What makes a good research question? Specificity & Conceptual Simplicity Whether the Yellowstone wolves should be protected when they leave the park. Whether American combat forces should be withdrawn from Afghanistan. Whether the ANWR should be open to oil and gas development. Whether the president should recognize the rebel government in Libya. Whether Medicaid should be converted into a block grant to states. NOT whether the social security system should be reformed.

System Bias The organization of politics has consequences. The rules, and institutions, and procedures by which we organize our collective life as a nation are never neutral. Rather these rules, and institutions, and procedures allocate advantages and disadvantages to individuals and groups. The concept of system bias encourages us to explore who is advantaged and disadvantaged and whether those advantages and disadvantages are consistent with our values or with democratic theory or with the values of American political culture.

The Federalist No. 10, as it appeared in the New York Daily Advertiser, November 22, Library of Congress You can’t read it, but Democracy, Republic & Government are capitalized in the pictured copy, but not in your text.

Constitutional Principles: 1787 CONSTITUTIONALISM -- We would have governments of limited and enumerated powers. REPUBLICANISM -- The powers of government would be exercised, not by the people directly, but by representatives chosen by the people. These representatives would likely be the right kind of people.

Constitutional Principles: 1787 FEDERALISM -- The power of government generally would be divided between a national government and a number of state governments, and the states would remain sovereign in their own domain. SEPARATION OF POWERS -- To check the power of the national government executive, legislative, and judicial powers would be entrusted to separate institutions, and these institutions would have to agree before government could act.

Constitutional Principles: 1787 BICAMERALISM -- To check the power of the most dangerous branch, the legislative branch, Congress would be divided into two chambers responsive to different electorates, and these two chambers would have to agree before laws could be passed. CHECKS AND BALANCES -- To check the power of the national government, each of the three branches would be given bits and pieces of the powers belonging in the main to the other branches.

A GOVERNMENT DESIGNED TO RESPOND TO BROAD CONSENSUS -- BUT NOT TO MERE MAJORITY PREFERENCE. This government will frequently be unable to respond at all. Such a structure is an excellent mechanism for preventing tyranny so long as the only threat of tyranny comes from the government itself. A government isn't likely to hurt you if it's not doing anything. Such a structure may be less effective in a world where we are subject to the tyranny of a multitude of institutions other than our own government. And we have probably lived in such a world since the industrial revolution and the close of the American frontier.

A GOVERNMENT DESIGNED TO RESPOND TO BROAD CONSENSUS -- BUT NOT TO MERE MAJORITY PREFERENCE. Since emergency or crisis tends to produce a kind of mob consensus, these institutions may continue to work pretty efficiently when we need them the most, even if they hardly work at all the rest of the time. In times of crisis, the mob consensus that allows government to function efficiently might form around bad policies as well as good ones.

American Federalism [which is secretly more about the Constitution]

Today’s Case Study of Federalism: Same-Sex Marriage With respect to marriage, which government is sovereign: national or state? How do you know?

Today’s Case Study of Federalism: Same-Sex Marriage In 2009, the Iowa Supreme Court unanimously decided that the state law prohibiting same-sex marriage violated the State Constitution, and same-sex marriages became legal in Iowa. In November 2010, popular majorities ousted all three justices who were subject to retention votes, and resurgent Republicans threatened to impeach the rest and to enact a constitutional amendment to overturn the court’s decision. The Democratic leader of the Iowa Senate, where Democrats still hold a majority has vowed to prevent a vote on a constitutional amendment, so the court’s interpretation of the Iowa Constitution is likely to survive – at least for the next several years. Can the Iowa decision be appealed to the U.S. Supreme Court? Why or why not?

Can the Iowa decision be appealed to the U.S. Supreme Court? Article III, Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state [see 11 th Amendment];--between citizens of different states;-- between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”

Must other States recognize same-sex marriages under Iowa law? Anything in the Constitution that addresses this question?

Must other States recognize same-sex marriages under Iowa law? U.S. Constitution: Article IV, Section 1. “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

May Congress Intervene and Decide this Question? U.S. Constitution: Article IV, Section 1. “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

May Congress Intervene? Congress has already passed the Defense of Marriage Act (DOMA). DOMA provides that no State shall be required to recognize a law of any other State with respect to a same-sex "marriage." DOMA limits the words "marriage" and "spouse" for purposes of Federal law to unions of one man and one woman.

Is DOMA Constitutional? Constitution: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Law: no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage."

Which political party generally considers itself the protector of states’ rights against national intrusion?

After the Massachusetts Supreme Court overturned that state’s prohibition against same-sex marriage, President Bush proposed an Amendment to the National Constitution to prohibit same- sex marriage. Why would a Republican do that?

Politics tends to be extremely results oriented. Principles are often used to selectively in order to justify a desired result. Federalism is no exception.

A Short History of American Federalism [A printable version is available on the class web site.]

Take Home Lessons The federalist language of the constitution is flexible, and the Supreme Court is the chief interpreter. American federalism has been more about practical results than about any kind of ideological purity. Traumatic events in the body politic have decided the great issues of federalism with even greater force and finality than have the decisions of the Supreme Court. The historical trend has been for the federal balance to shift toward the central government.

indestructible union Bill of Rights: powers not delegated to the national government are reserved to the states and the people Discussion of a National Bank

indestructible union McCulloch v. Maryland (national bank v. state): broad reading of the necessary and proper clause. Central government is given powers over taxes and commerce, and while no mention is made of incorporating banks, we cannot assume that the framers intended to embarrass the government “by withholding the most appropriate means.” “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” Citing Supremacy Clause, Marshall declares that “the government of the Union, though limited in its powers, is supreme within its sphere of action.” “The states have no power, by taxation or otherwise,” to prevent the central government from executing its policy.

indestructible union Barron v. Baltimore (wharf owner v. city): the Bill of Rights protects people only from the national government Civil War Ends: the indivisible union perspective triumphs

dual federalism and laissez-faire capitalism th Amendment: requires the states to abide by basic civil rights and gives the federal courts power to enforce compliance th Amendment: income tax makes central government financially strong Missouri v. Holland (state v. national official): federal laws that would otherwise be unconstitutional, are constitutional if based on treaties with other nations

contemporary federalism: 1937 to present The Revolution of 1937: The Supreme Court gives its seal of approval to the New Deal. The Court adopts an extremely broad view of the Commerce Clause. Henceforth, virtually anything that might “affect” interstate or foreign commerce may be regulated by Congress.

contemporary federalism: 1937 to present Johnson's War on Poverty: radical expansion of categorical grants in aid (money with strings) Nixon's New Federalism: general revenue sharing (money without strings) Reagan's New Federalism: responsibilities to be transferred to the states (strings without money)

contemporary federalism: 1937 to present South Dakota v. Dole (state v. national official): the court reaffirmed that (1) Congress can attach conditions to the receipt of federal funds, and (2) Congress may spend for the general welfare and in so doing is not limited by the direct grants of legislative power in the Constitution.

contemporary federalism: 1937 to present Contract with America: responsibilities (generally those associated with helping poor people) to be transferred to the states; block grants would limit the pain in the short run, but no guarantee that they would continue (permanent strings with temporary money). An important piece of this agenda became law with the 1996 welfare reform act that abolished federal Aid to Families with Dependent Children in favor of block grants to states (and ironically a whole bunch of mandates about who would be eligible and how the money would be spent.) In some respects this is Reagan's new federalism in a new suit of clothes. One more important element: no new unfunded mandates.

contemporary federalism: 1937 to present The Republican Court: Congress steps over the line when it engages in noncommercial criminal regulation of matters where the impact on commerce is negligible. U.S. V. Lopez (1995) voided Gun Free Schools Act Printz v. U.S. (1997) voided Brady Bill requirement that local law enforcement do background checks US. V. Morrison (2000) voided Violence against Women Act Gonzales v. Raich (2005) upheld federal power over California’s medical marihuana law. 11th amendment sovereign immunity of states held to trump federal labor laws as applied to state employees.

contemporary federalism: 1937 to present 2000 – Presidential Campaign & Aftermath [Actions speak louder…] What We Say: During the campaign both candidates promised to fix public education, and predictably the Democrat proposed a plan that had more national standards and the Republican a plan that relied more heavily on the states. What We Do: The Florida Vote Counting Fiasco was a major dispute about federalism with an amazing and ironic twist. In recent years the Democratic Party has been the party of national power, the Republican Party the party of states' rights. With the election in the balance, Democrats argued for states' rights, and the Republican Party rushed to the federal courts to overturn state law.

contemporary federalism: 1937 to present War on Terrorism: Subsequent to September 11 th President Bush announced a war on terrorism, a war without limits in terms of time or geography, a war that may be fought on American soil to a greater degree than any since the Civil War present – Battle over Same-Sex Marriage: Again, Democrats and Republicans find themselves on the wrong sides of the federalism debate---which brings us back to where we began.

Take Home Lessons The federalist language of the constitution is flexible, and the Supreme Court is the chief interpreter. American federalism has been more about practical results than about any kind of ideological purity. Traumatic events in the body politic have decided the great issues of federalism with even greater force and finality than have the decisions of the Supreme Court. The historical trend has been for the federal balance to shift toward the central government.

Questions to Ponder Is this tipping of the balance toward the central government a good thing or a bad thing? Does it make us more democratic or less democratic? Does it make us more equal or less equal? Does it make us more free or less free? And who is “us”?

American Federalism Today

Hint: When reviewing data, always think about the metrics.

Actual Spending as of Nov. 2010: $900 billion. Probable life-time cost: $2-3 trillion.

A Short Lesson on Economic Forecasting: The Federal Budget Surplus over the Next 10 Years Graphics from the New York Times, 2009

Annual budgetary surpluses are projected to grow steadily – reaching $1 trillion per year over the space of 10 years. Note: 10 years from 2001 is The budget is in surplus, and those surpluses are projected to grow steadily, reaching $1 trillion per year by the year 2011.

The 2001 Bush tax cuts have reduced the surplus and are projected to eliminate the surplus altogether in the short run, but surpluses are still projected to rise to about $700 billion per year by 2011.

Wars in Afghanistan and Iraq push the nation into deficit spending, but annual surpluses are still projected to be near $500 billion by 2011.

Wars in Afghanistan and Iraq prove to be vastly more expensive than anticipated. Annual deficits are now projected through the end of the decade, but those deficits are projected to shrink over time bringing the nation back to a balanced budget by 2011.

Wars in Afghanistan and Iraq continue to be vastly more expensive than anticipated, but economic growth is robust. Annual deficits are still projected for most of the decade, but those deficits are projected to shrink over time bringing the nation back to a modest surplus by 2011.

Wars in Afghanistan and Iraq continue to be vastly more expensive than anticipated, but economic growth is robust. In hindsight we know that we were experiencing a housing bubble and that a banking crisis was imminent. Without the foresight to anticipate the effects, annual deficits are still projected for most of the decade, but those deficits are projected to shrink over time bringing the nation back to a modest surplus by 2011.

War in Iraq is winding down but war in Afghanistan is heating up. Almost no one is aware of the impending economic catastrophe. Annual deficits are still projected to shrink, leaving the nation with a modest surplus by 2011.

Late in 2008 the economy implodes. Housing prices plummet. The banking system, which has appeared enormously profitable throughout the decade is revealed to be essentially bankrupt. The federal government spends and the Federal Reserve Bank creates trillions of dollars in an effort to save the banking system and avoid a second Great Depression. Short-term deficits are (in this case literally) off the chart. Yet as recently as 2009, the projected deficit for 2011 was only about $300 million. Actual deficit: $1,480 million.

Which Brings Us to the Present Who were the winners and losers from this decade of economic policymaking? What is the present state of the federal deficit? What are we doing to deal with it? What are the take-home lessons from this review of economic forecasts?