A2 Politics Constitution

The Declaration of Independence was published on 4^th July 1776, asserting the independence of the 13 states. Its second 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’ has become the defining statement of American values.

The first attempt at a US constitution was the Articles of Confederation drawn up in 1776 and passed in 1777 by the Second Continental Congress, the national representative body. The history of arbitrary British rule and consequent suspicion of centralised authority meant the primary aim of the Articles of Confederation was to protect the rights of the 13 states and create only a very weak national government.The national legislature, to be known as the Congress of the Confederation, was to consist of one chamber in which members served one, 1-year term. There was no national executive or judicial branch, and the Congress had no enforceable powers of taxation; any legislative action it tool required the approval of a minimum of nine of the 13 state delegations.

In the years that followed, with no sustainable source of income, the federal government struggled to function. Congress was unable to regulate trade, either between the states or with other countries and commerce suffered. Meanwhile, in the 13 states the suspicion of authority meant that the legislative branches came to dominate; in some states, there was no constitutional provision for a governor at all and in most the governor was chosen by the legislature. It saw the rise of men who James Madison described as being ‘without reading, experience or principle’ and who were keen to advance their own interests, often at odds with those of the propertied and moneyed classes.

The Constitutional Convention took place against the background of these two very contrasting periods of American history; the arbitrary,  unitary, rule of the British and the weak, confederal form of government where virtually all political power rested with the individual states and little if the central/national government. For many in the political establishment, the dominance of the state legislatures was just as bad as the unitary rule of the British. The experience of the growing power of the legislatures led Madison to write of them in Federalist Paper 48 that ‘it is against the enterprising ambition of this department that the people ought...to exhaust all their precautions’.

The federalists favoured a stronger central government to counter the dangerous tendencies they saw in the state legislatures and to enable the country to function. Their belief that the views of the common man needed filtering by passing through the medium of a chosen body of citizens ‘whose wisdom may best discern the true interest of their country’ (Federlaist 10) led them to advocate a republican government (an indirect democracy).

The anti-federalists were hostile to any notion of filtering, which they saw as the elevation of the few at the expense of the many. They believed that representatives should mirror rather than filter public opinion or, preferably, that there should be no representatives at all and government be conducted through assemblies of the people. Any strengthening of central government at the expense of the states would work against the interests of the majority.

The form of government

The compromise between the two groups eventually resulted in a federal form of government with the legislative branch designed to be the most powerful, as demonstrated by the length and weighting of article 1. In this federal government some political power rests with the national (or federal) government but other EQUALLY IMPORTANT powers rest with the state governments. Notice ‘equally important’ not just trivial matters such as keeping the roads clean, this is an important exam point.

• Large-populations states wanted representation in Congress to be proportional to population: the bigger the population of a state, the more representatives it would have in the new Congress.
•  Small-populations states wanted equal representation of each state, such as one state, one vote.
• The compromise was to have a Congress made up of two houses, the House of Representatives and the Senate.
• In the House of Representatives there would be a representation proportional to population
• In the Senate, there would be equal representation for all states, regardless of population

One of the most infamous compromises was over the three fifths clause for deciding representation proportional to the population

• Although at this time all the States allowed slavery, it dominated in the Southern States and gave them a significant advantage in terms of numbers.
• Slaves could not vote so many Northerners felt they should not be counted, but without the inclusion of their numbers, the South would have had a much smaller voice in national politics and would not have accepted the Constitution.
• The compromise reached was the any indentured person (meaning a slave) would not be allowed to vote, but for the purposes of allocating seats in the House and the taxation burden, they would be counted as three fifths of a person.
• A number of controversial laws allowing for the extension and defence of slavery were only passed because of the weight of numbers the South gained as a result of this clause.
• It was eventually repealed by the 14^th Amendment at the end of the Civil War when slavery was abolished.

vThere were many different suggestions about how to choose the president.

vSome thought the president should be appointed.

vOthers thought the president should be directly elected by the people.

vThe compromise was to have the presidents indirectly elected by an Electoral College.

vThe people would elect the Electoral College and the ‘Electors’ within the Electoral College would choose the President.

• Article 1 – Despite the misgivings of the federalists about the power of state legislatures, it was inevitable that the legislature (Congress), as the representative body of the people, would be pre-eminent. Hence it was accorded the status of Article 1
• Article 2 – An effective executive branch was seen as vital if the federal government was to succeed and, within the constraints of a constitutional republic, it posed much less of a threat of tyranny than an English monarch, with the consequence that the powers of the office needed to be less closely defined than those of Congress.
• Article 3 – the judicial branch was famously described by Alexander Hamilton in Federalist 78 as ‘the least dangerous’ branch and its power was accordingly even more vaguely defined than the executive’s.
• Article 4 – set out the relationship between eh states to make them more a united whole and less like independent countries.
• Article 5 – sets of the process for amending the constitution.
• Article 6 – confirmed that any state debt already incurred remained valid under the new constitution and asserted that the constitution and the laws of the United States ‘shall be the Supreme law of the Land’.
• Article 7 – describes the process of ratification.

• a confided constitution is a constitution that consists of a full and authoritative set of rules written down in a single document.
• The New American Constitution was to be codified to put it in sharp contrast with Great Britain’s largely unwritten and entirely uncodified constitution.
• The new Constitution would enumerate certain powers the national (federal) government would possess and leave all other power to the states or the people.
• It would also contain a deliberately complicated and demanding amendment process.
• Amendments to the Constitution were permitted, but only if they were overwhelmingly desired by both the federal and the state governments.
• But although the US Constitution is rightly described as codified, there are phrases within it which were written deliberately vaguely and which have ‘evolved’ over the subsequent decades and centuries.

The Constitution allows Congress:

• ‘to provide for the common defence and general welfare of the United States’
• ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers

These two clauses – known as the ‘general welfare clause’ and the ‘necessary and proper clause’ – have allowed the powers of the federal government to expand significantly over time

However, just because the United States has a codified constitution does not mean that everything to do with US government and politics is in the Constitution. For example, there is nothing in the Constitution about:

oPresidential primaries

• Congressional committees
• The president’s cabinet
• The Executive Office of the President
• The Supreme Court’s power of judicial review

Procedure

The process for amending the constitution is set out in Article 5 of the Constitution.

• Amendments can be proposed either by Congress, where they require a two-thirds majority in both houses to approved, or by a national constitutional convention called by two-thirds of the states.
• They then need to be ratified either by three-quarters of the state legislatures or by three quarters of state constitutional conventions.

• All amendments to date have been proposed through the first method of congressional approval 
  • since it is not specified and it has never been tried (since 1787 at any rate), it is not clear what exactly a national constitutional convention would look like or how it would be summoned.
• Successful amendments approved by Congress have nearly all been ratified by the route of state legislatures, although state constitutional conventions have been used once, for the ratification of the 21^st Amendment.
• There is no time limit for the process of ratification stipulated in the constitution. Congress may stipulate a time limit itself but, if none is stipulated, the Supreme Court ruled in Coleman v Miller (1939) that the process of ratification can be completed decades or even centuries after the original approval by Congress
• the 27^th Amendment, which was finally ratified in 1992, was approved by Congress in 1789, and would have been part of the original Bill of Rights.  
  

• Only 27 amendments to the constitution have ever been completed.
• The first ten amendments are collectively known as the Bill of Rights and were ratified by the states in 1791.
• In the succeeding 222 years, there have been only 17 further amendments, although many thousands have been proposed. All the successful amendments have been concerned either with advancing equal rights or with reforming government structures and practices, with the exception of the 18^th and 21^st Amendments, which imposed prohibition in 1919 and repealed it in 1933.
• Of the many amendments proposed since 1992, none has been approved by the required majorities in Congress, although both the Balanced Budget Amendment in 1995 and the Flag Desecration Amendment in 2006, having passed the House with a two-thirds majority, were only one vote short of two-thirds in the Senate and being sent to the states for ratification.

• Given the remote chances of success, it might be wondered why so many amendments are proposed
• President Reagan proposed an amendment reversing the Supreme Court’s ruling on school prayers in 1982; although it had a majority in favour, it was 11 votes short of two-thirds in the Senate
• President George W. Bush proposed an amendment making same-sex marriage unconstitutional in both 2004 and 2006; on neither occasion could it gain the 60 votes needed to overcome a Senate filibuster. 
• Pressure groups are keen to press representatives and senators to introduce amendments, as they have the dual benefits of raising the profile of the issues and, because of the importance and emotional pull of the constitution, of motivating supporters.

• The process for amending the constitution is deliberately designed to be difficult, to protect the principles of the system of government set out by the framers. The process does not make amendment impossible, but reflects the federalists’ belief that popular passions need filtering; consequently, a broad and sustained consensus is needed to effect a change.
• The approval by Congress and the relatively rapid ratification by the states of the 18^th Amendment imposing prohibition and its repeal within 14 years, could suggest that the process is not immune to temporary waves of popular sentiment and that the requirements of the process are, if anything, not demanding enough.

• it would be equally possible to argue that prohibition is the unique exception in over 200 years and that the framers made a misjudgement in creating such a demanding process. 
• It makes the addition of even widely supported amendments almost impossible, as seen with the failure of the Equal Rights Amendment, despite its approval by the House by 364 votes to 24 and the Senate 84-8 and its ratification by 35 states. The constitution can become ‘fossilised’: parts which have become obsolete, like the 3^rd amendment, survive, while, more importantly, rights and values which may no longer have majority support are sustained
  • It is worth noting however, that they 2^nd Amendment is not currently guilty of this regard, as, according to the most recent Gallup Poll, support for stricter laws on gun sales and possession is well below 50%. 
• The difficulty of passing constitutional amendments has the effect that the principal means of amending the constitution is through the Supreme Court’s power of judicial review and it is arguable how far this is desirable of democratic.

A further related argument is that the formal process of amendment is not of fundamental significance anyway, since the constitution is sufficiently vague to allow for considerable interpretation and discretion in its implementation. Significant changes have occurred within the system of government without any constitutional change:

• Judicial review is itself not mentioned in the constitution and neither is the federal bureaucracy.
• The ‘necessary and proper’ clause has allowed Congress to expand its power at the expense of the states.
• The president’s power has expanded at the expense of Congress through the ‘inherent’ powers to be found in such phrases as ‘the executive power is vested in the president’.

• The republicanism (or indirect democracy) favoured by the federalists was the basis of the system of government, but the methods of election were a compromise with the anti-federalists - one chamber was to be elected directly by the people and its members to have a 2 year term of office.
• However, in keeping with the federalists’ distrust of the majority and belief that the popular passions needed to be filtered, only this one chamber, the House of Representatives, was to be directly elected; both the second chamber, the Senate and the executive, the president, were to be chosen by the state legislatures
• the two senators for each state directly and the president by an electoral college comprised of separate state bodies, chosen as the state legislatures saw fit.
• Moreover, the members of the Senate were given 6-year periods of office and only a third were to be elected at any one time, further reducing their exposure to any short-term wave of sentiment.

Madison wrote in Federalist 47 that the accumulation of all power in the same hands ‘may justly be pronounced the definition of tyranny’ and consequently each of the three functions of government – legislative, executive and judicial – was to be administered by a separate institution, under the control of different individuals. Thus, members of Congress are forbidden by Article 1, section 6 from being appointed to ‘any civil office of Authority of the United States’. In fact, this separation of personnel is not applied completely, and nothing in Articles 2 and 3 prevents a member of the executive branch being a member of the judiciary; for a brief period in 1801, John Marshall was both Chief Justice and Secretary of State.

• Given the dangers that legislatures and executives had posed in recent history, checks and balances were incorporated into the powers of both, so that neither should be able to function independently and each should require the cooperation of the other to carry out its functions; as Madison wrote in federalist 51 ‘Ambition must be made to counteract ambition’.
• In addition, Congress was ‘internally’ checked by being divided into two equal chambers, with different constituencies and terms in office. Thus, Congress has a number of significant checks over the president:
  • Congress controls the executive budget.
  • Congress can reject all legislation requested by the president.
  • Congress can impeach and remove the president for ‘high crimes and misdemeanours’.
  • The Senate confirms the major presidential appointments by a simple majority.
  • The Senate ratifies foreign treaties signed by the president by a two-thirds majority.
  • Congress can override a presidential veto by a two-thirds majority in both houses.
  •  Congress has the sole power to declare war, through a majority vote in both houses.

The president has only one significant check on Congress, the veto of congressional legislation, but given that it impedes Congress carrying out its principal function, it is a significant one.

both the branches have a limited check over the judiciary in that:

• The president and the Senate are jointly responsible for judicial appointments
• Congress can decide how many justices sit on the Supreme Court and create new lower courts
• Congress can impeach and remove judges for misbehaviour
• Congress can pass constitutional amendments reversing court decisions

The Constitution itself is primarily concerned with:

• the powers and relationships of the different branches of the federal government
• the relationship between federal government
• the states is only briefly touched on in Article 6 where, certainly significantly, the supremacy of federal law is asserted

Only the Bill of Rights, passed shortly after the Constituion itself, was it stated in the 10^th Amendment that

‘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’, making it explicit that the federal government was entitled to exercise only those powers granted to it by the constitution.

the preservation of individual rights is not a feature of the original constitution, but is incorporated in the Bill of Rights as a concession to the anti-federalists, reflecting their belief in the need for the protection against any form of central government. Thus, the rights contained in the first ten amendments were not originally enforceable against the state government.

Freedome of/to: 

• Speech 
• religion 
• remain silent 
• speedy and public trial 
• keep and bear arms 
• vote
• assembly 
• the press 

freedom from:

• unreasonable searches 
• cruel and unusual punishment 
• slavery and involuntry servitude 
• excessive bail 

Congress: 

...can pass laws to facilitate these rights – laws that enhance the rights of, for example, racial minorities. It can also, through its committee system and investigative powers, call the executive branch to account regarding the way it implements the laws that Congress has passed

the executive branch:

... needs to implement the laws and programmes which Congress passes and establishes in order to ensure that legislation is followed by delivery 

the Supreme court:

... has an important role in safeguarding the constitutional rights of citizens through its power of judicial review 

• ‘Federalism’ is usually defined as a system of government consisting of two more or less autonomous layers with their powers entrenched in a constitution.
  • The term itself does not appear in the constitution drawn up in 1787 and indeed, it is arguable how far the system it creates corresponds to this usual definition.
• The constitution is not explicit on the relationship between the federal and state governments; Article 1, section 8 gives Congress the power to regulate ‘commerce among the several states’
  
• Beyond that, the relationship is implied and even the 10^th Amendment, passed 4 years later, is a negative statement; it does not attempt to delineate what the power of the states are but rather asserts that they are everything that the federal government is not.
• It is difficult to claim, therefore, that the powers of the states are entrenched in the constitution, since it does not allocate any explicitly to them; and despite the quite close detail in the enumeration of the powers of Congress, there is, perhaps deliberately, sufficient vagueness to doubt that its powers are entrenched, if that term means they cannot be altered without an amendment to the constitution.

• Dual Federalism (1780s-1920s) – an era in which the state governments had significant power
• Cooperative federalism (1930s-1960s) - an era in which the federal government became more and more powerful, sometimes at the expense of the states. This is associated with the Democratic presidents Roosevelt, Truman, Kenney and Johnson, as well as the USA becoming a world power. The federal government administered categorical grants, schemes by which Washington was able to stipulate how federal tax dollars were used by the states.
• New federalism (1970s – present) – an era in which, wherever possible, power was devolved to the states. This is associated with the Republican Presidents Nixon, Ford, Reagan and George H. W. Bush, but was also partly adopted by Clinton in the 1990s. The federal government gradually moved towards block grants and revenue sharing by which Washington allowed the states greater independence in how federal tax dollars were spent.

over the last 40 years, the states have seen quite a significant increase in their autonomy and power. Decentralisation and states’ rights are once again the buzzwords in American politics. This has come about through:

• The reduction of federal government economic aid to the states
• A perception that federal government programmes, such as FDR’s New Deal and Johnson’s Great Society had not been as successful as first thought
• A belief that the federal government had simply failed to tackle some pressing social problems, such as those associated with gun crime, drugs, abortion, welfare and poverty, leading to a widespread distrust and scepticism of the federal government and ‘Washington politicians
•  Decisions by Supreme Court, which began to limit the scope of the federal government in such - United State v. Lopez (1995) Printz v. United States (1997) while upholding states’ rights- Webster v. Reproductive Health Services (1989) Planned Parenthood v. Casey (1992)
• The Republican domination of the White House during the 1970s and 1980s and again during the first 8 years of this century and control of Congress between 1995 and 2006, which allowed conservative politicians to push their states’ rights agenda
• The election of a significant number of republican state governors since the mid-1990s, which led to state based innovations in such policy areas as the environment and healthcare.

• The Supreme Court has played a crucial role in sanctioning the expansion of the federal government’s power.
• A significant decision came as early as 1819 in McCulloch v. Maryland, when the court ruled that the ‘necessary and proper’ clauseimplied the granting to Congress of such powers as were necessary to implement the powers that were explicitly granted.
• In the particular case, the constitution did not give Congress the power establish a bank, but the court decided that a bank is an appropriate means of facilitating Congress’ power of taxation and spending and, further, that the ‘supremacy clause’ of Article 6 means that no state has the right to interfere with its operation.
• In the 20^th Century, the court initially resisted the expansion of congressional power through the New Deal and, in a series of cases, struck down programmes such as the Agricultural Adjustment Act United States V. Butler (1936). However, it eventually gave way in a further series of cases, beginning with West Coast Hotel v. Parrish, decided in 1937.
• Having conceded the right ofCongress to manage the national economy and to impose such measures as it saw fit on the states, the court then took the lead itself after the Second World War in limiting the right of the states to regulate the civil liberties of their own citizens, most famously in Brown v. Board of Education of Topeka (1954).

• the left tend to favour a stronger federal government, both to manage the economy and stem the excesses of corporate power and to ensure basic standards of rights and services.
• In contrast, those on the right see states as retaining a vital role: they were the foundation of the republic, embody the American ethos of rugged individualism and act as a necessary safeguard against the liberal agenda of the institutions of the federal government.
• The history of federal-state relations has been, one of steady expansion of the reach of the federal government and the diminution of that of the states. 
• The New Deal programmes of the 1930s and the ‘war on poverty’ and the Great Society programme of the mid-1960s saw a further expansion of the reach of the federal government. By the 1960s, its role had come to be seen in a positive light; in the minds of many, the state governments had become associated, principally through their attempted frustration of moves to end segregation, with backwardness and repression and the federal government now represented a positive force, ensuring all citizens had acceptable standards of basic rights and services.

However, this perception quickly changed. From the late 1960s onwards, many especially on the right came to believe that the expansion of the federal role had gone too far. It had shown itself unable to deal with, or was even part responsible for, the social problems of the late 1960s. Increasing drug use and crime, changing sexual morals and often violent student and racial unrest, meant for many Americans that society seemed to be on the point of collapse. ‘States’ rights’ became a conservative cause; the federal government had become too powerful and intrusive, presided over by an out-of-touch and profligate Congress, its programmes implemented by an unwieldy and inefficient bureaucracy, imposing its liberal agenda on the rest of the nation. Suspicion of the malign intent of the federal government became ubiquitous in popular culture and was still evident in later decades in television programmes as the X Files. It manifested itself much more seriously in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995 (the most serious terrorist attack in US history, before 9/11, committed by a ‘home-grown’ opponent of the federal government, Timothy McVeigh).

• Beginning under President Nixon, it was an attempt to reverse the flow of power from the states to Washington and return the balance between the two to that implied in the constitution.
• The two presidents most associated with New Federalism are Presidents Nixon and Reagan, who had ambitious plans to re-empower the states although the records of both in reducing federal power are decidedly mixed.
  • For example, President Nixon gave (incongruously for a Republican from today’s perspective) a high priority to environmental issues; he established the Environmental Protection Agency in 1970, signed amendments to the Clean Air Act into law establishing national air quality standards and, in response to the oil embargo of 1974, imposed a national speed limit of 55mph.

By the time of the Regan presidency, in the aftermath of Watergate and against a background of failed economic policy which had seen a prolonged period of ‘stagflation’ faith in the federal government had fallen even lower. The president signalled his commitment to the federalist cause when he declared in his inaugural address in 1981 that ‘the federal government did not create the states, the states created the federal government’. 

The 1990s represented the high point of the New Federalism movement, for a number of reasons:

• The economic growth of the 1990s led to an increase in state revenues, supplemented by the huge influx of funds from the tobacco settlements of the late 1990s, though which major cigarette manufacturers agreed to pay the states a total of $246 billion over 25 years.
• There was an increased willingness by the states to use new methods to solve social problems, particularly related to crime: boot camps were introduced in 27 states; the first ‘Megan’s’ Law’ was introduced in New Jersey in 1994, followed by federal legislation in 1995; ‘three strikes’ laws were introduced first in Washington in 1993; New York City pioneered ‘zero tolerance’.
• Supreme Court decisions by the so-called ‘federal five’ (Justices Rehnquist, O’Connor, Kennedy, Thomas and Scalia) most notably US V. Lopez which, in striking down the Gun-Free Schools Zones Act of 1990, was the first decision since the New Deal to limit Congress’ power under the ‘interstate commerce’ clause.

• President George W. Bush’s rhetoric, both as governor of Texas and at the beginning of his administration, led many to expect that he would adopt a traditionally conservative ‘states’ rights’ approach to the federal-state relationship.
• However, the overall record of his administration was a disappointment to conservatives; there was no concerted move to shift power back to the states, federal spending rose by about a third through the course of his administration and he showed himself willing to use the power of the federal government to implement his favoured policy options.
• In defence of the president, it could be argued that two of the most often cited examples of federal government expansion his administration oversaw the creation of the Department of Homeland Security and the bank bailout legislation of autumn 2008 – were driven by calamitous national events which demanded action from the federal government.

 However, several programmes could not be justified on these grounds, in particular:

• The ‘No Child Left Behind’ education legislation passed in 2001 created federal requirements over school syllabus content, testing and teach qualifications when, as recently as 1996, the Republican Party platform called for the abolition of the federal department of education.
• The Medicare prescription drug benefit, passed in 2003, was widely described as the biggest expansion of the federal role in healthcare since the creation of Medicare itself.

The area of medical ethics saw some of the stranger federal interventions, as the administration and the Republican Congress sought to ensure their ‘pro-life’ values were upheld by the states. In the case of Terri Schiavo, Congress passed legislation transferring jurisdiction just for her case from the state to federal courts, which the president flew to Washington to sign from his holiday in Texas in the early hours of the morning.

• President Obama had never served as a state governor and, as a senator with a voting record that tended to be liberal, there was no expectation that he would emerge as a champion of the states.
• The Obama healthcare reforms generated heated debate over the constitutional extent of the federal government’s power and 26 states were parties to a case that was decided by the Supreme Court in 2012, National Federation v. Sebelius. The Court upheld the federal government’s right to require every citizen to have health insurance but, the court upheld that the federal government could not punish states that refused to expand Medicaid as the act required them. 
• In other areas, the Obama administration encroached on states’ autonomy. Despite the president’s campaign pledge to respect state laws on the use of medical marijuana, a report issued in 2013 by ‘Americans for Safe Access’ group claimed that the Obama administration had spent more money, $289 million, in its 4 ½ years on the enforcement of federal laws than its predecessor did in 8 years.
• In 2010 the Justice Department began legal action challenging the Arizona SB 1070 law, which in various ways sought to strengthen state laws against illegal immigrants. The case of Arizona v. US eventually reached the Supreme Court and, in a judgement delivered in 2012, the court held that the state was infringing on the federal government’s constitutional right to determine immigration policy.          

There were five particular reasons for the expansion of the federal government under Bush Jr:

• The war in Iraq
• Homeland security issues following the attacks on the USA on 9/11 (2001)
• The expansion of the Medicare programme
• The No Child Left Behind Act passed by Congress (2001)
• The Wall Street and banking collapse (2008)

• Not all Republicans agreed with Bush’s huge expansion of federal government spending. Even some of his own party derided such programmes as ‘big-government conservatism’. 
• Bush = criticised by conservative Republicans for not vetoing expensive federal govt programes
• He failed to use a single veto during his entire first term (2001-2005) the first president to do so since Martin Van Buren (1837-41). Bush was also criticised for what many saw as the federal government’s somewhat feeble initial response to the devastation caused by Hurricane Katrina in 2005
• Finally, when in 2008 the Bush White House authorised the secretary of the treasury, Henry Paulson, to take control of two troubled, privately owned but government-sponsored mortgage companies – known colloquially as Fannie Mae and Freddie Mac
  
• This was followed by a Bush White House – sponsored $700 billion ‘bail-out’ package for Wall Street to alleviate the effects of the credit crunch. 
  • The legislation passed through Congress but with mainly Democrat votes.
• In 1996 Bill Clinton had commented that the era of big government was over. By the end of the George W. Bush administration, it was clear that it was back.

The Obama White House has focused much more domestic policy as a way of delivering his ‘change’ agenda. This has had a profound effect on the relationship between Washington and the states. War and security against terrorism are conducted exclusively by the federal government; domestic policy is increasingly the domain of the states. Thus the folioing trends have so far been seen during the Obama presidency:

• The ratio of state and local government employees to federal employees is the highest since before Roosevelt’s New deal in the 1930s.
• Federal government assistance to the states increased from 3.7% of gross domestic product (GDP) in 2008 to 4.6% in 2009.
• Money from the federal government accounted for 30% of state government spending in 2009 compared with 25% in 2008.
• Of the $787 billion of the 2009 Economic Stimulus Package, one-third ($246 billion) went to or through the state governments. (Under Bush’s 2003 stimulus package, just $20 billion went to the sates).

There are four key reasons for this increase in federal money to the states under Obama:

• The re-authorisation of the State Children’s health Insurance Program (SCHIP) (2009)
• The expansion of Medicaid under Obama’s healthcare reform legislation
• Higher education expenditure (e.g. Pell Grant, 2010)
• $4.35 billion invested in the ‘Race to the Top’ programme to boost education in the states

Obama came in for a good deal of criticism for his view of federalism. Many republicans saw the passage of the healthcare reform legislation as ‘the end of federalism’ and there were those in the Tea Party movement who thought Obama more of a socialist than a federalist. In exit polls at the 2010 mid-term election, 74% of Republicans and 60% of independents agreed with the statement that ‘the federal government is doing too many things better left to businesses and individuals’.

• New Federalism represented a reassertion of the role of the states and they continue to play a significant role in the life of the nation.
• Even under an administration as unsympathetic as that of George W. Bush’s, they showed a considerable degree of independence.
• A system of almost universal healthcare was begun in Massachusetts (singed in by then Governor Mitt Romney) and same-sex marriage was legalised in a number of states.
  • Several states made public money available for stem cell research at a time when federal research had been restricted by executive order; in California, Proposition 71 authorised the provision of $3 billion over 10 years.
• The Global Warming Solutions Act, passed by the California legislature in 2006, sought to cut greenhouse emissions by 25% by 2020 and then Governor Schwarzenegger signed a statement of intent with the  then British Prime Minister, Tony Blair, to explore solutions to global warming.

• However, it would be difficult to argue that New Federalism brought about any fundamental shift in the federal-state relationship and the experience from 2000 showed its limitations. 
• These limitations were particularly exposed in the economic slowdown from 2008, which put severe pressure on many state budgets, reducing the scope for state initiative. 
• A few states such as Wyoming and North Dakota, with small populations and rising revenues from energy production, were immune, but the majority saw declining revenues and increasing demand for services. 
• Nearly all states are required by their own laws or constitution to run a balanced budget, which means they are much less able to run prolonged deficits than the federal government and consequently are vulnerable should revenue drop in an economic downturn.

• It is arguable that the role of the federal government cannot be significantly rolled back. The operation of a modern society creates a need for centralised management of the economy and for an educated workforce and the demand for a basic standard of healthcare requires national standards enforced by the federal government. 
• Most significantly perhaps, Congress and the president, whatever their ideological stance, want to exercise control over domestic policy. 
• All presidents have policy goals they which they are unlikely to willingly renounce the means of achieving them. 
• Similarly, members of Congress are keen to retain control over federal funding of state and district projects, as these are crucial to their prospects of re-election.

Then again...

• Although not by presidential design, the States have begun utilising propositions and the new Conservative Roberts Court to help take back some power.
• The 2014 Schuette v ** case has ruled that a state proposition is constitutional in banning Affirmative Action.
• This opens the way for the individual States to pass more individual laws through propositions and initiatives that will allow them to follow different course from that of the Federal government.
• Already States have begun banning affirmative action and allowing recreational marijuana, but this could be extended out in any other area not under federal control by teh cosntituion.

Liberal Criticisms

• Liberal critics from the early 20^th Century onwards have seen the constitution as representing the interests of property and capital.
• In their view, the desire of federalists to filter popular opinion and to separate the different branches of the system created a system which protects the status quo and where change of any significance is difficult to bring about.
• The fragmented government and multiple blocking points frequently lead to gridlock and the difficulty of amending the constitution has handed an effective veto over many areas of policy to an unelected court.
• There is an inherent lack of accountability in the system and power is distributed so broadly that responsibility for any given policy decision is easy to evade.
• The system allows the erosion of civil liberties during period of emergency and the courts have shown themselves slow and unwilling to intervene.

Conservatives’ criticisms

• have focused not so much on the constitution itself but rather on what they would see as the dilution of its principles.
• In particular, the federal government has exploited the vagueness of the constitution to bring about a vast expansion of its power at the expense of the states, representing a threat to the legitimate rights and interests of property owners and business.
• The illicit growth of the power of the courts through the power of judicial review has led to their imposing their liberal agenda onschool prayer, abortion,flag burningand gay rights on the entire country.
• A specific criticism is that lack of term limits in Congress has been the means of the creation of an unrepresentative political class, devoted only to furthering its own interests.

• The middle-ground defence would first point out that the American Constitution is the longest surviving example in the world.
• The fact that it is assailed from both left and right suggests that it has somewhere near the right balance between effective government and protection of individual liberty.
• It has provided political stability and has not prevented change occurring, but rather makes it dependent on broad-based enduring support.
• It is anyway arguable that lack of change reflects the overall preferences of the American people.

• The two crucial historical influences on the drawing up of the constitution were the period of arbitrary British rule leading to the revolution and the dominance of the state legislatures in the years that followed. The first created a suspicion of a strong executive power; the second a suspicion of the ambitions of legislatures
• The structure of the constitution is based around the separation of powers. The first Article is devoted to the legislature, as the representative body of the people; the second to the executive; and the third to the judiciary, the ‘least dangerous branch’.
• The principles of the constitution are not stated explicitly, but it embodies the principles of republicanism, checks and balances, separation of powers, federalism and the preservation of individual rights.
• The formal amendment of the constitution is a demanding and only occasionally completed process, but the constitution can effectively be amended through the decisions of the Supreme Court and executive and legislative action.
• The constitution has been criticised from both left and right, but its endurance over two centuries suggests the framers got it largely right.