What Should We Know About Our Government?

I. Is Government the Solution?--Or, the Problem?

A. Government as the Solution for Many Problems

1. Government is necessary to protect people, manage conflict, and to provide essential services.

2. Getting "politics" out of government--often, when a significant number of people become frustrated with a government's inability to solve complex problems, they call for "getting politics out of government," because politicians have become "captives" of "special interests."

a. What is a "special interest"--most often, a special interest is a group with whom the labeler takes exception to--who they regard as being in opposition to their interests. According to its main architect, James Madison, the US Constitution is structured to prevent this kind of thing from happening, as he explained in Federalist Papers number 10.

b. Politics, of course, is how governments negotiate social conflict, and is therefore a vital part of how governments operate, and how the people governed express their approval or disapproval of various proposed solutions to these problems.

B. Government as Part of the Problem

1. Political Disagreements over the "size" of government--arguments over the "size" of government usually revolve around its cost, or its regulatory powers today. Such disagreements actually predate ratification of the Constitution, and as we shall see next week, were central to the arguments of those opposed to the ratification of the Constitution.

2. Analogous to this disagreement over the size of government is the disagreement over which powers--and how much power--the Federal government should have, particularly in relation to other governmental bodies known as the states. Many of the Framers argued that the states were closest to the people, and therefore more responsive to the needs of the people (many Framers also saw this as a grave danger to social order, which is why they advocated for a stronger Federal government). If you have paid any attention to today's political scene, you may have noticed that this disagreement is still very much a part of political disagreements today.

C. Democracy--there are, of course, a variety of different kinds of governments throughout the world, from one man dictatorships to anarchist communes. Democracy, the kind of government we enjoy in the United States, attempts to strike a balance between personal freedom, while also providing for the common defense and common welfare.

1. Direct democracy--is defined as being the form of government where "the people" make political decisions for themselves, rather than electing some intermediary to represent their interests. The place where direct democracy was first put in place an a substantial scale was in ancient Athens--but is should be noted that in ancient Athens, "the people" represented were Athenian citizens, limited to those males who owned substantial amounts of property, making up perhaps 20 percent of the city's population.

2. Representative democracy--the people usually do not vote on issues, but rather vote for representatives are then delegated the responsibility for voting on those issues in the name of the people they represent.

3. Governmental legitimacy--a government having the kinds of institutions and methods in place that promote democracy are more likely to be seen as legitimate by those people it claims to represent, even when they do not agree with a particular policy the government implements.

II. Two Kinds of Democracy

A. Parliamentary system--all national authority is vested in an elected national legislature, than then chooses the chief executive (the Prime Minister).

1. Prime Minister--usually the head of the majority party, which also maintains control of the the apparatus of government as long as that party maintains control of parliament. In modern times, this power is controlled by restrictions on how long a party can maintain control of the legislature before having to hold a new round of elections (a term usually not longer than 5 years).

2. Political power is held almost exclusively by the prime minister and her close associates, or cabinet. They control the administration of laws, and set most policies. The courts usually do not interfere with governmental policies, trusting the government to remain within constitutional bounds and counting on regular elections to moderate these policies.

B. Presidential system--political power is divided between a separately elected President and Congress. This means that the president may belong to one party, while another party controls Congress--or even that opposing parties control the two branches of Congress, as is the present case. The bureaucracy therefore reports to two (or more) masters, and because of these divided loyalties, the actions of the bureaucracy may please neither--nor anyone else, for that matter. The theory underlying this system is that policies should be tested for their political acceptability at every stage of the process, and not only at election time as is the case in a Parliamentary system.

III. The Puzzles of American Government

A. Who Governs?

1. "Special interests"--are those interests that we disagree with, generally. Labor, various business groups, various ethnic groups--all have been labeled "special interests" at one time or another. "Special interests," of course, are perceived as working against the interests of "the people." In fact, James Madison in Federalist 10 argued that the competition amount special interest groups--a multiplicity of interests--would preclude the interests of any one special group from prevailing over the interests of another. To a certain extent, for Madison, governmental gridlock wasn't a flaw of this new system of government, but a feature.

B. To What Ends?--American government has changed tremendously since the Constitution was first adopted in 1787. In most states then, women could not vote (nor could most men who did not own a substantial amount of property) and most African Americans were still enslaved. There was not Federal income tax; in fact, the government financed itself largely through the sale of land west of the Appalachian Mountains to willing (largely white) settlers. This worked for them at this time, but also caused grave crises in the history of the country, some of which came close to causing its demise. The point of this argument is that the Founders were not clairvoyants, nor soothsayers; neither did they agree with each other over what exactly different sections of the Constitution they constructed meant. For us today to attempt to discern what their "original intent" was is not only foolish, but a disservice to the flexible instrument of governance that they bequeathed to us.

C. What American Politics Means for Us

1. Separation of Powers--the President and Congress are rivals, even when they are from the same political party. Because of this, political stalemates are the rule, rather than the exception. This inertia usually can only be overcome by a national crisis, a powerful tide of public opinion (usually a result of a national crisis), or by tough political bargaining.

2. Federalism--political power in the United States is not only divided between the various branches of the federal government, but also between the national government and the various state governments, as well. State government policies dominate on issues dealing with education, law enforcement, and land-use planning, although there have been in the recent past federal incursions in these areas, as well

a.States Rights--what happens when states violate the rights of their citizens (Jim Crow, etc?)

3. Judicial review--an independent court system adjudicates disputes between citizens and their government(s)

4. Freedom of speech and assembly--center around the rights of citizens to criticize their government, or certain elements of it.

Making Domestic Policy and Foreign Policy

I)       Making Domestic Policy

A)    Politics and the Economy—presidents try to achieve a healthy (growing) economy all of the time, but that is not always achievable. Whether employment is growing or falling, and whether business investment is growing is often beyond the control of the president in a free market, capitalist economy.

1)      What Economic Numbers Hurt the President?

(a)    Unemployment—rising unemployment figures or a decline in the gross domestic product makes even employed people less willing to support the incumbent government.

B)    How the Government Tries to Manage the Economy—despite the fact the president gets top-notch advice from the Council of Economic Advisors (CEA) and Congress from the Congressional Budget Office (CBO), it is impossible to know how the economy is going to perform more than a few month out—and we often can’t tell when a recession begins, or even ends, until months after the event.

1)      The Federal Reserve Board—the Fed is, in theory, a relatively free agent; 7 members are appointed for 14-year terms, with one appointed as the chair (and head of the New York City Federal Reserve Bank) for a 4 year term as the president of the Board. The Fed is charged largely to determine the interest rate it charges member banks for short-term loans that ensure liquidity in the credits system—the so-called “prime rate.” This in turn affects the interest rate banks charge customers for loans on houses, cars, and other consumer debt. This is how the money supply is regulated, which in turn is also used to control inflation; the higher the interest rate the Fed charges banks, the tighter the money supply, which in turn slows the growth of the economy—and vice versa.

2)      Fiscal Policy—the taxing and spending policies undertaken by government is known as fiscal policy. Ideally, in a recession, the government policy would entail increasing spending and decreasing taxation; in periods of inflation, the government would act to slow the economy by decreasing spending and increasing taxation. Obviously, the latter policy is not very popular with the American people, and therefore most politicians are reluctant to embrace it, even when it is needed. With the re-emergence of conservative small-government advocates in the late 1970s, it has gotten even more difficult to raise taxes—not only at the federal level, but at the state and local levels, as well.

(a)    Supply-side economics—part of the legitimization for the Reagan tax cuts was the theory of supply-side economics, which said that by decreasing tax rates, government could spur the economy enough to put more people to work, which would cause the economy to grow, putting more people to work, and actually increase tax revenue. The application of this theory, however, resulted in the Reagan Recession, which saw unemployment reach 25 percent in some areas, and the federal deficit to balloon to unheard of levels.

C)    Social Security and Medicare—although the federal government spends its (okay, actually our money) on many things, only 4 of them make up the largest share of the federal budget: Social Security, Medicare, national defense, and interest on the national debt.

1)      Changing Social Security—when Social Security began in 1935, there were 42 workers paying taxes for each beneficiary receiving a check; today, there are about 3.5 workers paying for each beneficiary. This means there is more money being paid out than there is coming in. Politicians have long been aware of this problem, and in fact in the mid-1980s took steps to remedy the situation by creating the Social Security Trust Fund, which took the money raised from a tax increase (during the Reagan Administration!) and investing it in the safest investment in the world—US Treasury notes, which are used to finance the federal government debt. Proposals for “solving” the Social Security “crisis” include:

(a)    Raise the retirement age

(b)   Reduce the benefits for high earners

(c)    Raise Taxes on all workers

(d)   Increase the wage cap

(e)    Let individuals make investments of some or all of their Social Security funds—also known as “privatizing” Social Security.

2)      Social Security Trust Fund—what you hear very little of from the talking heads on television is that the Social Security Trust Fund was set up to handle this shortfall—and the trustees, making the most conservative of estimates, guarantee that it can do so until 2036, according to the trustees latest report—when the last of the baby boomers will be 72 years old. Then the fund will only be able to pay out 75 percent of promised benefits. So, in reality, there is no crisis involving Social Security.

3)      Changing Medicare—when Medicare was passed in 1965, its sponsors said it would cost 12 billion dollars a year (that’s 82 billion in today’s dollars, by the way); in 2007 the government spent 440 billion dollars. These costs have become higher for several reasons: people are living longer (in part because of the better medical care they have been receiving); and new medical and surgical procedures are saving more lives, but often at very high prices.

(a)    Management of Medicare

(b)   Keeping costs low

(c)    Health Savings Account

D)    Making Policy Decisions—each policy has a cost and a benefit; a cost is the burden of a program (whether that be increased taxes, unpleasant regulations, or social stigma), while a benefit is a gain, whether financial or social, that flows to people. Whether a policy has a net benefit or a net cost greatly depends upon one’s ideological perspective or economic or social relationship to what the policy effects.

1)      Majoritarian Politics—politics that promotes widely distributed benefits and costs that make them appeal to a large portion of the populace—like Social Security and Medicare.

2)      Client Politics—helps prospective beneficiaries organize themselves. The best examples are subsidies paid to farmers and dairies, and regulations and tariffs concerning the import of certain food products. The farm lobby is very effective in gaining concessions for their objectives (which they sell as benefiting the family farm, even though most of the beneficiaries are actually corporate farms), but the costs are widely spread out. Sometimes that dynamic changes, however, like the dramatic reform of welfare.

3)      Interest-Group Politics—when a small group gets a lot of benefits and another small group pays most of the cost, both sides have strong incentives to form interest groups to advocate their positions; i.e. labor unions and management from the 1930s-1970s, consumer advocates and manufacturers in the 1960s-1970s.

4)      Entrepreneurial Politics—Often laws are passed that benefit society as a whole over the objections of a small interest group that is responsible for paying most of the cost. The best example are the many environmental and consumer protections laws passed during the 1970s.

E)     What These Political Differences Mean—majorities can be formed by each of these four types of politics. On any given issue, one or another group may be powerful, but no one group is powerful across all issues.

II)    Making Foreign and Military Policy

A)    Kinds of Foreign Policy

1)      Majoritarian Policies—confer benefits and costs on almost everyone—questions like war and peace, and arms control treaties are the best examples.

2)      Interest Group Politics—where some groups promote a particular policy that an opposing group actively works against. Policies like free trade, which are promoted by business groups that export products, but are opposed by environmental and labor groups because they view it as working against their interests, are the best examples.

3)      Client Politics—best illustrated by the example of a corporation doing business overseas that gets favorable tax breaks because of it, or the relationship between Israel and the United States, which initially was reliant upon the political power the Jewish bloc held in the United States.

B)    Constitutional Framework of Foreign Policy

1)      President—the Commander-in-Chief of the armed forces

2)      Congress—granted the power by the Constitution to declare war—and, perhaps more importantly, also granted the power of the purse.

(a)    War Powers Act (1973)—in the wake of the Vietnam War, Congress attempted to wrest back from the President some of the power they gave away in the Gulf of Tonkin Resolution. This law has not been directly challenged; presidents from Ford onward have refused to acknowledge that Congress has any control over the commitment of US troops anywhere in the world, and Congress has proven reluctant to challenge that perception.

(b)   Congressional Oversight of Intelligence—has also not exactly worked as planned, since the Congressional committees charged with oversight usually simply rubber stamp the action taken. If the pathetic attempt that became known as the Iran-Contra Affair is any indication, even when handed a smoking gun Congress is reluctant to act in a decisive manner.

3)      State Department—headed by the Secretary of State, and is nominally independent of the President, although they usually work closely with the president.

4)      National Security Council—the White House’s foreign policy team.

5)      Defense Department—now plays a much larger role in gathering intelligence, and also rivals the State Department for influence upon the president in formulating foreign policy.

C)    The New International Order

1)      The Old Bipolar World—from the end of WWII to the collapse of the Soviet Union, the Cold War Struggle was viewed as a struggle between two world super powers—the Unites States and the Soviet Union.

(a)    Using client states—although the US and the USSR never directly confronted one another, they willingly used proxies to attempt to best the other, like in Vietnam and Afghanistan.

2)      9/11—the successful terrorist attack has shaped US foreign policy, largely negatively, in my view.

(a)    “Pre-emptive strikes”—George W. Bush codified and expanded a policy that originated during the Clinton administration, promising to take unilateral action, if necessary, to prevent another such attack.

(b)   Iraq War—while Iraq was reluctant, and did harass UN inspectors, it did cooperate with those inspectors, eventually—who found nothing that the US alleged the Iraqi government was hiding. In fact, the US and its “coalition of the willing” had to wait for those inspectors to leave the country before it could launch an attack.

D)    Three Major Problems

1)      Nation Building—the US has had a mixed record when it comes to nation building; it works best, it seems, in economically advance countries, when the country had enjoyed a relatively stable government in the recent past—and less successfully when those conditions were absent.

2)      Foreign Policy and Terrorism—in only 5 of the 14 major wars the US had been involved in have been fought after obtaining a formal declaration of war by Congress.

(a)    Gaining Congressional approval or not seems largely contingent upon the side of the commitment and its duration.

(b)   Governing principles

3)      Changing the Military—the armed forces are organized to fight other military forces—not terrorist organizations. In the wake of 9/11, much attention had been paid to plans to re-organize the military; perhaps some thought should be spent upon asking whether the use of the military against a terrorist threat is the right strategy, or not.

E)     Politics of Foreign and Military Policy

1)      Majoritarian politics—in the bipolar world of the 20^th century, the perception of danger was usually high enough to get the American people to “rally ‘round the flag,” with the end of the Soviet threat, open opposition to some aspects of foreign policy is much more prevalent.

III)  Conclusion

The Judiciary

I. Judicial Review

           
 A. Background—The United States is one of the few countries in the world that allows an unelected judiciary review legislation and executive actions to determine whether they meet constitutional standards. Since 1789, the Supreme Court had judged 179 federal laws unconstitutional.

                        1. Marbury v. Madison—in 1801, with the requirement to hand over the reins of power to the Jeffersonian Democratic-Republicans, John Adams and his secretary of state, John Marshall, decided to pack the federal judiciary with Federalist appointees. In the haste of changing governments—and for Marshall, jobs, since he had been appointed Chief Justice of the Supreme Court—not all warrants were delivered to recipients (which was also Marshall’s job). Jefferson and his secretary of state, James Madison, were so angered by what they considered a dishonest act that they decided to leave the warrants undelivered. Madison was then sued by William Marbury, one of those promised a new federal judgeship that saw his opportunity slipping away. The opinion of the Court, written by new Chief Justice John Marshall, stated that the government was wrong in taking this action, and the Court could order the government to issue a writ so ordering the government to do so, but the legislative act authorizing this action, the Judiciary Act of 1789, was itself unconstitutional.

                        2. McCulloch v. Maryland (1819)—Marshall, again writing the opinion for the Court, held that the state of Maryland had no right to tax a branch of the national bank in the state because federal laws always superceded state laws. This argued that any laws promulgated at the federal level had to take precedent over state laws, and state laws in conflict with federal statutes were in fact invalid. This view was not widely accepted; in fact, President Andrew Jackson, at the end of his term, placed his treasury secretary (and former attorney general) Roger B. Taney at the head of the Supreme Court upon John Marshall’s retirement because Taney shared Jackson’s view of the supremacy of states’ rights over federal legislation.

                      

  3. Dred Scott v. Sanford (1857)—Taney, writing the opinion for the Court, held that not only were blacks not citizens, nor ever could be citizens, nor had any rights that any white man had to respect—but that the rights a citizen had in one state could not be restricted by another, which struck down the Northwest Ordinance and the Missouri Compromise in one fell swoop—and was perhaps the major contributor to that little bit of strife that happened four years later.

            B. Ideology—If you allow this review process to be undertaken, then one would like to have some idea of the appointee’s ideology, it would seem.

                        1. Activist approach—The view that the general principles underlying the Constitution and its often vague language, amplifying those principles on the basis of some moral or economic philosophy and applying these principles to the case at hand would be in keeping with the spirit of the Framers when they created the Constitution.

                        2. Strict constructionist approach—that judges should confine them to applying the rules that are stated in or clearly implied by the language of the Constitution.

                        3. Purity of essence—Obviously, neither side in this debate can claim that they stand purely on one side in opposition to the other, since both use elements of these approaches to justify their ideology on a variety of topics.

            C. Development of the Federal Courts—most Founders probably expected the Supreme Court to have the power of judicial review (although they did not see fit to say anything about it in the Constitution itself), but they also expected that the Court would play a relatively minor role in the federal government.

                        1. National Supremacy and Slavery

                                    a. Marbury v. Madison

                                    b. McCulloch v. Maryland

                                    c. Scott v. Sanford

                        2. Government and the Economy—from the end of the Civil War to the early years of the New Deal, the Supreme Court was largely concerned with protecting the rights of property from government intrusion, eventually even deciding that the 14^th Amendment—which was passed in order to overturn Scott v. Sanford and provided African Americans citizenship—actually included the protection of rights of corporations from by trampled by the government. I would also respectively disagree with Prof. Wilson’s contention that the Supreme Court could not be quite accurately represented during this period as either “pro-business” or “anti-regulartion,” because, with a few significant exceptions, it behaved in just such a manner.

                                    a. Slaughterhouse Cases (1873)

                                    b. Schecter Poultry Corp. v. United States (1935)

                        3. The Protection of Political Liberty and Economic Regulation—after  the Schecter Poultry decision until 1974, the Supreme Court did not overturn a single piece of legislation of federal attempts to enact regulations on business—although it did void 36 congressional enactments that violated personal political liberties.

            D. Structure of the Federal Courts—the only federal court authorized by the Constitution is the Supreme Court; all other federal courts and their jurisdictions are the creation of Congress. Constitutional courts authorized by Congress that exercise the judicial powers described in Article 3 of the Constitution have been given the same constitutional protections the Supreme Court enjoys; legislative and military courts, authorized by Congress for some specialized purpose, have judges appointed to fixed terms.

                        1. Federal district court—the lowest federal court. Each state has at least one, along with the District of Columbia and the Commonwealth of Puerto Rico. Cases heard in federal district court involve those claims for which the federal government would have jurisdiction.

                        2. US Court of Appeals—plaintiffs in a federal case who feel that their case was wrongly adjudicated may appeal that case to the US Court of Appeals; the Supreme Court will generally only hear those cases  that have been heard in these courts first.

                        3. State courts—plaintiffs must first appeal their cases through the various state courts of appeals before submitting a case to the Supreme Court—and then the plaintiff must prove that some federally-guaranteed right is in question.

                        4. Senatorial courtesy—although the President appoints all federal judges, Senators from various states are asked to submit nominees for positions in the federal courts within their states.

            E. Jurisdiction of the Federal Courts—Federal courts are only authorized to hear cases involving questions set out in Article 3 and the 11^th Amendment in the US Constitution—these are “federal question cases.” All other cases are left to the state courts. Despite these restrictions, the case load of the federal courts is enormous.

                        1. Writ of certiorari—this is a document issued by the Supreme Court when at least four of its members are convince that a case submitted for consideration involves a “substantial federal question” (such as whether the federal government can require all Americans to purchase health care, for instance).

            F. Getting to court—in theory, the courts are the great equalizer in the federal government, since we are “all equal before the law.” In practice, however, if you do not have the means to hire a very, very good lawyer, the chances of you getting your case heard by the Supreme Court is not very good.

                        1. In forma pauperis

                        2. Fee shifting—enables the plaintiff, should they prevail in the case, to collect court costs from the defendant.

                        3. Standing—a legal concept that defines who is entitled to bring a case before the court.

                        4. Sovereign immunity—you cannot sue the government without the consent of the government

                        5. Class-action suits—under certain circumstances individual citizens can benefit directly from a court decision even though they did not go to court themselves; in a class-action suit, a case is brought before the court on behalf of not only the plaintiff, but also on behalf of all other people in similar circumstances.

            G. The Supreme Court in Action

1.      Briefs—documents submitted by the lawyers for the plaintiff and the defendant that summarize the lower court proceedings, the arguments for their side, and discussing similar cases to theirs that the Court decided in their favor (called citing precedent).

2.      Amicus Curiae—arguments submitted by a party not a part of the proceeding as a “friend of the court,” supporting one side or the other.

3.      Opinion of the Court—submitted in writing (although sometimes read from the bench), in which the Court gives the reasons for deciding the case in the manner they did. This opinion reflects the opinion of the majority of the justices.

a.       Dissenting opinion—not all opinions issued by the Court are unanimous; those justices who disagree with the majority issue a dissenting opinion, where they give their reasons for disagreeing.

b.      Concurring opinion—sometimes Justices who agree with the majority do so for reasons other than those stated in the majority opinion; they will then issue a concurring opinion.

H. Power of the Courts—most cases in federal courts have little to do with public policy; at other times, however, courts can (and have) set policy.

1.      The Power to Make Policy—courts have made policy by declaring laws, acts of the President, and practices unconstitutional.

a.       Stare decisis—the usual practice of the court, in which they allow common practices and interpretations of the law to stand; in other words, they follow precedent.

2.      Views of Judicial Activism—particular view of judicial activism are largely a result of one’s view of the particular case in which the court decides to be activist in.

3.      The Causes of Activism—in order for judges to act in an activist manner, the law must be sufficiently vague to leave an opening for a new interpretation. There also must often be a change in the mindset of a substantial portion of the populace willing to go along with this change, since the court is reliant upon other branches of government to actually enforce their decisions.

I.                   Checks on Judicial Power

1.      Congress and the Courts—Congress has a number of ways of checking the power of the judiciary. The can impeach justices accused of wrongdoing, they can refuse to confirm those they feel will make bad judge,  in rare instances Congress undo an interpretation by amending the Constitution—and they can limit the types of cases reaching the Supreme Court by changing the entire jurisdiction of the lower federal courts

2.      Public Opinion and the Courts—although they like to think otherwise, federal judges are effected by public opinion; see the “switch in time that save nine,” the change in opinion that Justice Owen made during the New Deal.