Review: Federalism and Nationalization

1
Review Federalism and Nationalization

• The Constitution sets up a federal system where
  both the states and the national government have
  unique power.
• Over time there has been a gradual process of
  nationalization.
• Some of this stems from collective action
  problems.
• We also see nationalization in the areas of civil
  rights and civil liberties.

2
Civil Rights and Civil Liberties

• Civil Rights
• Involve protection by government power.
• Civil Liberties
• Involve protection from government power.

3
Civil Rights
The Logic of American Politics Chapter Four
4
Civil Rights

• Modern day civil rights include safeguards
  against any effort by government or dominant
  groups in a community to subjugate another group
  and take advantage of it.
• Also include the rights of individuals in their
  relation with others
• to live free from bondage and intimidation,
• to enter into contracts and own property,
• to have access to public businesses,
• to have equal educational opportunities and more.

5
The Civil Rights of African Americans

• African Americans have been engaged in a very
  long struggle for civil rights in this country.
• - The results have redefined the rights of all
  citizens.

6
Civil Rights for African Americans

• A test case for Madisons ideas on American
  democracy?
• How do we reconcile Madisons prescription
  against factional tyranny in Federalist 10 with
  the reality of slavery and then segregation?
• Was he wrong?

7
The Constitution as Barrier

• Madisons arguments in Federalist 10 overlooked
  the fact that majority tyranny, in the form of
  protections for slavery in the south, was written
  into and protected in the Constitution, at least
  for a time.

8
Barriers to Securing Civil Rights

• The Constitution makes things fairly difficult to
  change and leaves important authority to the
  states
• Men are not angels people generally dont
  engage in costly behavior without some expected
  return

9
Securing Civil Rights

• For a long period of time, national majorities
  favored the cause of civil rights for blacks, but
  we only saw two periods of significant change
• Reconstruction.
• the 1960s.
• Why these time points and not others?

10
The Height of Slavery 1808-1865

• 1807 saw the passage of a law ending the
  importation of slaves. Took effect January 1,
  1808.
• Met little resistance from the South at the time

11
The Height of Slavery 1808-1865

• For the next 10 years, slavery remained off
  center stage.
• This was accomplished through a careful
  maintenance of the regional influence of the
  South in the Senate.
• For every new free state, a slave state was
  also admitted to the Union.

12
The Height of Slavery 1808-1865

• In 1819 citizens of Missouri petitioned Congress
  for admission as a slave state.
• Slavery now appeared to be expanding beyond the
  southern region.
• Missouri Compromise of 1820 reached after months
  of debate.

13
The Missouri Compromise of 1820

• The plan matched Missouris entry as a slave
  state with Maines entry as a free state
• South also agreed that Missouris southern border
  would serve as the northern boundary beyond which
  slavery could not extend in the future (36-30
  degrees latitude).

14
The Wilmot Proviso

• In 1846 David Wilmot (D-PA) introduced a bill in
  the House that would have gutted the compromise
  by banning slavery in the recently acquired
  territories.
• His reasoning the presence of slaves depressed
  wages for white labor. Appealed to
  self-interest.
• Introduced new allies to the abolitionist
  movement Free Soil Party.
• Inflamed sectional animosity even more.

15
The Compromise of 1850

• In 1849 California applied for admission to the
  Union.
• This would throw off the Souths ability to use
  their power in the Senate to veto legislation.
• Compromise allow California to enter, but
  required passage of the Fugitive Slave Law.
• This compromise also allowed the residents of the
  territories to decide for themselves whether to
  apply for statehood as a slave state or a free
  state.

16
Dred Scott v. Sanford

• With every justice writing a separate opinion, a
  narrow 5-4 majority of the Court concurred that
  the federal government could not prevent slavery
  in the territories.
• The mostly southern majority argued that the
  Framers had never intended blacks to be citizens.
  Thus blacks enjoyed no rights which a white man
  was bound to respect.

17
Dred Scott v. Sanford and its aftermath

• Any law that interfered with the right of an
  individual to his property, including slaves, was
  unconstitutional.
• This decision galvanized the North, and brought
  Abraham Lincoln and the Republican Party to power
  in the executive and the legislative branches.
• For the first time in our nations history, the
  president and a majority of both chambers of
  Congress were opposed to slavery.

18
The Dissolution of the Union

• With Lincolns commitment to no longer tolerate
  the minority over the majority, Southern states
  began to leave the Union (secession).
• On December 20, 1860, South Carolina declared its
  independence.
• By June 1861 ten more states had left the union.
• Together they formed the Southern Confederacy and
  instigated an attack on the U.S. government at
  Fort Sumter on April 12, 1861.

19
A Period of ProgressReconstruction 1865-1877

• In the short span of five years (1865-1870)
  slaves were
• formally made free across the nation (Thirteenth
  Amendment),
• granted citizenship (Fourteenth Amendment),
• and guaranteed the right to vote (Fifteenth
  Amendment).

20
A Period of ProgressReconstruction 1865-1877

• At the close of the Civil War, only a handful of
  Union states gave black citizens equal access to
  voting.
• Some states had special criteria (proof of
  property ownership and literacy). Others simply
  barred them from voting.
• In some states, freeing slaves and making them
  citizens were two different matters.
• Even many abolitionists thought this was radical
  or impractical.

21
The Politics of Reconstruction

• So how did the 15th Amendment pass?
• Potential threat of the newly readmitted southern
  states gaining dominance in the House with their
  new citizenry added to their population.
• Republicans acted to preempt the potential
  ability of the South to undo what the Civil War
  had fought to achieve. Did so through
  Reconstruction.

22
The 14th and 15th Amendments Foundations of
Reconstruction

• The Fourteenth Amendment introduced a
  straightforward definition of citizenship that
  included former slaves.
• Provides due process and equal protection under
  the law.

23
The 14th and 15th Amendments Foundations of
Reconstruction

• Reaffirmed the constitutional apportionment of
  seats, but made an exception if a state failed
  to allow black males to vote in state and federal
  elections, the states seats would be reduced
  proportionately.
• How was politics at work here?
• Because newly enfranchised blacks were loyal to
  the Republican Party, the additional seats gained
  by the Southern states would only exist in states
  where the Republican Party had a chance of
  winning.

24
The 14th and 15th Amendments Foundations of
Reconstruction

• Problematically, several Confederate states had
  already applied for reentry to the Union.
• What if their votes counted in the drive for
  ratification of the 14th Amendment?
• The Republicans had veto-proof majorities in
  Congress and came up with a plan.

25
The 14th and 15th Amendments Foundations of
Reconstruction

• The First Reconstruction Act of 1867 disbanded
  the governments of the southern states (except
  TN, which had already been readmitted to the
  Union).
• This voided their votes against the amendment.
• Replaced state governments with five military
  districts headed by generals and administered by
  northern troops. Extended vote to all freedmen
  (except white, rebel ex-soldiers).
• Made readmission contingent upon ratification of
  the 14th Amendment.

26
Rights Lost The Failure of Reconstruction

• Reconstructions advancement of civil rights was
  only temporary.

27
The Jim Crow Era and Segregation 1877-1933

• In the 1890s Jim Crow laws were adopted
  throughout the South to disenfranchise black
  citizens and segregate (physically divide blacks
  and whites).
• To secure segregation, the southern states had to
  prevent black citizens from voting.
• Various mechanisms were used to exclude African
  Americans from voting
• White Primary
• Poll tax
• Literacy Tests
• These laws also would have affected many poor and
  illiterate, but grandfather clauses exempted
  them.
• When these mechanisms were challenged, the Court
  usually sustained them

28
Emergence of a Civil Rights Coalition The 1950s

• The 1950s saw only modest advances in civil
  rights, but significant changes in the political
  landscape that would allow for change later.
• Primary strategy of the NAACP was through the
  courts.
• Brown v. Board of Education of Topeka

29
The Civil Rights Movement The 1960s

• Rosa Parks refused to surrender her seat to a
  white patron and move to the back of the bus.
• Strategic shift to protest movement, but how
  would the movement be coordinated? Who would bear
  the cost?
• Martin Luther King Jr. helped coordinate the
  Montgomery bus boycott. Helped create the
  Southern Christian Leadership
  Conference (SCLC).
• Strategy nonviolent resistance.

30
The Importance of Birmingham

• As the news media covered the civil rights
  demonstration in Birmingham, the public watched
  as peaceful protestors were bitten by police
  dogs, doused with powerful fire hoses, and
  arrested.
• Even small children were made victims of the
  brutal enforcement by Birminghams law
  enforcement community.
• This helped mobilize the public.

31
The Democratic Partys Commitment to Civil Rights

• After the publics outcry over the brutality of
  Birmingham, Kennedy responded by appearing before
  the nation and declaring that race discrimination
  was a moral issue.
• A few days later he submitted a new and broadened
  civil rights program to Congress.
• The bill containing President Kennedy's
  recommendation occupied much of the attention of
  Congress during the summer of 1963.

32
The Democratic Partys Commitment to Civil Rights

• Five months later, Kennedy was assassinated and
  Johnson became president.
• Southern senators were attempting to filibuster
  the civil rights bill.
• Johnson then went on television and addressed the
  nation and a joint session of Congress
  simultaneously. He stated that the new civil
  rights legislation would be the nations memorial
  to its fallen president.

33
The Voting Rights Act of 1965

• This aggressive law authorized the Justice
  Department to suspend restrictive electoral tests
  in southern states that had a history of low
  black turnout.
• Federal officers could be sent into the state to
  register voters directly.
• States also had to obtain clearance from the
  Justice Department before changing their election
  laws.

34
Civil Rights Points to Ponder

• The civil rights movement for African Americans
  created an important legacy for other
  discriminated against groups.
• How and why have civil rights struggles among
  other groups differed?
• Is Madisons theory borne out in their
  experiences?

35
The Logic of American Politics Chapter Five
Civil Liberties
36
Civil Liberties

• Civil liberties must at times receive protection
  from majorities who want to do away with them.
• Many of the Framers thought a Bill of Rights was
  unnecessary.
• The Bill of Rights can be seen as an
  Antifederalist legacy.
• Supreme Court has become the guardian of civil
  liberties.

37
Writing Rights and Liberties into the Constitution

• The Constitution actually acquired civil
  liberties protections in several steps
• The inclusion of the Bill of Rights.
• 75 years after the Civil War, the ratification of
  the 14th Amendment.
• During the 20th century, the Supreme Court has
  used the 14th Amendment to extend the guarantees
  of the Bill of Rights to state and local
  governments.
• This is called incorporation.

38
Incorporation via the Fourteenth Amendment

• Through the process of selective incorporation --
  the piecemeal application of the various
  provisions of the Bill of Rights to state laws
  and practices -- civil liberties have gradually
  nationalized.

39
Incorporation via the Fourteenth Amendment

• 1897 -- Fifth Amendment.
• 1930s and 1940s -- First Amendment freedoms
  (speech, press, and religion)
• 1960s -- Fourth, Fifth, and Sixth Amendment
• More recently -- the right to privacy.

40
The First Amendment on Freedom of Speech and the
Press

• Congress shall make no law abridging the
  freedom of speech, or of the press orto petition
  the Government for a redress of grievances.

41
Free Speech Issues

• What is legitimate expression?
• When do national security concerns outweigh free
  speech?
• The clear and present danger test (Schenck)
• What constitutes obscenity? Can offensive speech
  or expression be restricted?

42
The First Amendment on Religion and Assembly

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereofor the right of the people
  peaceably to assemble and to petition the
  Government for a redress of grievances.

43
Freedom of Religion and Founder Intent

• The words separation of church and state do not
  appear in the Constitution.
• Madison and Jefferson both subscribed to the view
  that the First Amendment places a wall of
  separation between church and state
• Tension between free exercise and establishment
  clause pursuing one can get in the way of
  another.

44
Civil Liberties - Criminals

• Remove the criminal process from politics and
  protect the individual citizen from abuses by the
  state
• Fourth Amendment illegal search and seizure
• Fifth Amendment self-incrimination, double
  jeopardy
• Miranda v. Arizona
• Sixth Amendment speedy trial, impartial jury,
  right to counsel
• Gideon v. Wainwright
• Eighth Amendment cruel and unusual punishment.

45
Right to Privacy

• Not explicitly stated.
• In Griswold v. Connecticut (1965), the Court
  found that Americans guaranteed rights are not
  limited to those specifically identified in the
  Constitution.
• Ninth Amendment the enumeration in the
  Constitution of certain rights, shall not be
  construed to deny or disparage others retained by
  the people.
• The Court argued that a number of explicit rights
  presupposed privacy. They could not exist without
  some measure of privacy.
• These explicitly guaranteed rights form
  penumbras, or implicit zones of protected privacy
  rights on which the explicit rights depend in
  order to exist.
• Overriding question what actions and practices
  are so personal or private that they should be
  shielded from interference by the government and
  other third parties?

46
Assessing Civil Liberty Policies

• Issues surrounding civil liberties some of the
  most contentious
• The prominent role that the Supreme Court plays
  in this area makes some question how a small
  number of un-elected, life-tenured justices
  deciding public policy comport with the
  principles of democracy.
• But, on the other hand, rights need to be
  safeguarded, even from majorities, so a Supreme
  Court seemingly out of touch with popular opinion
  is not necessarily a bad thing.