Unit 1: Constitutional Foundations

Study Break

Okay, we're going to get this section over with really fast. Ready?

"Dr. Franklin's electrical rod smote the earth and out sprang General Washington. Franklin electrified him with his rod—and thenceforward these two conducted all the policies, negotiations, legislatures, and war."

Maybe that's not entirely fair—but it is an actual quote from founding father John Adams, who had what would have been called in his day "ye olde self-esteem problems." But Adams, even if he was a bit too self-pitying in thinking he would be written out of history entirely (after all, he did get a whole HBO miniseries), did have a point. Most Americans' understanding of how we got from successful revolution to stable(ish) government is way too simplistic. "Declaration of Independence, Constitution—they probably got it all done in a weekend, right? Long weekend, tops."

Actually, it took the American revolutionaries twelve whole years to get their act together and figure out a durable government—twelve years during which America was verging on what today we'd call a "failed state." What was the problem?

We can't blame Americans' lack of experience. Americans already had plenty of experience with self-government. Back before the Revolution, every colony had a colonial assembly with significant powers. Most white men were able to—and did—vote. But from their experience as subjects of the British Empire, Americans developed a deep suspicion of strong government—a conviction that strong government was just a short walk away from tyrannical government. From Locke and England's "Radical Whigs," they learned that "power corrupts," that it was their right to overthrow governments that did not respect natural rights, and that it was a citizen's role to keep a wary eye on the powers-that-be at all times.

All of these principles served them well when they were outsiders looking in—when they were colonists trying to protect their rights against the imperial government. But these lessons and attitudes proved problematic when it came time to replace the government that they had overthrown.

Think of the Declaration of Independence as an awesome party, followed by a 12-year hangover, followed by a growing realization that "guys, we have to clean this place up before the parents get back. Seriously, guys. And who wrote 'ROYALIST POLTROON' on my forehead in Sharpie?"

In this section, we're going to trace the history that convinced many Americans that their post-revolutionary government was broken. Then we're going to discuss the Constitutional Convention as a response to that crisis, along with the document it created.

Colonial Governments

Great Britain's North American colonies were founded for different reasons and were initially governed in different ways. But by 1750, the colonies that would become the United States had developed similar systems of government. An appointed executive (colonial governor) was assisted by a council (appointed by either the governor or the colonial assembly with the governor's approval). Legislative authority rested with a colonial assembly elected by the colonists.

On paper, the governors possessed great powers, but because the assembly held the "power of the purse" (control over taxes and spending, including government salaries), the colonial assemblies were able to heavily influence policy. This assembly was elected by property-owning white men, and due to the relative availability of land, the franchise was far more inclusive in America than in England. Roughly two-thirds of colonial white men were able to vote; in England only one-sixth of all men met the property requirement. Therefore, by the time of the Revolution, representative government in America was the norm; most men had experience with politics and had come to view popularly elected assemblies as the rightful center of government power.

Declaration of Independence

As the revolutionary crisis grew, colonial delegates convened a Continental Congress to develop a collective response. In July 1776, this Congress passed what has been remembered as history's greatest breakup note: the Declaration of Independence. (King George III spent the rest of the month locked in his room, bawling his eyes out and working up the courage to de-friend George Washington.)

The Declaration was essentially an eloquent restatement of the contract theory of government developed by John Locke, which we covered in the previous section. As the declaration put it, people entered into a contractual agreement with the governments they formed—they surrendered a portion of their absolute freedom to the government and, in return, the government guaranteed their natural rights. If the government failed to protect those rights, or became abusive of them, the people had the right to "alter or abolish it."

The rest of the Declaration was dedicated to making the case that King George III had, in fact, so badly trampled on Americans' rights that a breakaway was justified. (Incidentally, the revolutionaries focused most of their ire on the British King, not the Parliament—in part to heighten the contrast between America's burgeoning democracy and an alleged tyrant, and in part because the colonists held the King and his close advisers responsible for the taxation that ticked them off in the first place).

The Declaration announced the separation of the colonies from the crown, laid out some stirring general principles, and went into detail on things that governments should not do. But as we all know from the snarky comments after any bad online review of anything: "Oh yeah? I'd like to see you do better!"

In fact, while delivering the verdict that monarchy was a "total fail," the Declaration didn't do anything to establish a new government or even describe how one would operate.

After declaring independence, the colonies-turned-states rapidly formed new governments. Reflecting the Lockean principle that governments derived their authority from the people, these governments were designed in constitutional conventions and submitted to the people for ratification. The new state governments differed in their details, but they shared certain fundamental features and principles:

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  Written constitutions. After their bad experience with the British government, the Americans wanted protections of their liberty in writing. They simply didn't trust the vaguer, customary, unwritten style that characterized the British constitution (remember from above that a constitution is just a form of government, not necessarily a document). The American states delineated the powers and limits of their governments in written documents.
   
  
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  Separation of Powers. Governmental powers were divided between a legislative, executive, and judicial branch. Reflecting the controversies of the past decade, most power was granted to the legislative branch; executive powers were severely restricted.
   
  
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  Civil Liberties. Seven of the new constitutions contained bills of rights.
  

Through most of the Revolution, the Continental Congress served as the de facto national government. It raised an army, borrowed money, and entered into treaties with foreign nations—yet, ironically, it had no formal basis for its power. The delegates to the congress approved a plan for government in 1777. But these Articles of Confederation were not formally adopted by the states until 1781. (Wait, so the founding fathers who talked such a big game about democracy were just pretty much making it up as they went along, and not even bothering to ask the people if they were okay with it? HEAD EXPLODE.)

The structure of this government reflected the colonists' political beliefs, recent history, and feelings about one another. For one, their political philosophy and their experience as British subjects created a suspicion of any concentrated power, so they ensured that the powers of their new national government were held to a minimum and vigilantly restrained. Further, the religious, economic, and cultural differences between the colonies left them unwilling to form a strong national government that tied them too closely together.

As a result, most power in post-revolutionary America remained on the state level. The national government created by the Articles of Confederation remained deliberately weak. Think of the Articles of Confederation Congress like the United Nations minus the invisible black helicopters—a body to which independent powers send their ambassadors, but with little authority to tell its members what to do. Here are some of the key facets of the Articles of Confederation government:

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  National Congress with limited power. Possessed power to declare war, negotiate treaties, and establish currency. But no power to tax, draft soldiers, or regulate trade. Could only request money and troops from the states.
   
  
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  No executive to enforce the decisions of Congress.
   
  
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  No judiciary to provide a uniform interpretation of laws. 
   
  
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  States represented equally (not based on population) in Congress—one vote for each state. (For Delaware, it has been all downhill since.)
   
  
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  Legislation required approval of 9 of 13 states to pass.
   
  
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  The Articles could be amended only by unanimous consent.
  

As the saying goes, "be careful what you wish for, idiot." Americans wanted a weak national government, and they got one. As it turns out, they got a government too weak to address the challenges confronting their small, militarily impotent, economically strapped nation. Here are some of the biggest problems they faced under the Articles:

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  The states only had to fund the national government if they felt like it. Unsurprisingly, they didn't, and the government was near-bankrupt for much of the 1780s, unable to fund much in the way of defense or a navy.
   
  
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  With no collective action for economic development, a host of conflicting state laws, inter-state trade disputes, and strong competition from foreign imports, commerce suffered.
   
  
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  Weak central government meant weak foreign policy. European nations were reluctant to agree with the U.S. on treaties, because they were convinced that individual states could simply ignore them. Supporters of a strong national government feared that European powers would pursue a divide-and-conquer strategy, reasserting their influence over states one-by-one.
   
  
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  Without funds, Congress looked unable to pay off the debts accumulated in financing the Revolutionary War. More selfishly, economic elites feared that, without a strong national government to hold populism in check, popular pressure from debtors would cause state governments to cancel debts, which would hit rich creditors right in the pocketbooks.
  

As a result of sentiments like these, 12 out of 13 states (minus Rhode Island, which boycotted because it was afraid the bigger states would gang up on it) agreed to send delegates to Philadelphia in May of 1787 with the stated purpose of amending the Articles of Confederation. It turns out that they got a bit carried away.

Dolley Payne Todd had been widowed for just over a year when she remarried. But the decision cost her—she was expelled from the Quaker church for marrying a non-Quaker. You can hardly blame them. Besides being of a different religion, Dolley's new husband was seventeen years older than she and something of a shrimp—he stood only 5'3" and weighed less than 125 lbs. Little did they know that James Madison would eventually serve as president of the United States and be recognized as the genius behind the United States Constitution.

"I said 'a little bit off the top,' and you SHAVED MY ENTIRE HEAD? WHY?"

The Constitutional Convention was a little like that.

While the delegates to the Constitutional Convention came to Philadelphia with a limited mandate—agree on a plan to give Congress power to collect import taxes and regulate commerce—they immediately began a much more ambitious project: a complete restructuring of the government.

The most important delegate in Philadelphia was arguably James Madison, the 5'3" pipsqueak who was the force behind the Constitution's drafting and subsequent ratification. More than any other delegate, Madison came prepared: he devoured works on political theory and comparative government in the run-up to the convention, and he was ready off the bat with an ambitious proposal to strengthen the federal government (which we'll touch on below).

Another crucial delegate was George Washington: as president of the convention, he didn't contribute much to the document itself, but he put his huge prestige behind the effort and helped the Constitution secure popular support. When the delegates created the office of the presidency, it was on the assumption that Washington would be its first occupant.

The delegates had a great deal in common: above all, they were already the nation's political and economic elite. In fact, later debate on the Constitution often centered on whether its framers were looking out for the best interests of the country, or looking out for Number 1. Some have called the convention's delegates far-sighted statesmen, who saved America from political chaos. Others have called them reactionaries or counter-revolutionaries—elitists anxious to restore the power of more privileged classes threatened by the democratic tendencies of the new state governments. The historian Charles Beard made an influential argument that the delegates were interested in protecting their financial interests: as holders of government bonds they stood to lose money unless the government acquired the tax powers needed to service the debt.

But, as we've all learned from The Real Housewives, rich people don't always get along. There were two major fault-lines at the convention that would have a decisive effect on the document it produced: big states vs. little states, and North vs. South.

Big vs. Little

Would the bigger, richer states dominate the new government? That, many small-state delegates feared, would be the outcome of the Virginia Plan, backed by what was then the biggest and richest state. The Virginia Plan, drafted by Madison, set much of the Convention's agenda. It called for:

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  A national government consisting of a legislative, executive, and judicial branch.
   
  
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  A bicameral legislature with representation proportional to population and/or revenue collected.
   
  
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  Expanded national governmental powers, including power to tax and regulate trade.
   
  
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  A national government with the power to force states to comply with federal laws and override state actions and laws.
  

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  A national government consisting of a unicameral legislature, a plural executive, and a judiciary.
   
  
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  The executives would be selected by Congress and could also be recalled by Congress at the urging of state governors.
   
  
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  Equal representation in Congress for all states, regardless of size.
   
  
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  New but limited powers to tax (primarily imports) and regulate trade.
  

The House was intended to be the part of government most accountable to the people: it would have small districts and two-year terms for its members, and would have the right to initiate legislation on revenue. The Senate was designed to be the more elite body, with senators given statewide districts, six-year terms, and a bigger say in foreign policy.

Another division formed between the delegates from Southern slave states and Northern free states. Southerners wanted slaves counted in the census for representation but not tax purposes, which would mean more power and lower taxes for slaveholders; Northerners wanted the reverse. Southerners wanted guarantees that their exports (primarily tobacco) would not be taxed and that the slave trade would not be interrupted; Northerners like Hamilton, who were much more heavily invested in commerce than in agriculture, wanted to grant Congress the power to regulate all trade.

These debates were also resolved through compromise. In the notorious Three-Fifths Compromise, slaves would be counted as three-fifths of a person for both representation and tax purposes. Congress was expressly forbidden to tax exports (as a concession to the South), but Southern delegates agreed to accept the clause granting Congress the power to regulate trade (as a concession to the North). As part of the deal, Congress was prohibited from taking any action against the slave trade until 1808, and the Constitution also pledged the use of federal troops to crush slave insurrections.

With their representation boosted by three-fifths of their slaves, Southern states received a disproportionate voice in the government. Many argue that slaveholders won more concessions at the convention than they made—the 19th-century abolitionist William Lloyd Garrison called the Constitution "a covenant with death." Others have argued that, without these compromises, there would have been no new nation at all; the founders at least put off the reckoning between North and South for 70 years, until the start of the Civil War.

The Constitution was drafted in Pennsylvania, much of the actual phrasing was contributed by Pennsylvanian Gouverneur Morris, and the oldest delegate to the convention was 81-year old Pennsylvanian Benjamin Franklin. Guess which word is misspelled in the Constitution.

You know that scene in every superhero movie, where Peter Parker (or whoever) discovers his fabulous new superpowers? The Constitutional Convention was a lot like that, except with more powdered wigs. Here are some of the new powers that were granted to the federal government (not counting web-slinging ability):

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  Congress now had the power to tax, draft men into the military, and regulate trade between the states. It also had exclusive power to coin money.
   
  
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  Congress's power included the explicit authorization to make all laws "necessary and proper" to the carrying out of its listed powers. This "necessary and proper clause," or "elastic clause," was the basis of Congress's implied powers: the authority to exercise powers suggested by the Constitution.
   
  
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  The Constitution created a single, independent executive (not appointed by Congress), with the power to implement and enforce laws.
   
  
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  A federal judiciary was created to provide a uniform interpretation of the nation's laws.
   
  
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  The supremacy clause established the hierarchy of government authority. This "ladder of laws" made the Constitution the highest authority, followed by federal laws and treaties, followed by state laws.
  

First, a proposed amendment must be approved by a two-thirds vote in both houses of Congress, or by a constitutional convention called at the request of two-thirds of the state legislatures. Next, it must be ratified by three-fourths of the states, either in their state legislatures or in a special ratifying convention. The Constitution has since been amended 27 times.

Of course, with great power comes great responsibility. The new government was stronger, but it was also limited in important ways. Some of the most important limitations included separation of powers, federalism, and a bill of rights. We'll go through those below.

Ratification

Once drafted, the new Constitution was sent to the states for ratification. It was agreed that the new government would take effect once ratified by nine of the 13 states. Supporters of the new government were labeled Federalists; opponents were called Anti-Federalists.

Like frustrated art students everywhere, the Federalists were deeply hurt that so many Americans just didn't understand their masterpiece. Anti-Federalists objected to several aspects of the new government—the loss of power for states, the federal tax power, the "aristocratic" Senate, the power of the judiciary. They also feared that the new government would be dominated by economic elites and sideline the concerns of average citizens. But they gained the most political traction from the Constitution's lack of a bill of rights. In the end, several states ratified with the recommendation that a bill of rights be attached immediately the Constitution.

Though they had to overcome strong opposition in nearly every state, the Federalists were ultimately successful in getting the Constitution ratified. The nine-state requirement was met in June of 1788, and all 13 states had signed on by 1790. Some reasons for the Federalists' success included:

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  The support of influential figures like George Washington, James Madison, Benjamin Franklin, and Alexander Hamilton.
   
  
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  Federalist support in most major newspapers.
   
  
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  The Federalist Papers, influential articles explaining and defending the new Constitution written by Alexander Hamilton, James Madison, and John Jay.
   
  
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  The Anti-Federalists provided no viable alternative. Critics were unable to agree on a well-defined governmental alternative capable of addressing the needs that most people acknowledged.
   
  
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  Most Anti-Federalist leaders were state officials committed to preserving state sovereignty. They had fewer national connections and less national influence.
  

Don't know what "we hold these truths to be self-evident" means? Neither did the founding fathers. In Thomas Jefferson's original draft of the Declaration, the money quote read, "We hold these truths to be sacred and undeniable." On Ben Franklin's advice, the founders broke out their red pen and subbed in "self-evident"—largely because it sounded better. Which makes the Declaration the most famous case of "because we said so, that's why" in history.

You remember this one from Schoolhouse Rock, right? Legislative, executive, judicial. "I'm just a bill." Bam, done.

Well, this is the AP, and the AP is all about destroying your precious childhood innocence. The truth is that the strict separation of powers—as much as it's presented in middle-school civics as the natural, obvious way a government oughta be—was not especially obvious to anyone at the time it was devised by the Constitution's framers. It's not even especially obvious to many of the world's democracies today.

Separation of Powers

From the political disintegration and collapse of the Roman Republic, later generations learned the lesson that uncertainty over where power really lay was poison to stable government. Republican Rome had many competing power centers: an aristocratic Senate, a popular assembly, two consuls who could overrule and veto one another, and the army.

Later political thinkers attributed the Republic's collapse to controversy over which of these institutions had the final say—controversy that eventually sparked a disastrous civil war. Drawing on the Roman example, these thinkers concluded that a durable government needed a single center of sovereignty—that is, a final authority to set and enforce rules over a given territory.

Even those who accepted that there ought to be some separation of powers in order to keep government authority in check often preferred that separate power centers be set up on the basis of class, rather than on the basis of institutions. These thinkers argued that a stable government needed a strong monarch, a strong aristocracy, and some power reserved for the common people. Britain, for instance, developed parliamentary government as its nobles, and later its middle class, asserted its rights against the monarchy.

Even today, America is extreme in its separation of powers, and many consider the Constitution a recipe for gridlock. Parliamentary governments, in which the prime minister and his or her cabinet ministers are also members of the legislature, don't separate powers as strictly as we do: the legislative and executive powers are combined to a much greater extent, and a prime minister almost always comes with a majority or governing coalition to pass his or her agenda. Nor was strict separation of legislative and executive powers the only available solution for the Constitution's framers: they could have gone in the direction of the New Jersey Plan, which made the executive subject to election and recall by Congress, much more like a prime minister.

So why did the framers separate the three branches so distinctly? Again, much of it goes back to the post-traumatic stress disorder otherwise known as "being colonized by the British." The framers took great pains to prevent the concentration of government power that they felt was behind their struggles as colonists. Yes, nearly all of the delegates in Philadelphia wanted a stronger government—but they had to ensure Americans that, even as the government's powers increased, the checks on government would increase, as well. And an ingenious part of their solution was the idea that parts of the government would check and oppose one another. The framers were also strongly influenced by Montesquieu, whose plan for legislative/executive/judicial separation was, at the time, a fairly radical new idea.

As Madison wrote, "If men were angels, no government would be necessary." Apparently, he never met Leo DiCaprio. Oh, Leo....

The framers didn't expect future governments to restrain themselves out of their noble impulses—instead, they set up a government that would be a constant competition for power and influence, with the result that no institution would gain an upper hand.

This arrangement has had some close calls. In 1832, President Andrew Jackson ignored a Supreme Court decision on the removal of Cherokee Indians from Georgia; he is supposed to have said of the Chief Justice, "He has made his decision—now let him enforce it!"

In 1868, Congress impeached President Andrew Johnson over policy differences in an attempt to assert its supremacy and missed removing him from office by one vote.

In 1937, President Franklin Roosevelt tried and failed to sidestep the Supreme Court by "packing" it with extra justices who would back his policies.

Despite close calls like these, the Constitutional system of checks and balances has proven remarkably durable—a reminder that, when in doubt, "divide and conquer" is usually a good bet.

Here are the checks and balances in a nutshell:

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  Congress's checks on the president: makes laws, may override presidential vetoes with two-thirds vote, and may impeach the president. Senate must confirm treaties and presidential appointments. Congress has the sole authority to declare war (though it hasn't been using this power lately—the last official declaration of war was for World War II).
   
  
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  Congress's checks on the judiciary: creates lower courts, must confirm judicial nominees, and may impeach judges.
   
  
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  President's checks on Congress: may propose and veto legislation.
   
  
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  President's checks on the judiciary: nominates Supreme Court and federal judges, can grant pardons.
   
  
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  Judiciary's check on the President: rules on constitutionality of executive actions. Once appointed by the president, judges enjoy life tenure.
   
  
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  Judiciary's check on Congress: rules on constitutionality of legislation.
  

During the convention debates over the war powers, one delegate proposed that the Constitution limit the size of the army to 5,000 men. General George Washington agreed, so long as the Constitution also limit the size of invading armies to 3,000 men.

How come, without driving any faster, your car can be pulled over just because it crossed an invisible line between states? How come you can carry a concealed weapon in Texas, but in California you're required to wear a flashing neon sign that reads "FYI, I'M PACKING HEAT"? How come you can marry your first cousin in Mississippi, but only your second cousin in Kentucky?

One word: federalism.

Splitting the Difference

Federalism is another crucial check on governmental power laid down in the Constitution. It is a system of government in which power was distributed between a central national government and outlying state governments.

America's unique system of federalism emerged from a practical dilemma—how to build a stronger national government within a nation that still clung to the belief that power was dangerous, and therefore was most safely entrusted to local or, at most, state officials. For the framers of the Constitution, the options lay along a spectrum.

At one end, the most ardent nationalists like Alexander Hamilton would have all but abolished the state governments, leaving all power in the national government. Slightly more moderate nationalists would have turned the state governments into administrative appendages of the national government—for example, state governors would be appointed like judges by the president and confirmed by the Senate. A little more toward the center, thinkers like James Madison would have retained the state governments as a matter of political pragmatism, but would have given them no voice in national affairs and would have given the national Congress the authority to veto any state law it found disagreeable.

At the other end of the spectrum were those who would have retained the Articles of Confederation with its confederate system of government based on state sovereignty. A little toward the center were those who had come to realize that the Articles needed some minor changes—for example, the power to tax and regulate trade.

Federalism was therefore yet another of the compromises struck at the Constitutional Convention. Virtually every delegate realized that some sort of balance had to be struck. The question was just exactly where.

The Constitution's framers made several concessions to those wishing to preserve the political power of the states. The states, so that they didn't take losing out on the Articles of Confederation too hard, were rewarded with some really thoughtful consolation prizes.

The Constitution's framers made several concessions to those wishing to preserve the political power of the states. The states, so that they didn't take losing out on the Articles of Confederation too hard, were rewarded with some really thoughtful consolation prizes.

The Constitution's framers made several concessions to those wishing to preserve the political power of the states. The states, so that they didn't take losing out on the Articles of Confederation too hard, were rewarded with some really thoughtful consolation prizes.

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  Each state was directly represented in the Senate; originally (until the 17th Amendment in 1913), senators were chosen by state legislatures.
   
  
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  Congress was denied a legislative veto over state laws.
   
  
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  The Tenth Amendment, ratified in 1791, expressly reserved powers not granted to the federal government to the states or the people.
   
  
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  Congress was granted the authority to regulate interstate but not intrastate commerce. (The Supreme Court's decision in Gibbons v. Ogden in 1824, however, broadly defined interstate commerce.)
   
  
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  State legislatures were granted the power to ratify future amendments to the Constitution.
   
  
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  States were allowed to determine how presidential electors would be selected.
   
  
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  States were allowed to set their own voting requirements. (Later, however, the 15th, 19th, 24th, and 26th Amendments framed the states' options.)
  

At the same time, the nationalists at the Convention wanted to make sure that everyone knew who was boss. Here's what they got:

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  The federal government held the exclusive power to regulate interstate and international trade, conduct foreign policy, declare and make war, form an army, and coin money.
   
  
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  The Supremacy Clause made the Constitution and federal laws and treaties superior to state constitutions and laws.
  

In some instances, both nationalists and advocates of state sovereignty were forced to share political power. These shared or concurrent powers are held by both the federal and state governments:

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  The power to tax and borrow money.
   
  
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  The power to maintain courts of law.
   
  
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  The power to charter corporations and banks.
   
  
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  The power to construct roads.
  

So everyone went home happy, and no one ever got mad about states' rights again, right?

Umm...

Actually, this is one argument we've managed to keep going for two centuries, and then some. The balance struck at the Constitutional Convention lasted for about five minutes before both sides started calling it into question. The Tenth Amendment, ratified in 1791, expressly reserving powers to the states not delegated to the federal government, shifted the balance toward state power. In addition, the doctrine of states' rights played a huge role in American politics, especially in the half-century before the Civil War.

But during these same years, Supreme Court decisions like McCulloch v. Maryland (which expanded the federal government's ability to pass laws even when the power to do so wasn't explicitly stated in the Constitution) and Gibbons v. Ogden (which expanded the definition of "interstate commerce") shifted the balance toward national power.

And in the years after the Civil War, the balance shifted unequivocally toward a stronger federal government. Landmarks in this shift include the 14th Amendment (which applied the Bill of Rights directly to the states), the several amendments that reduced states' power to determine voting rights (like the amendments gave the vote to men of any race, then to women, then to 18-year-olds), and the expansion of federal power as part of FDR's New Deal in the 1930s.

Federalism Today

Constitutional law professors must have loved them some cake, because they kept trying to explain federalism with cake metaphors. In fact, their failure to use fruit and vegetable metaphors is regarded by many scholars as a direct cause of today's obesity epidemic.

By 1960, the old version of federalism—often called "dual federalism," or layer cake federalism—in which national and state governments occupied separate turfs and exercised distinct responsibilities, no longer seemed to fit. Instead, cooperation between the national and state governments was more typical.

This "cooperative federalism," or marble cake federalism, was introduced in the New Deal programs of the Great Depression and was strengthened by the anti-poverty programs of Lyndon Johnson's Great Society. Most welfare programs, for example, are largely funded by federal dollars, but they are administered by the states under federal guidelines.

During the 1970s, however, national policymakers sought to restore more local control over many social programs. The "new federalism" or program of "devolution" reduced the amount of national oversight attached to the federal funds distributed to the states. "Block grants," for example, in many instances replaced "categorical grants"—the former allow for more local control, the latter carry more national guidelines. Even more attractive to the states was revenue sharing—the distribution of federal funds with virtually no strings attached.

This disagreement over the sort of strings attached to federal money distributed to the states has led to the use of a different label for national-state relations: fiscal federalism. While in many instances, fiscal federalism involves national dollars being administered by state agencies, in others it involves federal mandates that must be implemented and funded by the states, at times without any national financial assistance. These "unfunded mandates" include federal demands that the states meet certain requirements pertaining to affordable housing and disability access.

(Here's a hint, Congress: come up with "triple chocolate meltdown ice cream cake federalism," and your approval rating is guaranteed to soar into the double digits.)

Federalism: Still Kinda a Big Deal Around Here

Arguments over the proper scope of national and state power date back to the country's earliest days, and they're still going strong. Here are some examples:

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  Republican presidential candidate Mitt Romney enacted a Massachusetts health care bill very similar to the national health care reform passed by President Obama. But Romney has pledged to repeal "Obamacare" if elected, arguing that what works for his state doesn't work for every state.
   
  
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  President Bush's No Child Left Behind law dramatically expanded federal power to set education standards. But some states complain that the law is an unfunded mandate that sets expensive high standards without helping states meet them.
   
  
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  Should state legislatures get back the power to choose their own senators? Some Tea Party members argue that repealing the direct election of senators would give a stronger voice to the states.
  

 Zombie George Washington!

"Freedom of speech."

"I plead the Fifth."

"Don't tase me, bro!"

Some of Americans' most cherished phrases come from the Bill of Rights. But if many of the founders had gotten their way, there wouldn't be a Bill of Rights at all.

Adding the Bill of Rights

Just like the way you put off your biggest assignments until the night before they're due (c'mon, admit it), the Constitution's framers put off considering a bill of rights until the very last day of the convention. After James Madison submitted what appeared to be a hastily-drawn doodle of George Washington shooting laser beams, the delegates decided to forget about a bill of rights and go home.

This would prove to be a mistake. While the framers had considered a bill of rights unnecessary, the Anti-Federalists quickly seized on their omission. They argued that, without a list of specific protections, individuals' liberties would be threatened by this newly powerful government. While some Anti-Federalists believed this more sincerely than others, most of them hoped that the public would rally behind this issue and vote down the Constitution, or at least force a second convention where the Anti-Federalists' more substantive concerns—the tax and commerce clauses—might be revised.

Madison and his allies initially resisted these arguments. Madison believed that the Constitution already contained enough checks on government power. In fact, he believed that putting specific protections in writing would actually expand the scope of government abuses—because a government might take a written list of no-no's as an excuse to do anything that was left off the list. Madison also felt that individual rights were adequately protected by state constitutions. And here he had a point—because, as it would turn out, the Bill of Rights made little difference in Americans' lives for its first hundred years.

However, prodded by the numerous state legislatures that ratified the Constitution with a recommendation that it include a bill of rights, the Federalists made a tactical decision to concede this point in order to deflate the opposition. So Madison presented a list of rights for consideration at the first session of Congress. Within two years, his list, with some revisions, had been approved by Congress and ratified by the states.

Some of the Biggies

Like so much else in America's abusive, love-hate relationship with the mother country, the idea of a bill of rights was borrowed from the British. Britain's own Bill of Rights dated back to 1689—but (and here's the key difference) it mainly protected the rights of Parliament against the monarchy, while the American Bill of Rights was designed to protect individuals against the government.

Your mother says she loves you and your siblings equally, but you know as well as we do that she loves you less. In the same way, all of the Bill of Right's ten amendments are equally important, but some are more equal than others. Here are some of the highlights, with examples of how people are still arguing over them today:

1st Amendment: Prevents government "establishment of religion" while protecting "free exercise" of religion. Protects freedom of speech, press, assembly, and petitioning the government.

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  Are the words "under God" in the Pledge of Allegiance an "establishment of religion"? If parents refuse to vaccinate their children for religious reasons, is that constitutionally-protected "free exercise"?
  

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  Does the right to bear arms apply to individuals, or just to the "well-organized militia" mentioned in the amendment's text? Can the federal government ban some kinds of weapons without violating the amendment?
  

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  What do the police need to prove before searching your home or wiretapping your phone? Should evidence obtained in illegal searches be thrown out?
  

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  If your home is in the way of a proposed economic development project, can the government force you to move? If so, what is "just compensation"?
  

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  Is the death penalty "cruel and unusual"? Is this amendment about what was considered "cruel and unusual" in 1791, or today?
  

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  What does this mean for federal power? How does this interact with the supremacy clause and necessary and proper clause to set the limits of central versus state authority?
  

That sounds great—but for many Americans, the Bill of Rights remained some fancy paperwork that didn't change much at all. The Bill of Rights was intended to protect individuals from the federal government—not state governments. So it had a limited role in Americans' lives until after the Civil War. State governments were free to go on doing everything that was prohibited to the federal government. ("Awesome! Cruel and unusual punishment party at my place, bros!")

But that changed, big-time, with the adoption of the 14th Amendment, which mutated the Bill of Rights into a super-powered equality monster (sorry, we're struggling for a better analogy here). The amendment's key passage reads: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In case you missed it, the key part is the direct reference to "any State." For the first time, the federal Constitution demanded that states respect individual rights.

Ultimately, the Supreme Court decided that this clause meant that the protections of the Bill of Rights could be applied directly to the states. The Court held that the Bill of Right's protections were central to our understanding of liberty and therefore "fundamental" to the states' guarantee of due process of law.

The doctrine that the Bill of Rights applies to the states, through the 14th Amendment, is known asincorporation. The process of incorporation began in Chicago, Burlington & Quincy Railroad Company v. Chicago, a case that asked whether a state was required to provide fair compensation for private property taken for public use. The Court said yes. The due process clause of the Fourteenth Amendment extended the 5th Amendment requirement that private property not "be taken for public use without just compensation" to the states as well as the federal government.

The Court also applied this reasoning in 1925 to the 1st Amendment in Gitlow v. New York. In upholding the conviction of a radical pamphleteer, the Court argued that the Fourteenth Amendment required the states to honor the First Amendment guarantees of speech and press.

Over the next several decades, the Courts applied this doctrine of incorporation selectively to the Bill of Rights. Currently, most provisions of most the first ten amendments have been incorporated. Most recently, in 2010'sMcDonald v. Chicago, the Court ruled that the 2nd Amendment's protection of the right to bear arms applies to state and local governments. Guns for everyone!

Study Break

On 15 December 1791, Virginia became the eleventh and deciding state to ratify the Bill of Rights. The remaining three—Massachusetts, Connecticut, and Georgia—did not ratify the first ten amendments to the Constitution until... wait for it...1939.