American Government I: Foundations, Federalism, Liberties, Rights

This is Unit Seven of Social Sciences and History, part two of two: American government from federalism's referee to the constitutional frame assembled. Part one closed on two fears, central power and central weakness, answered by structure. This part carries the hinge on which the second half of that structure turns. The Bill of Rights bound only the nation until the Fourteenth Amendment, and the Fourteenth does two jobs: its due process clause carried the liberties against the states, one at a time, and its equal protection clause turned equality into a test with three standards. Keep that amendment in view, and every liberties item and every rights item on the exam finds its place, which the capstone at the end lays out as one frame. By the end you will be able to classify a power. To tell a liberty from a right and say how incorporation worked. To name what the major amendments guarantee and where each yields. To apply the right standard of scrutiny. And to place any government question on the frame.

Four entries on federalism refereed and powers sorted: venue shopping and the Court, federalism's ledger, nullification and the elastic clause, and classifying a power.

Venue shopping.

SSH 0623 Venue Shopping and the Court as Referee

Interest groups, aware of the political system's many access points, engage in venue shopping: they select the level and branch of government they calculate will be most receptive to their goals, a group losing in Congress turning to a state or a court. The Supreme Court sorts the resulting disputes. Unit eight carries interest groups as institutions.

Federalism's ledger.

SSH 0624 Federalism's Ledger: Innovation Against the Race to the Bottom

Federalism's benefits, in the anchor's list: it encourages political participation, gives states an incentive for policy innovation, and accommodates diverse viewpoints, states as policy laboratories. Its costs: a race to the bottom as states cut taxes and regulations for business, to workers' detriment, cross-state disparities, and obstruction of national efforts. The exam asks one advantage or one disadvantage.

Nullification and the elastic clause.

SSH 0625 Nullification and the Elastic Clause

The elastic clause, Article One Section Eight's last, lets the national government make all laws necessary and proper for its responsibilities: implied powers' root. Nullification, Calhoun's doctrine of the eighteen thirties, held that a state could void a federal law it deemed unconstitutional within its borders; unit one carries the crisis. Habeas corpus is a petition testing detention's legality.

Classifying a power.

SSH 0626 Classifying a Power: Enumerated, Implied, Concurrent, Reserved

The exam names a power and asks whose it is, and the anchor's two chapters give the categories. Enumerated: given explicitly to the federal government by Article One Section Eight: interstate and foreign commerce, armies, war, coinage, foreign affairs. Implied: not listed, but necessary and proper to carry out an enumerated power, under the elastic clause. Concurrent: shared by both levels: taxing, borrowing, making and enforcing laws, establishing courts. Reserved: any power not prohibited by the Constitution or delegated to the national government, kept by the states. Prohibited: bills of attainder, ex post facto laws, and suspending habeas corpus outside rebellion or invasion. Regulating trade between Ohio and Kentucky is enumerated, commerce. Chartering a national bank to manage the money it coins is implied. Levying an income tax is concurrent. Licensing physicians is reserved. Declaring a named person guilty by statute is prohibited, a bill of attainder. Ask first whether the text names it, then whether it serves a named power, then whether both levels do it, and only then default to the states. The trap is treating reserved as a list; it is the remainder. The second trap is the supremacy clause: a concurrent power exercised by both still yields to federal law in conflict.

Eight entries on civil liberties: liberties against rights, incorporation, religion, expression, searches, suspects' procedure, civil juries and punishment, and privacy.

Liberties against rights.

SSH 0627 Liberties Against Rights: Two Different Guarantees

Civil liberties are limitations on government's power, designed to secure personal freedoms; civil rights are guarantees of equal treatment by government authorities. The Bill of Rights is the liberties document, and the Fourteenth Amendment's equal protection clause is the rights anchor. A search's limit is a liberty; equal schooling, a right. Common-law rights rest on precedent, not the Constitution.

Incorporation.

SSH 0628 Selective Incorporation Through the Fourteenth

Originally the Bill of Rights bound only the national government. Since the Civil War, through the Fourteenth Amendment's due process clause and a series of Supreme Court decisions, most of its protections have been extended to state action by selective incorporation, still under way. Grand juries, the anchor notes, are one guarantee never incorporated. This is the hinge, in its first job.

Religion.

SSH 0629 Establishment and Free Exercise

The establishment clause forbids government to endorse a state-sponsored religion, or favoring religion over non-religion. The free exercise clause forbids government to regulate religious belief and practice, and the Sherbert test strikes a burdening law unless a compelling interest is served by the least restrictive means, with blue laws and conscientious objectors as the cases. Both clauses yield to limits for public order.

Expression.

SSH 0630 Expression, Press, Assembly, and Their Limits

The First Amendment protects expression by the public, the media and organized groups: rallies, protests, petition of grievances. Symbolic speech communicates without words, an armband for instance. Prior restraint stops publication in advance. Obscenity, by contemporary standards, falls outside protection. All yield to public order and others' rights. The Third Amendment, quartering, is the least litigated.

Searches.

SSH 0631 Searches, Seizures, and the Exclusionary Rule

The Fourth Amendment protects persons, homes and property from unreasonable searches and seizures. A search warrant, signed by a judge, rests on probable cause. The exclusionary rule, from Mapp against Ohio, bars evidence from an illegal search at trial, and the Patriot Act broadened electronic monitoring. The Second Amendment's individual right is the Court's reading since two thousand eight.

Suspects' procedure.

SSH 0632 The Fifth and Sixth: Suspects' Procedure

The Fifth secures the right to remain silent, bars double jeopardy, twice tried at one level for one act, and limits takings, eminent domain. The Sixth ensures a speedy public trial by an impartial jury, counsel, and the right to confront witnesses; Miranda has those rights stated at arrest. Plea bargains trade guilty pleas for leniency.

The Seventh and Eighth.

SSH 0633 Civil Juries, Bail, Fines, Cruel and Unusual

The Seventh Amendment guarantees jury trials in most civil cases, but only at the federal level, since civil juries are not incorporated against the states. The Eighth forbids excessive fines and bail and cruel and unusual punishment, whose scope, the anchor says, remains debated. Economic liberty means obtaining, using and trading things of value.

Privacy.

SSH 0634 Privacy: A Right the Text Does Not Name

The Constitution never names privacy; laws and precedents defined the right, freedom from government intrusion in the key term. The cases address abortion, sexual behavior, internet activity, texts and calls, and the line between privacy and public safety is still being drawn. The undue burden test is voiced as the anchor's key term defines it, nothing later.

Five entries on civil rights: three standards of scrutiny, Plessy to Brown, women's rights, Indigenous sovereignty, and other groups' claims.

The three standards.

SSH 0635 Three Standards of Scrutiny: Applying the Right One

The exam asks which standard a court applies under the equal protection clause to a given distinction, and the anchor names three. Rational basis, for most forms of discrimination: the burden is on those challenging the law to show there is no good reason for treating them differently; the anchor's examples are a disability that prevents a job's essential functions and a driver too young. Intermediate scrutiny, for sex and gender: the burden is on the government to show an important governmental interest. Strict scrutiny, for race, ethnicity, national origin and religion: the government must show a compelling interest and no alternative means. A minimum driving age is rational basis; the challenger must prove it irrational. A state excluding women from a public military college is intermediate, and the state must show an important interest. A state assigning children to schools by race is strict, and the state must show a compelling interest served no other way. Ask what attribute the law sorts by, then who carries the burden and how heavy it is. The trap is the burden's direction: under rational basis it lies on the challenger; under the other two, on the government. The second trap is the expansion the anchor describes, adding sexual orientation and disability to the logic without a named tier. This is the hinge's second job, equality as a test.

Plessy to Brown.

SSH 0636 From Plessy to Brown

The Thirteenth Amendment freed all enslaved people; the Fourteenth and Fifteenth granted citizenship, equal protection, and Black men's vote. Reconstruction's end brought Jim Crow: poll taxes, literacy tests, grandfather clauses, white primaries. Plessy in eighteen ninety-six allowed separate but equal; Brown in nineteen fifty-four struck it down in education. The greatest gains came after nineteen forty-five: lawsuits, acts, direct action.

Women's rights.

SSH 0637 Coverture to the Nineteenth Amendment and Title IX

Under coverture a married woman's legal identity was erased. The movement born in the eighteen forties among abolitionists won property rights early and the vote with the Nineteenth Amendment in nineteen twenty. The seventies added employment and education protections, Title Nine of nineteen seventy-two barring sex discrimination in education. The ERA was never ratified. The pay gap is the anchor's statement.

Indigenous rights.

SSH 0638 Sovereignty, Removal, and Self-Government

Native Americans were first held citizens of sovereign nations, ineligible for U.S. citizenship, and forced onto reservations, the Trail of Tears in eighteen thirty-eight. The nineteen thirties granted some control over reservation land and self-government; postwar gains covered education, land use and religion, and Wounded Knee in nineteen seventy-three marked the protest. Alaska Natives and Native Hawaiians won some land back since the sixties.

Other groups.

SSH 0639 Latino, Asian American, LGBTQ, and Disability Rights

Latinos lost the vote and were segregated; Asian Americans were segregated and sometimes barred entry. The nineteen sixty-four Civil Rights Act helped both; both sued, and Chicano youth took direct action. LGBTQ people won same-sex marriage, with Stonewall as the movement's start, and the Disabilities Act of nineteen ninety covered employment, transport and education. The anchor's closing comparison is not voiced.

One entry to close: the constitutional frame assembled, one document, two levels, three standards, with the Fourteenth Amendment as the hinge.

The frame assembled.

SSH 0640 One Document, Two Levels, Three Standards: The Constitutional Frame Assembled

The exam's government items on the constitutional framework, federalism, civil liberties and civil rights are one structure seen from four sides, and the anchor's five chapters build it in order. The document first: written in seventeen eighty-seven to replace a confederation too weak to tax, regulate or defend, ratified in seventeen eighty-eight only on a promise, a bill of rights added in seventeen ninety-one to answer the Anti-Federalists' fear of central power. The structure it created was a republic with separated powers, checks among three branches, and a federal system in which authority is enumerated to the nation, reserved to the states, shared where concurrent, stretched by the elastic clause, and settled by the supremacy clause when the two collide. The two levels next: federalism's history is the history of that boundary moving, from dual federalism's separate layers to cooperative federalism's blended cake to the seventies' attempt at decentralization, with grants and mandates moving the states, interest groups shopping for the friendlier venue, and the Supreme Court refereeing. The liberties third: the Bill of Rights bound only the nation until the Fourteenth Amendment, whose due process clause the Court used to incorporate most of its guarantees against the states, one at a time, a process still incomplete. The rights last: the same amendment's equal protection clause supplies the three standards by which a court tests a law that treats people differently, and the histories of African Americans, women, Indigenous peoples, Latinos, Asian Americans, LGBTQ people and people with disabilities are the record of that clause being claimed. One document; two levels it divides power between; one amendment that turned liberties against the states and equality into a test; three standards that apply the test. The frame is the anchor's order, not a claim it states in one place. Use it to place a question: a power belongs to the federalism side, a limit on government to the liberties side, a claim of equal treatment to the rights side. The Fourteenth Amendment sits on both of the last two, which is why the exam's classic pair, liberties against rights, is worth keeping straight. That is the hinge this lecture opened with.

Look at what you can now do. You can classify a power by asking, in order, whether the text names it, whether it serves a named power, whether both levels do it, and only then defaulting to the states. You can tell a liberty, a limit on government, from a right, a guarantee of equal treatment, and say that the Fourteenth Amendment's due process clause carried the liberties against the states one at a time. You can name what the First, Fourth, Fifth, Sixth and Eighth Amendments guarantee and where each yields to public order. You can apply the right standard of scrutiny by the attribute a law sorts by, and you know the burden's direction changes at rational basis. And you can place any government question on the frame, federalism, liberties or rights, with the Fourteenth Amendment as the hinge, which is the idea this lecture was built on. Unit eight opens on Congress.