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Government · AP US Government and Politics
the Constitution and federalism
The Constitution had to solve two problems at once: make a national government strong enough to govern, and keep it from becoming strong enough to threaten the people’s rights.
The figure shows its answer in miniature. Power is split among three branches, each standing on the same base, the Constitution. Then each branch is given ways to stop the others: a veto, an override, a confirmation vote, judicial review, impeachment. Watch one check travel at a time.
This chapter follows the argument in order: the ideas behind American democracy (the Declaration, the Gettysburg Address), the kinds of democracy the framers weighed, the failure of the Articles of Confederation, the compromises and the fight over ratification, the principles built into the Constitution, and federalism: how power is shared between the national government and the states, and how the Supreme Court has drawn that line.
The AP exam gives this unit 15–22% of its weight. It expects you to know the required documents (Declaration of Independence, Gettysburg Address, Articles of Confederation, Constitution, Federalist 10, 39 and 51, Brutus No. 1; the Emancipation Proclamation, also listed for this unit, is in Chapter 3) and two required cases (McCulloch v. Maryland, United States v. Lopez), and to apply them to scenarios you have not seen.
natural rights, consent, and the right to alter government
The Declaration of Independence (1776) states the ideas American government rests on, in one long sentence.
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 …
Declaration of Independence
The figure runs the contract as a loop. Each citizen’s consent (blue) rises and the government (red) forms from it. When it turns on the rights it was made to protect, the people take their consent back, and it falls: the Declaration’s justification for independence.
the Gettysburg Address; republicanism and limited government
Lincoln’s Gettysburg Address (November 19, 1863) reads the Civil War as a test of the Declaration’s ideals.
Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
Gettysburg Address, opening
… that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.
Gettysburg Address, close
‘Four score and seven years’ (87) before 1863 is 1776: Lincoln dates the nation from the Declaration, not from the Constitution, and makes equality its founding proposition. ‘Of the people, by the people, for the people’ is popular sovereignty in one line.
The exam names four ideals: natural rights, the social contract, popular sovereignty, and one more:
On the exam, connect a passage to the ideal it shows: consent of the governed and ‘of the people’ to popular sovereignty; ‘unalienable rights’ to natural rights.
participatory, pluralist and elite
Three models describe who really shapes policy in a representative democracy. American government shows all three, and they pull against each other.
The Constitution was written to allow all three, and the balance has shifted: the vote has widened, primaries have opened party nominations to voters, and interest groups have multiplied.
Exam questions describe a scenario (a ballot measure, a coalition of advocacy groups, a policy shaped by experts) and ask which model it shows.
Federalist 10 and Brutus No. 1
How large can a republic be and still protect rights? Madison said the larger the better; Brutus said a republic the size of the United States could not survive.
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest …
Federalist No. 10 (Madison)
Madison (Federalist No. 10): the causes of faction lie in human nature, ‘the most common and durable source of factions has been the various and unequal distribution of property.’ To remove the causes you would have to destroy liberty, so ‘relief is only to be sought in the means of controlling its EFFECTS.’ His remedy is a large republic:
Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens …
Federalist No. 10
In the figure (an illustration with made-up numbers), one faction of 22 people is 55% of a small republic of 40: a majority that could oppress the rest. Extend the sphere to 180 people in 12 factions and the same 22 are 12%.
Brutus No. 1, an Anti-Federalist, argued the opposite: ‘In a republic, the manners, sentiments, and interests of the people should be similar,’ and ‘a free republic cannot succeed over a country of such immense extent.’ He warned that the necessary and proper clause and the supremacy clause would let the national government swallow the states. He preferred power kept in the smaller, closer state governments.
a firm league of friendship, and too weak to govern
The first national government, under the Articles of Confederation (in force from March 1, 1781), was built to avoid a strong central power. It avoided it too well.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Articles of Confederation, Article II
The states were bound only in ‘a firm league of friendship’. The national government was one house of Congress, with one vote per state. It could not:
The figure replays a real failure. In 1781 Congress asked for the power to collect a 5 percent duty on imports. As a change to the Articles it needed every state. Rhode Island refused on November 1, 1782 (Virginia then withdrew its approval, and Georgia never answered), and one state was enough to sink it. The figure simplifies: twelve agree, one refuses.
Shays’ Rebellion (1786–87): indebted farmers in western Massachusetts, facing heavy state taxes and the loss of their farms, closed courts and in January 1787 marched on the federal arsenal at Springfield. Congress had no army or money to respond; the state put it down with a privately funded militia. To many leaders it proved that the national government was too weak, and it helped bring delegates to Philadelphia in May 1787.
the compromises that made it possible
The delegates who met in Philadelphia from May to September 1787 replaced the Articles rather than revising them. Agreement came through compromises.
Representation. The Virginia Plan gave large states more seats in both houses of a two-house legislature, by population; the New Jersey Plan kept one house with one vote per state. The Great (Connecticut) Compromise took both: a House of Representatives by population and a Senate with two senators per state. In the figure, the first House’s 65 seats as the Constitution set them out (blue) and the 26 senators (red):
| VA | PA | MA | MD | … | DE | RI |
|---|---|---|---|---|---|---|
| 10 | 8 | 8 | 6 | 1 | 1 |
The Three-Fifths Compromise. Southern delegates wanted enslaved people counted for representation; northern delegates did not. Seats and direct taxes would be apportioned by adding to the free population ‘three fifths of all other Persons’ (Article I, Section 2). The convention also barred Congress from banning the importation of enslaved people before 1808 (Article I, Section 9).
The Electoral College. Rather than election by Congress or by a national popular vote, each state appoints electors equal to its senators plus representatives, who choose the president.
Amendment. The framers made the Constitution changeable, but only with broad agreement (Article V, page 1.6).
Federalists, Anti-Federalists, and nine states
Article VII set its own rule: ‘The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.’
Nine, not thirteen: the Articles’ unanimity rule was simply set aside, and the people were asked through special conventions rather than state legislatures.
Federalists (Hamilton, Madison, Jay, writing as ‘Publius’ in the Federalist Papers) argued for the Constitution. Anti-Federalists (Brutus, Patrick Henry) feared a distant national government with no bill of rights. The contests were close in big states: Massachusetts 187–168, Virginia 89–79, New York 30–27.
| state | ratified | |
|---|---|---|
| 1 | Delaware | December 7, 1787 |
| 2 | Pennsylvania | December 12, 1787 |
| 3 | New Jersey | December 18, 1787 |
| 4 | Georgia | January 2, 1788 |
| 5 | Connecticut | January 9, 1788 |
| 6 | Massachusetts | February 6, 1788 |
| 7 | Maryland | April 28, 1788 |
| 8 | South Carolina | May 23, 1788 |
| 9 | New Hampshire | June 21, 1788 |
| 10 | Virginia | June 25, 1788 |
| 11 | New York | July 26, 1788 |
| 12 | North Carolina | November 21, 1789 |
| 13 | Rhode Island | May 29, 1790 |
New Hampshire was ninth, on June 21, 1788, which established the Constitution. Virginia and New York, too large to leave out, followed within weeks. The new government began in 1789. North Carolina and Rhode Island joined only after it was running, and Rhode Island by 34–32.
Several states ratified on the understanding that amendments would follow. Madison proposed them in the First Congress; ten were ratified on December 15, 1791: the Bill of Rights, the Anti-Federalists’ lasting victory.
The compromises left some questions open. The old argument over national power, state power and individual rights continues in debates such as government surveillance after the 9/11 attacks and the national government’s role in public schools.
separation of powers, checks and balances, Federalist 51
Separation of powers gives making, carrying out and judging the law to three different branches. Checks and balances give each branch ways to limit the others.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Federalist No. 51 (Madison)
His method: ‘Ambition must be made to counteract ambition.’ Give each branch the means and the motive to resist the others. The figure sends the checks across one at a time:
Others: the Senate approves treaties by two-thirds; Congress controls spending (the power of the purse) and declares war, while the president is commander in chief.
Federalist 51 adds federalism to the design: ‘the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people.’
Article V: two ways to propose, two ways to ratify
Article V makes change possible, but only with supermajorities at two stages: proposal at the national level, ratification by the states.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which … shall be valid … when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof …
Constitution, Article V
| stage | path | threshold |
|---|---|---|
| propose | Congress | two-thirds of both houses |
| propose | national convention | called on application of two-thirds of state legislatures |
| ratify | state legislatures | three-fourths of the states |
| ratify | state conventions | three-fourths of the states |
With 50 states, three-fourths is 38: in the figure an amendment proposed by Congress goes to the state legislatures and needs 38 of the 50 squares. Thirteen states can block any amendment.
All 27 amendments were proposed by Congress; a national convention has never been called. All but one were ratified by state legislatures; the Twenty-first (1933, ending Prohibition) went to state conventions.
The process is federal by design: the states, not the national population, ratify. It is also why so few amendments exist.
exclusive, reserved and concurrent powers; Federalist 39
Federalism divides power between a national government and state governments, each with its own powers over the same people.
Madison’s Federalist No. 39 answered the charge that the Constitution created a ‘consolidated’ national government:
The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.
Federalist No. 39 (Madison)
National, because it acts directly on individuals and the House represents the people; federal, because the states ratified it, the Senate represents them, and its jurisdiction ‘extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.’
fiscal federalism: grants, conditions and mandates
The national government raises most of the tax money. Fiscal federalism uses that money (grants-in-aid) and requirements (mandates) to steer what states do.
Conditions can reach beyond the grant’s purpose. The National Minimum Drinking Age Act (1984) withheld part of a state’s federal highway money unless it set the drinking age at 21. In South Dakota v. Dole (1987, 7–2) the Court upheld it: losing 5 percent of the funds was encouragement, not coercion. In NFIB v. Sebelius (2012) it found the line crossed: threatening all of a state’s existing Medicaid money to force the Affordable Care Act’s Medicaid expansion was coercive.
In the figure: five coins each on its own string (categorical), one large sum on a loose one (block), and an order with no money (unfunded mandate).
implied powers and national supremacy
The Constitution lists Congress’s powers, then adds one that stretches them: the necessary and proper (elastic) clause.
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 in the Government of the United States, or in any Department or Officer thereof.
Article I, Section 8, clause 18
Facts. Congress chartered the Second Bank of the United States in 1816. Maryland taxed the notes of the bank’s Baltimore branch; its cashier, James McCulloch, refused to pay.
Holding (unanimous, Chief Justice Marshall): (1) Congress could create the bank. No clause mentions a bank, but it is a means to carry out enumerated powers (taxing, borrowing, regulating commerce, raising armies): an implied power. ‘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 consist with the letter and spirit of the constitution, are constitutional.’ (2) Maryland could not tax it. By the supremacy clause (Article VI), the Constitution and federal laws ‘shall be the supreme Law of the Land’, and ‘the power to tax involves the power to destroy’.
In the figure: the bank rests on the enumerated pillars; Maryland’s tax is turned back at the supremacy clause.
Why it matters: a broad reading of national power, and national law above state law. Federalists’ answer to Brutus’s fear, settled by the Court.
how far the national power reaches
Congress may ‘regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes’ (Article I, Section 8). From the 1930s the Court read ‘among the several States’ so broadly that it reached almost any activity.
United States v. Lopez (1995, 5–4, Chief Justice Rehnquist). A Texas high school senior carried a handgun to school and was charged under the federal Gun-Free School Zones Act of 1990. Held: the act exceeded the commerce power. Carrying a gun near a school is not economic activity that, through repetition, substantially affects interstate commerce; it is a matter for the states’ police powers. For the first time since the 1930s, the Court struck down a federal law as beyond the commerce clause, a sign of renewed limits on federal power.
Compare Gonzales v. Raich (2005, 6–3): the Controlled Substances Act could ban marijuana grown at home for medical use under California law, because growing it is part of a class of economic activity, a national market, that Congress may regulate. The figure tests both laws on the clause: one has the economic link (the peg) and stands; one does not and falls.
Two amendments frame these fights. The Tenth reserves undelegated powers to the states (the basis for limits such as Printz v. United States, 1997: Congress cannot order state officers to run federal background checks). The Fourteenth (1868) binds the states: ‘nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’, and through it federal courts apply most of the Bill of Rights to the states (Chapter 3).
from layer cake to marble cake, and back toward the states
The balance between the levels has moved with the times, and federalism gives every policy fight several places to be won.
Dual federalism (a layer cake): each level supreme in its own sphere, the layers kept apart, the pattern through much of the 1800s. Cooperative federalism (a marble cake): the levels mixed in the same programs, national money and rules running through state administration, from the New Deal of the 1930s and the Great Society of the 1960s. The figure mixes one into the other and back.
Devolution returns responsibility to the states: block grants, the 1996 welfare reform, and decisions such as Lopez.
Federalism in practice:
Exam questions give a scenario and ask which level acts, under which clause or amendment, and whether the federal law would survive a challenge like Lopez.