Dr.

Silvia IRIMIEA

American Political Thought and

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American Political Thought and

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The Constitution established the role of Congress in policy making.

The Framers also wished it to establish its relationship with the

other branches of government and with the people.
The basic principles included in the Constitution are: limited
government, separation of powers, checks and balances, and

federalism.

The novelty of the concept of Congress lies in its reliance on firm

principles capable of regulating the decisionmaking process in the
US.

American Political Thought and

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American Political Thought and

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The Framers of the Constitution wanted to create a strong and

effective national government which, nevertheless, could not
threaten personal or property rights. Consequently, they thought
that by dividing the power among three branches of the national
government, and between the nation and the states, the national
government could not acquire too much power to endanger or
violate personal and property rights. The division of power ensured
on the one hand effective cooperation, but on the other also
generated conflicts.

American Political Thought and

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The Framers established three independent branches of the

national government, none acquiring full monopoly of the political
power or overshadowing the others.

The Framers objective was twofold:

1.
First, by separation of powers they sought to restrain the power of
any of the branches,
2.
second, in order to be effective the government had to ensure
adequate collaboration and co-operation of the branches
According to the principle of separation of powers

Congress enacts the laws,

the President executes them, and

the Supreme Court interprets them.

The distinction between the branches is not so sharp. In particular, the
Constitution even provides an open invitation addressed to
Congress and the President to compete for power.

American Political Thought and

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American Political Thought and

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This represents a system designed by its authors to impose limits to

the three branches and to prevent any branch from overriding the
other two. Essentially it is a further system added to that of
separation of powers. Although both systems were sought to ensure
a smooth and fluent activity of Congress, however, they inevitably
gave rise to conflicts.
In addition, Congress was also effectively checked by a bicameral
body made up of the House of Representatives and the Senate, each
with different, and at the same time complementary political
functions.
Thus, for example, the laws passed by Congress must be vetoed
by the president. Treaties and high-level presidential appointments
require the approval of the Senate, while many decisions and actions
of Congress and the president are subject to review by the federal
judiciary.

American Political Thought and Institutions

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The Bill of Rights is a constitutional act, which comprises amendments to

the Constitution intended to restrict the federal governments power and
to prevent it from interfering with certain basic rights of the people.
The federalists cause was defended by Alexander Hamilton, James
Madison, and John Jay who stepped in writing a series of articles in
favour of the ratification. These articles or pamphlets are now known as
The Federalist and bring accurate evidence about the disputes over the
Bill of Rights.
The anti-federalist leaders were: George Mason, Richard Henry Lee (a
revolutionary and signer of the Declaration of Independence), Patrick
Henry, Mercy Otis Warren, a playwright, etc.
Basically, all the arguments for and against the Constitution brought into
prominence three issues:

1.
Would the new Constitution maintain a republican form of
government?
`2.
Would the federal government have too much power?
3.
Was the bill of rights, indeed, necessary to be annexed to the
Constitution?

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The reasons that called for drawing up a BOR were the following:
There was a wide spread fear of a strong and powerful government
combined with the belief that a bill of rights was necessary to
protect people from government (people thought that if they needed
to be protected from their relatively weak state governments, they
would need more protection from the somewhat more powerful
federal government).

Consequently, the anti-federalists highlighted the absence of a bill

of rights.
Furthermore, in several states the question of a bill of rights was
used effectively to organise opposition to the ratification of the
Constitution.
Nonetheless, the federalists also used their strategy to convince
different states to ratify the Constitution, i.e. to give in to the antifederalists demand for a bill of rights.

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George Washington became the first president of the US on

April 30, 1789 when he was sworn into office.

This event had the following significance:

It marked the beginning of the new government.
It was for the first time in history that the people of a nation
held the ultimate power of government by selecting the person
they wanted to lead their government.
the powers that the president was entitled to was limited by the
new Constitution, which the president was sworn to uphold.

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James Madison was asked to draft the BOR, a task he devoted his full
attention to. Although, in the beginning he had opposed the idea of
a bill of rights and often referred to it calling it a parchment
barrier, he pledge to complete the task.
he revised the amendments that were recommended by the
individual states during the ratification debates (most of these either
placed additional limitations on the powers of the federal
government or protected individual rights).

He focused his attention on the amendments, which promoted

individual rights, such as freedom of speech, consciousness, press,
religion, assembly, petition, and trial by jury, and overlooked all the
suggestion which limited severely the power of the federal
government.

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In drafting the Bills he relied on the colonial bills of rights and the
charters of liberty. (for example, on the Massachusetts Body of
Liberties adopted in 1641, well before the English Bill of Rights, and
almost 48 years before the American Bill of Rights. It comprised 23
of the 27 rights enumerated in the Bill.
Madison introduced his amendments on the floor of the House of
Representatives on June 8, 1789. He further suggested that an
introductory statement be added to refer to the idea that the
purpose of the government should be to protect the rights of the
people.

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Madison included what he considered the

amendment in the whole list and which read:

most

valuable

No state shall violate the equal rights of conscience, or the freedom

of the press, or the trial by jury in criminal causes.
He also included an amendment to make up for the possible
omissions. This is the Ninth Amendment, which clearly states that
the Bill of Rights is only a partial list of the peoples rights:
The enumeration [listing] in the Constitution of certain rights shall
not be construed [interpreted] to deny or disparage [make less
important] others retained by the people.

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The Bill underwent three subsequent stages.

First, the jury sent it to the Senate where the anti-federalists
dismissed the amendment that prohibited the state governments
from violating freedom of conscience, speech, press, and trial in
criminal causes. This amendment was added 150 years later.
Second, a joint committee of the House and Senate altered a few
sections
In September 1789 Congress approved the Bill of Rights and sent
it to the states for ratification.

The Bill of Rights became part of the Constitution on December 15,

1791, when it was ratified by Virginia, the last state to ratify it.

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The English Bill was drawn up

to limit the power of the king,
place the prevailing power of the government on Parliament, and
to ensure the establishment of the Church of England.
The Bill includes the trial by jury right, the prohibition against cruel and unusual
punishments, and the right to keep arms for personal defense. Some ideas
expressed in it, however, influenced the American Bill of Rights. Such were
the following:

Rule of Law, according to which all people must obey the laws of the land;
Parliamentary supremacy which made parliament the highest authority

Government by contract and consent, a rule by which Government is based

superior to the king;

on a contract between the rulers and the ruled;

Balance of Powers, a principle that seeks to establish a balance between the
legislative and executive branches of government. This further made judges
independent of both, and also represented the first step towards the ideas of
separation of powers and checks and balances, later on taken up and
developed in the American Constitution.
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The English Bill of Rights

was a law passed by Parliament and it

could be changed by Parliament.

it was primarily intended to limit the power of the king and increase
that of the Parliament.

It sought to prohibit the monarch from violating the right of

Parliament.
On the whole, the English Bill of Rights taught the Americans how to
protect rights by limiting the power of government.
By contrast, the American Bill of Rights
was adopted by Congress and
ratified by the people and, henceforth could only be changed by the
people.

It is primarily aimed at prohibiting the government from violating

the individual rights of all people and protecting the rights of
minorities from majorities.

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Thomas Jefferson served as the first state secretary and was thus

responsible for notifying the state governors of the actions of

Congress. In 1792 Jefferson informed the governor that Congress
had taken action concerning fisheries, the post office, and postal
roads.

At the end of his letter, nevertheless, almost as a postscript, he

informed them of the ratification of the Bill of Rights: the
ratification by three fourths of thestates, of certain articles in
addition and amendment of the Constitution.

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Congress shall make no

law respecting an
establishment of religion

Or prohibit the free

exercise thereof

Establishment clause

The free exercise clause

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ABSOLUTELY PROTECTED SPEECH

There is only one absolute defense against efforts to place
limitations on speech, oral or in print: the truth. It came to be
protected even if its expression damages the person to whom it
applies. Of all forms, political speech is the most consistently
protected.

Political speech was extremely important to the framers, hence short

after the ratification of the BOF the framers adopted the famous
Alien and Sedition Acts which made it crime to say or publish
anything that might to defame or bring into disrepute the
government of the US

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The 1st Amendment treats the freedoms to assembly and petition as equal to the
freedoms of religion and political speech.

The speech plus category is speech followed by physical activities such as

picketing, distributing leaflets, and other forms of peaceful demonstration
and assembly. The Court protects the assemblies and local and state laws are
strictly scrutinized and often overturned. However, the same does not apply
to activities carried out on private property.
For all practical reasons, freedom of speech implies freedom of the press.
With the exception of the broadcast media, which is subject to federal
regulation, the press is protected under the doctrine against prior
restrain(=an effort by a governmental agency to block the publication of
material it deems libelous or harmful way: censorship). The S Court has
upheld the rule that the 1st A prohibits government agencies from seeking to
prevent newspapers or magazines from publishing what they wish.
In the case of New York Times vs U.S. ( The Pentagon Papers Case) The
Supreme Court ruled that the government could not block the publication of
the secret Defense Department documents furnished by an opponent of the
Vietnam War.
In 1990 the SC upheld a lower court order restraining the CNN from
broadcasting tapes of conversations between the former Panamanian dictator
Manuel Noriega and his lawyer, supposedly recorded by the US Gov. The SC
voted 7 to 2 and restrained the CNN from broadcasting the tapes until the
trial court in the Nicaer the broadcast would violate Noriegas right to a fair
trial.

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CONDITIONALLY PROTECTED SPEECH

At least four forms of speech fall outside the absolute guarantees of
the 1st A. However, since they do enjoy some protection, they were
qualified as conditionally protected types of speech. They still
enjoy some protection by the courts.
Libel and slander
Libel= a written statement made in reckless disregard of the truth
that is considered damaging to a victim because it is malicious,
scandalous, and defamatory. Slander= an oral statement, made in a
reckless disregard of the truth which is considered damaging to a
victim because it is malicious, scandalous, and defamatory.
Obscenity and pornography- difficult to draw the line between what
is protected and where unprotected speech begins.

Fighting words when expressive speech moves from the symbolic

realm to the realm of actual conduct(the direct incitement of
damaging conduct with the use of so-called fighting words.

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2nd Amendment
5the A
the grand juries jury that determines if sufficient evidence is available to
justify a trial; it does not rule on the accused guilt or innocence
double jeopardy- the right providing that a person cannot be trialed
twice for the same crime
the Miranda rule - the right according to which persons under arrest
must be informed prior to police interrogation of their rights to remain
silent and to have the benefit of legal counsel (it was ruled in the famous
Miranda vs Arizona case)

The right to privacy= the right to be let alone

Birth control, abortion, homosexuality, the right to die
The USA Patriot Act
Thinking critically about the future of CIVIL LIBERTIES: does the War on
Terrorism affect it?

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Federal government (of the US) - the US government, as established

by the Constitution, exercising control over the entire nation, as
distinguished from state and local governments.
Federalism is a form of political organisation in which the
governmental power is divided between a central government and
territorial subdivisions- in the US, among the federal and state
governments(Nathan R., Hoffmann, E., 1996).
Richard Nathan and Erik Hoffmann (1996)- federalism: a form of
government organization that tries to reconcile regional diversity
with a certain level of collective unity and it does so in such a way
that regional governments play an entirely concrete role.
(Although the definition is to a certain degree correct, it seems,
however, that federalism is not so much a form of government
organization as it is above all, a form of organization of the state
itself.)

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any federal system acts as a unitary union state, embracing two or

more relatively independent states and/or state formations.
Further, each state, as a subject or part of federalism, has its own
administrative-territorial divisions. In addition to
federal organs, each has its own supreme organs of state authority
and government, as well as judicial, law enforcement, health care,
fiscal and other organs.
Each state has its own constitution and current legislation and may
frequently
have
its
own
military
formations
and
citizenship(Encyclopaedic Dictionary of Law, Moscow, 1984).

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Just as the branches were designed to check each other, the state and federal
governments are also countervailing forces.

This division of power is another means to control the governing

power.
The term federalism was not included in the Constitution, as was
for example that of separation of powers or checks and balances,
but the Framers realised that federalism was a form of government
acceptable to all 13 original states.
Federalism has infused localism into congressional proceedings.
Congress is a representative institution and hence its members need
to respond to the needs and interests of states and to their
congressional districts. Hence Congress as a national institution
gives expression to the vast national diversity, especially as its
legislators tenure depends on the continued support of their
constituents.
Nevertheless, the Constitution has created a sound and strong
political system in which the power is divided among the branches
and between the levels of government, while popular opinion and
interest are reflected differently in each.
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The federal system functions in accordance with a few basic principles:

the voluntariness of the unification of the states or state formations
into a federation;
the equality of subjects of federation regardless of the size of their
territory, the size of their population, their economic potential,
pluralism and democracy in relations between subjects of federation
with one another and with citizens;
the broad opportunity offered to citizens to participate actively and
freely in federal and regional political processes;
Finally, the principle of legality and constitutionality, which means
the strict, undeviating observance of ordinary and constitutional
laws by the federation and by the subjects of the federation, by
federal and all other organs and organisations, both in relation with
one another and with citizens and party, trade unions, and other
socio-political organisations formed by them.

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Any federal system can be effective only:

if its activity is carried out within the strict framework of the
Constitution and current legislation,
if the fields of activity and the jurisdiction of central and state
organs are clearly defined, and finally,
if citizens rights and liberties are strictly observed.

Federalism - the contractual repudiation of centralism, the

structurally formalised dispersion of authority among different
state organs that are power centres of a sort, and as the legal
authority which is guaranteed by the Constitution(D.J. Elazar,
Exploring Federation, 1987).
Federalism is a living organism static at a given time, but also
constantly developing and changing in compliance with the changes
in the economic and socio-political conditions of society life.
Henceforth, the relations it establishes or generates are both rigid,
centralised or, reversely, decentralised to various degrees in
different periods of time.

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The early days of American federalism go back to the early 17th

century English settlements. The early settlers brought to the New
World their representations and traditions of local and regional
autonomy that found good conditions to develop on American soil.
Consequently, all colonies of the 17th century America experienced
an acute sense of localisation of authority.

local units thus concentrated power to an extent that the central

government could scarcely match.
The degree of autonomy that American local government acquired
exceeded by far the power the local government held in old England.
The local governments developed and increased their autonomy as a
consequence of the lack of governmental support coming from the
English or the crown authority, which was practically non-existent in
the colonies.
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Throughout the entire colonial period the central authorities, in this

case both the English Crown and the separate colonial governments,
were trying to justify themselves in the face of this extremely fast
localisation of power process.

The Declaration of Independence was a solemn historical event

which proclaimed the thirteen united states of America and stated
that as Free and Independent States they have full power to levy

war, conclude peace, contract alliances, establish commerce, and do

all the other acts and things that independent states may of right
do. This statement represents the conceptual framework for the
colonial government and clearly spells out its duties or functions.

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The next historical event, the creation of the Articles of

Confederation, a first constitution of the US, was another product of
Americas localist traditions, of the parcelling out of power from
below. The Confederation government they created was weak and
did not acquire a good reputation. It was often regarded, as it used
to declare, only as a league of friendship, the result of a sort of
treaty among 13 independent statesthe Confederation represented an outstanding political achievement.
It was the first strong and cohesive alliance of independent
sovereign states. Article four of the Articles granted, for example,
the citizens of all states equal privileges and immunities and
permitted the free movement of all persons and goods between the
states- provisions which the present European Union is strenuously
attempting to achieve.
The Continental Congress was the creation of hasty circumstances
and this made it an instrument for wartime resistance, this made the
Confederation earn its reputation of an efective instrument of war,
and of a temporary union for the purpose of achieving
independence. Consequently, the delegates at the Continental
Congress in 1776-77 conferred great power to the Confederation,
including the power to determine war and peace, conduct diplomacy
and make treaties, regulate Indian affairs, maintain a postal system
and act as court of last disputes between the states.
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The delegates who met in Philadelphia in 1787 wrote a new

Constitution and worked out a new political form: the federal
government.
Under this federal government one government or several
governments could exercise control and authority over the same
people and the same territory.
Madison pointed out in the Federalist No 10 the mechanism
according to which federalism would function, as envisioned by the
Framers: The federal Constitution forms a happy combination the
great and aggregate interests being referred to the national, and the
local and particular to state governments
the history of American federalism has revealed that drawing a clear
line between what is great and agregate and what is local and
particular has not been very easy.
Despite its shortcomings, the American federalism offered a
lucrative solution to the problem of American diversity, and
provided, at the same time, a new and valid political model.

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Federalism in America gave birth to two very different myths:

1)The first is called dual federalism and views the Constitution as a
compact among sovereign states. This myth relies on the states
rights concept- conservatives
Dual federalism is metaphorically described as the layer cake
federalism, as the powers and functions of national and state
governments are distinct and separate like the layers of a cake.
It sets a rigid separation line between the nation and the states.
2)Reversely, the second myth, called cooperative federalism, held the
view that there is no such separation line which would distinguish
the national government from state governments, that if there were
such a line it were highly permeable and flexible - liberals
The proponents employed the metaphor of marble cake to describe
this kind of federalism.

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The myth about cooperative federalism circles around the idea that
the people are the citizens of both nation and state. The proponents
of this concept lay emphasis on the elastic clause, namely on the
phrase in Article I Section 8.
The basic distinction between the two concepts lies in the
interpretation they attribute to two sections of the Constitution,
which set out the terms of the relationship between the national and
state governments:
- Article I Section 8 (the elastic clause) grants the national
government the power to make Laws that are necessary and

proper for carrying into Execution the foregoing Powers.

- Amendment X: Powers not delagated to the United States by

the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.
The two metaphors gave rise to critics on both sides. Historically
speaking, the real meaning and the effects of federalism can only be
found in its practical implementation.

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In the 1960s, President Lyndon Johnson worked out a massive

amount of social legislation to improve the general quality of life,
equality of opportunity, and boost economy. - the national
government thus started a nation-wide financial aid programme
(carrots)- growth of bureaucarcy+ intergovernmental interaction+
lower community groups= picket fence federalism where all levels
interact
The fence rails represent levels of government (national, state, local)
Slats- interests of various lobby groups both inside the gov and
outside it= fruit cake metaphor

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Although much debate has been carried out around the two kinds of
federalism, although the Constitution defines one kind of
federalism, the balance of power between nation and states has
always been more a matter of politics than of formal
authority(Janda, K., Berry, J., and Goldman, J., 1989). Throughout
the centuries that followed the creation of the Constitution, the
balance of power has shifted substantially and the national
government has acquired functions not envisioned in the eighteenth
century.
A saying says that there are two ways of getting things done, with a
stick or a carrot. Indeed, the national government has made use of
both sticks, by which is meant legislation, judicial interpretation,
and carrots, e.g. financial incentives to increase its power.

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Financial carrots are meant all aids provided by the national

government to states and local governments to enable them to carry
out their economic and political goals. The main form of allotting
money to states and local governments is by means of grants-in-aid
which are of two kinds: categorical grants and block grants.
Grants-in-aid represent money given out from one level of
government to another to be spent for the accomplishment of
specific purposes. Many such grants are given on a matching basis,
that is, beneficiaries must also contribute, a contribution which is
matched by the national government.
Categorical grants are grants devised for specific purposes and
come with restrictions as to how the money should be used, leaving
thus the beneficiary state government with little discretion. These
grants are of two kinds: formula grants, which are distributed
according to a specific formula, and hence restrict the criteria of
eligibility and amount of money given, and project grants awarded
on the basis of competitive applications.

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American history is witness of

an attempt to restore the
balance of power between the
national govt and state gvts.
For this purpose gvts used
both sticks and carrots.
the early 19th c was
dominated by the nationalist
interpretation of federalism,
broadly embarced by Marshall
and used for the benefit of the
nation.
John Marshall, 1801-1835
Marshall served as Secretary of State throughout President Adams term and, at President
Thomas Jeffersons request, he remained in that office briefly following Jeffersons
inauguration. Marshall served as Chief Justice for 34 years, the longest tenure of any Chief
Justice. During his tenure, he helped establish the Supreme Court as the final authority on
the meaning of the Constitution. Marshall died on July 6, 1835, at the age of seventy-nine.
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Marshall used the elastic clause to settle the matter stating that

let the end be legitimate, let it be within the scope of the

constitution, ans all means which are appropriate , which are plainly
adapted to that end, which are not prohibited, but consistent with
the letter and spirit of the constitution , are constitutional.- this
enabled the Congress to rule the setting up of the national bank.

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The depression years exceeded the capacity if the states calling for
national gvt intervention for providing relief and for redirecting
efforts towards economic recoveryFranklin Delano Roosevelt- the New Deal relief programmecooperation of national and state programmes- it reshaped
federalism in the US by forcing the NG to collaborate lucratively with
the state gvts. to an extent never reached before- marble cake
federalism- icreased role of the NG

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1960s- Lyndon Johnson declared war on poverty ruling out a

massive amount of socila legislation which ultimately increased the
role of the NG(watchdog for the entire enterprise)- national financial
aid programme= carrots= picket form federalism
= 0verloaded and hyperpluralist democracy= fruit cake federalism=
a formless and indestructible federalism which offers plums to
everyone
1969 Nixon promised the nation to replace a national gvt he
considered overly centralised, overbureaucratized....unresponsive
as well as unefficient with a new federalism miraculous formula,
which should channel power, funds and authority...to those
governments closest to the people-

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Ronald Reagan took office in 1981- promised to balance the

relationship between national and state gvts by creating a new New
Federalism arguing that the previous version of fed had bent out of
shape as it treated elected state and local officials as if they were
nothing more than administrative agents for federal authority- he
met intense opposition and his plans failed

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