American Revolution.

• The Framers of the Constitution considered themselves to be good English subjects
but found it necessary to separate from the British Crown because it imposed its
authority on, and restricted the liberties of, the colonies.

• The first American constitution was the Articles of Confederation, but its lack of
centralized power and authority proved to be a major weakness.

• While some delegates to the Constitutional Convention sought to create a wholly
new government from what existed under the Articles of Confederation, others
sought to maintain states’ rights. The various proposals before the convention repre-
sented these divisions.

• The plan that was adopted was the Connecticut Plan. It was also known as the Great
Compromise because it allowed for proportional representation in the House of
Representatives, which is what the large states wanted, and two senators from each
state, which is what small states wanted.

• The U.S. Constitution is built on the central idea that if power is divided among three
branches of government, and each branch has separate functions, no one branch will
have sufficient power to encroach upon the rights and liberties of individuals.

• The debate between the Federalists and the Anti-Federalists over the inclusion of a
national bill of rights was an extension of the debate between advocates of central
authority and advocates of states’ rights.

• When the Bill of Rights was ratified, it applied only to the national government and
not the states, which meant that state sovereignty would be protected.

Questions to Consider

1. What is the significance of separation of powers?
2. What is unique about the U.S. Constitution?
3. What are the pros and cons of the New Jersey and the Virginia Plans?
4. In what ways is the U.S. Constitution grounded in historical tradition?
5. As an individual, what rights does the Constitution give you if you are a U.S. citizen?
6. Given the nature of checks and balances, was the government shutdown of 2013

unavoidable?

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Summary and Resources

Timeline: Path to the Constitution

Photo credits (top to bottom): radlovskyaroslav/iStock/Thinkstock, Brand X Pictures/Stockbyte/Thinkstock,
peterspiro/iStock/Thinkstock, Photodisc/Photodisc/Thinkstock, amanaimagesRF/Thinkstock.

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Summary and Resources

Key Terms

Annapolis Convention A gathering that
preceded the Constitutional Convention,
where delegates began to discuss ways to
improve the Articles of Confederation.

Anti-Federalists Those who opposed the
ratification of the U.S. Constitution, in part
because it did not include a bill of rights.

appropriating The act of the legisla-
ture designating money for a specific
purpose, such as on a social program or
infrastructure.

Articles of Confederation The first U.S.
constitution; a document that loosely bound
13 independent sovereign states together.

Bill of Rights The first 10 amendments to
the Constitution.

central government A government in
which authority and power are concentrated
in a single entity.

Connecticut Plan A compromise between
the large and small states over how the leg-
islative branch would be apportioned; also
known as the Great Compromise.

Constitutional Convention The meeting in
Philadelphia where delegates met in secret
to write a new constitution.

Continental Congress Legislature repre-
senting the U.S. colonies.

Electoral College Persons selected at the
state level who select the president.

expressed powers The duties of Congress
as stipulated in Article I, Section 8 of the
Constitution; among them are the ability to
collect taxes, borrow money, regulate com-
merce, coin money, establish post offices and
post roads, and declare war.

federal The division of power and author-
ity between units of government, such as the
states and the national government.

Federalists Those who supported the ratifi-
cation of the U.S. Constitution even though it
did not include a bill of rights.

Great Compromise See Connecticut Plan.

gridlock In U.S. politics, a situation of
extensive disagreement within one house of
Congress, between Congress and the presi-
dent, or between both houses of Congress
that makes it difficult to pass laws.

impeachment An accusation of wrongdo-
ing against the president or other public offi-
cial that triggers a trial; conviction results in
automatic removal from office.

implied power Power given to Congress
that is “necessary and proper” for carrying
out its powers listed in Article I, Section 8.

interstate commerce Conducting business
and moving goods across state lines.

Mayflower Compact An agreement among
the Pilgrims on board the Mayflower to have
self-government in the settlement once
they reached the colonies; one of the earlier
bases for the U.S. Constitution.

New Jersey Plan A proposal for a federal
government with carefully listed powers,
arising from the New Jersey delegation at
the Constitutional Convention.

Virginia Plan A proposal for a supreme
national government made by the Virginia
delegates to the Constitutional Convention.

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Summary and Resources

Further Reading
Bailyn, B. (1970). The origins of American politics. New York, NY: Vintage Books.

Barker, E. (Ed.). (1946). The politics of Aristotle. Oxford, UK and New York, NY: Oxford University Press.

Beard, C. A. (1913). An economic interpretation of the Constitution of the United States. New York, NY: Macmillan.

Beeman, R. (2009). Plain honest men: The making of the American Constitution. New York, NY: Random House.

Farrand, M. (1911). The records of the Federal Convention of 1787 (Vols. 1–4). New Haven, CT: Yale University
Press.

Fisher, L. (1997). Constitutional conflicts between Congress and the president (4th ed.). Lawrence, KS: University
Press of Kansas.

Hamilton, A., Madison, J., & Jay, J. (1982). The Federalist papers. New York, NY: Bantam Classic Edition. (Original
work published 1787–1788)

Nedelsky, J. (1990). Private property and the limits of American constitutionalism: The Madisonian framework and
its legacy. Chicago, IL and London, UK: University of Chicago Press.

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5 The Presidency

Associated Press/Kyodo

Learning Objectives

By the end of this chapter, you should be able to

• Describe the sources of the president’s power and authority.
• Explain the presidential elections process.
• Analyze the difference between a domestic and a foreign policy president.
• Describe how presidents use their political power.
• Describe the organization of the White House.
• Evaluate the concept of a wartime president.
• Analyze how Congress limits presidential power.
• Analyze the role of presidential character in evaluating presidents and presidential candidates.

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In March 2011, an alliance of NATO countries, including the United States, launched air strikes
against Libya in a humanitarian mission to assist rebels fighting against Libyan strongman
Moammar Gadhafi. NATO, or the North Atlantic Treaty Organization, is an alliance of
28 countries that agreed to protect each other in case of attack. In justifying U.S. involvement
in Libya, President Barack Obama insisted that the United States was part of a broad coalition.
As military operations reached the 3-month point, questions arose about the legality of Amer-
ican involvement.

The Constitution states that Con-
gress has the authority to declare
war, while it also obligates the
president to serve as commander
in chief of the armed forces. This
obligation has led many presidents
to engage in military acts without
congressional authorization or a
formal declaration of war. President
Obama claimed that his actions
were in accordance with the War
Powers Resolution of 1973, which
requires that the president notify
Congress of the use of force.

Below is an excerpt from the War
Powers Resolution. From Section 2:

The constitutional powers
of the President as Com-
mander-in-Chief to intro-
duce United States Armed
Forces into hostilities, or into situations where imminent involvement in
hostilities is clearly indicated by the circumstances, are exercised only pursu-
ant to (1) a declaration of war, (2) specific statutory authorization, or (3) a
national emergency created by attack upon the United States, its territories or
possessions, or its armed forces.

From Section 3:

The President in every possible instance shall consult with Congress before
introducing United States Armed Forces into hostilities or into situations
where imminent involvement in hostilities is clearly indicated by the circum-
stances, and after every such introduction shall consult regularly with the
Congress until United States Armed Forces are no longer engaged in hostili-
ties or have been removed from such situations.

According to the War Powers Resolution, a president who dispatches military units for any
reason must notify Congress within 48 hours of doing so. Congress then has 90 days to either
authorize the operation or demand that the units come home. In the case of Libya, President
Obama formally notified Congress of the U.S. military’s participation. However, the speaker
of the House, Republican John Boehner, demanded that the president explain the mission

© Pete Marovich/ZUMA Press/Corbis

Previous members of President Obama’s administra-
tion, Defense Secretary Robert Gates and Chairman of
the Joint Chiefs of Staff Admiral Mike Mullen, testified
before the House Armed Services Committee on Ameri-
can military operations in Libya on March 31, 2011.
Some congressional members contend that U.S. involve-
ment in this operation violates the War Powers Act.

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Section 5.1 Presidential Constitutional Authority

to Congress and obtain its authorization to continue. The president insisted that he had no
obligation to seek authorization before launching the air strikes because these actions were
“hostilities” and not acts of war. This response angered many in Congress.

As the War Powers Resolution placed the ball in Congress’s court, the House of Representa-
tives voted down a bill that would authorize the president to continue American involvement.
The president asserted that the War Powers Resolution was unconstitutional because it inter-
fered with his commander-in-chief power. This episode raises questions about how much
authority the president has to make decisions in the commander-in-chief role as framed by
the Constitution.

In this chapter, we look at the American presidency and how it has evolved over time. The
Constitution grants the president formal authority that is limited by Congress. The extent to
which the president has any real power stems from the relationships that he or she estab-
lishes and cultivates. The Framers did not fully address the issue of presidential war power
because they were uncertain of what the president would do and they did not foresee all the
contingencies that might arise that would require the president to exercise war power.

5.1 Presidential Constitutional Authority

The Framers of the Constitution created a presidency that would take direction from Con-
gress. The president is given several formal constitutional powers, most of which are checked
by Congress. Presidential power is intended to be used to preserve and protect the Constitu-
tion through the president’s expressed and inherent powers. Expressed powers refers to pow-
ers listed explicitly in the U.S. Constitution. Inherent powers refers to powers that have been
inferred from language in the U.S. Constitution. Together, expressed and inherent powers in
the Constitution establish the office of the presidency and give its occupant the authority to
preserve and protect the Constitution.

Article II of the Constitution establishes executive power and who may hold it: “The executive
Power shall be vested in a President of the United States of America.” Article II also establishes
the president’s formal authority, which includes being commander in chief of the U.S. armed
forces and chief executive. The president also has the authority to negotiate treaties, nomi-
nate persons for high-level appointed office, veto acts of Congress, and grant reprieves and
pardons. The language of the Constitution gives the president the power to make treaties as
long as two thirds of the Senate concurs. This example of checks and balances is referred to as
“advice and consent” in the U.S. Constitution. The Senate also has the power to confirm presi-
dential nominations to high-level office. The veto power, which is the power of the president
to reject bills passed by Congress, is found in Article I.

Authority as Commander in Chief

Article II, Section 2 of the Constitution states, “The President shall be Commander in Chief of
the Army and Navy of the United States, and of the Militia of the several States, when called into
the actual Service of the United States.” This means that the president must authorize any use

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Section 5.1 Presidential Constitutional Authority

of force by the military. It does not mean that he or she will personally lead troops into battle
like a medieval European king. The requirement that presidents authorize the use of force
establishes the sacred principle of civilian control of the armed forces. If the military estab-
lishment were equal in power to other institutions, it could easily overthrow the civilian gov-
ernment and thus upend one of the hallmarks of modern democratic governance, the peace-
ful transfer of power.

Civilian control, at least in the early
days of the American republic, was
ensured by the absence of large
standing armies. In fact, the Consti-
tution mentions an army and navy
only because these were the only
two branches of the military that
existed when it was written. They
were separate departments, and
each was equal to the other. The
secretary of war and the secretary
of navy both sat in the president’s
Cabinet.

Today’s Cabinet includes a single
secretary of defense, but that posi-
tion was not created until after
World War II, with the passage of
the 1947 National Defense Act,

the law that created a unified Defense Department. Until that global conflict, the United States
called state militia—what are known today as National Guard units—into national service.
Much of the American fighting forces are still made up of National Guard units. They were
called up in 2001 when the nation went into Afghanistan, and again in 2003 when it went
into Iraq. Militia members of these units are normally under the command of their respective
governors, but once called, they are under the command of the president.

Use of the state militias for national service was formally adopted with the Militia Act of 1792,
which gave the president the authority, in the event or threat of an invasion, to call into ser-
vice as many troops from state militia as would be needed to repel the invasion. The president
would be able to call upon those militia companies that would be “most convenient to the
place of danger or scene of action.” This meant that if the country were invaded off the shore
of Maine, the president could call on militia companies in Maine, Vermont, New Hampshire,
and Massachusetts. Because they would be close to the place of invasion, they could respond
quickly. This would also give the states a role in defending the nation. Instead of having to
build national bases in all the states to house a standing army, the army would be formed as
needed. Less than a week after the Militia Act was passed, Congress passed a second Militia
Act of 1792, which required each able-bodied white male citizen between the ages of 18 and
45 to enroll in the militia of his respective state.

The organization of the country’s military forces fundamentally changed in the 20th century.
In 1903, Congress passed legislation to organize the various state militias into the current
National Guard system, which was to be administered jointly by the National Guard Bureau

Associated Press/Pablo Martinez Monsivais

President Obama speaks to U.S. troops in Afghanistan.
Article II, Section 2 of the Constitution specifically
establishes that the president is the commander in
chief of the armed forces.

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Section 5.1 Presidential Constitutional Authority

and the U.S. Department of Defense. With passage of the 1916 National Defense Act, approxi-
mately one half of the U.S. Army’s available combat forces and approximately one third of its
support organizations were National Guard units.

To call the militia into service during a time of crisis is to rely on civilian defense and to
democratize the sense of sacrifice, a concept that still resonates today. As an example, when
the United States went to war with Iraq in 1991, it amassed around 500,000 troops on Iraq’s
border. Most of these troops were taken from state National Guard units. The United States
certainly could have used its professional national army, but by calling on state units, the
president gave all citizens a stake in the outcome.

Authority to Pardon

Article II, Section 2 also grants the president the authority to issue pardons. The president
“shall have Power to grant Reprieves and Pardons for Offenses against the United States, except
in cases of Impeachment.” This would seem to suggest that the president can pardon anyone
who has committed a federal crime.

Presidents may pardon convicted criminals who have already served part of their prison sen-
tence. The president might issue a partial pardon, which often amounts to a commutation
of a sentence, or pardon somebody who has long been a fugitive from justice. President Bill
Clinton, for example, pardoned Marc Rich, a financier charged with evading $48 million in
taxes and committing more than 50 counts of fraud. Rich had fled the country and was living
in Switzerland at the time of his indictment.

As another example, in 1974 President Gerald Ford issued a full pardon to Richard Nixon for
Nixon’s role in the Watergate cover-up, which meant that the former president could never be
charged for crimes related to Watergate. The Nixon pardon was viewed as an attempt to heal
a badly divided nation and move forward.

A president does not usually decide on pardons by him- or herself. Most of the time, he or
she does not know the person being pardoned. Rather, somebody may apply for a pardon, in
which case White House lawyers and the Justice Department study the matter and make a
recommendation.

Veto Authority

As a check on the power of the legislative branch, the Constitution gives the president the
authority to veto bills passed by Congress. One potential consequence of vetoes is that they
might invite Congress to respond, if Congress has the votes, by overriding the veto. An over-
ride is often seen as a political defeat for a president. Overrides are rare; only 7% of all vetoes
have been overridden since the beginning of the republic.

When the president vetoes a bill, the president must veto the entire bill and not parts of it; the
U.S. Constitution does not provide for what is called a line-item veto. Congress gave Presi-
dent Bill Clinton the line-item veto with the Line Item Veto Act of 1996. The law was soon
overturned by the Supreme Court in Clinton v. City of New York (1998). The Supreme Court

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Section 5.2 Presidential Elections

struck down the law because the act violates the Presentment Clause (Article I, Section 7),
which requires that bills passed by both houses of Congress be presented to the president
for his or her signature. In essence, the Presentment Clause outlines the legislative process,
which the Supreme Court argued was violated by giving the president the line-item veto.

Treaty Making and Effective War-Making Authority

Section 2 also says that the president “shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators present concur.” This means
that the president can make treaties with other countries, but they are not binding on future
governments unless they are ratified by the U.S. Senate. A president may negotiate a treaty to
end a war, but the Senate may opt not to ratify it.

In the aftermath of World War I
(1914–1918), President Woodrow
Wilson sought to make the United
States a signatory to the Versailles
Treaty, which was the agreement
that effectively ended the war. Part
of the treaty was a call for the for-
mation of a new League of Nations,
an intergovernmental organiza-
tion that would foster peace and
international disarmament. Wilson
wanted the United States to join
this league, but some members of
Congress believed that it could lead
to U.S. involvement in conflicts that
did not concern the country. When
Wilson refused to compromise on
any parts of the treaty, the Senate
failed to ratify it, and Wilson never
recovered politically. When the
Senate refuses to ratify a treaty, it
puts the president and the nation
in a vulnerable position because it can be construed as a sign of weakness. Another country,
sensing that weakness, may view it as an opportunity to wage war against the United States.

5.2 Presidential Elections

In addition to stipulating presidential powers, Article II also sets forth guidelines for presi-
dential elections. For example, it states that the president “shall hold office during the term
of four years.” Presidential elections take place in two distinct phases. The first phase is the
nomination phase, which normally begins in January of presidential election years. Through a

Associated Press/Andrew Harnik

Members of anti-war group Code Pink show support
for President Obama’s nuclear deal with Iran, which
was negotiated in the summer of 2015. The deal was
controversial because Republican lawmakers felt the
Obama administration had withheld information about
the deal in an attempt to circumvent the Senate’s treaty
authority.

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Section 5.2 Presidential Elections

series of primaries and caucuses run on a state-by-state basis, delegates are chosen to attend
party-nominating conventions. Following the conventions, the party nominees begin cam-
paigning for the general election that is held on the first Tuesday following the first Monday
in November.

Presidential Primaries

Although the nomination season begins in January, those seeking the presidency often begin
their quest as early as 2 years before a national election. Candidates may declare their inten-
tions to run a year in advance of the nomination season. During this time, they travel around
the country and meet voters, state party chairs, and potential donors. Running for office
entails a lot of retail politics, which involves candidates interacting with voters one on one,
such as by taking part in local events.

The season begins in earnest with the Iowa caucuses. During a caucus, individuals gather
for a few hours at a local meeting place and move to a section of the room designated for
their favorite candidate’s supporters. During this process, they can be challenged by another
candidate’s supporters. At the end of the exercise, the number of delegates apportioned to a
candidate is based on the percentage of support each receives.

Iowa does not produce many delegates, but, as the first state in the nomination season, it pro-
vides momentum going into bigger contests as an indicator of party support. The next contest
is the New Hampshire primary. Primaries are like elections in that polling places are open
for at least 12 hours and registered voters come to the polling place and vote as individuals.
There are two types of primaries. Closed primaries require that voters be registered with the
political party of the primary in which they are voting. Closed primaries exclude registered
independents. Open primaries allow registered voters, including registered independents, to
choose the party’s primary in which they would like to vote regardless of their party registra-
tion. As with caucuses, delegates are apportioned based on the percentage of the vote that
each candidate receives.

Candidates who win the Iowa caucuses or the New Hampshire primary are often advantaged
in the early weeks of the nomination season because money follows winners. Candidates
who win either of these contests are able to draw significant contributions and media atten-
tion, which in turn help them to spend money on advertising in bigger contests that produce
more delegates. Those who do not fare well early in the season usually find it difficult to
raise money and will likely drop out. Raising funds is critical because a successful candidate
can spend more than $500 million. Voters living in states holding their primaries late in the
season will likely choose between just two candidates unless all but one candidate has with-
drawn from the race.

Each political party finishes the first part of the presidential election season during the sum-
mer of the election year with its nominating conventions. Each party nominates a president/
vice-president ticket based on the number of delegates received by the presidential candi-
dates. The presidential nominee is the person receiving the most delegates, and the presumed
nominee selects the vice-presidential candidate. The official campaign for president then
begins in September.

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Section 5.2 Presidential Elections

The Electoral College

The president is elected by the Electoral College and not by popular vote. The Electoral Col-
lege is composed of electors from each state. The number of electors each state is allotted is
dictated in Article II:

Each State shall appoint, in such manner as the Legislature may direct, a num-
ber of electors, equal to the whole number of Senators and Representatives to
which the State may be entitled in the Congress; but no Senator or Representa-
tive . . . shall be appointed an elector.

There are a total of 538 electoral votes cast (including three for the District of Columbia), and
a candidate needs a simple majority—270—to win. For most states, the candidate who wins
the popular vote in that state wins that state’s electors. The only exceptions are the states of
Maine and Nebraska, which allocate their electoral votes based on the popular vote in each
state’s congressional district. The candidate who wins the popular vote in the state also earns
two statewide votes.

Each candidate’s party signs up a slate of electors, who are then pledged to vote for that can-
didate. As an example, New York casts 29 electoral votes. In 2012, the two major candidates,
Mitt Romney and Barack Obama, signed up slates of 29 electors each in the state (see Fig-
ure 5.1). Because Obama won the popular vote in New York, his slate voted in the Electoral
College and Romney’s slate did not. The winner-take-all system often results in candidates
earning a far higher percentage of electoral votes compared with the popular vote. For exam-
ple, in 1992, Bill Clinton earned 43% of the popular vote and President George H. W. Bush
earned 38%. (Independent candidate H. Ross Perot earned 19% of the vote but did not win
the popular vote in any state. This means that Perot did not win any Electoral College votes.)
Bill Clinton won the Electoral College vote with 69%; Clinton earned less than half of the
popular vote and more than two thirds of the Electoral College vote.

In choosing where to invest
resources, candidates and their
campaign organizations usually
choose states with close races
(often called battleground states).
They tend not to spend too much
time or money in states where they
are already likely to win or lose
that state’s Electoral College vote.
Because minority groups, whether
racial, ethnic, or religious, tend to
be concentrated in large, electoral
vote-rich states, the electoral sys-
tem provides representation for
these groups that they otherwise
might not enjoy. If they vote as a
group, they can form a voting bloc

Associated Press/Jacquelyn Martin

As president of the Senate, Vice President Joe Biden
presided over the Electoral College vote count that
reelected President Barack Obama in 2012.

Figure 5.1: Electoral College map of 2012 election

The Founding Fathers established the Electoral College as a compromise between election of the
president by Congress and election by popular vote.

From “Electoral College map,” by G. Skidmore, 2012 (https://en.wikipedia.org/wiki/File:ElectoralCollege2012.svg).

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Section 5.2 Presidential Elections

The Electoral College

The president is elected by the Electoral College and not by popular vote. The Electoral Col-
lege is composed of electors from each state. The number of electors each state is allotted is
dictated in Article II:

Each State shall appoint, in such manner as the Legislature may direct, a num-
ber of electors, equal to the whole number of Senators and Representatives to
which the State may be entitled in the Congress; but no Senator or Representa-
tive . . . shall be appointed an elector.

There are a total of 538 electoral votes cast (including three for the District of Columbia), and
a candidate needs a simple majority—270—to win. For most states, the candidate who wins
the popular vote in that state wins that state’s electors. The only exceptions are the states of
Maine and Nebraska, which allocate their electoral votes based on the popular vote in each
state’s congressional district. The candidate who wins the popular vote in the state also earns
two statewide votes.

Each candidate’s party signs up a slate of electors, who are then pledged to vote for that can-
didate. As an example, New York casts 29 electoral votes. In 2012, the two major candidates,
Mitt Romney and Barack Obama, signed up slates of 29 electors each in the state (see Fig-
ure 5.1). Because Obama won the popular vote in New York, his slate voted in the Electoral
College and Romney’s slate did not. The winner-take-all system often results in candidates
earning a far higher percentage of electoral votes compared with the popular vote. For exam-
ple, in 1992, Bill Clinton earned 43% of the popular vote and President George H. W. Bush
earned 38%. (Independent candidate H. Ross Perot earned 19% of the vote but did not win
the popular vote in any state. This means that Perot did not win any Electoral College votes.)
Bill Clinton won the Electoral College vote with 69%; Clinton earned less than half of the
popular vote and more than two thirds of the Electoral College vote.

In choosing where to invest
resources, candidates and their
campaign organizations usually
choose states with close races
(often called battleground states).
They tend not to spend too much
time or money in states where they
are already likely to win or lose
that state’s Electoral College vote.
Because minority groups, whether
racial, ethnic, or religious, tend to
be concentrated in large, electoral
vote-rich states, the electoral sys-
tem provides representation for
these groups that they otherwise
might not enjoy. If they vote as a
group, they can form a voting bloc

Associated Press/Jacquelyn Martin

As president of the Senate, Vice President Joe Biden
presided over the Electoral College vote count that
reelected President Barack Obama in 2012.

Figure 5.1: Electoral College map of 2012 election

The Founding Fathers established the Electoral College as a compromise between election of the
president by Congress and election by popular vote.

From “Electoral College map,” by G. Skidmore, 2012 (https://en.wikipedia.org/wiki/File:ElectoralCollege2012.svg).

that can make or break the state for a candidate, because the winner of the state’s popular
vote (no matter how slim the margin) will win that state’s electoral vote in all but two states.

Still, there are those who maintain that the Electoral College system is not democratic. It
rarely happens that a candidate who wins the popular vote loses the Electoral College, but it
has happened four times, including 1824, 1876, 1888, and 2000. In the presidential election
of 1876, Samuel Tilden, a Democrat from New York, won the popular vote over Republican
Rutherford B. Hayes from Ohio. The Electoral College vote was in question because Florida,
Louisiana, and South Carolina each sent two sets of electoral votes to Congress.

In 2000, Democratic Vice President Al Gore won the popular vote over Republican Texas Gov-
ernor George W. Bush. Gore was leading in the Electoral College on Election Day, although
the outcome in Florida was unknown. Without Florida’s 25 electoral votes, neither candidate
would have the needed 270 electoral votes to win (266 for Gore, 246 for Bush). The number
of total electoral votes cast was 537, and not 538, in 2000 because an elector from the Dis-
trict of Columbia abstained from voting in the Electoral College that year, although Florida’s
electoral votes would put either candidate over the top. After several recounts and an order
from the Florida Supreme Court to have a full recount, the U.S. Supreme Court ordered the
recounting to stop. Bush was declared the winner, and Gore conceded defeat. Many Florida
voters, especially minorities, believed that their votes were not counted because of confusion

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Section 5.3 The Difference Between Domestic and Foreign Policy Presidents

about ballot design, misplaced ballots, and other concerns. This election especially left a sour
aftertaste because it appeared to many that the U.S. Supreme Court decided the outcome of a
presidential election for the first time.

5.3 The Difference Between Domestic and
Foreign Policy Presidents

The president of the United States is the most important political leader in the country. When
the president speaks, the words carry weight and have influence. But the president’s influ-
ence is not even in all policy realms. Political scientist Aaron Wildavsky famously observed
that from a political standpoint, the nation is usually led by two presidents embodied in one
person. One is a domestic policy president, who tends to be weak, and the other is a foreign
policy president, who tends to be strong.

The Domestic Policy President

In the realm of domestic policy, Congress tends to dominate because Americans tend to be
more concerned about issues closer to home than they are about issues abroad. Because most
members of Congress are elected and reelected on the basis of local issues and their ability to
deliver goods back to their districts, Congress is reluctant to defer to the president on those
domestic issues. On the contrary, if a presidential agenda interferes with the interests of a
member’s constituency, that member may choose to vote against the president even if he or
she is of the same political party.

A domestic policy president is also reined in by changes in the composition of Congress. The
president’s party most often experiences losses in midterm congressional elections, which
weakens the presidential mandate. A mandate is the perception that an elected official can do
what he or she thinks the people want because of the popular support due to an electoral vic-
tory. Winning by a wide margin means a stronger mandate. Additionally, Congress members
winning reelection may be anxious about the next election and may less often support the
president’s agenda. In the midterm election of 2014, President Obama’s party lost 13 seats in
the House of Representatives and nine seats in the U.S. Senate. In losing those nine seats in the
Senate, the Democrats lost their majority party status. Midterm elections are best understood
in the context of surge and decline theory. Surge and decline theory argues that midterm con-
gressional elections, which are considered low stimulus because the general public pays less
attention compared with high-stimulus presidential elections, attract core voters. Core voters
tend to vote against the president’s party in midterm congressional elections. Consequently,
the president’s party tends to lose seats in both houses of Congress during midterm elections.
While the end result may be gridlock, it may also be viewed as an assertion of constitutional
checks and balances.

Still, the president is increasingly expected to play more of a role in domestic policy. During an
economic recession, when more people are out of work, the public tends to hold the president
responsible and expect that the president will pursue policies that create jobs. During the
Great Depression, President Franklin D. Roosevelt actively pursued policies to get the nation

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Section 5.3 The Difference Between Domestic and Foreign Policy Presidents

back to work. Following World War II, Congress passed the Employment Act of 1946, which
specified a greater role for the president in economic policy. To that end, the law established
the new office of the Council of Economic Advisors, a group that would monitor the economy
and prepare reports that the president would submit to Congress each year. This meant that
the president and his staff would be involved in planning the budget and, by extension, estab-
lishing the nation’s domestic policy priorities.

The president was to have more of a voice in domestic affairs, as his ability to appoint officials,
even to independent regulatory agencies, meant that he would be able to appoint those who
were sympathetic to his policy priorities. Article II, Section 3 of the Constitution says that the
president “shall take Care that the Laws be faithfully executed, and shall Commission all the
Officers of the United States.” This means that the president is responsible for carrying out
laws and implementing policies and programs that have been passed by Congress. As this
responsibility falls on the president, the president’s role in domestic affairs only grows as
Congress creates more programs, especially when power and authority (also discussed in the
previous chapter) are delegated to the executive branch.

The Constitution gives the presi-
dent limited formal roles in the
legislative process (signing or veto-
ing legislation). However, presiden-
tial influence outside these formal
roles is critical to the legislative
process. For example, the Consti-
tution requires that the president
give Congress information on the
state of the union “from time to
time.” In modern times, the State of
the Union has become a televised
annual address to Congress. In hav-
ing the State of the Union address
televised, the president is using an
informal power, the power of per-
suasion, by encouraging the public
to pressure Congress to go along with the requests being outlined in the State of the Union.

The Foreign Policy President

In the realm of foreign affairs, presidents can often act with fewer congressional constraints
compared with domestic affairs for several reasons. For instance, the president is the face of
the nation when dealing with other countries. When it comes to negotiating treaties, there
can be only one president, not 535. Even though treaties require a two-thirds vote in the Sen-
ate to be ratified, senators tend to defer to the president on treaties because of the need for
the country to speak with one voice. Further, the public does not perceive foreign affairs to
affect their daily lives, so most people tend not to care about foreign affairs as much as they
do domestic issues. A Congress that defers to the president in foreign policy is not perceived
as shirking its representative function in the way that a Congress that defers to the president
in the domestic arena might be.

Associated Press/Charles Harappa

President Obama, with his Council of Economic Advi-
sors, speaks on financial reform in the wake of the eco-
nomic downturn of 2008.

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Section 5.4 Presidential Power

Most of what the Constitution says about the president’s authority pertains to foreign policy,
whereas most of what it says about the authority of Congress pertains to domestic policy,
although both branches enjoy significant powers in both policy areas. With the federal divi-
sion of power and authority between the states and the national government, the Framers
assumed that states would naturally be responsible for domestic policy and the national
government would be responsible for foreign affairs. The Constitution assigns the president,
and not Congress, to be commander in chief of the armed forces. The president also has the
express authority to conduct foreign affairs by appointing and maintaining ambassadors and
counselors abroad, and to negotiate treaties with other countries. Congress can hold hearings
and request reports from the president, but it does not have much foreign policy authority
other than to ratify already negotiated treaties, raise armies, and declare war.

Arguably, declaring war and raising armies go hand in hand with Congress’s primary power of
the purse. A declaration of war would require raising an army to wage that war, which in turn
would require a congressional appropriation, or spending bill. Still, much of the president’s
more expansive powers in foreign affairs are derived from presidential prerogative.

5.4 Presidential Power

The Framers of the U.S. Constitution sought to clarify presidential power to avoid the poten-
tial abuse of power that might be found in a single executive. The Framers’ previous experi-
ence with a single national executive occurred when King George III abused his power over
the colonists. Consequently, the Framers feared the potential for abuse from a single execu-
tive, which motivated them to list the specific powers of the president. Over time, though,
presidents have argued that the U.S. Constitution suggests that the president has more pow-
ers in order to ensure fulfilling the president’s responsibilities.

Presidential Prerogative

Presidential prerogative is an implied power that enables a president to expand his or her
authority in ways not specifically stated in the Constitution. In essence, presidential preroga-
tive is the notion that the president may act outside the power specified in the U.S. Constitu-
tion. Implied powers emerge from various elements found in Article II. For example, though it
states that the president should “take care that the laws be faithfully executed,” it does not
specify how the president should use his or her constitutional power to ensure that the laws
are enforced. Similarly, the Constitution does not outline the powers and expectations associ-
ated with the president’s commander-in-chief role. Presidential prerogative may be inter-
preted in much the same way that one might interpret Congress’s Necessary and Proper
Clause, which allows Congress to take actions ensuring that its enumerated powers are car-
ried out.

Associated Press/Susan Walsh

President George W. Bush speaks in support of the
2001 USA PATRIOT Act, which was enacted as part of
his War on Terror. The act allowed federal law enforce-
ment to arrest those suspected of terrorism and hold
them indefinitely without trial.

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Section 5.4 Presidential Power

Following the terrorist attacks of
September 11, 2001, President
George W. Bush declared a “war
on terror.” (Congress has the sole
power to declare war; in making
this declaration, the president was
seeking public and congressional
support in responding to the ter-
rorist attacks.) President Bush
made it clear that the United States
would go after terrorists around
the world as well as those countries
that harbored terrorists. Bush’s
approach initially led to undeclared
war in Afghanistan because ter-
rorist training camps were located
there, and then the undeclared
war in Iraq due to the assumption
that the Iraqi government was also
supporting terrorism. Bush justified his actions as a legitimate exercise of presidential pre-
rogative because of his obligation to preserve and protect the Constitution. Earlier terrorist
attacks against the United States, including the 1993 attack on the World Trade Center, had
been treated as criminal justice matters. The 2001 attack was of a different magnitude. Nearly
3,000 people died.

Political Power

Presidential prerogative has had the effect of expanding the scope of presidential power over
time. Historian Arthur Schlesinger argued that through the use of presidential prerogative,
particularly during periods of emergency, presidents have taken on imperial characteristics
(Schlesinger, 2004). Even with presidential prerogative, though, the president must be able to
persuade others and wield political power to be truly effective.

Power as Persuasion
More than 50 years ago, political scientist Richard Neustadt, who had served in President John
F. Kennedy’s administration, defined presidential power as the power to persuade (Neustadt,
1991). Likewise, members of Congress are elected separately from the president, and the
president has no control over their decisions. All the president can do is attempt to convince
others that his or her ideas are preferable to the alternatives. A president who can get others
to do what he or she wants through persuasion can be said to truly possess power.

The Importance of Public Support
A president’s ability to persuade will be enhanced if the president is popular with the public
and his or her party holds the majority party in one or both houses of Congress. Popularity
is important because the president can point to it as a reason why critics should not be so

Most of what the Constitution says about the president’s authority pertains to foreign policy,
whereas most of what it says about the authority of Congress pertains to domestic policy,
although both branches enjoy significant powers in both policy areas. With the federal divi-
sion of power and authority between the states and the national government, the Framers
assumed that states would naturally be responsible for domestic policy and the national
government would be responsible for foreign affairs. The Constitution assigns the president,
and not Congress, to be commander in chief of the armed forces. The president also has the
express authority to conduct foreign affairs by appointing and maintaining ambassadors and
counselors abroad, and to negotiate treaties with other countries. Congress can hold hearings
and request reports from the president, but it does not have much foreign policy authority
other than to ratify already negotiated treaties, raise armies, and declare war.

Arguably, declaring war and raising armies go hand in hand with Congress’s primary power of
the purse. A declaration of war would require raising an army to wage that war, which in turn
would require a congressional appropriation, or spending bill. Still, much of the president’s
more expansive powers in foreign affairs are derived from presidential prerogative.

5.4 Presidential Power

The Framers of the U.S. Constitution sought to clarify presidential power to avoid the poten-
tial abuse of power that might be found in a single executive. The Framers’ previous experi-
ence with a single national executive occurred when King George III abused his power over
the colonists. Consequently, the Framers feared the potential for abuse from a single execu-
tive, which motivated them to list the specific powers of the president. Over time, though,
presidents have argued that the U.S. Constitution suggests that the president has more pow-
ers in order to ensure fulfilling the president’s responsibilities.

Presidential Prerogative

Presidential prerogative is an implied power that enables a president to expand his or her
authority in ways not specifically stated in the Constitution. In essence, presidential preroga-
tive is the notion that the president may act outside the power specified in the U.S. Constitu-
tion. Implied powers emerge from various elements found in Article II. For example, though it
states that the president should “take care that the laws be faithfully executed,” it does not
specify how the president should use his or her constitutional power to ensure that the laws
are enforced. Similarly, the Constitution does not outline the powers and expectations associ-
ated with the president’s commander-in-chief role. Presidential prerogative may be inter-
preted in much the same way that one might interpret Congress’s Necessary and Proper
Clause, which allows Congress to take actions ensuring that its enumerated powers are car-
ried out.

Associated Press/Susan Walsh

President George W. Bush speaks in support of the
2001 USA PATRIOT Act, which was enacted as part of
his War on Terror. The act allowed federal law enforce-
ment to arrest those suspected of terrorism and hold
them indefinitely without trial.

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Section 5.5 Executive Branch Organization

quick to dismiss what he or she has to say. Party support in Congress is important because the
president can appeal to party loyalty to put his or her agenda forward. The president’s ability
to persuade members of his or her own party in Congress is also enhanced by his or her abil-
ity to campaign on their behalf for reelection, especially if the president enjoys widespread
public support.

But a president’s ability to persuade can easily be hindered by a drop in public support or by
significant congressional midterm election losses in his or her own party. Presidential party
losses in midterm congressional elections are often taken as a rejection of the president’s pre-
vious 2 years of governing. President Bill Clinton, who was elected in 1992 with Democratic
majorities in both houses of Congress, lost both houses in the 1994 midterm election. His
party lost 50 seats in the House of Representatives and eight seats in the Senate. Losses of this
magnitude make it more difficult for a president to use the power of persuasion.

5.5 Executive Branch Organization

The Constitution provides for a president, vice president, and executive departments but is
silent on presidential staff. Yet the president’s responsibilities have increased greatly since
the office was created. The role of the vice president has become further defined. The Consti-
tution does not identify any powers or responsibilities of the vice president, although mod-
ern presidents have extended greater vice-presidential involvement in their administrations,
which also adds to already increasing executive staff needs. There has been significant growth
in the executive as to both breadth (the type of office) and expertise and number of staff per-
sons, in order to accommodate increasing presidential and vice-presidential responsibilities
in the modern era.

Cabinet

The president’s Cabinet is composed of the heads of executive branch departments, most
of whom carry the title of secretary. The term was coined by newspaper reporters during
George Washington’s presidency to refer to his four department heads: the secretary of state,
the secretary of the treasury, the secretary of the army, and the attorney general, who serves
as the “secretary” of the Justice Department. There are now 15 Cabinet-level departments,
which include Commerce, Energy, Transportation, Defense, Labor, Interior, Health and Human
Services, Housing and Urban Development, Agriculture, Education, and, most recently, Home-
land Security. The vice president and the ambassador to the United Nations have also been
invited to join the president’s Cabinet.

The role of the Cabinet is largely undefined. A president may seek counsel from individual
Cabinet members as well as call for regular meetings. Presidents will also use their Cabinets
to demonstrate that they are not acting alone.

Executive Office of the President

The Executive Office of the President (EOP) consists of staff members reporting directly to
the president and multiple support staff levels. It is generally headed by a White House chief

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Section 5.6 The Concept of a Wartime President

of staff. The EOP originated in 1936, when President Franklin Roosevelt established a Com-
mittee on Administrative Management to evaluate administrative procedures in the executive
branch. The concern in establishing the committee was that the business of government had
become so vast that it was too much for one person to oversee.

The original EOP, formally created by executive order in 1939, was to consist of six adminis-
trative assistants to the president, along with three advisory bodies: the National Resources
Planning Board, the Liaison Office for Personnel Management, and the Office of Government
Reports. By the time Jimmy Carter took office in 1977, the EOP had around 1,700 full-time
staff members. Today, the EOP consists of the president, plus 11 other councils and offices:

• Council of Economic Advisors
• Council on Environmental Quality
• Executive Residence
• National Security Council
• Office of Administration
• Office of Management and Budget
• Office of National Drug Control Policy
• Office of Science and Technology Policy
• Office of the United States Trade Representative
• Office of the Vice President
• White House Office (includes the president’s immediate staff of advisors)

White House Staff

The White House staff is made up of analysts and advisors, such as communications advi-
sors, political advisors, the press secretary, speech writers, legislative aides, and the White
House physician. The White House staff is usually composed of people the president can trust.
Unlike Cabinet members, a staff member does not need to be confirmed by the Senate.

The White House staff is organized within several office units, each of which employs addi-
tional staff members. The White House staff also includes persons on temporary assignment
who are sent from other executive branch agencies and departments to work in the White
House. The size of the White House staff has grown from a few dozen persons to several hun-
dred more recently.

5.6 The Concept of a Wartime President

We have already noted that foreign policy–focused presidents tend to be stronger than domes-
tic policy–focused presidents. During times of war and international conflict, it is common for
presidents to assume greater authority and claim greater power and discretion. As outlined
earlier, presidents exercising more discretion during wartime and international conflict often
begins with presidents exercising their prerogative. Add to that a tendency on the part of
Congress to defer to the president on foreign policy–related matters, and it is apparent that
presidents often have free rein during times of international crisis.

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Section 5.6 The Concept of a Wartime President

As we will discuss in this section, even when the constitutionality of presidential actions has
been challenged during wartime, the Supreme Court has tended to side with the president.
Scholars suggest that this is because the Supreme Court recognizes the importance of the
country being unified, especially during wartime. Once these conflicts end, the Supreme Court
will often reassert the constitutional separation of powers.

Imperial Presidency

We noted earlier Arthur Schlesing-
er’s argument that the use of presi-
dential prerogative, coupled with
Congress’s tendency to defer to
the president in foreign affairs, has
at times led to an imperial presi-
dency. By this phrase, Schlesinger
meant a president who assumes he
or she is above the law and can do
what he or she pleases, whether it
is because he or she can claim that
there is a crisis and subsequent
need to exercise authority, because
he or she won the election by such
a large margin that he or she can
claim a mandate, or because of
some other reason. Schlesinger was
considering Richard Nixon, who
famously observed in an interview with David Frost that an action that is, by law, illegal is
“not illegal” if the president does it. It was not uncommon for Nixon to invoke a national
emergency to justify exercising his prerogative. At other times, Nixon called attention to a
“silent majority” of the public who supported him but were not vocal, thereby suggesting that
a Congress that opposed him did so at its own peril.

Wartime Dictatorship

During times of war, presidents have taken actions to limit individual rights on the grounds
that such actions protect the public interest. This has sometimes been called a “wartime dic-
tatorship.” Among the most notable occurred during World War II, when President Franklin
Roosevelt ordered the quarantine of Japanese citizens and U.S. citizens of Japanese descent
with an executive order. Suspected of being loyal to Japan, these persons were rounded up in
California, the state of Washington, and Oregon and brought to detention camps or subjected
to a curfew that limited their ability to work and otherwise perform ordinary tasks outside
the home. Two thirds of these persons were American citizens, a large percentage of whom
were born in the United States or whose parents were born in the United States. These limi-
tations on individual citizens’ freedom were challenged before the U.S. Supreme Court. For
example, Gordon Hirabayashi was a university student who had never visited Japan and was
never suspected of disloyalty to the United States. Nevertheless, he was convicted of disobey-
ing a military curfew on the grounds that the curfew was a legitimate defensive measure
during wartime. The U.S. Supreme Court upheld Hirabayashi’s conviction in Hirabayashi v.

John Bryson/The LIFE Images Collection/Getty Images

In a 1977 interview with David Frost, former President
Richard M. Nixon explained his view of the imperial
presidency.

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Section 5.6 The Concept of a Wartime President

United States (1943). In Korematsu
v. United States (1944), the Court
found that forcing U.S. citizens of
Japanese descent into internment
camps during World War II was a
legitimate exercise of presidential
power, justified during times of
“emergency and peril.”

Once World War II drew to a close,
the Supreme Court would defer less
to the president’s actions to limit
individual rights. In 1988, Presi-
dent Ronald Reagan signed legisla-
tion offering a formal apology and
compensation to surviving victims
of the internment camps.

Use of Military Tribunals

During times of emergency, many
American presidents have sought
to use military tribunals to try
enemy combatants. Following the September 11, 2001 terrorist attacks and the launching
of the military action against Afghanistan, the question arose about what to do with enemy
combatants captured by American soldiers. According to the Geneva Convention on war,
captured enemy soldiers are to be considered prisoners of war and held in prison camps until
the end of the conflict, at which point they are to be sent home. Suspected terrorists, how-
ever, are neither soldiers, as they are not fighting for a nation state, nor civilians. Can enemy
combatants be tried in military courts? Critics argue that to do so would not only violate the
Geneva Convention but contradict basic constitutional guarantees. Defenders of the policy
point to precedent, the most notable being Ex Parte Quirin in 1942.

This case involved four German marines who came ashore on Long Island, New York, from
a submarine with orders to sabotage American war industries. After changing into civilian
clothes and burying their uniforms and explosives, they headed to New York City. Several days
later, another four marines came ashore in Florida with similar orders. The leader of the New
York group then defected to the FBI, and the remaining seven were rounded up, tried, and
convicted by a military commission specially appointed by President Roosevelt under a broad
claim of emergency authority. On appeal to the Supreme Court, the “Nazi saboteurs,” as they
came to be known, claimed that they should be tried in civilian court because they were not
wearing their uniforms when arrested. The government argued that they were enemy aliens
who entered the country as belligerents. The Court sided with the president, noting that

the detention and trial of petitioners—ordered by the President in the
declared exercise of his powers as Commander in Chief of the Army in time of
war and of grave public danger—are not to be set aside by the courts without
the clear conviction that they are in conflict with the Constitution or laws of
Congress constitutionally enacted.

Everett Collection/SuperStock

The Japanese internment camp at Manzanar, California,
in 1943. The Supreme Court ruled that U.S. citizens of
Japanese ancestry might constitute a security risk, and
therefore forcing them into internment camps was a
legitimate wartime action.

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Section 5.7 Limiting Presidential Power

Suspects who associate themselves with the military arm of an enemy government are con-
sidered enemy combatants and are not then entitled to use civilian courts. Since 2001, this
has become a tricky question because the U.S. war on terror is levied against paramilitary
terrorist groups that are not employed or otherwise sponsored by a government.

Recall that the USA PATRIOT Act
allowed the executive to round up
suspected terrorists in the United
States and detain them without
access to attorneys. In the 2004
case of Hamdi v. Rumsfeld, the Court
addressed whether such detention
was legal. The case was brought by
the father of Yaser Esam Hamdi,
who wanted to know what charges
his son faced. Because Hamdi
was being held in a military facil-
ity, the case constituted a request
that Secretary of Defense Donald
Rumsfeld produce the accused and
announce the charges. In this case,
the Supreme Court was not ready to
give the office of the president the
same authority it had had during
World War II. On one level, the case
was different from that of the Ger-

man saboteurs because the saboteurs were not U.S. citizens. On another level, the situations
were similar because both involved persons labeled enemy combatants and thus should be
viewed similarly.

The Court held that a citizen-detainee seeking to challenge his or her classification as an
enemy combatant must receive notice of the factual basis for his or her classification and a
fair opportunity to rebut the government’s claims. The Court held that circumstances might
also dictate that “enemy proceedings” may be tailored to alleviate their uncommon potential
to burden the executive at a time of ongoing military conflict. The Court concluded by observ-
ing, “There remains the possibility that the standards we have articulated could be met by an
appropriately authorized and properly constituted military tribunal.” A president in a time of
war, then, has the authority to use military tribunals as an emergency measure. The problem
remains, however, that because it was a “war on terror” being fought, and not a war declared
against any nation, there was a potential that it could continue indefinitely.

5.7 Limiting Presidential Power

As the preceding discussions of both presidential prerogative and wartime presidents show,
a president can assume a great deal of authority and become quite powerful unless the other
branches of government impose restraints. Historically, the balance of power between the

Associated Press/Dana Verkouteren

In Hamdi v. Rumsfeld, the U.S. Supreme Court ruled that,
in time of war, the president may use military tribunals
for emergency purposes. The problem with the ruling
is that because of the War on Terror, tribunals could go
on indefinitely.

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Section 5.7 Limiting Presidential Power

president and Congress has swung back and forth. Often, after periods of strong presidential
authority or perceptions that a president has exceeded the bounds of prerogative, Congress
responds with attempts to control the president’s power. There have been occasions when
Congress has passed presidency-curbing legislation to reassert checks and balances. The
two most notable examples were the 1973 War Powers Resolution and the 1974 Budget and
Impoundment Control Act.

War Powers Resolution

The War Powers Resolution of 1973, introduced at the beginning of this chapter, was intended
to make the president more accountable to Congress when it comes to using presidential
war power. Presidents have seen their commander-in-chief role to include responding to
attacks with force as essential to their obligations to preserve and protect the Constitution.
As outlined in the vignette that opened this chapter, Congress can fail to pass authorization.
In the case of Libya, Congress also voted down a bill to stop funding, perhaps recognizing that
pulling the plug would have disastrous implications for the United States’ image abroad. In
the end, President Nixon vetoed the War Powers Resolution, claiming that it was unconstitu-
tional. Congress’s response was to override the veto, and the War Powers Resolution remains
in place today. Still, presidents have uniformly called the War Powers Resolution unconstitu-
tional because it infringes on their commander-in-chief function.

The last time that a president sought a declaration of war was on December 8, 1941, against
Japan. Since then, presidents have used their commander-in-chief power to wage war absent
a formal declaration of war. In some cases, such as the wars in Korea (1950–1953) and Viet-
nam (1961–1975), presidents have circumvented the need for a formal declaration by label-
ing the conflicts “police actions.” In Vietnam, President Johnson did seek and received a con-
gressional resolution to respond to an attack on American ships in the Gulf of Tonkin in 1964.
The deeply unpopular war, while undeclared, was only exacerbated with President Nixon’s
secret bombings in Cambodia and elsewhere beginning in 1969.

The Budget and Impoundment Control Act

The Budget and Impoundment Control Act was Congress’s response to Richard Nixon’s
practice of refusing to spend authorized and appropriated monies for programs that he did
not support. Nixon, who opposed the social spending programs of the 1960s, would request
less money for these programs while Congress would respond by appropriating more. Nixon
then impounded the difference. The effect of this practice was to use impoundment as a form
of line-item veto. Historically, impoundment had been considered a sound fiscal practice
because it enabled a president to move funds from over-funded to under-funded programs,
or to reduce spending so that the government would not run a deficit.

Like the War Powers Resolution, the Budget and Impoundment Control Act is about presiden-
tial accountability to Congress. Title X of the Act expressly forbids the president from impound-
ing funds, although the president can defer spending funds for 45 days. Congress has the right
to veto that deferment, which means that the funds would have to be spent as appropriated.
If Congress fails to act within 45 days, the deferment continues indefinitely, which means,

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Section 5.8 Presidential Character

in effect, that the funds have been impounded. The president can pursue another course by
requesting that Congress rescind the amount of money appropriated for a program over what
was initially requested. If Congress passes a rescission bill within 45 days, the funds are also
effectively impounded. If Congress fails to act, the money must be spent as appropriated. This
measure also created a Congressional Budget Office (CBO) to offer independent analyses of
budgets proposed by the president. The CBO was designed to be a counterweight to the Office
of Management and Budget (OMB) in the White House.

Impeaching a President

The Constitution outlines the impeachment process as means of controlling the president.
Impeachment is the first step in a formal mechanism by which Congress can remove a presi-
dent from office. To be removed from office, the president must be convicted by the Senate of
“high crimes and misdemeanors,” which is often understood to mean a constitutional crisis
where Congress believes that the president is usurping Congress’s powers or is refusing to
abide by Congress’s wishes.

In Federalist No. 65, Alexander Hamilton explained that impeachment deals with matters that
have violated the public trust:

The subjects of its jurisdiction are those offenses which proceed from the
misconduct of public men, or, in other words, from the abuse or violation of
some public trust. They are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done immediately
to the society itself.

In using the term “political,” Hamilton might be alluding to the separation of powers. When the
president usurps the authority of Congress, the president has committed the political crime
of violating the separation of powers. When Congress investigated the break-in at Democratic
Party headquarters at the Watergate Hotel and the possible cover-up by the White House, it
often requested information from the president. Nixon typically refused to hand over such
information, claiming that it was a matter of national security. Congress tried to secure the
information by going to court at times to force the president to do so. The House of Repre-
sentatives Judiciary Committee voted to impeach President Nixon. Following a court order to
turn over the White House tapes, President Nixon resigned before he could be impeached by
the full House and tried in the Senate.

5.8 Presidential Character

The president is the nation’s head of state and head of government, as well as a world leader.
Consequently, much is made about a president’s character and what that character says about
the president’s ability to lead. Political scientist James David Barber (2015) has argued that
the president’s character affects how the president handles his or her various roles, which
will affect how the president works with Congress, responds to international issues, interacts
with the public, and works with the Cabinet and the White House staff. There are four distinct

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Section 5.8 Presidential Character

character types based on two questions: First, is the president actively involved in his or her
presidency (active) or does he or she delegate responsibilities to others (passive)? Second, is
the president happy being president (positive) or is he or she generally unhappy in how he
or she engages with the office (negative)? Barber’s work focuses on presidents beginning in
the 20th century. The four character types are active-positive, active-negative, passive-positive,
and passive-negative.

Active-Positive

Active-positive presidents come into office with an active policy agenda and set out to achieve
it through hard work. These presidents have a positive outlook on life and are very energetic.
Examples of active-positive presidents include John F. Kennedy and Franklin Roosevelt. They
were optimistic, especially Roosevelt during the Great Depression, and they were ready to
work with members of Congress to get their agendas passed.

Active-Negative

Active-negative presidents also come into
office with good ideas, energy, and a desire to
accomplish great things, but something in their
personality brings them down and results in
policy and political failures. Barber considered
Woodrow Wilson, Lyndon Johnson, and Rich-
ard Nixon to be examples of active-negative
presidents.

Passive-Positive

Passive-positive presidents are often viewed
as caretakers who do not come to office with
any great enthusiasm but might rise to the occa-
sion during a time of crisis. According to Barber,
passive-positive presidents are responders and
not initiators or pushers. These presidents like
to accentuate the positive and be cheerleaders:
“In the Presidency they are, in many ways, nice
guys who finished first, only to discover that not
everyone is a nice guy” (Barber, 2015).

Passive-positive presidents often seek the office
because electoral victory represents personal
affirmation and boosts their self-esteem. Barber
offered Warren G. Harding and Ronald Reagan
as passive-positive presidents.

© Bettmann/Corbis

President Woodrow Wilson, who served
from 1913 to 1921, was considered an
active-negative president. He came to
office with an active domestic policy
agenda. However, his refusal to com-
promise with Republican senators led
to the failed ratification of the Treaty of
Versailles.

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Summary and Resources

Passive-Negative

Passive-negative presidents do not really want to be president but will serve out of a sense
of duty if called upon by their nation. Examples of passive-negative presidents include Calvin
Coolidge and Dwight Eisenhower.

Does Character Matter?

There are many who argue that presidential character is important, although it is not always
clear that one can know a candidate’s character before the president takes office. Yet there are
those who choose not to focus on political character and instead look to moral character as
a good indicator of electability. If a president is not trustworthy, it may be extremely difficult
for the president to form working relationships with members of Congress, and the end result
may be inability to lead.

Ultimately, the issue of character speaks to whether the person is really fit to be president.
Other than a minimum age, residency, and that one is a natural-born citizen, there are no
formal constitutional requirements for office. In many cases, voters choose a candidate based
on a perception of whether this person comes across as presidential. Being president, in the
minds of most, may mean acting appropriately, having good character, being dignified and
trustworthy, and to some extent appearing to be above the political fray.

Summary and Resources

Chapter Summary
The U.S. Constitution grants the president the formal authority to be commander in chief of
the armed forces, to make appointments and negotiate treaties subject to the consent of the
Senate, to issue pardons, and to veto legislation. Beyond that, it has been up to presidents to
carve out their own roles and define for themselves the scope of their power.

Because the Constitution specifically requires the president to preserve and protect the Con-
stitution while it is silent as to what that means, presidents have inferred authority on the
basis of prerogative. Historically, presidents have used prerogative to expand their powers,
and in some cases to take on imperial qualities as president. A president’s power is limited
by factors that include the president’s ability to persuade. During times of crisis and in the
realm of foreign affairs, presidents tend to enjoy greater authority and power. At the same
time, there are mechanisms by which Congress can control presidents and curb their power.
Presidential power has been curbed at times through legislation and at other times by a large
loss of seats of the president’s party in Congress, especially during midterm elections.

Key Ideas to Remember

• Article II establishes formal presidential powers such as commander in chief, par-
doning, treaty making, and executing the laws of the land, but it also leaves much of
the president’s power undefined.

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Summary and Resources

• Presidents enjoy prerogative because the Constitution is silent on several issues.
If the Constitution does not expressly forbid the president from doing something,
the president may take actions not outlined in the Constitution as a matter of
prerogative.

• Ultimately, the basis of presidential power is political. It is the president’s ability to
persuade others to do what the president believes is right. Presidents are often said
to lack power when they are unsuccessful in their efforts to persuade.

• Presidents are often said to have more power in foreign policy than in domestic
policy. In foreign policy, there is a greater tendency for Congress to defer to the
president and in domestic policy a greater tendency for Congress to check what the
president does.

• The presidency is larger than the president as an individual; the presidency includes
the president, the vice president, the Executive Office of the President, the White
House staff, and the Cabinet.

• During times of emergency, presidents have tended to exercise their prerogative to
the point of becoming imperial and, during times of war, even dictatorial.

• Congress can control the power of presidents through hearings, legislation, and
impeachment.

• Presidential elections in the United States are unique in that they are long, drawn-
out processes and take place on a state-by-state basis.

• In selecting a president, voters often consider a candidate’s character, which might
suggest something about how that person may perform in office if elected.

Questions to Consider

1. What does it mean for the president to be commander in chief ?
2. By some accounts, the president might be the most powerful person in the world,

and by others that person may be the weakest. Which do you think is the stronger
argument, and why?

3. By what mechanisms can Congress limit presidential power?
4. Were it possible to understand presidents’ personality types prior to an election,

would we be able to predict how they would behave in office? Why or why not?

Key Terms

active-negative Describes the type of presi-
dent who comes to office with good ideas
and energy but is ultimately prone to failure
due to personality traits.

active-positive Describes the type of presi-
dent who comes to office with optimism,
energy, an active policy agenda, and a posi-
tive outlook.

appropriation A spending bill in Congress.

battleground states States that are not
dominated by a single party such that the
state’s Electoral College vote cannot be pre-
dicted in presidential elections.

Budget and Impoundment Control
Act Statute that makes it more difficult for
the president to impound funds.

Cabinet Collection of executive branch
department heads who may advise the
president when asked.

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Summary and Resources

caucus A meeting of individuals to choose a
candidate for office.

domestic policy president A president
who is focused on issues and activity within
U.S. borders; considered to be generally
weaker because the president is granted less
power in domestic policy relative to Con-
gress; one of two versions of the American
president according to political scientist
Aaron Wildavsky.

Executive Office of the President
(EOP) Created in 1939, a division that con-
sists of White House staff and other advisors
who help the president direct the activities
of the executive branch.

foreign policy president A president who
is focused on the United States’ strategy in
dealing with other nations; considered to be
generally stronger because the president is
granted more power in foreign policy rela-
tive to Congress; one of two versions of the
American president according to political
scientist Aaron Wildavsky.

Geneva Convention An international
understanding about the rules of war
between nation states.

imperial presidency That of a president
who assumes that he or she is above the law
and can do as he or she pleases.

inherent powers Presidential powers
inferred from the Constitution.

line-item veto When a chief executive can
reject portions of a bill rather than having to
veto the entire bill.

mandate When an elected official believes
he or she enjoys broad popular support
because of the size of his or her electoral vic-
tory, and this support allows the official to
do what he or she thinks the people want.

National Defense Act The law that created
a unified Defense Department.

North Atlantic Treaty Organization
(NATO) An intergovernmental military
alliance providing collective defense for its
28 member nations.

passive-negative Describes the type of
president who does not want to be president
but serves out of a sense of duty.

passive-positive Describes the type of
president who seeks office because he or she
wants the adoration of the public.

presidency-curbing legislation Legisla-
tion passed by Congress in an attempt to
control presidential power and reassert
checks and balances.

retail politics A campaign style where the
candidate focuses on interacting with indi-
vidual voters face to face, such as by taking
part in local events.

War Powers Resolution The requirement
that the president notify Congress of the use
of force.

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Summary and Resources

Further Reading
Barber, J. D. (2015). The presidential character: Predicting performance in the White House (4th ed.). London, UK:

Routledge.

DiClerico, R. E. (2012). The contemporary American president. London, UK: Routledge.

Edwards, G. (2012). The strategic president: Persuasion and opportunity in presidential leadership. Princeton, NJ:
Princeton University Press.

Fisher, L. (2014). Constitutional conflicts between Congress and the president (6th ed.). Lawrence, KS: University
Press of Kansas.

Fisher, L., & Harriger, K. (2013). American constitutional law: Constitutional structures, separated powers and
federalism (10th ed., Vol. 1). Durham, NC: Carolina Academic Press.

Mansfield, H. C. (1993). Taming the prince: The ambivalence of modern executive power. Baltimore, MD: Johns
Hopkins University Press.

Nelson, M. (2013). The presidency and the political system (10th ed.). Washington, D.C.: CQ Press.

Neustadt, R. E. (1991). Presidential power and the modern presidency (rev. ed.). New York, NY: Free Press.

Pious, R. M. (1979). The American presidency. New York, NY: Basic Books.

Pyle, C. H., & Pious, R. M. (1984). The president, Congress, and the Constitution: Power and legitimacy in American
politics. New York, NY and London, UK: The Free Press.

Schlesinger, A. M. Jr. (2004). The imperial presidency. New York, NY: Mariner Books.

Skowronek, S. (1997). The politics presidents make: Leadership from John Adams to Bill Clinton. Cambridge, MA
and London, UK: Belknap Press.

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10 Elections and Public Opinion

Chip Somodevilla/Getty Images News/Thinkstock

Learning Objectives

By the end of this chapter, you should be able to

• Describe the purpose and functions of elections in the United States.
• Analyze the relationship among elections, participation, and the democratic process.
• Distinguish between types of elections and analyze the circumstances surrounding realigning

elections.
• Analyze the role of public opinion in elections.

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Section 10.1 Purpose of Elections

In the 1994 midterm election, the Democrats lost control of the U.S. House of Representatives
to the Republicans for the first time in 40 years. Republicans picked up 54 seats in the House;
they also took control of the U.S. Senate as well as many state governorships. Pundits viewed
this as a defeat for President Bill Clinton and were quick to say that the election represented
a rejection of his efforts to bring about health care reform. Others claimed it was due to the
inability of the Democrat-controlled Congress to accomplish anything substantive, including
health care reform. Still others interpreted the change as a sign that the people had changed
their party loyalties. Not only were people voting for Republican candidates, but they were
increasingly identifying as Republicans. The 1994 election was indeed significant. Republi-
cans would control the House of Representatives until the 2006 midterm election, and they
would control the Senate until 2001.

In this chapter, we explore this and other elections in the context of their time and what they
tell us about the contemporary American population. We also examine the role that elections
generally play in the American political process. Elections are more than a matter of choosing
individuals to govern. Elections tell us about what the people think is important, and they say
something about the political values of a nation. Through elections, the people participate in
the democratic process and hold public officials in constitutional government accountable.
But the shifting winds of public opinion can also lead to unpredictable results.

10.1 Purpose of Elections

The United States uses elections to choose its leaders. Voting is the most basic form of political
participation and is assumed to be a basic right in a democracy. However, elections are impor-
tant for other reasons as well. In the United States, elections serve three basic functions:

1. They provide an essen-
tial basis for democratic
expression.

2. They provide for a peaceful
transfer of power.

3. They allow citizens, as a
political community, to
offer their tacit acceptance
of the American constitu-
tional tradition. By vot-
ing, citizens reaffirm their
commitment to the social
contract that the Constitu-
tion represents.

Democratic Expression

People express themselves in a democracy by casting ballots either in person or by mail. Cast-
ing a vote allows them to express their preferences, which is an extension of human agency.
When people vote for candidates who currently hold office, they affirm their support for the

Stock Connection/SuperStock

Through elections, American voters offer their tacit
acceptance of the constitutional tradition. Elections
also provide for the peaceful transfer of power and are
the basis of democratic expression.

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Section 10.1 Purpose of Elections

current government, and when they vote against those who currently hold office, they regis-
ter their opposition to that same government.

Citizens achieve the greatest state of democratic expression when they can control the cir-
cumstances affecting their lives. In the political world, people control their circumstances by
electing the government that will make decisions on their behalf. Elections are the vehicles by
which the people achieve their political voice.

Peaceful Transfer of Power

Americans may take a peaceful transfer of power for granted, but this is actually one of the
unique features of the American legacy. When the Framers of the Constitution constructed
the American political system, they wanted to ensure peaceful transfers of power. A peaceful
transfer of power—that is, using the ballot box rather than the barrel of a gun—represented
a serious break from past experience. The election of 1800 illustrates this point. John Adams,
George Washington’s vice president, who also was a Federalist, was elected president in 1796
after Washington opted not to seek a third term. Thomas Jefferson, the lead author of the U.S.
Declaration of Independence who strongly opposed the centralized federal structure, lost to
Adams in 1796. Jefferson became Adams’s vice president because the original Constitution
(since changed with the 12th Amendment in 1804) extended the vice presidency to the per-
son who received the second-highest number of electoral votes in the presidential election.
Adams ran for reelection in 1800, and Jefferson ran for president a second time. This time,
Jefferson won. The peaceful, though not apolitical, transfer of power that resulted from this
election, from the nation’s first two presidents, both Federalists, to Jefferson, a Democratic-
Republican, reflected the Framers’ aspirations.

Among the precedents that George Washington set as the first president was his personal
choice not to seek more than two terms in office. Until the 22nd Amendment was ratified in
1951, the Constitution did not expressly prohibit presidents from serving two terms even
though only one president (Franklin Delano Roosevelt) served more than two terms before
the 22nd Amendment was ratified. Washington’s action paved the way for the election of his
replacement and the tradition of peaceful transfer of power in the United States. Because
Americans can trust that power will be peacefully transferred, they do not have to resort to
violence to change the government.

Tacit Acceptance of American Constitutional Tradition

The U.S. Constitution is in many respects a social contract between the government and the
people, but it was entered into by a generation of people from whom current Americans are
far removed. Thomas Jefferson thought it would be a good idea if every generation held a con-
stitutional convention so that each could choose the governing arrangements that would best
meet its needs. But because Americans choose their government through periodic elections,
they do not really need to convene new constitutional conventions. Elections enable them to
offer their tacit consent, or implied agreement, to the basic social contract of the Constitu-
tion. By freely participating in the political process through elections, Americans agree to the
political arrangements that govern them. Elections, then, in a very broad sense fulfill a public
support function.

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Section 10.2 Public Participation

Of course, the public support function rests on the same assumptions of trust that the peace-
ful transfer of power does. Only because the people trust that the government in power will
respect their wishes can elections represent this tacit acceptance. After all, if citizens partici-
pate in the political process by voting, rather than seeking to overthrow it through rioting and
rebellion, it must follow that they are basically happy and accept the legitimacy of the system.
But if it can no longer govern effectively, the government loses its legitimacy.

10.2 Public Participation

Although a majority of the country may be eligible to vote, not everyone does. On one level,
because elections are critical to democracy, many regard voting as a civic obligation, similar to
jury duty. But on another level, freedom to participate in the democratic process also means
the freedom not to participate.

The United States does not mandate participation in elections. It also has one of the lowest
rates of voter participation compared with other representative democracies. If a group of
people chooses not to vote and the government then pursues policies that this group does not
like, do these people have a reasonable basis to complain?

Are politicians obligated to represent all the people, or only those who vote? In theory, all citizens
have a legitimate claim to be represented by elected officials. In reality, however, politicians tend
to represent only those who vote. Of course, the larger question is what it means to talk about
the importance of voting if people fail to exercise this basic right. Another issue is that—given
the long-fought battle for civil rights, of which voting was most prominent—if large segments
of the population opt not to vote, what was the point of fighting for the right in the first place?

Who Votes?

American citizens age 18 or older are eligible to vote, but the “typical voter” usually falls into
a particular set of demographic categories. For example, various studies have shown that a
person’s position in society based on economic class or education, or socioeconomic status,
is a key determinant of who votes. Those with a higher socioeconomic status are more likely
to vote than those with a lower socioeconomic status are.

Older people are more likely to vote than younger people are, women are slightly more likely
to vote than men are, and Whites are more likely to vote than members of racial or ethnic
minority groups are. Further, those with a strong political ideology, often assumed from their
families, religious groups, or other social influences, are more likely to vote than those with-
out a strong ideology, religious commitment, or social connection are.

Reasons for Nonvoting

The electorate consists of those who are eligible to vote, whether they vote or not. Voter turn-
out during presidential elections usually falls between 50% and 60% and is even lower dur-
ing midterm congressional elections (see Figure 10.1). This means that at least 40% of the
electorate chooses not to participate. Why is this the case?

Figure 10.1: Voting rates in congressional and presidential
elections: 1978–2014

In the years since 1980, American voter turnout has generally decreased.

From “Who Votes? Congressional Elections and the American Electorate: 1978–2014,” by T. File, 2015 (http://www.census.gov/content
/dam/Census/library/publications/2015/demo/p20-577.pdf ). Copyright 2015 by U.S. Census Bureau. Reprinted with permission.

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Section 10.2 Public Participation

Of course, the public support function rests on the same assumptions of trust that the peace-
ful transfer of power does. Only because the people trust that the government in power will
respect their wishes can elections represent this tacit acceptance. After all, if citizens partici-
pate in the political process by voting, rather than seeking to overthrow it through rioting and
rebellion, it must follow that they are basically happy and accept the legitimacy of the system.
But if it can no longer govern effectively, the government loses its legitimacy.

10.2 Public Participation

Although a majority of the country may be eligible to vote, not everyone does. On one level,
because elections are critical to democracy, many regard voting as a civic obligation, similar to
jury duty. But on another level, freedom to participate in the democratic process also means
the freedom not to participate.

The United States does not mandate participation in elections. It also has one of the lowest
rates of voter participation compared with other representative democracies. If a group of
people chooses not to vote and the government then pursues policies that this group does not
like, do these people have a reasonable basis to complain?

Are politicians obligated to represent all the people, or only those who vote? In theory, all citizens
have a legitimate claim to be represented by elected officials. In reality, however, politicians tend
to represent only those who vote. Of course, the larger question is what it means to talk about
the importance of voting if people fail to exercise this basic right. Another issue is that—given
the long-fought battle for civil rights, of which voting was most prominent—if large segments
of the population opt not to vote, what was the point of fighting for the right in the first place?

Who Votes?

American citizens age 18 or older are eligible to vote, but the “typical voter” usually falls into
a particular set of demographic categories. For example, various studies have shown that a
person’s position in society based on economic class or education, or socioeconomic status,
is a key determinant of who votes. Those with a higher socioeconomic status are more likely
to vote than those with a lower socioeconomic status are.

Older people are more likely to vote than younger people are, women are slightly more likely
to vote than men are, and Whites are more likely to vote than members of racial or ethnic
minority groups are. Further, those with a strong political ideology, often assumed from their
families, religious groups, or other social influences, are more likely to vote than those with-
out a strong ideology, religious commitment, or social connection are.

Reasons for Nonvoting

The electorate consists of those who are eligible to vote, whether they vote or not. Voter turn-
out during presidential elections usually falls between 50% and 60% and is even lower dur-
ing midterm congressional elections (see Figure 10.1). This means that at least 40% of the
electorate chooses not to participate. Why is this the case?

Figure 10.1: Voting rates in congressional and presidential
elections: 1978–2014

In the years since 1980, American voter turnout has generally decreased.

From “Who Votes? Congressional Elections and the American Electorate: 1978–2014,” by T. File, 2015 (http://www.census.gov/content
/dam/Census/library/publications/2015/demo/p20-577.pdf ). Copyright 2015 by U.S. Census Bureau. Reprinted with permission.

The Requirement to Register
All but one state requires that eligible voters be registered in order to vote. Voter registration
has proven to be a barrier to voting. Supporters of mandatory registration argue that registra-
tion is a safeguard against fraud. Yet registration can be burdensome because it requires that
forms be completed and submitted to the local supervisor of elections in advance of an elec-
tion. Of the 49 states requiring that voters register, half require registration between 15 and
30 days in advance, while the other half require registration between 0 (Election Day registra-
tion) and 14 days before Election Day. Federal law prohibits states from requiring registration
beyond 30 days before Election Day. While voter registration may be inconvenient, it helps
emphasize the importance of voting and assumes that responsible citizens will complete the
process.

Many argue that one response to low voter turnout is to take additional steps to ease access
to registration. After passage of the National Voter Registration Act (NVRA) in 1993, various
states implemented a motor-voter process, which allows people to register to vote when

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Section 10.2 Public Participation

they register their cars with the state Department of Motor Vehicles or apply for or renew a
driver’s license. (Of course, for those who do not drive, this may not be helpful.) The NVRA
also allowed people to register by mail or when applying for various social services.

The Disillusionment
of Poor Voters
Low-income people are less likely to
vote for various reasons. These rea-
sons may include the inconvenience
and potentially lost wages to take
time off to go to the polls, believ-
ing that voting will not affect the
political process, or believing that
elected officials do not understand
their situation. Low-income people
may believe that electing candidates
who promise to enact economic and
social programs that benefit lower-
income groups will have little bear-
ing on their lives. This belief may
stem from the broker party nature
of the system. Additionally, powerful
interest groups enjoy advantages over individuals who are not organized.

When people opt out of the system because they believe it does not represent their interests
well, their concerns become a self-fulfilling prophecy. Many politicians believe that there is no
point in campaigning in areas or neighborhoods with high percentages of nonvoters. As noted
in the last chapter, running for office is very expensive. Candidates must make strategic deci-
sions about where to allocate their resources. They are more likely to spend their time and
money in neighborhoods that are known to have relatively high turnout and are less likely to
pay much attention to low-turnout populations.

Constitutional Bases for Expanding Suffrage

Voting eligibility is addressed in just a few places in the Constitution. The first is the
15th Amendment (see Figure 10.2), ratified in 1870, which states that a citizen cannot be
denied the right to vote by the national government or any of the states on the basis of race,
color, or previous condition of servitude. This amendment provided the constitutional basis
for newly freed slaves to be eligible to vote after the Civil War. Next is the 19th Amendment,
ratified in 1920, which says that citizens cannot be denied the right to vote on account of sex.
This amendment granted women the right to vote.

The 23rd Amendment, ratified in 1961, extended the right to vote for president to residents
of the District of Columbia (Washington, D.C.). Before the amendment was ratified, Electoral
College votes were given only to states, and because Washington, D.C. is a district and not a
state, D.C. residents could not vote for the president. The 23rd Amendment gave to Washington,
D.C. the same number of Electoral College votes as the smallest state. As each state is guaranteed

Visions of America/SuperStock

One purpose of voter registration is to prevent fraud.
However, registration is often considered a barrier to
voting because it requires individuals to fill out and
submit a form by a state-mandated deadline.

Figure 10.2: Voting eligibility according to the Constitution

Voting eligibility is addressed in only four places in the Constitution, and all of them are amendments.

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Section 10.2 Public Participation

they register their cars with the state Department of Motor Vehicles or apply for or renew a
driver’s license. (Of course, for those who do not drive, this may not be helpful.) The NVRA
also allowed people to register by mail or when applying for various social services.

The Disillusionment
of Poor Voters
Low-income people are less likely to
vote for various reasons. These rea-
sons may include the inconvenience
and potentially lost wages to take
time off to go to the polls, believ-
ing that voting will not affect the
political process, or believing that
elected officials do not understand
their situation. Low-income people
may believe that electing candidates
who promise to enact economic and
social programs that benefit lower-
income groups will have little bear-
ing on their lives. This belief may
stem from the broker party nature
of the system. Additionally, powerful
interest groups enjoy advantages over individuals who are not organized.

When people opt out of the system because they believe it does not represent their interests
well, their concerns become a self-fulfilling prophecy. Many politicians believe that there is no
point in campaigning in areas or neighborhoods with high percentages of nonvoters. As noted
in the last chapter, running for office is very expensive. Candidates must make strategic deci-
sions about where to allocate their resources. They are more likely to spend their time and
money in neighborhoods that are known to have relatively high turnout and are less likely to
pay much attention to low-turnout populations.

Constitutional Bases for Expanding Suffrage

Voting eligibility is addressed in just a few places in the Constitution. The first is the
15th Amendment (see Figure 10.2), ratified in 1870, which states that a citizen cannot be
denied the right to vote by the national government or any of the states on the basis of race,
color, or previous condition of servitude. This amendment provided the constitutional basis
for newly freed slaves to be eligible to vote after the Civil War. Next is the 19th Amendment,
ratified in 1920, which says that citizens cannot be denied the right to vote on account of sex.
This amendment granted women the right to vote.

The 23rd Amendment, ratified in 1961, extended the right to vote for president to residents
of the District of Columbia (Washington, D.C.). Before the amendment was ratified, Electoral
College votes were given only to states, and because Washington, D.C. is a district and not a
state, D.C. residents could not vote for the president. The 23rd Amendment gave to Washington,
D.C. the same number of Electoral College votes as the smallest state. As each state is guaranteed

Visions of America/SuperStock

One purpose of voter registration is to prevent fraud.
However, registration is often considered a barrier to
voting because it requires individuals to fill out and
submit a form by a state-mandated deadline.

Figure 10.2: Voting eligibility according to the Constitution

Voting eligibility is addressed in only four places in the Constitution, and all of them are amendments.

a minimum of three Electoral College votes, the District of Columbia was guaranteed three Elec-
toral College votes as well.

The 24th Amendment, ratified in 1964, states that the right to vote in national elections cannot be
denied for failing to pay a poll tax. The 24th Amendment was proposed and ratified in response
to Southern states that were using such taxes to disqualify poor Blacks from voting. Finally, the
26th Amendment, ratified in 1971, lowered the legal voting age to 18. While some states allowed
those over 18 to vote, other states required a minimum age of 21.

Voter eligibility is otherwise assumed to be a matter of states’ rights. States have enjoyed the
power to determine who is eligible to vote while also handling their voter registration. States
began eliminating property qualifications in the 1820s, and it was the Southern states that tar-
geted voting barriers toward African Americans. The women’s suffrage movement originally
began as a grassroots movement on a state-by-state basis, with Wyoming being the first state to
allow women to vote in state and local elections, in 1893.

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Section 10.3 Types of Elections

The constitutional amendments
that expanded suffrage, federal leg-
islation such as the 1965 Voting
Rights Act, and key U.S. Supreme
Court cases each removed voting
barriers that were erected by the
states. In fact, the Voting Rights Act
prohibited states from imposing
any “voting qualification or prereq-
uisite to voting, or standard, prac-
tice, or procedure . . . to deny or
abridge the right of any citizen of
the United States to vote on account
of race or color.” It was Congress’s
specific intention to outlaw the
practice of requiring otherwise
qualified voters to pass literacy
tests to register to vote, which had
been another method, in addition
to poll taxes, by which Southern
states denied African Americans
the right to vote.

Increasing the Voter Rolls

Both parties seek to increase their election chances by increasing their registration numbers.
In recent years, both parties have sought to find new voters among the Latino population.
For example, when Republican President George W. Bush campaigned for office, he prided
himself on being able to speak fluent Spanish in an attempt to increase Latino support for
Republican candidates.

10.3 Types of Elections

Political scientist V. O. Key, Jr. (1955, 1959) famously observed that there are four types of
elections: maintaining, deviating, reinstating, and realigning.

Maintaining Elections

A maintaining election is one in which the majority party, which holds power, such as the
majority party in Congress, continues to hold power following an election. This type of elec-
tion requires a continuation of party loyalty among the party-in-the-electorate, which assumes
that voters will remain loyal to their party by voting for candidates sharing their party label.

This type of election is a maintaining election because the allegiance of the voters has not
changed, probably because the nation is not facing a major crisis or, if facing a crisis, voters
believe that the government in place and the party in power are handling it well. A

© Bettmann/Corbis

Suffragettes stand in front of the Woman Suffrage head-
quarters in Cleveland, Ohio, in 1912. The 19th Amend-
ment, which gave women the right to vote, was ratified
in 1920.

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Section 10.3 Types of Elections

maintaining election, then, is about preserving the status quo. A pattern of maintaining elec-
tions may result in representatives becoming complacent. If the majority party in govern-
ment can rely on long-standing party loyalty among the electorate, it may not feel the need to
be as close to the people as it would if the races were more competitive.

Deviating Elections

A deviating election occurs when
short-term forces overtake long-
term party loyalties. Voters cast
their ballots for the party out of
power, the minority party, displac-
ing the majority party from power.
While voters may support the party
to which they do not belong in this
election and maybe the next, these
voters remain loyal to their party.
They maintain their allegiance to
their party even though they feel
compelled to vote for the other
party due to short-term forces,
such as candidates and issues, that
change with each election (either
because different candidates and
issues get shifted or because the magnitude of certain issues changes). The result is seen as
a temporary deviation from the norm because the expectation is that, once the crisis is over,
the former majority party will be returned to power.

Reinstating Elections

The return to power of a former
majority party following a deviat-
ing election is called a reinstat-
ing election. A reinstating election
brings a return to the status quo. It
also verifies that whatever forces
resulted in the deviation were short
lived. Because the political land-
scape remains unchanged, reinstat-
ing elections have much in common
with maintaining and deviating
elections. Each represents relative
stability in the composition of both
the party-in-the-electorate and the
party-in-the-government, with the
electorate generally voting on the
basis of traditional party loyalties.

Associated Press

Ronald Reagan’s 1980 presidential election victory is
an example of a deviating election because large num-
bers of Democratic voters crossed party lines to vote
for him.

age fotostock/SuperStock

Political scientist V. O. Key, Jr. observed that there are
four types of elections. Which of these do you think
best describes the 2008 presidential election?

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Section 10.3 Types of Elections

Some may argue that the election of 2008, in which Democrat Barack Obama was elected, was
a reinstating election after Republican President George W. Bush’s two terms. Bush’s election
in 2000, in which he won the Electoral College vote but lost the popular vote to Democratic
Vice President Al Gore, deviated from the two previous Democratic presidential victories in
1992 and 1996.

Realigning Elections

A realigning election produces a major change in the composition of the party-in-the-
government following a massive shift in the party-in-the-electorate. Voters abandon longtime
party loyalties and shift their allegiance from the majority party to the minority party, which
results in the minority party becoming the new majority party. As V. O. Key, Jr. (1955, 1959)
saw it, a realigning election is a critical election because it represents a massive and durable
shift in party loyalty that results in a long-term change in characteristics of the electorate and
the composition of government. For an election to be considered critical, the voter realign-
ment must be both sharp and durable. To be sharp, voter participation is relatively high, mak-
ing it clear that whatever divisions within the electorate existed prior to the election have
been fundamentally altered. The realignment must also occur at all levels of government.

For a realignment to be durable, the new electoral composition must persist over time. To
measure the sharpness of the shift, an issue or a set of issues that would cause voters to make
a monumental change would be essential. It would be extremely difficult to examine a single
election isolated from its larger political context to determine durability. A momentous event,
such as a war or a deep recession, that reorders the political landscape in ways not seen
before is required.

Key argued that for there to be such a massive shift in one election, there would have to be a
significant cleavage, or division, among the electorate. The people might argue, for example,
over whether the government should provide universal health care; cleavage may be said to
exist between conservatives who espouse individual liberty and limited government and lib-
erals who support greater equality and more active government. If times are good and most
people are confident about their economic future, perhaps the majority party that supports
health care reform will remain in power. But a deep recession resulting in high unemployment
and increased anxiety can cause the existing division to become more pronounced.

Key also recognized that there have been few instances in American history when voters
switched allegiance in a single election. Key expanded his concept of critical elections to include
gradual shifts over a long period. A given election might represent a phase in a long-term pro-
cess of declining group solidarity. The critical election, then, might represent the culmination
of this process. In the critical election, voters abandon their party and switch allegiance to the
other major party. Students of critical elections suggest that they occur every 30 years or so.

Consequences of Realignment
The most profound consequence of realignment is a change in the party-in-the-government,
which in turn often means a significant change in policy direction. Had the electorate been
pleased with the direction of the country and the policies that it was pursuing prior to the
election, there would not have been a realignment.

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Section 10.3 Types of Elections

Examples of Realignment
The election of 1932, which occurred after the Great Depression hit, was an example of a
realigning election because the Republicans lost the majority control of both houses of Con-
gress to the Democrats, which occurred for nearly all elections until 1994. Democrat Frank-
lin Roosevelt unseated incumbent Republican President Herbert Hoover, while many state
houses changed to Democratic rule. All of the presidents elected from 1860 until 1932, with
two exceptions, were Republican. Because of the depths of the Great Depression, Franklin
Roosevelt came to office backed by an electoral coalition that included ethnic and religious
minorities, blue-collar workers, and union members, as well as the traditional Southern
states. This new coalition would remain the base of the Democratic Party until the late 1960s.

Yet suggesting that a particular election was a critical election because realignment occurred
is to be retrospective. It does not necessarily mean that one can predict future elections based
on what happened in the past. As an example, consider that political commentator Kevin Phil-
lips wrote The Emerging Republican Majority in 1969 in an attempt to analyze the 1968 elec-
tion. According to Phillips (1969), Richard Nixon’s election was the beginning of an electoral
realignment because more people were moving to the suburbs and these suburban communi-
ties were voting Republican. Beginning with Nixon, the Republicans held the presidency from
1980 to 1988 and 2000 to 2008. Not only did suburban communities shift Republican, so too
did many Southern states, because they were upset that Democratic President Lyndon John-
son signed the Voting Rights Act of 1965, which took power away from the Democratic-
dominated Southern states in managing elections. Because the base of the Democratic Party
had been concentrated in the cities, Phillips reasoned, the party would not be able to hold its
majority if the demographics changed to favor suburbia. If Phillips was correct in saying that
1968 was the beginning of a realignment, that would mean that the 1976 election of Demo-
crat Jimmy Carter was a deviation while the 1980 election of Republican Ronald Reagan was
the reinstatement. Carter may have won because of deep divisions over Watergate. Carter’s
opponent, incumbent President Gerald Ford, had been Nixon’s vice president. After Ford
ascended to the presidency following Nixon’s resignation, he had pardoned Nixon for Nixon’s
involvement in the Watergate scandal.

If 1968 was not a realigning elec-
tion, then it was a deviating elec-
tion, with 1976 serving as a
reinstating election, while the
realignment would have happened
in 1980. Nixon won in 1968 in
a close election amid deep divi-
sions over the Vietnam War and
the sense that there was too much
lawlessness in the Democratic
Party, as evidenced by the violence
at the 1968 Democratic Party con-
vention in Chicago. Ultimately, the
answer to whether an election was
a critical election is a matter of
interpretation.

Associated Press

The 1968 presidential election, won by Richard Nixon,
has been called a realigning election.

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Section 10.4 The Role of Public Opinion in Elections

Primaries and Caucuses

Presidential elections begin at the state level through a series of primaries and caucuses.
Since the 1960s, states have increasingly adopted primary elections far more than caucuses
as a means to select candidates. Most primaries are either open primaries or closed primaries.
Most states hold closed primaries, where only registered party members may vote in that
party’s primary. In open primaries, by contrast, registered voters, no matter their party reg-
istration, or no party registration, may vote in one, but not both, party primaries.

Another way of selecting candidates is through the caucus system. Caucuses tend to be found
in smaller states (such as Iowa) and require a greater time investment from the voters than
casting a ballot. In a caucus, voters report to their polling station, in which each candidate has
an area. Voters then go to the area of their preferred candidate, but voters in other areas, that
is, supporters of other candidates, can challenge the preferences of others. This often leads
to a general discussion of why one candidate is preferable to another. At the end of the night,
support in each area in each precinct is tallied up and delegates are apportioned on the basis
of the percentage of support that each candidate received.

One key benefit to the caucus system is that participants must be familiar with candidates’
issue positions so that they can intelligently defend their choices. Yet state-level caucuses
tend to demonstrate low turnout because they require more commitment from voters. As a
consequence, the outcomes may not be entirely representative of the state electorate because
only party activists tend to participate. Three fourths of the states use primaries for presiden-
tial nominations.

10.4 The Role of Public Opinion in Elections

The outcome of an election often reflects the tide of public opinion. As U.S. Senator Barack
Obama defeated U.S. Senator John McCain in 2008, the electoral outcome can be said to reflect
various factors linked to public opinion toward Obama, McCain, the incumbent president and
his party, various issues, partisanship, a combination of these, or something else. Public opin-
ion also plays a key role in elections because candidates utilize pollsters to gauge public opin-
ion throughout the election season. Still, as much as we talk about the importance of public
opinion in democracy, it is not always easy to gauge.

Defining Public Opinion: Values, Ideology, and Attitudes

Public opinion generally encompasses values, political ideology, and attitudes. Values rep-
resent deep-rooted goals, aspirations, and ideals that shape an individual’s perceptions of
political issues. As an example, most Americans believe in freedom as a fundamental Ameri-
can value. Though we may all define it differently, most people aspire to live freely.

Differences over the meaning of freedom involve political ideology. As a matter of ideology, one
might think that personal freedom is maximized when government is limited in its function.
A limited government would mean little regulation, low taxes, and very few social programs.

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Section 10.4 The Role of Public Opinion in Elections

Such an ideology is often referred to as conservative. The political ideology that values gov-
ernment support for disadvantaged populations or during periods of hardship is considered
liberal or progressive. An attitude is a specific view about a particular issue, personality, or
event that is shaped by ideology.

Values, political ideology, and attitudes may be affected by various factors, including socio-
economic status, family background, and one’s political environment.

Measuring Public Opinion Through Polling

The easiest way to measure public opinion is through surveys. Analysts, candidates, and office-
holders routinely conduct polls to get a sense of public attitudes toward particular issues.

Polls conducted using scientific techniques are more accurate than those that are not. Scien-
tific polls take a random sample of the population such that each person in the sample has an
equal chance of being selected. A poll of registered Democratic activists is not a valid sample
of the public because the respondents may be more ideological than the public and, thus, not
represent the public’s views on government and issues.

Today, most people have phones,
which was not true in the 1940s.
Sampling from the telephone book
would not produce a sample rep-
resenting the public. In the early
days of polling, there were some
significant inaccuracies. The most
famous case was the 1948 election,
where pollsters predicted Thomas
Dewey’s defeat of President Harry
Truman. Dewey went to bed think-
ing that he had won, only to find out
that he had lost.

Forces That Shape Values
and Ideology

Individuals develop their values and
ideology through agents of social-
ization, which are the institutions
and influences that help shape one’s basic political worldview. Four important agencies of
socialization are the family, social groups, education, and prevailing political conditions.

The most important agent of socialization is the family. For example, children take on the ide-
ology and other public perspectives of their parents, while family socioeconomic status might
also affect one’s political ideology and values.

© Frank Cancellare/Bettmann/Corbis

The most famous case of polling inaccuracy was the
1948 election, where pollsters prematurely predicted
Thomas Dewey’s defeat of President Harry Truman.
Truman is shown here holding up an erroneous head-
line from a newspaper that went to press early on elec-
tion night.

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Section 10.4 The Role of Public Opinion in Elections

The second most important agent of socialization is education. Educated persons might think
critically and be more open to competing ideas, while someone whose education focuses on
reinforcing core values without questioning them will likely take on those same ideological
approaches.

People are also socialized by the types of social groups, such as interest groups or churches, to
which they belong. A social group is an important reinforcement because people are interact-
ing with others who share their values. Finally, political values and ideology are often affected
by prevailing political and economic conditions.

Cleavages in Public Opinion

It is tempting to talk about American public opinion as though there is one unified public. But
public opinion is characterized by deep divisions across worldviews and the political ideolo-
gies on which those worldviews are based. Factors affecting these cleavages include occupa-
tion, race, religion, and socioeconomic status.

Individuals in higher-paying occupations may view tax policy differently from how individu-
als in lower-paying occupations do. Similarly, as average incomes tend to be higher among
Republicans, there is often more opposition to new or increased taxes among Republicans
compared with Democrats. Democrats, whose average income is lower than that of Republi-
cans, may be more likely to favor increased or new taxes as a means of promoting welfare and
other forms of support for lower-income groups.

While occupation may account for
varying policy attitudes, it may
not be as important in explaining
other political attitudes. Race is
an important variable that affects
policy views. Affirmative action,
for instance, divides public opin-
ion along racial lines. Blacks tend
to support affirmative action pro-
grams, while Whites tend to oppose
affirmative action due to concerns
about reverse discrimination. Still,
such cleavages are not absolute.
More affluent Whites tend to sup-
port affirmative action, while many
successful Blacks oppose it because
they believe that it stigmatizes

them. At the same time, partisanship affects support for affirmative action, as Democrats
more strongly support affirmative action on the grounds that it promotes equal opportunity,
while Republicans tend to oppose affirmative action because they believe that it limits indi-
vidual opportunities for success.

Associated Press/Paul Sancya

Affirmative action deeply divides public opinion along
racial lines.

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Summary and Resources

Religion is also an important source of cleavage. Catholics and evangelical Christians tend to
oppose abortion and same-sex marriage, which may affect vote choice. Evangelical Christians
favor school prayer more than other religious groups do. Meanwhile, Jews tend to oppose
school prayer and often see it as a threat to First Amendment religious protections.

Summary and Resources

Chapter Summary
Elections are a staple of the American political system, and through elections the public
achieves democratic expression. Elections enable the peaceful transfer of power, which is fun-
damental to democracy. Through elections, the public offers its tacit consent for the American
constitutional tradition. Although elections serve an important function, election outcomes
may not represent public preferences, in part because much of the eligible electorate does not
vote. Voting is a matter of individual preference, and the freedom to vote includes the freedom
not to vote. But non-participation is particularly problematic in the United States because
most of those who do not vote tend to be poor, and the poor often choose not to vote because
they do not believe that the political system is responsive to their needs. When people choose
not to vote, elected officials might not feel as obligated to represent them. The effects of non-
participation, then, may be to distort the representative function of elections.

As critical as elections are to the democratic process, they may also reveal much about citi-
zens’ beliefs and core values. Analysts often evaluate elections within the context of criti-
cal elections, whether there has been a sharp and durable shift in party affiliation following
deep political cleavages, resulting in a new majority party in power. A critical election may
result in a new policy direction for the country. A critical election may reveal that the public
is not of one mind with regard to what constitutes its core beliefs and values. This means that
there are multiple publics, which often break down along class, educational, occupational,
and racial lines.

Measuring public opinion is important to the electoral process. But it is not always clear.
When members of Congress take a position on an issue, they might be responding to public
opinion as reported either in polls or in what is being reported in the press. As we will see in
Chapter 12, this means that the press also plays an important role in American politics.

Key Ideas to Remember

• Through elections, citizens express themselves as a political community, give their
tacit acceptance of the constitutional arrangements that govern them, and achieve a
peaceful transfer of power.

• Voting is the most basic form of public participation, but those with a higher socio-
economic status tend to participate more. The effect of nonvoting might be to distort
the democratic process.

• Nonvoting tends to be more concentrated among lower-income groups, largely
because they do not think that voting will significantly improve their lives. Register-
ing to vote has proven to be a significant barrier for some groups. Attempts to regis-
ter more voters could significantly increase the number of people voting.

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Summary and Resources

• V. O. Key, Jr. identified four types of elections, with a realigning election identified as
a critical election. For an election to be critical, there would have to be a sharp and
durable realignment among the electorate in terms of party affiliation, as measured
by significant and lasting change in the party-in-the-government. The realignment
would be brought on by deep divisions in the country that might be precipitated by a
severe crisis.

• Elections often reflect changes in public opinion, which encompasses values, politi-
cal ideology, and attitudes.

Questions to Consider

1. Why does the United States have elections?
2. Why are elections critical to the peaceful transfer of power?
3. What demographic factors are most likely to predict whether an individual votes?
4. Why do some people choose not to participate in the political process?
5. What does V. O. Key, Jr.’s typology of elections tell us about the nature of American

politics?
6. How does public opinion relate to values and political ideology?
7. What are some of the sources of the opinions that people have, and what are the

bases for cleavages in public opinion?
8. What are the most important reasons contributing to lower voter turnout in mid-

term versus presidential elections?
9. Given Key’s definition of a critical election, can we say that the 1994 election was an

example of one? Why or why not?

Key Terms

agents of socialization Institutions that
help shape an individual’s political values.

cleavage The division of voters into voting
blocs.

closed primaries Elections for a statewide
presidential candidate in which one can vote
only in the party primary that one is regis-
tered for.

critical election An election in which a
major party realignment occurs.

motor-voter A system of voter registration
whereby people register to vote when they
register their cars or apply for or renew a
driver’s license.

open primaries Elections for a statewide
presidential candidate in which one can vote
in either party primary, regardless of party
affiliation.

socioeconomic status One’s standing or
position in society based on economic class
or educational attainment.

tacit consent Giving effective agreement
through a behavior, such as voting.

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Summary and Resources

Further Reading
Abraham, H. J. (1955). Compulsory voting. Washington, D.C.: Public Affairs Press.

Burnham, W. D. (1970). Critical elections and the mainspring of American politics. New York, NY: W. W. Norton &
Co.

Gosnell, H. F. (1977). Getting out the vote: An experiment in the stimulation of voting. Santa Barbara, CA: Green-
wood Press.

Hardy, B. W., Kenski, K., & Jamieson, K. H. (2010). The Obama victory: How media, money, and message shaped the
2008 election. Oxford, UK and New York, NY: Oxford University Press.

Jacobs, L. R., & Skocpol, T. (Eds.). (2005). Inequality and American democracy: What we know and what we need to
know. New York, NY: Russell Sage Foundation.

Key, V. O., Jr. (1955). A theory of critical elections. The Journal of Politics, 17, 3–18.

Key, V. O., Jr. (1959). Secular realignment and the party system. The Journal of Politics, 21, 198–210.

Lijphart, A. (1997). Unequal participation: Democracy’s unresolved dilemma. American Political Science Review,
91(1), 1–14.

Neckerman, K. M. (Ed.). (2004). Social inequality. New York, NY: Russell Sage Foundation.

Pateman, C. (1970). Participation and democratic theory. Cambridge, UK and New York, NY: Cambridge Univer-
sity Press.

Phillips, K. (1969). The emerging Republican majority. New Rochelle, NY: Arlington House.

Piven, F. F., Cloward, R. A., & Cohen, J. (Eds.). (2000). Why Americans still don’t vote: And why politicians want it
that way. Boston, MA: Beacon.

Sundquist, J. L. (1983). Dynamics of the party system: Alignment and realignment of political parties in the United
States. Washington, D.C.: The Brookings Institution.

Verba, S., & Nie, N. H. (1987). Participation in America: Political democracy and social equality. Chicago, IL: Uni-
versity of Chicago Press.

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4 Congress and Policymaking

© Jean-Pierre Lescourret/Corbis

Learning Objectives

By the end of this chapter, you should be able to

• Distinguish between enumerated and implied congressional powers.
• Analyze congressional powers on the basis of the Necessary and Proper Clause.
• Analyze the ways that Congress performs its representative function.
• Analyze the organization of Congress and how that organization affects the legislative process.
• Describe how bills become laws and explain the political nature of the legislative process.
• Describe how Congress holds the executive branch accountable.
• Explain the different aspects of congressional elections.

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Section 4.1 Congressional Powers as Stated in the U.S. Constitution

Toward the end of the 111th Congress (2009–2011), Congress passed a bill to extend two of
President George W. Bush’s tax cut bills: the Economic Growth and Tax Relief Reconciliation
Act (2001) and the Jobs and Growth Tax Relief and Reconciliation Act (2003). While the cuts
lowered tax rates overall, earners in the top tax brackets derived greater benefit than those in
lower tax brackets did. Critics suggested that the cuts were actually giveaways to the rich,
while supporters claimed reduced taxes helped spur economic growth, as individuals would
have more money in their pockets to spend.

As the tax cuts were about to
expire in 2010, President Barack
Obama and congressional Demo-
crats favored the tax cuts expiring
for those earning at least $200,000
per year. Meanwhile, Republicans,
who had secured a majority in the
House and narrowed the Democrats’
majority in the Senate in the 2010
midterm elections, promised to
extend the cuts for everyone. The tax
rates would increase on January 1,
2011 if no action were taken. Mem-
bers of both parties were concerned
that a tax rate increase would slow
the emerging economic recovery.

Incoming Republicans were pre-
pared to vote for a complete exten-

sion once the 112th Congress took office on January 6, 2011. They believed that there were so
many Democrats concerned about being reelected in 2012 that they would vote with them
to make the needed legislative majorities. Democrats believed that if no action were taken on
the extension, the Republicans would gain the upper hand. Democrats also wanted to extend
unemployment insurance benefits to last 99 weeks and pass a new stimulus plan, which the
Republicans opposed.

Some Democrats in Congress were prepared to stand on principle and reject Republican
demands. Yet with help from the White House, most Democrats and Republicans were able
to reach a compromise. Congressional Democrats and the president supported a 2-year tax
cut extension across all income categories if congressional Republicans would support the
99-week unemployment benefits extension along with a stimulus package that included a 2%
deduction of Social Security payroll taxes for 1 year. Ideological purists in both parties were
dissatisfied, while practical-minded Congress members understood the political realities of
lawmaking that include deal making, vote trading, and compromises. The tax cut extension is
a good example of how Congress members seek to represent their constituents. In this chap-
ter, we explore how Congress represents the American people.

4.1 Congressional Powers as Stated in the U.S. Constitution

Congress is the legislative branch. As such, it writes the nation’s laws and makes public pol-
icy. Further, Congress holds the executive branch accountable through its oversight function.

© Michael Reynolds/epa/Corbis

After much haggling and compromise, members of
Congress from both parties, along with President
Barack Obama, reached an agreement to extend the
Bush tax cuts that both sides could live with.

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Section 4.1 Congressional Powers as Stated in the U.S. Constitution

By raising and spending money, Congress determines how taxpayer funds will be allocated.
The U.S. Senate influences foreign policy through its power to confirm Cabinet-level appoint-
ments (secretary of state, secretary of defense) and ambassadorships and by ratifying trea-
ties. Finally, Congress participates in national security by raising armies and declaring war on
other nations. Each of these functions speaks to the primary role of the legislative branch to
represent the people.

The scope of congressional power, and the parameters of its representation, are both estab-
lished in Article I of the Constitution, Section I, which states, “All legislative Powers herein
granted shall be vested in a Congress of the United States, which shall consist of a Senate and
House of Representatives.” Once Congress is established as bicameral, or made up of two
chambers, it defines who is eligible to serve, how each chamber selects its members, and term
length. Members of the House represent the people in districts for 2-year terms. Citizens are
also represented by senators, who serve for 6-year terms.

Most importantly, however, Article I outlines the principal powers of Congress, which are the
power of the purse, the power to declare war, and implied powers.

Enumerated Powers: The Power of the Purse

The power of the purse is perhaps Congress’s most important power. Article I, Section 7
states, “All Bills for raising Revenue shall originate in the House of Representatives; but the Sen-
ate may propose or concur with Amendments as on other Bills.” This means all bills concerning
taxes must be proposed by the House of Representatives before moving on to the Senate. It is
the responsibility of Congress to pass the national budget before it is signed by the president.
Article I, Section 8 includes enumerated powers, or the powers specifically granted to Con-
gress by the Constitution: “Congress shall have Power to Lay and collect Taxes . . . To borrow
Money on the Credit of the United States . . . To Coin Money, regulate the Value thereof, and of
foreign Coin and fix the Standard of weights and Measures.” Further, Congress has the authority
to impose taxes, borrow money, and print money. Congress may decide whether the nation
will use coins or print money.

While Congress has the power to
raise taxes and spend money, the
national budget, like any other law,
must be approved by majorities in
both houses of Congress and signed
by the president. The Budget and
Accounting Act of 1921 requires
the president to prepare budget
estimates, which are then submit-
ted to Congress. This requirement
helps Congress learn about depart-
ment budget needs. Before this law
was enacted, departments often
submitted their budget estimates
directly to Congress. The purpose
of the Budget and Accounting Act,

Associated Press/Doug Mills

Only Congress has the authority to lay and collect taxes,
and to borrow and print money. Presidents prepare
budgets and submit them to Congress.

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Section 4.1 Congressional Powers as Stated in the U.S. Constitution

which required the president to submit budget estimates, was to give the president respon-
sibility for the budget. From an administrative standpoint, the president has greater control
over executive branch agencies and departments, which promotes greater accountability. The
president’s right to submit a budget proposal can be inferred from Article II, Section 3 of the
Constitution, which says, “He shall from time to time give the Congress Information of the State
of the Union, and recommend to their Consideration such Measures as he shall judge necessary
and expedient.”

Consider the vignette introducing this chapter. Extending the Bush tax cuts required Congress
to introduce a bill calling for their extension. Because the bill concerned taxation, the House
had to introduce it, after which the Senate needed to approve it before it was formally pre-
sented to the president, which is required under Article I, Section 7. Had Congress failed to
act, it would have meant the expiration of the Bush-era tax cuts, as originally enacted.

Enumerated Powers: The Power to Declare War

The enumerated powers of Congress include the power to “declare War,” “raise and support
Armies,” and “provide and maintain a Navy.” If Congress declares war, Congress must also
appropriate the money to fight it. When the Constitution was initially ratified, there was no
Air Force, and the Army and Navy were each separate departments. Today, all branches of
the military fall under the Department of Defense, and Congress makes appropriations for all
of them. Still, the authority to appropriate money to the armed forces is taken from specific
constitutional provisions.

The formal authority to declare war is a matter of maintaining checks and balances. Tradi-
tionally, presidents request formal declarations of war from Congress. Congress has declared
war five times since the Constitution was ratified. The last time was on December 8, 1941,
one day after the Japanese attacked the United States at Pearl Harbor. President Roosevelt
appeared before a joint session of Congress and requested the declaration. Historical con-
gressional declarations of war include the following:

• War of 1812 (1812–1814)
• Mexican American War (1846–1848)
• Spanish-American War (1898–1898)
• World War I (1917–1921)
• World War II (1941–1945)

Implied Powers and the Necessary and Proper Clause

Congress’s implied powers are based on the enumerated powers in Section 8. Congress uses
its implied powers to expand its authority beyond the scope of its enumerated powers. Arti-
cle I, Section 8, Clause 18 states, “To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution
of the United States, or in any Department or Officer thereof.” As noted in earlier chapters, this
clause is also known as the Necessary and Proper Clause and suggests that Congress has
an implied power to do something not explicitly enumerated in the Constitution if it infers
that such action is necessary to fulfill its other constitutional requirements. For example,

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Section 4.2 The Meaning of Representation

Congress’s enumerated powers include the power “To raise and support armies,” although the
Constitution does not specify what that means. It has meant calling upon state National Guard
units and military drafts even though the Constitution does not give Congress the specific
authority to do either. Congress, however, can infer the right on the basis of the Necessary and
Proper Clause, because calling upon the National Guard is understood, or inferred, to be part
of Congress’s power to “raise and support armies,” which is an enumerated power.

Implied powers are the basis for justifying broadening congressional power. You may recall
from the last chapter that during the period of Dual Federalism, congressional power was
assumed to be limited because the Constitution outlines what it can do. More recently, Con-
gress has overcome that restriction by asserting its implied powers. If Congress passes a law
using its implied powers and without enumerated constitutional authority, that law may be
challenged as unconstitutional in the courts.

Even when there is an enumerated power, such as with interstate commerce in the Commerce
Clause, its scope may not be clear. The Necessary and Proper Clause allows Congress to tie
legislation to the Commerce Clause. Congress established the precedent for such an expan-
sion of its powers in the early days of the republic when the Federalists supported a national
bank over the objections of the Anti-Federalists, who claimed that it would violate states’
rights. After heated debate, Congress established the bank on the grounds that it was neces-
sary and proper for the purposes of coining money.

Arguably, such reasoning could serve as the basis for unlimited congressional authority. This
argument was used when Congress passed the first minimum wage law in 1938. Before then,
national legislation was considered to be an unconstitutional encroachment on a state’s police
power. Congress argued that, when firms were conducting business across state lines, employee
pay was a matter of national concern because of Congress’s express authority to regulate inter-
state commerce. The constitutionality of the minimum wage was upheld on these grounds.

More recently, during the debate leading up to passage of the Affordable Care Act of 2010,
conservative critics asked what the basis in the Constitution was for such legislation, espe-
cially the requirement that individuals purchase health insurance. Congress’s response was
that the power was found in the Commerce Clause. The U.S. Supreme Court upheld the Afford-
able Care Act on the grounds that the health insurance requirement was a tax. As Article I,
Section 8 gives Congress the power to lay and collect taxes, it was within Congress’s power to
mandate health insurance because the tax is a penalty for not purchasing the health insurance.

4.2 The Meaning of Representation

Congress makes policy and passes legislation all as part of its representation function. Yet rep-
resentation means different things to different people under different circumstances. On the
one hand, representation can mean that Congress members do exactly what the people tell
them to do. Yet Congress members represent by doing what they believe is right because they
have been entrusted by the people to speak and make decisions on their behalf. Representa-
tion can be interpreted on an individual level, such as when a member of Congress performs
constituent services such as helping to track down a missing Social Security payment; it also
can mean that Congress as a legislative body represents the people by holding the executive

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Section 4.2 The Meaning of Representation

branch of government accountable. Congress members are expected to represent the people
by serving as their agent and acting on their behalf.

Apportionment and Congressional Districts

Article I of the Constitution provides for apportionment, or the distribution of House seats
among the states on the basis of population. Larger states are apportioned more represen-
tatives than smaller states are. House seats are apportioned into congressional districts.
The Constitution does not require congressional districts. Rather, it states in Article I,
Section 2,

The actual Enumeration shall be made within three Years after the first Meeting
of the Congress of the United States, and within every subsequent Term of ten
Years, in such Manner as they shall by Law direct. The number of Representa-
tives shall not exceed one for every thirty Thousand, but each State shall have at
least one Representative.

Put differently, it is up to the states to define the boundaries of congressional districts.

During the early years, each state could decide if it wanted districts at all. Most states estab-
lished themselves as single-member districts, which meant that each district had only one rep-
resentative. The alternative was to allow for members of the House to represent their states
on an at-large basis such that a state with 10 House seats would be represented by all 10,

each representing the entire state, as opposed
to 10 separate districts, with one representa-
tive each. An at-large system would make the
House similar to the Senate with members rep-
resenting their states rather than the people.
To prevent this, Congress passed the Appor-
tionment Act in 1842 requiring all states to
send representatives to Congress from single-
member districts (as of the 2010 Census, seven
states have one representative each because
of their small populations; in these states, all
state residents are represented at large).

Interestingly, the Constitution does not require
equal representation in each congressional
district. According to Article I, Section 2, “The
Number of Representatives shall not exceed one
for every thirty Thousand, but each State shall
have at Least one Representative.” The impli-
cation is that there is no fixed number of rep-
resentatives in the House. As the population
grew, the Constitution implied, so too would
the number of representatives. But in 1929,
federal law fixed the number of House seats at

Associated Press/Nati Harnik

The Nebraska Legislature’s Redistricting
Committee redraws the state’s congressio-
nal districts, something states do periodi-
cally. Beyond the one-seat minimum guar-
anteed in the Constitution, the number of
House seats apportioned to each state is
determined by population.

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Section 4.2 The Meaning of Representation

435, which meant that as the population increased, each House member would represent
a larger population within the same geographical area. As of the 2010 Census, each House
member represents approximately 710,000 people.

Gerrymandering
District boundary lines are not necessarily fixed. States will draw district lines as they see fit,
which may reflect state legislators’ desire to gerrymander to advance their own political
interests. Gerrymandering occurs when a district is intentionally configured to maximize
the influence of a specific party or class, often guaranteeing that districts remain safe for spe-
cific incumbents or parties. Massachusetts Governor Elbridge Gerry first employed this prac-
tice prior to the 1812 election in an effort to protect his political party representation in the
state legislature. One district ended up looking like a salamander, and as a result the practice
came to be known as gerrymandering (see Figure 4.1).

One example of gerrymandering eventually resulted in a Supreme Court challenge. Following
the 1990 census, the North Carolina General Assembly sought to enact a congressional plan
with only one district with a majority of minority group members in 1991. This was known as
majority-minority districting, often referred to as racial gerrymandering. The demographics
of this northeast North Carolina area
made it possible to create a small
Black district by joining it with the
predominantly Black precinct in Dur-
ham, North Carolina. The U.S. Justice
Department opposed the plan, how-
ever, because of insufficient minority
representation. At the time, the state
was 22% African American; one pre-
dominantly African American district
was deemed insufficient.

Meanwhile, the State General Assem-
bly, then controlled by Democrats,
responded in early 1992 by creat-
ing a gerrymandered district. While
Republicans had proposed several
plans that would contain two minor-
ity districts, Democratic leaders in
the Assembly selected one and modi-
fied it to be more favorable to their
party. Several Republicans challenged
the plan, claiming that it lacked both
compactness and respect for commu-
nity interests.

In Shaw v. Reno (1993), the U.S.
Supreme Court ruled that a racial
gerrymander may, in some circum-
stances, violate the 14th Amendment’s

Figure 4.1: Gerrymander cartoon

The concept of gerrymandering takes its name from an
1812 Essex County, Massachusetts, district, which was
intentionally drawn to benefit Governor Elbridge Gerry’s
political party. This cartoon of the district as a dragon
satirized the practice.

© Gilbert Stuart/Corbis

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Section 4.2 The Meaning of Representation

Equal Protection Clause. The Supreme Court did not rule the plan was invalid; rather, it sent
the case back to the district court to determine whether the districts had been drawn on the
basis of race and, if so, whether the racial gerrymander that resulted was “narrowly tailored
to further a compelling governmental interest.”

States still engage in gerrymandering to achieve certain results. Members of the U.S. House of
Representatives and in state legislatures seek to run in districts in which they can expect to win
because there are lopsided percentages of persons registered with their political party in that
district. Additionally, the majority party in state legislatures will draw districts that create dis-
advantages for the minority party. The U.S. Supreme Court has upheld such arrangements on
the grounds that, provided certain approaches are taken, such as ensuring that the districts
respect community boundaries, then the 14th and 15th amendments are not deemed to have
been violated. Figure 4.2 demonstrates the various shapes U.S. congressional districts can take.

Figure 4.2: Map of U.S. congressional districts

Many U.S. congressional districts are still elaborately drawn to benefit members of the party in power.

From “Congressional Districts – 113th Congress,” by The National Map, 2014 (http://nationalmap.gov/small_scale/printable/images
/pdf/congdist/pagecgd113_us-all.pdf ).

Reapportionment
Because representation in the House is based on population size, the number of representa-
tives from each state is not fixed. Rather, the House is required to reapportion, that is, redis-
tribute, members based on changes in state populations. The Constitution specifically calls
for a census to be taken every 10 years for the primary purpose of reapportioning the House
of Representatives. This means that population shifts are reflected in congressional appor-
tionment. For example, Texas gained four House seats following the 2010 Census, while Loui-
siana lost one House seat. In 2005, Hurricane Katrina resulted in thousands of New Orleans
residents seeking refuge in Houston. Louisiana’s population shift to Texas contributed in part

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Section 4.2 The Meaning of Representation

to Texas gaining representation and Louisiana losing representation. The Supreme Court
affirmed that Congress must reapportion based on population shifts when it ruled in the 1962
case of Baker v. Carr because failing to do so effectually denied citizens equal representation.

Models of Representation

There are four basic models of representation: the delegate model, the trustee model, the over-
sight model, and the individual service model.

Delegate Model and the Role of Public Opinion
The delegate model holds that members of Congress are delegates of the people they serve,
and, as such, whatever position Congress members take is the position that their constituents
direct them to take. The delegate model is considered to be a form of agency representation,
whereby members regard their constituents as their bosses with the power to hire or fire
them. In order to know how to vote, members must stay in tune in with public opinion. As an
example, a Congress member seeking direction on a policy vote may poll her district to gauge
public opinion on the issue and vote accordingly.

This model suggests that Congress members have no opinions of their own and they support
whatever their constituents stand for. This raises the question of whether someone following
the delegate model can both lead and follow at the same time. The case might be made, how-
ever, that a delegate is not a follower. Rather, delegates’ positions on the issues reflect their
constituents’ values, which explains why they were elected.

A second assumption of the delegate model is that the primary goal of Congress members
is to be reelected. They can do this only if they satisfy the wishes of their constituents. In
the early 1970s, political scientist David Mayhew put forth the electoral connection thesis,
which has become the conventional wisdom about how Congress operates. According to this
thesis, the primary goal of Congress members is to be elected and reelected, and the desires
they express during a campaign to achieve certain legislative goals are the means to that end.
In short, they will say or do whatever it takes to get elected, and they will never vote against
the wishes of their constituents for fear that they will be voted out of office. In essence, David
Mayhew suggests that Congress members, in serving their constituents, are serving their own
self-interests.

Based on this thesis, constituents’ wishes come before Congress members’ party loyalty. One
might consider the vote on the Affordable Care Act to be a case where this thesis did not hold
up. Most public opinion polls showed that most Americans opposed the legislation, but a
majority in Congress voted for it anyway. Many of those who voted for it soon discovered that
they faced a tough reelection challenge. If Congress members paid attention only to public
opinion in their districts, then the health care bill might not have passed.

The answer to this puzzle may lie in the fact that representation is a much more complicated
process than has been described thus far, as is public opinion. On one level, those who voted
for the bill may have believed that most people in their respective districts wanted it or were
not so strongly opposed to it that they would deny them reelection.

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Section 4.2 The Meaning of Representation

Trustee Model and Serving the Public Interest
Following constituent opinion is not the only reason why Congress members would favor the
Affordable Care Act. Some Congress members may have believed that this was an issue of the
common good, and they voted for the bill because their constituents entrusted them to make
decisions on their behalf. This approach to representation is embodied in the trustee model.

The trustee model was initially formulated by British statesman Edmund Burke (1729–1797),
who argued that representatives should vote based on what they believe is right. By electing
members to a legislative body, Burke said, the people have entrusted them to effectively vote
their conscience. Trustees, then, do not represent their constituents by following public opin-
ion polls. They do what they think best serves the public interest. The trustees then stand
before their constituents during the next campaign and justify their positions. If their con-
stituents are satisfied, they are reelected. If the public is not satisfied, the trustees are voted
out of office.

In some respects, this model is undemocratic
and implies a negative view of the people. Burke
himself was a conservative who did not believe
the people could be trusted. The representa-
tive should be a trustee, he argued, because the
people lack the proper judgment. Columnist and
television commentator George Will (1993) has
considered Burke’s views within the context of
term limits, arguing they would make the mem-
bers less beholden to their constituents and
more able to act like trustees.

Oversight Model and Delegating
Authority to the Executive Branch
When Congress holds the executive branch
accountable, it represents the people and serves
the common good by using the oversight
model, where accountability is typically main-
tained through hearings.

Congress holds the executive branch account-
able by delegating authority to executive branch
departments to perform various functions. For

example, Article I, Section 8 gives to Congress the power to “raise and support armies.” Con-
gress itself does not raise armies; those powers are delegated to the secretary of defense. If
someone within the Department of Defense fails to fulfill Congress’s expectations, that person
may be required to testify before Congress to explain his or her decision making, thus mak-
ing the Department of Defense accountable to Congress. During the Iraq War, members of the
U.S. Army, among others, abused and tortured detainees at Abu Ghraib prison in Iraq. The
Senate Armed Services Committee held hearings investigating these human rights violations.
Secretary of Defense Donald Rumsfeld was included among those who were called to testify.

The Art Archive/SuperStock

Edmund Burke formulated the trustee
model of government. Burke believed that
elected legislators were obligated to vote
their conscience if there was a conflict
with their constituents’ desires.

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Section 4.2 The Meaning of Representation

Article I, Section 1 of the Constitution says, “All legislative Powers herein granted shall be
vested in a Congress of the United States.” Questions have arisen as to whether Article I, Sec-
tion 1 deprives Congress of the power to delegate power to the executive branch. The consti-
tutional provision also reflects John Locke’s view of a supreme legislative body. In his Second
Treatise, Locke (1689/1988) says,

This Legislative is not only the supreme power of the Commonwealth, but sacred
and unalterable in the hands where the Community have once placed it; nor can
any Edict of any Body else, in what Form soever conceived, or by what Power
soever backed, have the force and obligation of a Law.

He then notes that the supreme legislature cannot transfer more power than it has, nor can it
transfer power that it does not have.

Can Congress delegate its authority? One view suggests that it cannot. Another view suggests
that, if authority is delegated, the regulations put in place by the executive branch may not
fully reflect the legislature’s intent. Alternately, Congress’s delegation of authority to the exec-
utive branch is legitimate because the authority is limited to running a program that Congress
has created.

Oversight hearings are a regular
occurrence in Congress, and usu-
ally few citizens pay attention to
them. The Watergate hearings
were an exception. On June 17,
1972, operatives associated with
President Nixon’s Committee to
Reelect the President broke into
the Democratic National Commit-
tee headquarters at the Watergate
apartment and office complex in
Washington, D.C. The cover-up
that followed the arrest of the
operatives led all the way to the
president. Congress held special
investigative hearings that riv-
eted the nation for weeks. The
House Judiciary Committee rec-
ommended that the House of Rep-
resentatives impeach President
Nixon. The president resigned
before impeachment could pro-
ceed. Watergate was an extreme case, but it nevertheless stands as an excellent example of
Congress’s potential to represent the people through the oversight model.

Congress’s power to impeach and remove the president from office is found in Article II, Sec-
tion 4 of the U.S. Constitution. Public officials are removed upon impeachment and conviction
for “Treason, Bribery or other High Crimes and Misdemeanors.” Impeachment is a critical
check on executive power. Seeking impeachment carries political risk for Congress members.

© JP Laffont/Sygma/Corbis

In 1973, the Watergate Committee held hearings to
investigate Richard Nixon’s cover-up of the break-in
of the Democratic National Committee headquarters
in the Watergate office and apartment complex. Nixon
became the first, and only, American president to
resign right before the House of Representatives voted
on impeachment.

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Section 4.2 The Meaning of Representation

Impeachment and removal requires first that the House of Representatives vote to impose
Articles of Impeachment. A majority impeachment vote once made is followed by a Senate
trial. The chief justice of the U.S. Supreme Court oversees Senate impeachment trials of the
president, but not other impeached public officials. A two-thirds Senate vote results in convic-
tion and removal.

Two presidents have been impeached and tried by the Senate. Andrew Johnson was acquitted
by one vote in 1868, while Bill Clinton was acquitted by a wider margin in 1999. Impeachment
strains relationships between the president and Congress. Andrew Johnson was impeached
for violating the Tenure of Office Act because he removed the secretary of war from office,
which angered his political opponents in Congress. The impeachment weakened Johnson’s
political position, which may have contributed to his failure to secure his party’s nomination
when seeking reelection in 1868. Clinton’s impeachment enhanced his popularity because it
was viewed as politically motivated among congressional Republicans. Presidential impeach-
ments may be rarely used because members of Congress may see themselves as undoing the
will of the people in doing so.

Service Model of Representation
Finally, members of Congress represent their constituents by performing services for them.
This is known as the service model of representation. As an example, a recently retired person
who is having trouble receiving his first Social Security payment may contact his representative
for help. All House members maintain offices in their home districts and in Washington, D.C.,
while senators maintain several offices throughout their respective states. Either a congressio-
nal staff member or the Congress member herself may contact the Social Security Administra-
tion, which can investigate the issue. To take another example, a researcher studying the history
of funding prison building may contact a Congress member. The office will issue a request to
the Congressional Research Service of the Library of Congress, and within a few weeks a report
may be forwarded to the researcher. This type of representation is important because it is often
the little things that win the support of constituents who see their lives improved as a result of
a direct connection with the Congress member or his or her office staff. Such representation is
very personal. Many constituents might not care much about congressional debates over for-
eign policy because they do not greatly affect their day-to-day lives, but this type of service does.

This type of service can be highly beneficial, but there is a risk for abuse that can lead to cor-
ruption. For example, in 1989, five U.S. senators were accused of improperly intervening on
behalf of Charles Keating, the chairman of Lincoln Savings and Loan. It was alleged that Keat-
ing gave $1.3 million in campaign contributions to Senators Alan Cranston of California, Den-
nis DeConcini and John McCain of Arizona, John Glenn of Ohio, and Donald Riegle of Michigan
(the “Keating Five”). In turn, the senators were alleged to have used their influence to get
bank regulators to overlook various banking violations. The Senate Ethics Committee cleared
both Glenn and McCain of acting improperly, but they were criticized for poor judgment. The
others were found to have acted improperly and did not seek reelection.

Which Model of Representation Does Congress Follow?
In summary, Congress follows all four models of representation, at times more than one
model at a time. Members sometimes act as delegates and at other times act like trustees.

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Section 4.3 Congressional Organization

Meanwhile, they all are involved in oversight and service. It really depends on the specific
issue being considered, the amount of time between voting on the issue and the next election,
and how Congress members view their role and impact on American politics.

In considering various congressional roles, members of Congress are more likely to act as
delegates on matters of domestic policy, because such bread-and-butter issues more directly
affect their constituents’ lives and constituents are more likely to pay attention to domestic
issues compared with foreign policy concerns, about which the public is less informed. The
trustee model is more often followed in foreign affairs for these reasons. The four models of
representation thus overlap with one another. Additionally, Congress members deliver ben-
efits to their constituents by bringing various projects such as construction and government
contracts to their districts and states.

4.3 Congressional Organization

Congress is organized by both committees and party leadership, neither of which is specified
in the Constitution. Most of the work of Congress is done in committees, while the majority
party organizes each house of Congress and determines its leaders. Upon entering Congress,
a newly elected member will seek committee assignments based on various factors. These
factors may include committees that best serve their district or state (such as agricultural
committees that will write policies that will greatly affect states whose economies depend
more on agriculture than others); “money” committees, such as Ways and Means and Appro-
priations, which may be viewed as key committees that will serve as a critical base of power;
or committees for which the Congress member has special expertise, such as doctors serving
on health-related committees. Additionally, members may seek a committee that will best
serve their constituency.

As an example, persons seeking membership on the Armed Services Committee may have
weapons systems manufacturers in their districts. These members hope to maintain support
for the systems that a manufacturer makes, which will also maintain jobs for constituents.
This is an example of delivering the goods back to the district. Some committees are viewed
as more prestigious than others, such as those dealing with foreign policy, the military, or
justice. Committee service may lead to the possibility of becoming a committee chair or party
leader, such as speaker of the House or Senate majority leader. Members of Congress serve
on multiple committees at the same time, although they may not chair more than one of the
permanent policy committees (“standing committees,” discussed later in the chapter) at the
same time.

There is one leadership position in the Senate created to accommodate the constitutional
mandate that the vice president break Senate ties. The constitutional requirement that
there be two senators per state regardless of the state’s population leads to the possibility
that there may be a tie in the Senate. The Framers assigned the task of breaking ties to the
vice president, whom the Constitution names as president of the Senate. When the vice
president is not present, the Senate’s longest-serving member is assigned the role of presi-
dent pro-tempore.

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Section 4.3 Congressional Organization

Congressional Committees

Congress is organized by committees principally because it is the most efficient way to get its
business done. Some Framers believed that in the spirit of democracy all members should be
knowledgeable about and able to debate all the issues that come before Congress. This might
have been possible in the early days of the republic, when Congress was relatively small and
had fewer responsibilities. In those days, Congress was in session for less than 3 months each
year, and members remained in their districts most of the time. The farmer who came to Con-
gress to represent a rural Virginia district would still spend most of his year at home farming.

Broad knowledge is no longer prac-
tical, as Congress deals with so many
complex issues. Dividing Congress
into committees allows specializa-
tion and division, which leads to
greater efficiency. Those on a com-
mittee whose jurisdiction includes
education may focus on education,
while the Armed Services Committee
deals with matters of defense. While
specialization means that members
can become experts on issues within
their committee’s jurisdiction, spe-
cialization may also mean that other
issues are largely ignored. The obvi-
ous question is whether members of
Congress can represent the people
when they are not fully knowledge-
able about everything about which
they are making decisions. Yet if they divide their time among all the issues so that they can know
something about everything, they may end up having little depth of knowledge across these
issues. In practice, members of Congress may not fully understand legislation on which they are
expected to vote. They may review summaries that have been prepared by staff members.

Parties in both the House and the Senate have used different methods for selecting committee
members. For instance, from 1911 to 1974, House Democrats relied on Democratic members
of the Ways and Means Committee to recommend assignments. Beginning in 1975, the Demo-
crats gave this function to the Steering and Policy Committee, chaired by the speaker, when
they were in the majority. Republicans in the House have a Committee on Committees that
is composed of one member from every state that has at least one Republican in the House.
This committee is chaired by the Republican floor leader. On the Senate side, Democrats have
a steering committee, appointed by the floor leader, that makes appointments. The steering
committee is composed of senior party members, who also serve as committee chairs. Senate
Republicans have a Committee on Committees that makes initial assignments also based on
seniority. The party caucus must approve all committee assignment recommendations.

Associated Press/J. Scott Applewhite

Vice President Joe Biden meets with congressional
committee leaders to negotiate a deficit reduction plan.
Congress is organized by committees because it is the
most efficient way to get things done.

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Section 4.3 Congressional Organization

Types of Committees
There are four types of committees: standing committees, select committees, special commit-
tees, and joint committees. Power is located in committees and is where legislation is crafted.
Legislative research is also completed at the committee level. And testimony about the impact
a bill may have is communicated in committee, such as through hearings and written reports.

Standing committees exist per-
manently from one Congress to
the next and deal with a variety of
issues in a given subject area. An
example of a standing committee
is the House Education and Work-
force Committee, which may deal
with educational achievement, job
training, and the minimum wage.
Because these issues vary so widely,
they are often divided into subcom-
mittees. A subcommittee may deal
specifically with job training while
another deals with minimum wage.

A select committee is established
to address a specific purpose, such as a particular issue that needs to be addressed or that is
in a subject area that does not easily fit into a standing committee. Once the issue has been
addressed, the committee can be disbanded, or if the issue is expected to be ongoing, the
select committee can be transformed into a standing committee.

A joint committee is made up of members of both houses of Congress. The most common
joint committee is the conference committee. Bills passed in each chamber on the same
issue must be examined by a conference committee to ensure that they are the same because
the Constitution requires that Congress present bills to the president that are jointly agreed
upon by both houses. Conference committees also negotiate compromises if there are differ-
ences between the bills passed by each chamber.

A joint committee may also be convened to carry out congressional investigations into execu-
tive branch abuses of power or to discuss business the two houses have in common, such as
managing common facilities or arranging celebrations and memorials.

Table 4.1 lists the standing and joint committees in Congress.

© Reuters/Corbis

Joint committees are made up of members of both
houses of Congress.

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Section 4.3 Congressional Organization

Table 4.1: Committees of the 111th Congress (2015–2017)

Standing committees in the U.S.
House of Representatives

Standing committees
in the U.S. Senate Joint committees

Agriculture
Appropriations
Armed Services
Budget
Education and the Workforce
Energy and Commerce
Ethics
Financial Services
Foreign Affairs
Homeland Security
House Administration
Intelligence
Judiciary
Natural Resources
Oversight and Government
Reform
Rules
Science, Space, and Technology
Small Business
Transportation and
Infrastructure
Veterans’ Affairs
Ways and Means

Agriculture, Nutrition, and
Forestry
Appropriations
Armed Services
Banking, Housing, and Urban
Affairs
Budget
Commerce, Science, and
Transportation
Energy and Natural Resources
Environment and Public Works
Finance
Foreign Relations
Health, Education, Labor, and
Pensions
Homeland Security and Govern-
mental Affairs
Judiciary
Rules and Administration
Small Business and
Entrepreneurship
Veterans’ Affairs

Joint Economic Committee
Joint Committee on the Library
Joint Committee on Printing
Joint Committee on Taxation

Data from “Committees,” by U.S. Senate, n.d. (http://www.senate.gov/committees/committees_home.htm) and “Committees,”
by U.S. House of Representatives, by U.S. House of Representatives, n.d. (http://www.house.gov/committees/).

Committee Chairs
Committee chairs are normally assigned based on seniority. Before 1974, those in Congress
the longest often found themselves chairing their choice of committee. This practice contrib-
uted to shrinking opportunities for newcomers to become key committee chairs. On the heels
of Watergate in 1974, the newly elected freshman members staged a revolt and demanded
that these rules be relaxed.

In the Senate, the seniority system meant that the Southern states held a disproportionate
amount of power. Until the 1970s, the South was essentially a one-party system, as nearly all
Southern senators were Democrats. It was quite challenging to accomplish anything in the
Senate without the approval of the Southern senators.

Leadership

Congress is also organized by party leadership. The political party with the most seats in a
chamber of Congress has earned the power to organize it. The speaker of the House of Repre-
sentatives, the House leader, is elected by the majority party. The speaker is the third in line
of succession to be president. Working directly below the speaker is the majority leader, who
supervises lieutenants known as whips, or floor leaders. Whips gauge support for specific
bills among members of their party. They also attempt to enforce party discipline so that the
rank-and-file members, or members of Congress who do not hold leadership positions, vote

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Section 4.3 Congressional Organization

with the party’s political agenda. On the Senate side, key leadership positions include the
majority leader and whips, who perform the same basic functions as their counterparts in the
House. Meanwhile, the minority party in both chambers also has leadership positions. In both
chambers, there are minority leaders who supervise minority whips.

How does the party leadership enforce discipline? It comes back to committees. The majority
party selects the standing and select committee chairs in Congress (each party selects mem-
bers for its own special committees). The speaker and majority leader control the Rules Com-
mittee while they control other high-profile appointments. This means that party loyalists can
be rewarded with desirable committee assignments. Those failing to “toe the party line” can
be punished with less desirable committee assignments, which may include denying more
senior Congress members chair assignments that their seniority might otherwise earn them.

Staff

Members of Congress are each assigned staff members to support them in fulfilling their
responsibilities. Congressional staff members play a significant role in the overall operations
of Congress and, more specifically, in the representative function. Each member has a sizable
personal staff, while committees are also assigned staff. Prior to World War II, congressional
staff was not very large (see Figure 4.3). Just after the war, personal and committee staff
together numbered approximately 2,000. Those numbers grew steadily over subsequent
years, and by the mid-1980s, 18,000 individuals were working on either a personal or a com-
mittee staff in Congress.

Figure 4.3: Number of personal staff members in Congress, 1930–2010

Since World War II, the number of personal staff members in Congress has increased substantially.
By 2010, with 4,067 personal staff for 100 senators, each member of the Senate had an average of
40 personal staff.

Data from Vital Statistics on Congress (Table 5-2), by N. J. Ornstein, T. E. Mann, M. J. Malbin, A. Rugg, & R. Wakeman, 2014, Washington
D.C.: The Brookings Institution.

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Section 4.3 Congressional Organization

Staff members can have a considerable impact on legislation. As members of Congress find
themselves stretched thin over a variety of issues, they rely on their staffs to study the
issues and provide them with essential information. Staff members can increase their leg-
islative impact if they are willing to aggressively advise members and challenge them on
their positions. Moreover, they can increase their influence by timing the release of critical
information that a member might need to make an informed vote on a measure. Members
tend to rely on personal staff members for legislative assistance when addressing new
problems, while recently elected members are likely to rely more on their staffs compared
with more senior members because they are less experienced and expert in various areas.

Committee staff members are also vital to the legislative process. They organize hearings
and conduct research on topics relevant to committee investigations. They draft bills and
amendments, prepare the language of committee reports, and assist members in prepar-
ing for floor debate, during which bills are discussed and argued over in each chamber
before being voted on by the full House or Senate. Committee staff members also serve as
the liaisons between Congress and both interest groups and the executive branch.

The persons testifying at hearings will often include executive branch officials and interest
group representatives. Executive branch officials will often speak to issues about a pro-
posed bill, such as to ensure that sufficient funding is put in place for implementation,
while an interest group will testify as to the need for legislation or to convince Congress to
shape proposed legislation in the direction supported by the interest group. When execu-
tive branch officials and interest groups testify before Congress, they are taking part in
iron triangles, which are discussed in Chapter 6.

Committee staff members perform
four principal functions, focus-
ing on intelligence/information
gathering, integration, innovation,
and influence. They provide intel-
ligence by collecting and filtering
information before it is shared
with committee members. They
integrate by working closely with
appropriate committee staff in the
other chamber. They innovate by
looking for new problems and pro-
posing solutions to them. Finally,
they have influence because of the
vital tasks they perform and the
trust they build between them-
selves and members of Congress.

Associated Press/Charles Dharapak

Congressional staff members gather outside the Capi-
tol. Staff members play numerous important roles in
the overall functions of both houses.

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Section 4.3 Congressional Organization

Organization by Constituency Versus Organization by Party

A key question is whether it is more important for Congress to be organized around serving
constituents or serving party interests. The congressional committee structure is designed
to serve primarily constituents, while the leadership structure serves party interests. For
members, it can be difficult to manage the demands placed on them—is it in their constitu-
ents’ best interest for them to pursue committee leadership or chamber leadership? While
the speaker of the House and Senate majority leader may be more powerful and prestigious
positions than committee chairs, it can take years to work one’s way up to the top, and most
will not secure one of those positions.

As chair of a key committee, a member can build a power base and be effective. From 1987
to 1989, Democratic Senator Robert Byrd of West Virginia served as Senate majority leader.
He resigned that leadership post to become the Appropriations Committee chair, where he
ensured a flow of federal dollars into West Virginia to benefit his constituents.

Although leadership positions may be highly visible, the people who hold them may be per-
ceived as focused on national issues at the expense of local concerns, and constituents may
feel neglected. Whether the perception is true or not, these highly visible congressional lead-
ers may not have as much time to devote to their districts. Democratic South Dakota Senator
Tom Daschle, who served as majority leader from 2001 to 2003, was defeated when he ran for
reelection in 2004 largely due to a well-financed campaign by his opponent, who accused him
of being out of touch with his constituents. In fact, Daschle was the first Senate party leader to
lose reelection since 1952. A similar campaign helped defeat former Democratic Speaker of
the House Tom Foley in 1994, when George Nethercutt beat him 51% to 49%. In both cases,
the challengers were advantaged, as they had more time to be in the district campaigning.

Efficiency Versus Democracy

Can a committee structure that encourages specialization and efficiency really be democratic?
There would appear to be an inherent contradiction here. The entire constitutional structure,
as noted in Chapter 2, was intended to be anything but efficient so as to prevent Congress from
encroaching upon individual rights. One tenet of democracy is for the people to be represented
by grassroots-level citizen-politicians, but the committee structure and the reliance on special-
ization and division of labor has given rise to the professional politician. The effect is to cre-
ate distance between Congress members and the people they represent. Moreover, a stronger
democracy may be achieved if representatives are familiar with all the matters before them. But
Congress has been overburdened with so much work in recent decades that many members
struggle to keep up. Put differently, the institution is so large and the business before it so great
that without some semblance of efficiency, there would be no functioning government at all.

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Section 4.4 Policymaking and Broad Representation

4.4 Policymaking and Broad Representation

Policymaking transforms ideas into laws. It is also through policymaking that diverse posi-
tions are represented in the U.S. Congress. On one level, the process can be thought of as a
flow diagram where bills are introduced, debated in committee, debated further in the full
chambers of each house, and then sent to the president for signature. However, the process is
considerably more political. How bills move through the process is a question of who pushes
them, how much power that person has, and what deals or agreements that person can make
to gain support for them. If we return to the premise of the delegate model of representation,
members of Congress are likely to support a bill if there is something in it for their constitu-
ents. This does not mean that they expect the same from every bill, but if they support a bill
for a program that is not important to their state or district, they will expect others to, in turn,
support bills that are. Each member, in other words, expects reciprocity. This is called logroll-
ing, where members support each other’s bills.

How a Bill Becomes a Law

As Figure 4.4 shows, a bill is typically introduced by a sponsor with several possible co-
sponsors, in each chamber of Congress. On the House side, a bill is introduced by a represen-
tative and then referred to the appropriate committee for action. As an example, the Afford-
able Care Act in its initial form was referred to the House Ways and Means Committee. A bill
is sometimes divided into its component parts and referred to different subcommittees. The
component dealing with financing may be sent to a financing subcommittee, while the com-
ponent focusing on expanding coverage may be sent to a different subcommittee. For a bill to
become law, each component must be passed by its respective subcommittee and referred
back to the full committee. The full committee then debates and votes on the bill. If it clears
the committee, it is sent to the House floor for debate and a vote.

Figure 4.4: How a bill becomes a law

The path a bill must take to become law looks straightforward, but the process is actually quite political.

Data from “How Laws Are Made,” by Office of the Clerk of the U.S. House of Representatives, n.d. (http://kids.clerk.house.gov/grade-
school/lesson.html?intID=17).

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Section 4.4 Policymaking and Broad Representation

4.4 Policymaking and Broad Representation

Policymaking transforms ideas into laws. It is also through policymaking that diverse posi-
tions are represented in the U.S. Congress. On one level, the process can be thought of as a
flow diagram where bills are introduced, debated in committee, debated further in the full
chambers of each house, and then sent to the president for signature. However, the process is
considerably more political. How bills move through the process is a question of who pushes
them, how much power that person has, and what deals or agreements that person can make
to gain support for them. If we return to the premise of the delegate model of representation,
members of Congress are likely to support a bill if there is something in it for their constitu-
ents. This does not mean that they expect the same from every bill, but if they support a bill
for a program that is not important to their state or district, they will expect others to, in turn,
support bills that are. Each member, in other words, expects reciprocity. This is called logroll-
ing, where members support each other’s bills.

How a Bill Becomes a Law

As Figure 4.4 shows, a bill is typically introduced by a sponsor with several possible co-
sponsors, in each chamber of Congress. On the House side, a bill is introduced by a represen-
tative and then referred to the appropriate committee for action. As an example, the Afford-
able Care Act in its initial form was referred to the House Ways and Means Committee. A bill
is sometimes divided into its component parts and referred to different subcommittees. The
component dealing with financing may be sent to a financing subcommittee, while the com-
ponent focusing on expanding coverage may be sent to a different subcommittee. For a bill to
become law, each component must be passed by its respective subcommittee and referred
back to the full committee. The full committee then debates and votes on the bill. If it clears
the committee, it is sent to the House floor for debate and a vote.

Figure 4.4: How a bill becomes a law

The path a bill must take to become law looks straightforward, but the process is actually quite political.

Data from “How Laws Are Made,” by Office of the Clerk of the U.S. House of Representatives, n.d. (http://kids.clerk.house.gov/grade-
school/lesson.html?intID=17).

Meanwhile, the same process occurs in the Senate. Once the Senate passes its version of the
bill, the two versions must be reconciled into one bill for the president to sign. Both chambers
appoint representatives to serve on a conference committee that is tasked with negotiating
compromise between the House and Senate versions of the bill. That committee then sends
the compromise version of the bill back to both chambers of Congress for another round of
debate and then a vote.

The bill can be killed at any step in this process. A bill that fails to make it out of a committee,
for instance, will not be voted on in the full chamber.

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Section 4.4 Policymaking and Broad Representation

Senate Filibusters

Each chamber has the right to establish its own rules for debate. In the House, where there
are more members, members might be given no more than 5 minutes to speak on a matter on
the floor. The Senate, however, has more elaborate rules, and a Senate debate can be endless.
The Senate also allows its members to engage in the filibuster, a procedure under which
individual senators can extend debate indefinitely and prevent action on a bill. Filibusters
prevent anyone from having the floor to speak, including introducing a motion to vote, if the
filibustering senator has not yielded the floor. As part of a filibuster, a senator can yield to a
colleague who will continue where the filibustering senator left off.

An old-style filibuster involved a senator
talking for hours until everyone dropped
from exhaustion. South Carolina Senator
Strom Thurmond staged the nation’s lon-
gest one-person filibuster, in opposition
to the Civil Rights Act of 1957. Thurmond
was a longtime segregationist who ran as
a States’ Rights Democrat (Dixiecrat) can-
didate for president in 1948, with the goal
of preserving the Southern segregationist
way of life. Thurmond’s filibuster, which
lasted for more than 24 hours, began with
his reading every state’s election laws in
alphabetical order and continued with
reciting the Declaration of Independence,
the Bill of Rights, and Washington’s Fare-
well Address. In the end, though, the Civil
Rights bill passed in the House by a vote
of 270 to 97 and in the Senate by a vote of
60 to 15.

Current Senate rules permit another type of filibuster. Each bill is assumed to be under filibus-
ter, meaning it cannot advance to the Senate floor for debate until a cloture vote— literally, a
vote to close it off—has occurred. Current Senate rules require that a minimum of 60 senators
vote for cloture. This means that a Senate divided along party lines, and where the majority
party can never achieve the required 60 votes, may never pass any legislation. As an example,
environmental legislation sought by President Obama and passed by the House in 2009 was
effectively declared dead in the Senate because it never achieved its requisite 60 votes to
achieve cloture. Chamber leaders usually will not seek a floor vote unless they believe they
have the necessary number of votes, as measured by the whips, to pass it.

© Bettmann/Corbis

Senator Strom Thurmond engaged in a 24-hour-
and-18-minute filibuster in 1957 to prevent pas-
sage of a Civil Rights Act (his efforts failed, as the
bill ultimately passed). In this photograph, he
is approached by reporters just after ending his
floor time.

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Section 4.4 Policymaking and Broad Representation

In 2013, the 60-vote requirement for cloture was modified for presidential appointments.
Filibusters may be broken with a simple majority if the issue being delayed with a filibuster
is a confirmation vote. However, the 60-vote requirement to end a filibuster still stands for
proposed legislation.

Bringing a Measure to the Floor

To gain the consensus necessary to bring a measure to the floor, leaders often use the follow-
ing tools: pork barrel politics, vote trading, and coalition building.

Pork Barrel Politics
A major part of representation involves bringing benefits back to one’s district or state, which
is often referred to as pork barrel politics. Until 2011, the congressional leadership could
buy another member’s vote with the promise of support for a project that could offer sub-
stantial benefit to the member’s district. Sometimes this pork is referred to as an earmark,
which was a legislative provision directing funds to be spent on approved projects. Earmarks
that would target projects in House members’ districts or senators’ states were placed into
the budget. They also exempted certain projects or enterprises from taxes and other fees.
Critics of earmarks, including Congress members, claim that earmarks are wasteful spend-

ing. The ban on earmarks has not
changed the practice, however.
Rather, the way that the mon-
ies are now directed to specific
states or districts is by Congress
allocating dollars to the appro-
priate federal agency for the pur-
pose of directing those monies
into those states or districts.

Congressional leaders are not
the only politicians who offer
pork. The president may also
support various projects for spe-

cific members in exchange for their support of his or her goals. Moreover, many members of
Congress run on platforms outlining what they can do for their states, such as attracting large
employers and industries to the states.

Vote Trading
Vote trading involves members exchanging votes with one another. Representative X will prom-
ise to vote for a bill supported by Representative Y if Representative Y will in turn vote for Rep-
resentative X’s bill. For instance, Representative X’s bill is for increased defense spending that

Associated Press/David Duprey

Many people decry the idea of pork barrel spending but
do not mind when their own Congress members secure
federal programs and projects for their areas.

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Section 4.5 Congress and Executive Accountability

will benefit Representative X’s home district, and Representative Y’s bill is for a new literacy
program that will benefit Representative Y’s constituents. In all likelihood, Representative Y has
no real interest in defense issues and Representative X has no real interest in literacy programs,
but both are willing to support each other to represent their own constituents effectively. It is
often through this process of logrolling that Congress gets things done.

Coalition Building and Broad Representation
Congress works through coalition building and consensus. Coalitions are usually built through
pork barrel politics and logrolling. Individual members of Congress trade votes with each
other, and committee chairs trade votes with other chairs. In a technical sense, a majority vote
in both chambers of Congress is usually enough to pass legislation, but the vote is really only
the final act of an otherwise long and drawn-out process. Most of the time, it is also anticli-
mactic; how members are going to vote becomes apparent along the way because of the work
that has gone into building a coalition.

Coalitions must be formed by those who spearhead legislation. It is the Madisonian formula
in action. When each constituency gets what is important to it, each has received what politi-
cal scientist Arthur Maass (1983) has called broad-based representation. Ultimately, every-
one’s interests and needs are fulfilled and legislation is rarely accomplished quickly.

Policymaking by Consensus and Partisan Mutual Adjustment

In an ideal world, Congress members would vote for a measure because it is the right thing to
do and a compelling argument has been made in its favor. But that is not the only reality. Mem-
bers often find that they must compromise on their positions to build consensus. They vote
for measures because they have bargained with one another while a variety of deals have been
made throughout the process. Political scientist Charles Lindblom (1965) calls this partisan
mutual adjustment. Members build a consensus that accomplishes some but not all of what
they want because they must adjust their expectations and compromise to get enough votes.

The extension of the Bush tax cuts is a case in point. Those who stand on principle will not
compromise their positions. But Congress members who seek to represent their constituen-
cies feel that it is better to have some tax cuts than none at all. By accomplishing something,
even just a very small step, a foundation has been placed upon which more blocks can be set in
the future. Lindblom calls this process of taking small steps incrementalism. If an extension
of the tax cuts represents a step, it can be built on in the future through perhaps more and lon-
ger extensions until they are made permanent at some point. This again shows the genius of
Madison’s design, because Congress cannot undertake sweeping action that could encroach
upon citizens’ liberties if congressional members are able to make only small changes as part
of a larger process. An incremental process is checks and balances in action and thus in the
end represents the public well.

4.5 Congress and Executive Accountability

As we noted earlier when discussing the oversight model, an important representative func-
tion of Congress is holding the executive branch accountable. Its chief tools for doing this are

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Section 4.5 Congress and Executive Accountability

hearings, overriding presidential vetoes, and the legislative veto, which was utilized between
1930 and 1980 until it was declared unconstitutional in 1983.

Hearings

Hearings occur when members of
Congress, usually in committee,
request the appearance and testi-
mony of executive branch officials,
who have little choice but to com-
ply. (Failure to respond to a con-
gressional subpoena can result in
arrest and jail time.) During these
hearings, officials are usually asked
to report on what their agency or
department has been doing and
explain any new programs that
have been implemented.

For instance, both the House and
Senate Foreign Affairs committees
may hear testimony from the secre-
taries of state and defense to deter-
mine whether the money they have appropriated for diplomatic and military action is well
spent. Or they may want to know whether certain policies are accomplishing their intended
results. As a result of these hearings, Congress may either write new legislation to refocus a
policy or increase or reduce funding.

Testimony occurs in two forms. First, witnesses provide written testimony prior to the hear-
ing. Second, they deliver an oral summary of their written testimony, usually in the form of an
opening statement. After that, the floor is opened to questioning from members, who often
read from questions prepared by their staffs. Because these hearings are often televised, they
effectively constitute an exercise in public accountability. By forcing executive branch offi-
cials to publicly justify their actions, Congress holds the executive branch accountable to the
American public.

Overriding Presidential Vetoes

The Constitution specifically gives veto power to the president as a check on the legislative
branch. But Congress can override the president’s veto with a two-thirds vote of all the mem-
bers in both chambers. The threshold is higher than would be the case for normal passage of
a bill, which requires a simple majority of those who cast a vote that day.

Associated Press/Susan Walsh

Former Defense Secretary Robert Gates, who served
from 2006 to 2011, speaks with members of the Senate
Armed Services Committee after testifying before them.
Requesting the testimony of members of the execu-
tive branch is one way that Congress ensures executive
accountability to the American people.

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Section 4.6 Congress and Elections

Veto overrides do not happen often,
but when they do, Congress can
claim that it has achieved suprem-
acy over the executive and in so
doing has added to its representa-
tive function. Arguably, if officials in
the executive branch know that an
override is possible, they will think
seriously about whether a veto is a
good option. At the very least, the
threat of a veto override may force
the president to justify his or her
position. Because an override is
difficult to achieve (only 7% of all
vetoes have been overridden), it is
not wise to threaten one unless the
leadership is sure that it has lined
up the needed votes.

Legislative Veto

The legislative veto was another tool that Congress used to control the executive branch.
Technically, the Constitution provides only for a presidential veto, but Congress had inferred
the right to its own veto as necessary to fulfill its representative function. The idea is really a
logical outgrowth of congressional delegations of authority. When Congress passes a law, it
leaves the implementation of the law to the executive branch. Then, as an aspect of its over-
sight function, Congress calls officials to testify about what they have been doing. If Congress
decides that it does not like how the law has been implemented, it can pass a resolution
instructing them to cease and desist. This is called a legislative veto, and it was found uncon-
stitutional in Immigration and Naturalization Service v. Chadha (1983) because it violated the
separation of powers.

4.6 Congress and Elections

Congressional elections, which occur every 2 years, present opportunities to change the
government. A midterm election, which falls in the middle of the president’s 4-year term,
provides a forum for voters to register opposition or support of the president’s policies and
performance. It is not uncommon for the president’s party to lose seats in Congress during
these contests. The 1994 midterm election is a case in point. Following great dissatisfaction
with the Democratic Party’s performance during the first 2 years of Bill Clinton’s presi-
dency, the voters elected Republican majorities in both houses for the first time since 1952.
Many observers were quick to label it a repudiation of Clinton himself, but Clinton still won
reelection 2 years later. This suggests that the midterm election was more of a repudiation
of the party controlling Congress than of the president.

Associated Press/Wilfredo Lee

President Clinton signs his veto of a temporary borrow-
ing bill in 1995. Congress could not secure the required
two-thirds majority to override it.

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Section 4.6 Congress and Elections

Clinton’s 1992 presidential campaign included a health care reform platform, which he failed
to deliver. Much of that failure stemmed from Democratic opposition in Congress. At the same
time, many incumbent Democrats were embroiled in what came to be known as the House
Banking Scandal, when it was discovered that lawmakers were overdrawing their congressio-
nal checking accounts without penalty. The 1994 midterm election giving Republicans majori-
ties in both houses of Congress may have been due, in part, to public anger over the scandal
and to the belief that the Democrats were wasting their time by not working with the presi-
dent to get things done. More recently, in both midterm elections of the Obama presidency, the
Democrats experienced meaningful losses. In 2010, Democrats lost their majority in the U.S.
House of Representatives, while Republicans in the Senate narrowed their minority by six.
Republicans gained 64 seats in the U.S. House of Representatives, which shifted their member-
ship from 178 to 242. In 2014, the Democrats lost 10 seats, lost their majority party status in
the Senate, and lost 13 more seats in the House of Representatives. Arguably, Barack Obama’s
low approval ratings contributed to these staggering losses. In one sense, this creates gridlock
whereby nothing gets done. But in another, it is the very meaning of checks and balances.

The Role of Money in Congressional Elections

Running for Congress is an expensive proposition (see Figure 4.5). On average, running for a
House seat costs around $1 million, and Senate campaigns can cost considerably more. In a
large state such as California, for instance, a candidate might easily spend as much as
$40 million.

Figure 4.5: Cost of winning an election, 1986–2014
(in nominal dollars)

Running for Congress is an expensive proposition.

*John Corzine (D-NJ) spent $63,209,506 and Hillary Rodham Clinton (D-NY) spent $29,941,194. Remaining Senate winners in 2000 spent
an average of $4,737,365.
Data from “Table 3-1 The Cost of Winning an Election, 1986-2014 (in nominal and 2014 dollars),” by The Campaign Finance Institute,
2015 (http://www.cfinst.org/pdf/vital/VitalStats_t1.pdf ).

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This means that those running for Congress must raise large sums of money. Once a House
election has happened, the next election is only 2 years away, so much of a member’s time is
spent raising funds and campaigning. By law, an individual is not permitted to give more than
$2,600 per campaign (note that primaries, runoffs, and general elections are separate cam-
paigns), but political action committees (PACs) can give up to $5,000 per campaign. Many
incumbents expend legislative effort trying to please an array of interest groups who are then
expected to make large contributions favoring the incumbent’s reelection campaign. The
nature of campaign finance may effectively make Congress beholden to special interests and
thus call into question the meaning of representation. At the same time, congressional elec-
tions also serve to keep members accountable to their constituents.

The nature of campaign finance
favors incumbency. Current mem-
bers tend to enjoy widespread
name recognition. More often than
not, they do not need to put forth
as great a financial effort to make
themselves known to the voting
public as do challengers. This does
not mean that incumbents gener-
ally spend less than challengers
do on elections. In fact, they spend
much more. Congress members
also enjoy the franking privilege
that comes with holding office.
Franking is using taxpayer funds to
mail flyers and other materials to
help educate one’s constituents as
to one’s positions and accomplish-
ments. A third significant advan-
tage of incumbency is that campaign contributors are more likely to give money to someone
they know than to a challenger with whom they may not be familiar or who may lack a legisla-
tive record.

Whom Does Congress Ultimately Represent?

The way elections in the United States are financed raises questions as to who is actually
being represented. Is it the constituents who vote or the moneyed interests that contrib-
ute to campaigns? Additional concerns emerged in 2010 when the U.S. Supreme Court, in a
divided 5–4 decision in Citizens United v. the Federal Election Commission, ruled that, among
other considerations, the First Amendment protects the political speech of corporations and
unions with regard to the funding of political broadcasts. Two thirds of the public opposed the
Court’s position soon after the decision was made. The reality is that Congress members can-
not represent their constituents if they cannot get elected. Because attaining leadership posi-
tions, even committee leadership positions, is based on seniority, members must be reelected
multiple times to become senior to their congressional peers. It might seem bizarre that
for Representative X to serve, Representative X first needs to satisfy financial contributors.

Associated Press/Eric Risberg

Politicians must raise large sums of money to fund
their congressional campaigns.

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Summary and Resources

Nonetheless, if Representative X is perceived as catering to moneyed interests, Representa-
tive X can deflect criticism by delivering the pork and performing the essential service work.

The Role of Technology

When the Constitution was drafted in the late 1700s, the only way for members of Congress to
communicate with constituents was through letters or in person. It could take a long time for
a letter to arrive, and the travel difficulties between a member’s district and the Capitol made
visits infrequent. Today, technological advances in transportation and communications have
made it much easier for members to go back and forth between their districts and the Capi-
tol, and to regularly communicate with their constituents. Each member maintains a website
where constituents can learn what is going on in Congress and where their representative
stands on an issue. Congress as an institution also has websites that the public can access to
get information about pending legislation. In the other direction, technology has made it eas-
ier for members of Congress to obtain public opinion about particular issues, thereby making
it easier to represent the public’s wishes.

Technology also plays an increasing role in elections. Through the Internet and email, mem-
bers of Congress can reach out to the general population to raise funds. Reaching a broader
grassroots fundraising base through the Internet may weaken the hold of big, moneyed inter-
est groups, and it can potentially make Congress more representative. Also, the prospect of
a more informed citizenry pressures Congress to be more transparent. At a minimum, mem-
bers are more accountable; they can hide behind public ignorance far less than in the past.

Technology may raise a larger, more philosophical question: If the public can become informed
about public affairs through the use of the Internet, do citizens need Congress to represent
them at all? Might the institution become obsolete? Remember, one of the reasons for rep-
resentative government is that, given the population size and geographic distances, direct
democracy where everybody would come to debate issues and vote on them was impractical.
But is this still the case if members of the voting public can debate and, ultimately, vote over
the Internet?

Summary and Resources

Chapter Summary
Congress derives its formal authority from Article I of the Constitution, which specifically
grants it the power of the purse, the power to declare war, and the authority to do whatever
is necessary and proper to fulfill its expressly stated powers. On the basis of this Necessary
and Proper Clause, it infers a range of implied powers that it considers essential to its primary
function of representation.

Although representation is essential to the role of Congress, it holds different meanings. Mem-
bers can represent by serving as delegates whereby they take direction from their constituents
on how to vote in Congress. They can represent by serving as trustees whereby they vote on
the basis of what they believe is right and what they consider to be the public interest. Or they

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Summary and Resources

can represent by holding the executive branch accountable through the oversight function.
Depending on the issue, members will represent through a combination of one or more of
these. By the nature of Congress’s organization and the process by which laws are passed and
policy is made, Congress members represent in a very broad fashion.

Congress is divided into committees because this is an efficient way to consider potential
policy. Members gravitate to the committees that best serve the interests of their constitu-
ents. Through the process of trading votes with one another and by delivering pork to their
districts, constituents are represented. Coalitions are necessary to achieve the required con-
sensus to pass legislation.

Congress holds the executive branch accountable through hearings, the threat of impeach-
ment, and its power to override presidential vetoes. What these tools have in common is that
they persuade members of the executive branch to publicly justify their actions. To a large
extent, then, everything that Congress does serves its primary representation function. Even
the nature of congressional elections serves the representation function, as the need to be
reelected forces members of Congress to raise large sums of money. While this might appear
to cater to moneyed interests, it often allows members to be reelected and thereby fulfill their
representative function.

Key Ideas to Remember

• Article I of the Constitution establishes the enumerated powers of Congress, but
Congress has been able to assume power beyond those powers through the Neces-
sary and Proper Clause and by showing a relationship between a legislative action
and the Commerce Clause.

• One principal power of Congress is the power of the purse, which means that all
expenditures of money must be authorized by Congress. This also means that Con-
gress can check the executive branch by cutting off funds.

• “Representation” means different things to different people. On some occasions,
members of Congress act as delegates, where they do as their constituents instruct
them to do. But on other occasions, they act as trustees, where they vote according
to what they believe is right.

• One theory of representation holds that the first priority of Congress is to be
reelected, which persuades members to vote on issues according to the wishes of the
people. But representing a district might also entail things such as bringing money
back to their districts and states, and trading votes with other members of Congress
to obtain support for locally important programs.

• Another theory of representation holds that Congress represents the people by hold-
ing the executive branch accountable to the public through its legislative oversight
function.

• Congress is organized into specialized committees, and this allows for greater effi-
ciency because members of committees become experts in legislative areas that are
important to their constituents.

• How a bill becomes law is a process that involves politics, making deals, trading
votes, and building coalitions of support. Building coalitions allows members of Con-
gress to achieve broad representation of the public.

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Summary and Resources

Questions to Consider

1. What is the power of the purse?
2. Do implied powers through the Necessary and Proper Clause give too much power to

Congress? Why or why not?
3. What are the ways that Congress can represent the American people, and which one

best speaks to the nature of the U.S. Congress?
4. Is the way Congress is organized necessarily the best way?
5. Given what you now know about how policy is made in Congress, was there any

other way the votes for extending the Bush tax cuts could have been obtained?
6. How might the outcome have been different if members of Congress were not

so reliant on private donations and the need to raise huge sums of money for
reelection?

Key Terms

agency representation When members of
Congress regard their constituents as their
bosses with the power to hire or fire them.

apportionment Distribution of congressio-
nal members in a state.

cloture The vote of 60 to cut off filibuster.

conference committee A joint committee
made up of members of both the House and
the Senate; the goal of this committee is to
work out a compromise version of a bill that
can go to the president for signature.

congressional district The geographical
area represented by members of the House
of Representatives.

delegate model When members represent
their constituents by doing what the con-
stituents want.

earmark Legislative provision directing
that funds be spent on specific projects.

electoral connection thesis The argument
that the primary goal of members of Con-
gress is to get reelected.

Equal Protection Clause Included in the
14th Amendment, the Equal Protection
Clause guarantees to U.S. citizens that no
state may deny them their rights as citizens
of the United States.

filibuster A procedure by which members
of the Senate can extend debate indefinitely,
thereby preventing action on a bill.

floor debate During which bills are dis-
cussed and argued over on the House or
Senate floor once they are voted out of com-
mittee and before they are voted on by the
full House or Senate.

franking privilege The use of congressio-
nal or public funds to mail information out
to voters.

gerrymandering The drawing of congres-
sional district boundary lines to give a group
undue influence or to protect a member’s
seat.

incrementalism The idea that Congress
can make only small changes at a time and
therefore is less likely to take sweeping
action that might infringe on individual
liberty.

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Summary and Resources

joint committee Congressional committee
made up of members from both the Senate
and the House of Representatives.

legislative veto When Congress orders
the executive branch to cease and desist
the implementation of a law because it
does not approve of how the law has been
implemented.

logrolling The trading of votes.

majority party The political party with the
most seats in a legislative chamber.

Necessary and Proper Clause Article I,
Section 8, Clause 18 of the U.S. Constitution,
which allows Congress to do what it believes
is “necessary and proper” to carry out its
enumerated powers. Also known as “implied
powers.”

oversight model The idea that Congress
holds the executive branch accountable
through investigative or oversight hearings.

partisan mutual adjustment The process
of reaching a consensus through bargaining
and compromise.

pork barrel politics When members of
Congress bring projects or other goods back
to their districts.

rank-and-file Describes members of Con-
gress who do not hold leadership positions.

select committee A committee that is set
up for a special purpose.

service model When Congress members
represent their constituents by performing
services for them on an individual level.

special committee A committee in one
house of Congress that is composed of mem-
bers of one party only.

standing committee A permanent
committee.

subcommittee A smaller committee within
a larger committee that might take up a spe-
cific aspect of a bill.

trustee model When members represent
their constituents by doing what the mem-
bers think is right.

whips Members of congressional party
leadership who work the floors and marshal
support.

Further Reading
Baker, R. K. (2008). House and Senate (4th ed.). New York, NY: W. W. Norton & Co.

Fiorina, M. P. (1977). Congress: Keystone of the Washington establishment. New Haven, CT: Yale University Press.

Fisher, L. (2007). Constitutional conflicts between Congress and the president (5th ed., rev.). Lawrence, KS: Univer-
sity Press of Kansas.

Key, V. O. (1984). Southern politics in state and nation. Knoxville, TN: The University of Tennessee Press.

Lindblom, C. E. (1965). The intelligence of democracy: Decision making through mutual adjustment. New York, NY:
The Free Press.

Locke, J. (1988). Two treatises of government. Peter Laslett (Ed.). Cambridge, UK and New York, NY: Cambridge
University Press. (Original work published 1689)

Maass, A. (1983). Congress and the common good. New York, NY: Basic Books.

Mayhew, D. R. (2004). Congress: The electoral connection (2nd ed.). New Haven, CT: Yale University Press.

Ripley, R. B. (1988). Congress: Process and policy (4th ed.). New York, NY: W. W. Norton & Co.

Will, G. F. (1993). Restoration: Congress, term limits and the recovery of deliberative democracy. New York, NY: The
Free Press.

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8 Civil Liberties and Civil Rights

Associated Press

Learning Objectives

By the end of this chapter, you should be able to

• Define the concept of civil liberties and explain how civil liberties differ from civil rights.
• Outline basic civil liberties in the United States.
• Examine freedom of expression as a basic civil liberty.
• Explore the right to privacy as a basic civil liberty.
• Analyze how the Bill of Rights has been used to protect the rights of the accused.
• Trace the evolution of the American Civil Rights Movement from one of removing barriers to

participation in areas such as voting and education to one of guaranteeing group-based equality.
• Examine the meaning of equal rights and equal treatment.

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Following the attacks on the World Trade Center Towers and the Pentagon on September 11,
2001, President George W. Bush launched a “War on Terrorism.” This undeclared war, a police
action authorized by Congress, took the U.S. military to Afghanistan and later Iraq. It also
resulted in the creation of the Department of Homeland Security and, even more importantly,
the passage of the USA PATRIOT Act of 2001. (USA PATRIOT stands for Uniting and Strengthen-
ing America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.) As
a wartime measure, the USA PATRIOT Act allowed federal authorities to arrest and hold sus-
pected terrorists without filing formal charges. Individuals detained on suspicion of terrorism
were not entitled to an attorney, nor, if an attorney inquired at the request of a family member,
was the family member entitled to know why the suspect was being held. It also became fed-
eral policy that suspected terrorists who were charged would be tried in military, rather than
civilian, courts. Immigrants from Middle Eastern countries, including those who had obtained
U.S. citizenship, found themselves under greater scrutiny and at risk of detention and even
deportation without being afforded the rights traditionally enjoyed by Americans.

One of the fundamental character-
istics of the American political sys-
tem is that the government is one of
laws, and citizens have rights. At a
minimum, citizens have the right, if
accused of a crime, to due process:
to know what the charges against
them are and to face their accuser.
Those charged are entitled to a trial
where guilt has to be proven on the
basis of evidence. The USA PATRIOT
Act appeared to turn these funda-
mental rights on their head. For
example, the USA PATRIOT Act, as
written, provides that police do
not need to show probable cause,
guaranteed by the Fourth Amend-
ment, to obtain information from
telephone companies about num-
bers dialed to and from a specific
telephone. All that the police need
to do is assert that the information
is necessary for ongoing criminal investigations. Critics were quick to point out that not only
was this a violation of basic civil liberties, but it made a mockery of the Bill of Rights. If the
Constitution is stripped of its substance in the name of national security, then what exactly
are Americans defending while waging a war? Proponents of the act suggest that civil liber-
ties are never absolute but are balanced against the public interest, which in this case is a
matter of national self-defense. If the nation falls apart, then the Constitution is rendered a
meaningless document.

In this chapter, we explore the meaning of civil liberties and compare them to civil rights. We
also trace the ways the Supreme Court has expanded these liberties and rights for Americans
over the course of the nation’s history.

Associated Press/Ron Edmonds

President George W. Bush and members of Congress at
the signing of the USA PATRIOT Act. The USA PATRIOT
Act is intended to help the government employ terror-
ism-fighting tools that some say infringe on individual
civil liberties.

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Section 8.1 The Meaning of Civil Liberties and Civil Rights

8.1 The Meaning of Civil Liberties and Civil Rights

The concept of civil liberties is sometimes confused with that of civil rights. The term civil
liberties refers to the personal freedoms and the rights of those accused of crimes that are
enjoyed by citizens and non-citizens alike, while the term civil rights focuses on the rights of
citizens to be protected from discrimination in both the public and the private sectors. Civil
liberties are often referred to as negative rights, as they focus on what government cannot do,
while civil rights are often referred to as positive rights because they focus on what govern-
ment must do.

Civil liberties include those rights listed in the Bill of Rights that include freedom of speech,
freedom of religious exercise, and the freedom to peaceably assemble. They also generally
include the unstated right to privacy. These rights cannot be abridged by the federal govern-
ment. Civil liberties also include the rights of the accused, such as due process, protection
from cruel and unusual punishment, protection from unreasonable searches and seizures,
and the protection from being forced to testify against oneself.

By contrast, civil rights pertain to the right to be free from discrimination due to membership
in a group, such as discrimination based on gender, race, religion, ethnicity, or something
else. Voting rights and equal access to public education are civil rights that have been fought
for by different groups over the years. The 14th Amendment Equal Protection Clause and Due
Process Clause and the Fifth Amendment Due Process Clause provide the constitutional basis
for civil rights. These will be discussed in this chapter.

The U.S. Constitution’s Bill of Rights guarantees some basic civil liberties, such as freedom of
speech, freedom of religious exercise, protection against unlawful searches and seizures, and
jury trials. In providing for the election of representatives to Congress, the Constitution even
hints at the right to vote. But in the nation’s early years, state governments were much more
of a daily presence in Americans’ lives than the federal government was. The Bill of Rights,
as you may recall from Chapter 2, was intended to protect liberties that the Anti-Federalists
were concerned states would lose if the U.S. Constitution were ratified without it. The Bill of
Rights was designed to protect state sovereignty against encroaching national authority. It
was not until 1868, following the Civil War, that the 14th Amendment was ratified as a vehicle
for applying the protections in the Bill of Rights to the states.

To summarize, then, civil liberties involve protections against government actions that would
interfere with individual freedoms, while civil rights are legal actions that government takes
in order to provide equal conditions for individuals and groups. Further, civil liberties differ
from civil rights in that civil liberties protect individuals while civil rights protect groups.
When we speak of civil liberties, we are often talking about individuals’ rights to freely prac-
tice religion or to have fair trials with legal representation. When we talk about civil rights, we
are often talking about the rights of a group, such as the right of African Americans to vote or
not to be discriminated against in workplaces, education, and accommodations. Arguably, the
civil rights of a group begin with the civil liberties of an individual, in that if a group is being
discriminated against, members of that group may be denied civil liberties.

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Section 8.1 The Meaning of Civil Liberties and Civil Rights

Obligations of Government to Protect Citizens

Civil liberties need to be protected because they are essential to the workings of democratic
governance. For example, if an individual’s right to free speech, which includes the right to
criticize government, is not protected, then government is not held accountable by the peo-
ple. Democracy requires government accountability to the people.

Civil rights are often defined as government protections of the rights of citizenship. Issues of
discrimination, however, are complicated. While government may not show preference for
one group over another, private individuals and groups are not restricted in the same way
unless they are receiving public monies or running establishments that serve the public, such
as hotels or restaurants. A private college that does not want to allow female students to enroll
in its football military leadership programs can control its own enrollment policy and refuse
female students this right. However, the government then has the right to deny the school
access to federal monies, including for research, student financial aid, and loan guarantees.

Unlike private institutions, public institutions must provide equal protections to citizens. A
governmental obligation to protect a citizen’s right to vote, for example, means that a citizen
cannot be prevented from voting by either private individuals or public officials, and that each
person’s vote must be counted equally. The United States follows the principle of “one person,
one vote.” If the right to vote is defined as a basic civil right, and then one state attempts to
erect barriers to voting, as many Southern states did against African Americans prior to the
1965 Voting Rights Act, government then has an obligation to remove those barriers. More-
over, if the government fails to do so, it is not treating its citizens equally. Voting rights is
a difficult example because some politicians and private citizens argue that voting barriers
protect elections from fraud, such as ineligible people voting, while others consider these bar-
riers to be a type of civil rights violation. Contemporary debates over photo identification or
state and local government requiring multiple forms of identification as a condition of voting
are considered within their civil rights context.

The 14th Amendment’s Definition of Citizenship
and Equal Protection

The roots of civil liberties in the U.S. Constitution lie in the language of the Bill of Rights, but,
as previously mentioned, they applied only to the national government. After all, the first
word of the First Amendment is “Congress,” the federal legislature, suggesting that the Bill of
Rights protects the people from the federal government. The vehicle for applying the rights
included in the Bill of Rights to the states lies in the 14th Amendment. The Supreme Court has
used that amendment to incorporate the Bill of Rights and extend to the states what were
originally limitations on the federal government.

The 14th Amendment was ratified as part of Reconstruction after the Civil War; at its core lies
the definition of citizenship. Section 1 states, “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.” The definition of citizenship was a direct response to the Dred Scott rul-
ing, where the U.S. Supreme Court stated that slaves and their descendants could not be con-
sidered citizens. With the definition of citizenship in the 14th Amendment, a person born in
the state of Alabama was to be considered a citizen of the United States, as was one born in

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Section 8.1 The Meaning of Civil Liberties and Civil Rights

the state of Massachusetts. The 14th Amendment made citizenship a national right as well as
a state right. The amendment goes on to say,

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 per-
son of life, liberty, or property, without due process of law; nor deny any person
within its jurisdiction the equal protection of the laws.

There are two components to this statement. The first is referred to as the Due Process Clause,
and the second is the Equal Protection Clause. The Due Process Clause requires that citizens
be treated fairly in judicial processes, while the Equal Protection Clause means that states
may not enact statutes that deny rights guaranteed to U.S. citizens.

The Due Process and Equal Protection clauses were used to decide a landmark same-sex mar-
riage case in 2015. The U.S. Supreme Court decided, in Obergefell v. Hodges (2015), that the
14th Amendment’s Equal Protection and Due Process clauses mean that states may not refuse
to recognize same-sex marriages performed legally in other states. The Court decided that
marriage cannot be denied to adults by any state simply because the two persons getting
married are of the same sex.

The Equal Protection Clause actu-
ally reinforces the Due Process
Clause. It requires that individuals
be treated equally. The language
typically used in how the U.S. Con-
stitution approaches the law is that
government may not create dis-
criminatory and unfair groups of
people. If, for example, Congress
creates a public assistance program
for poor people whose qualifica-
tions for assistance are based on
need, Congress cannot deny assis-
tance to Hispanic women who are
otherwise eligible. That would, in
effect, put Hispanic women into a
category of being “other” or differ-
ent from all the other women quali-
fying for assistance, which would be discriminatory and unfair. Once government does this, it
is not treating people equally.

The status of gay rights under these two clauses is one line of reasoning that was used to
argue for the civil right of same-sex marriage. By reading the Equal Protection Clause along-
side the Due Process Clause, the Supreme Court recognized same-sex marriage as a right,
which means that the state of South Carolina cannot refuse to recognize the legitimacy of a
marriage conducted in New York because doing so denies the couple who moves from New
York to South Carolina equal protection under the law. As marriage is considered to be a
basic right, regardless of one’s sexual orientation, denying homosexuals the right to marry
one another was deemed discriminatory and unfair.

Associated Press/Pablo Martinez Monsivais

The U.S. Supreme Court’s recognition of same-sex mar-
riage as a civil right makes it fall under the protection
of the Equal Protection Clause of the 14th Amendment;
if marriage is guaranteed to all individuals, then it can-
not be denied to one group of people.

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Section 8.2 Freedom of Expression as a Basic Civil Liberty

Combining the Due Process Clause with the citizenship clause of the 14th Amendment makes
a very powerful statement about individual liberties and, by extension, civil rights. These two
clauses together mean that one born anywhere in the United States is considered a citizen
and cannot lose that citizenship when traveling to a part of the country that chooses not to
recognize it. This is critically important because the 14th Amendment follows the 13th Amend-
ment, which abolished slavery. Together, these two amendments guaranteed that a former
slave who was given freedom through the 13th Amendment would be a citizen of the United
States.

The 14th Amendment also precedes the 15th Amendment, which states, “The right of citizens
of the United States to vote shall not be denied or abridged by the United States or by any State
on account of race, color, or previous condition of servitude.” This means that a citizen of the
United States cannot be denied the right to vote by any state on the basis of race, because
doing so denies that person the equal protection of the law.

8.2 Freedom of Expression as a Basic Civil Liberty

Some Americans may take for granted the right to free speech, the right to exercise freedom of
religion, and basic rights to due process. These are the core of Americans’ basic civil liberties.
In addition, Americans often assume they have a basic right to privacy even though privacy
rights are not specified in the Bill of Rights. All of Americans’ core civil liberties are stated or
implicit in the Bill of Rights, and all are essential if the concept of human agency is to have any
real meaning. But as was the case with the Supreme Court having to carve out a role for itself
(as we discussed in Chapter 7), so too has the Court needed to define the nature of citizens’
civil liberties.

The First Amendment

The First Amendment reads,

Congress shall make no law respecting an establishment of religion, or prohibit-
ing the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the government
for a redress of grievances.

Many would agree that the right to freedom of speech is a fundamental civil liberty. The First
Amendment makes it clear that Congress shall make no law abridging the right to freedom
of speech. The First Amendment, as written, applies to only the federal government. The lan-
guage of the 10th Amendment, which includes the powers reserved to the states, gives states
the power to limit speech. But the 14th Amendment provides the vehicle to apply that limita-
tion to the states on the basis of the Equal Protection Clause.

As important a right as freedom of speech is, it is by no means absolute. There are circum-
stances when limitations can be placed on speech, especially when it may cause harm to oth-
ers. In his famous 1859 essay On Liberty, John Stuart Mill argued that the state could interfere

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Section 8.2 Freedom of Expression as a Basic Civil Liberty

with individual liberty if a person’s action in any way harmed him- or herself or others. Mill
spent much of this work talking about the appropriateness of restricting speech. However,
Mill also took the position that speech that hurts people’s feelings or that some find offensive
is not really harmful and should therefore be allowed. In fact, he argued that offensive speech
is part of the free marketplace of ideas that sustains democratic government. If people are
allowed to say things that are offensive, the truth will emerge.

Free speech is also critical to the concept of individuality. It supports the core American val-
ues of life, liberty, and the pursuit of happiness because the life that a person chooses to live
is a form of free speech. If one is free to think about things as an expression of his or her indi-
viduality, it is only logical that he or she would be entitled to free speech as an extension of
human agency.

However, freedom of speech must be tempered for the sake of the public interest. The notion
that free speech can cause harm by causing dangerous actions only complicates the issue of
free speech. By Mill’s standard, for instance, members of the Ku Klux Klan marching in a heav-
ily African American neighborhood and promoting hate speech might be considered simply
offensive. But if the march leads to physical violence, then the speech extends beyond offen-
sive to harmful.

Freedom of Religion

The First Amendment declares the free exercise of religion as a basic right. The Framers
believed that religion was a matter of individual conscience and therefore an extension
of human agency, which should be respected by government. In 1802, Thomas Jefferson
described this concept as a separation of church and state. The First Amendment was meant
as much to protect states that had established churches as to protect those that did not.

The Establishment Clause of the First Amendment declares that Congress shall not estab-
lish an official religion. The Free Exercise Clause of the First Amendment guarantees that
individuals are free to practice their religion without government interference. Of the several
rights and protections found in the First Amendment, the two concerning religion appear
first, which suggests that religious freedom was important to supporters of the Bill of Rights.
But what if one wants to have prayer in school? Does that violate the Establishment Clause
because the school, if it is public, is an extension of the state? If the school does not allow
prayer, is the school violating the right to free exercise? Partly because of these knotty ques-
tions, the issue of school prayer has proven to be very contentious. Civil libertarians often
invoke the separation of church and state as the basis for opposing prayer in school, while
proponents of school prayer often accuse civil libertarians of being against religion.

Engel v. Vitale (1962)
In Engel v. Vitale, the U.S. Supreme Court established that school prayer violates the First
Amendment. The case involved a non-denominational prayer written by the New York Board
of Regents to be recited in the public schools. Parents brought suit against the board of educa-
tion. The New York courts upheld the “Regents’ Prayer” so long as students were not forced to
participate over their parents’ or their own objections.

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Section 8.2 Freedom of Expression as a Basic Civil Liberty

The Supreme Court disagreed. Writing for the Court, Justice Hugo Black made it clear that the
fact that the prayer was nondenominational was really beside the point:

Neither the fact that the prayer may be denominationally neutral nor the fact
that its observance on the part of the students is voluntary can serve to free it
from the limitations of the Establishment Clause. . . . When the power, pres-
tige, and financial support of government are placed behind particular reli-
gious beliefs, the indirect coercive pressure upon religious minorities to con-
form to the prevailing officially approved religion is plain.

Even a nondenominational prayer
becomes corrupted when joined
to the state. That students were
free to exempt themselves from
participation does not mean that
they would not be vulnerable to
social ostracism, which in itself is
discriminatory.

Lemon v. Kurtzman (1971)
Lemon v. Kurtzman considered
whether the state could support
religion by providing subsidies to
church-related schools. Various
states passed legislation provid-
ing financial assistance to church-
related K–12 schools that went
beyond providing transportation
or textbooks. Statutes enacted in

Pennsylvania and Rhode Island allowed parochial schools to be reimbursed for providing sec-
ular teaching services for courses found in a public school curriculum. Like the Rhode Island
statute, the 1968 Pennsylvania Nonpublic Elementary and Secondary Education Act allowed
reimbursement for math, modern foreign languages, physical science, and physical education
courses while prohibiting reimbursement for “any subject matter expressing religious teach-
ing, or morals or forms of worship of any sect.” Alton Lemon, a public school parent, brought
suit against Pennsylvania Superintendent of Public Instruction David Kurtzman for violating
the Establishment and Free Exercise clauses. A three-judge federal court held that the law
violated neither clause.

Again, the Supreme Court disagreed, developing what has been referred to as the Lemon test.
Chief Justice Warren Burger stated that, under this test, a statute would have to meet three
criteria to demonstrate that it does not violate either First Amendment religion clause. The
statute must

a) have a secular legislative purpose,
b) neither advance nor inhibit religion,
c) not foster “an excessive government entanglement with religion.”

Associated Press/Ginger Perry

Students participate in See You at the Pole, a global day
of student prayer. Since the 1962 case of Engel v. Vitale,
mandatory recitation of prayer in school has been con-
sidered a violation of the First Amendment’s Establish-
ment Clause.

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Section 8.3 The Right to Privacy as a Basic Civil Liberty

Subsidies of this nature, the Court concluded, violated the Establishment Clause if they had
the effect of lowering the cost of sending children to parochial schools.

Zelman v. Simmons-Harris (2002)
Many thought that the Lemon test was too stringent and discriminated against those who
wanted to send their children to religious schools. But what about a public voucher program
that allows parents to choose their children’s school? In recent years, reform efforts have
allowed parents to receive vouchers from the local public school district if they want to send
their children to a private school to offset the cost of tuition. Do vouchers amount to a subsidy
for private education? Parents who send their children to private school often complain about
paying property taxes for public schools their children do not use. Some argue that vouchers
make the education market competitive by forcing public schools to offer a higher-quality
education, while others claim that vouchers subsidize religious education because many of
the private schools that parents opt for are parochial.

Ohio created a voucher program in the late 1990s that offered a $2,250 tuition grant for each
student from a low-income family enrolled in a private school, whether religious or non-
religious. Doris Simmons-Harris and others sued Ohio Superintendent of Public Instruction
Susan Tave Zelman on the grounds that the voucher program violated the Establishment
Clause.

The Supreme Court took the view that the voucher program offered real choice and as such
was constitutional. Unlike the Lemon case, this voucher program did not create an excessive
entanglement between government and religion because its only intent was to offer parents
the choice of a private school alternative to public education.

8.3 The Right to Privacy as a Basic Civil Liberty

The right to privacy is not specifically spelled out in the Constitution. Rather, it is inferred
on the basis of both the Fourth and Ninth amendments. The Fourth Amendment safeguards
against unreasonable searches and seizures. Individuals may not have their private houses,
personal effects, papers, or other property searched or seized without probable cause, as
expressed in a warrant. To the extent that there is a guarantee against such intrusion, there is
an assumption of privacy. The Ninth Amendment reserves to the people those rights that had
not been enumerated, or listed, in the Constitution. The issue of privacy has been a conten-
tious one, especially with regard to abortion.

In Roe v. Wade (1973), the Supreme Court found that a woman’s right to terminate a preg-
nancy was constitutional under her right to privacy. The Court’s ruling invalidated a Texas
statute criminalizing abortion for both the woman seeking an abortion and the doctor per-
forming the procedure.

The Supreme Court could not point to a specific provision in the Constitution that actually
granted a right to privacy that extended to abortion rights, so the Court staked its claims on
Griswold v. Connecticut (1965), where it held that married couples had a right to privacy to

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Section 8.4 The Rights of the Accused

practice birth control. The Court also asserted that the Constitution contained a penumbra—
a spirit—of privacy.

In Roe v. Wade, the Court held that women could terminate pregnancies under certain condi-
tions. It left open the possibility for the state to regulate abortions if there were a compelling
interest to do so. During the first trimester, a woman was presumed to have unlimited rights
to terminate. But as the fetus attained viability, that is, the likelihood of survival outside the
womb, there might be a compelling state interest to regulate and limit her choice to termi-
nate. A state might place limitations on abortions during the second trimester and even ban
them during the third unless the mother’s life was at stake. One problem with this standard
was that technological advances would allow fetal viability to be achieved earlier, thereby
making stricter regulations more likely.

Roe v. Wade touched on religious
freedom issues even though reli-
gious practice was not central to
the abortion issue. Critics claimed
the decision was contrary to reli-
gious beliefs holding that abortion
is the murder of the unborn. The
decision also touched on the issue
of federalism. Prior to Roe v. Wade,
abortion was an issue for states
to decide. In making its ruling, the
Court nationalized the issue and
created a uniform standard by lim-
iting whether, when, and how states
regulated abortion. Roe v. Wade
touched off a divisive culture war in
the United States. Not only does the
case ask when life begins, but for
socially liberal individuals, the case
raises issues about human agency,
particularly within the context of the Declaration’s promise of “life, liberty, and the pursuit of
happiness.”

8.4 The Rights of the Accused

Americans expect that if and when they are accused of crimes, certain due process rights will
be protected. First, they will know what they are charged with and they will be informed of
their rights. Second, their homes will not be illegally searched. And third, they will receive
state-provided legal representation if they cannot afford it themselves. All three of these are
essential ingredients for a fair trial. The premise is simple: If proper procedure is followed,
then the outcome will be correct and just. If the state could search one’s home without a war-
rant, what safeguard would there be to ensure that evidence was not planted by police? If, in
prosecuting a case, the state can have people arguing in court who are knowledgeable about
the law, then as a matter of fairness the accused should also have somebody knowledgeable

Associated Press/Manuel Balce Ceneta

The Supreme Court’s 1973 decision in Roe v. Wade
remains one of the most controversial—and adversar-
ial—decisions made by the Court.

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Section 8.4 The Rights of the Accused

about the law representing him or her. If one could be questioned without an attorney pres-
ent, it would be hard to verify that a confession was not coerced.

Unlawful Searches and Seizures

The Fourth Amendment states, “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated.” It then
says that warrants to search a home or one’s papers or even to arrest somebody will not be
issued unless there is probable cause, but the warrant must clearly state where the search
will take place, and who or what specifically may be seized. This means that if someone is
hiding a gun that is believed to have been used in a murder in his or her home, it cannot be
seized unless there is a warrant to search that person’s house. The suspicion that this person
might have committed the crime would serve as probable cause to obtain the warrant. As part
of due process, the police must explain to a judge why they need a warrant. This requirement
creates a safeguard against the arbitrary exercise of authority. If it were not required, what
would prevent the police from knocking on doors conducting fishing expeditions for anything
illegal?

Does this Fourth Amendment protection also prevent evidence that was illegally obtained
from being used against a defendant? This was the question addressed by the Supreme Court
in Mapp v. Ohio, decided in 1961. Dollree Mapp was convicted of possessing obscene mate-
rials, but the police obtained the evidence illegally. Cleveland police forced their way into
Mapp’s home searching for a bombing suspect without a search warrant. During their search,
the police found obscene materials. The Ohio Supreme Court upheld Mapp’s conviction even
though it acknowledged that the evidence was illegally obtained because the obscene materi-
als were found while the police were looking for a bombing suspect and the materials were
not in plain view. The Supreme Court overturned that decision.

This case incorporated the exclusionary rule, which stipulates that evidence obtained ille-
gally cannot be used against the accused even if it would prove them guilty. Earlier precedents
had already made illegally obtained evidence in federal trials exclusionary. The Mapp ruling
made it clear that Fourth Amendment rights extend to the states through the 14th Amendment
when it stated, “The ignoble shortcut to conviction left open to the State tends to destroy the
entire system of constitutional restraints on which the liberties of the people rest” (Mapp v.
Ohio, 1961).

The Right to Counsel

The Sixth Amendment establishes that one has the right to legal counsel in federal criminal
trials. Yet the right to counsel may be understood as the right to be represented by an attor-
ney in court only but does not extend to the government providing an attorney. As late as the
1940s, the Supreme Court held that the right to the government providing legal representa-
tion did not apply to the states.

In 1942, the Supreme Court held as constitutional, in Betts v. Brady, that the government did
not have to provide indigent persons accused of state crimes with an attorney unless the
accused person met special circumstances. A Maryland court denied Smith Betts’s request

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Section 8.4 The Rights of the Accused

for counsel upon being indicted for robbery. Forced to represent himself, he was convicted.
He filed petitions for habeas corpus, claiming that he was denied his right to counsel, and the
local and state courts rejected his case, after which the U.S. Supreme Court agreed to hear it.

The Court upheld Betts’s conviction and denied that the right to counsel obligated states to
provide poor people with attorneys. Four years earlier, in Johnson v. Zerbst, the Court held that
poor defendants were guaranteed counsel in federal trials, and in Powell v. Alabama in 1932,
the Court held that states had to provide attorneys to poor defendants in capital cases, where
the death penalty was a possible conviction. Powell v. Alabama involved the “Scottsboro Boys”
case, where Ozzie Powell and several Black youths were charged with raping two White girls
in Alabama. They were found guilty and sentenced to death. The issues before the Supreme
Court included the absence of a fair, impartial, and deliberate trial; the denial of counsel at
trial; and the exclusion of Blacks from the jury. The Court majority asserted that even an intel-
ligent person would be at a disadvantage without counsel:

Left without the aid of counsel he may be put on trial without proper charge,
and convicted upon incompetent evidence, or evidence irrelevant to the issue
or otherwise inadmissible. He lacks both the skill and knowledge adequately
to prepare his defense, even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him. Without
it, though he be not guilty, he faces the danger of conviction because he does
not know how to establish his innocence. (Powell v. Alabama, 1932)

In Betts, however, the Supreme Court said that the right to
counsel did not extend to all cases, because it did not follow
that just because one was poor he or she was more likely to
be convicted. The issue was not poverty; it was ignorance
of the law that put one at a disadvantage at trial. In his dis-
sent, Justice Hugo Black made it clear that the denial of
counsel to poor people did indeed increase the likelihood
of conviction, which in his view represented a violation of
the Equal Protection Clause.

The Betts case was overturned in Gideon v. Wainwright
(1963). Clarence Earl Gideon was convicted in Florida for
petty theft and sentenced to 5 years in a Florida prison.
He was forced to defend himself because the Florida
court maintained that it could appoint counsel only in
capital cases. Gideon read some law books in the prison
library and handwrote a petition to the U.S. Supreme
Court seeking to overturn his conviction. In its ruling, the
Supreme Court maintained, in a 9–0 decision, that a per-
son accused of a felony could not be guaranteed a fair
trial without the assistance of legal counsel. The effect
of being forced to defend himself was to not only violate

Associated Press

Clarence Earl Gideon’s 1961
appeal to the U.S. Supreme
Court led the Court to rule that
persons charged in criminal
cases must be represented by
counsel in all states.

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Section 8.4 The Rights of the Accused

equal protection but to strip the poor person of his basic rights to due process, as he would
not know how or have the resources to adequately respond to his accuser.

The Accused Must Know Their Rights

We are all familiar with the famous line on any number of police shows, such as Law & Order,
that, when arrested, individuals have the right to remain silent and the right to an attorney
and that, if they cannot afford one, an attorney will be appointed for them. These are the
Miranda Rights, and they come from the 1966 Miranda v. Arizona decision. Ernesto Miranda
confessed to a crime during police interrogation without requesting the assistance of counsel.
Speaking for the Court, Chief Justice Earl Warren wrote,

It is obvious that . . . an interrogation environment is created for no purpose
other than to subjugate the individual to the will of the examiner. . . . The
current practice of incommunicado interrogation is at odds with one of our
Nation’s most cherished principles—that the individual may not be compelled
to incriminate himself. Unless adequate protective devices are employed . . . no
statement obtained from the defendant can truly be the product of free choice.

Put differently, without minimal safeguards, there is no way to know that the confession was
not coerced. Unless proper procedures are followed, the outcome cannot be said to be fair
and just. In sum, the Miranda and Mapp cases have long been viewed by law and order con-
servatives as examples of judicial activism whereby the rights of criminal defendants were
protected at the expense of the public interest.

Summary of Civil Liberties

What the various civil liberties cases have in common is that individual liberties are to be
respected, but they are by no means absolute. In matters of privacy, as well as matters of
religion and speech, there is to be a presumption favoring individual rights unless there is a
compelling societal interest to restrict those rights. To establish the interest as compelling,
government would need to demonstrate that regulation is needed to prevent incitement and
irreparable harm to society.

However, when it comes to the rights of the accused, the bar would appear to be even higher.
Here the Court indicates that because the state can deprive persons of their life and liberty,
it must be absolutely clear that proper procedures have been followed so that the outcome is
just. Thus, one cannot be compelled to make confessions, nor can due process or legal counsel
be denied even as the nation is fighting a war on terrorism. In short, basic civil liberties must
be protected to ensure not only that Americans may enjoy freedom, but also that the govern-
ment remains accountable to the public. See Timeline: Evolution of civil liberties for a brief
summary of civil liberties in the United States.

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Section 8.4 The Rights of the Accused

Timeline: Evolution of civil liberties

Photo credits (top to bottom): Photos.com/Thinkstock, SuperStock, Roel Smart/iStock/Thinkstock, Alexandr Shirokov/Thinkstock,
Associated Press/Susan Walsh

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Section 8.5 The Quest for Civil Rights

8.5 The Quest for Civil Rights

Civil rights differ from civil liberties in that civil rights speak to the desire of groups to be
treated the same as other groups, while civil liberties address individual legal and procedural
protections. Core civil rights concerns address discrimination based on race, inequality of
education, and obstacles to voting. Political and economic inequalities have resulted from
these civil rights violations.

The Right to Vote

The U.S. Constitution does not guarantee voting rights. States could decide who was eligible
to vote and whether other requirements needed to be met, such as property qualifications or
registration.

Initially, states limited voting rights to individuals who were adult White males who owned
property. In the 1820s, the states extended the right to vote to all adult White males, regard-
less of whether they owned property. Many Western states allowed women to vote in the 19th
century, but women were not guaranteed that right nationally until the 19th Amendment was
ratified in 1920. In 1971, the 26th Amendment extended the right to vote to 18-year-olds in
the wake of anti-Vietnam protests.

Despite these constitutional protec-
tions, for many Americans the fight
for voting rights continued. In par-
ticular, while the 15th Amendment,
ratified in 1870, prohibited states
from denying the right to vote on
the basis of race, many Southern
states still found ways to deny vot-
ing rights to African Americans. In
the Jim Crow South, where barri-
ers were constructed to prevent
African Americans from voting, a
“grandfather clause” meant that
one had to pass a literacy test and
a “good citizenship” test or fulfill
an “understanding requirement”
if one’s grandfather had not been
able to vote, which, if he had been
a slave, he would not have. Those
who could not read were effectively
disfranchised from the system.
Recently freed slaves who had not received an education were thus barred. Other barriers
to voting included poll taxes, which kept poor people, both Black and White, away from the
polls. In other areas, Black voters would be discouraged by racial violence and intimidation,
including lynching.

Everett Collection/SuperStock

Women’s suffrage supporters rally in Chicago in 1916.
The right to vote was not guaranteed to all adult per-
sons until well into the 20th century. Women, for exam-
ple, did not win universal voting rights until the 19th
Amendment was ratified in 1920.

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Section 8.6 The Meaning of Equal Rights and Equal Treatment

The Civil Rights Movement

The Civil Rights Movement, which culminated with the Civil Rights Act of 1964 and the Voting
Rights Act of 1965, was a grassroots protest that sought to end racial discrimination in public
accommodations, education, voting, and employment. Among the practices that were most
protested during this era were the inability to vote, the forced separation of Blacks in schools
and public transportation, and public and private discrimination in services including hotels,
restaurants, and drinking fountains.

8.6 The Meaning of Equal Rights and Equal Treatment

Most Americans take it as a given that equal treatment is a basic civil right. If, for example,
John is given greater protections and liberties by the state than Susan is, Susan can rightfully
claim that she is not receiving equal treatment. If Susan is not being treated equally because
of her gender, she can claim discrimination. Such cases of discrimination may appear to be
simple enough, but in practice they often become quite complicated. Suppose, for example,
that both John and Susan apply for a job and only one can be hired. By definition, the one who
is not hired has been discriminated against. The employer made a choice and stated a prefer-
ence. Can we still say that both John and Susan received equal treatment?

The concept of equal protection
has meant different things at dif-
ferent times. From about 1890 until
the 1950s, the reigning approach
to race-based treatment was sep-
arate but equal. For example,
a school system did not have to
educate White and Black students
in the same classrooms, as there
could be separate schools for Black
and White students as long as the
schools claimed that they were
“equal.” It was these types of seg-
regated facilities, including sepa-
rate water fountains and movie
entrances for Blacks and Whites in
the South, that would come to sym-
bolize the Civil Rights Era of the
1950s and 1960s. Today, it is often taken for granted that to be afforded equal treatment
means that facilities will be racially integrated.

Plessy v. Ferguson (1896)
For most of the period between the Civil War and the cultural revolution that began in
the 1960s, Blacks and Whites were held to the separate but equal doctrine in the United
States. The doctrine was upheld by the Supreme Court beginning in the 1896 case of Plessy

Everett Collection/SuperStock

The infamous segregated water fountains of the 1950s
were indicative of the era’s “separate but equal” doctrine,
established by the U.S. Supreme Court in the 1890s.

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Section 8.6 The Meaning of Equal Rights and Equal Treatment

v. Ferguson, which revolved around a Louisiana statute requiring separate railway cars for
Whites and Blacks. Homer A. Plessy, who was one-eighth Black, was arrested for sitting in a
railway car reserved for Whites. Plessy appeared White; however, he sat in the White-only car
and informed the train conductor that he was Black in order to get arrested so that he could
sue on the basis of the 14th Amendment. Convicted in a Louisiana court, he appealed the order
of the judge, John Ferguson.

The Supreme Court did not consider the statute to violate the 13th Amendment, which abol-
ished involuntary servitude, nor the 14th Amendment, which established citizenship and
equal protection. At issue for the Court was whether the Louisiana statute was reasonable.
As the Court stated:

In determining the question of reasonableness it is at liberty to act with refer-
ence to the established usages, customs and traditions of the people, and with
a view to the promotion of their comfort, and the preservation of the pub-
lic peace and good order. Gauged by this standard, we cannot say that a law
which authorizes or even requires the separation of the two races in public
conveyances is unreasonable.

The Court also made it clear that social equality would have to occur naturally; the U.S. Con-
stitution could not order it. In other words, individuals could not be forced to abandon their
prejudices because of a clause in the 14th Amendment, nor could that clause force people to
accept others as their social equals.

Brown v. Board of Education (1954)

The Supreme Court reversed one aspect of Plessy v. Ferguson in Brown v. Board of Education,
the 1954 school desegregation decision where the Court concluded that separate was not
equal in public schools. Linda Brown was prohibited from attending a White public school in
Topeka, Kansas, near her home. Seven students’ parents, including Linda Brown’s, sued on the
grounds that separate schools violated their right to equal protection. Their case was helped
by events in the larger world. Coming on the heels of World War II, where the consequences of
hatred and bigotry in Nazi Germany were clear, coupled with the fact that Black soldiers had
fought valiantly for the country, the Court was inclined to reconsider its earlier precedent.

Another factor influencing the Court’s willingness to reconsider precedent, which perhaps
was a factor in the larger Civil Rights Movement, was the United States’ image during the
Cold War. The Eisenhower Justice Department filed a brief in the Brown case in part because
the inequality among the races was a detriment in the eyes of the Soviet Union and the Third
World.

Writing for the unanimous Court, Chief Justice Earl Warren made it clear that education was
the very foundation of citizenship:

Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great expenditures
for education both demonstrate our recognition of the importance of educa-
tion to our democratic society. It is required in the performance of our most

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