Two governments. You. In a relationship at the same time. Their sovereignty is 'seemless,' but it has totally changed over time. However, who is pulling the strings is soooo hard to say.
I start with a pretty simple game. (Do you want a more complex game that is less teacher centered? Try iCivic's Power Play... but you need a computer lab!) I give the kids about 20 cards with a list of agencies at multiple levels of government. (I know, local governments are not sovereign... that whole Dillon's Rule vs Home Rule thing... but my kids don't know that... not yet.) I tell them to sort them into four piles.
After watching five classes do this, the prevailing sentiment is that there are few in the combo pile. We just finished talking about all the pretty parts of the Constitution, and the kids are reading the power structure just like the Constitution dictates.
They read this like it was originally intended... as a dual federalist system. (The baking enthusiasts out there have dubbed this layer cake federalism)
Here, there is tension... and it is really present in the interstitial spaces where the Constitution is vague. Most kids get the tension in cases like McCulloch v Maryland or Ogden v Gibbons, because it is so obvious. But American history is riddled with the conflicts between federal and state governments. Interestingly enough, one of the richest debates over the powers of the federal government go back to the 3/5ths compromise. The South, in particular, makes no bones about their desires to remain sovereign over issues of slavery (directly and indirectly, and I fault any economic issue as an indirect question into the slavery based economy), and spend much time arguing for their supremacy in this matter. You go back to the precedent for much of this, the Virginia and Kentucky Resolutions (1798), which are more about protesting the passage of the Alien and Sedition Acts than slavery, and you see the birth of the sentiment that states can check, in this case nullify, federal actions when they reach too far into the reserved powers of the Constitution Thirty some odd years later, the nullification doctrine is back when the Tariff of Abominations, aimed at protecting the fledgling northern industrial economy by levying steep protective tariffs. This ran counter to the South's need for low tariffs to keep the flow of raw materials (cotton and tobacco) competitive to its trade partners. South Carolina passed the Nullification Doctrine in November of 1832, stating that federal enforcement after February of 1833 would result in South Carolina's secession. While a compromise was met to avoid certain disaster... this concept of a Nullification Doctrine would be re-invoked by states-rights supporters in discussions surrounding the Fugitive Slave Act of 1850...
Sometimes the states even sued to have federal enforcement of states rights under Article IV... Prigg v Pennsylvania (1842) plays with that obligation, citing the Supremacy clause and the Fugitive Slave Law of 1793 as grounds for declaring a state's legislation unconstitutional. The rise of abolitionists in state legislatures up north underscored the tension implicit in a country that was economically and morally opposed to one another. Wisconsin's nullification (haha! Did you catch that cute little trick there? The North can play that game, too.) of the Fugitive Slave Act in had to be declared unconstitutional. There goes the neighborhood. Dredd Scott v Sanford saw a dismissal of the case by the Taney Court on a technicality: Scott was a citizen, so he couldn't sue. Whatcha gonna do? It's only in the Constitution.
The war comes and goes (this isn't history class, here, folks) and more strife is embedded in the dual federal system. Republicans send re-constructionists down to the South as a condition to their re-entry to the Union. If before the Civil War, the South toiled hard to classify slavery issues as intemerata... the Slavery Amendment should have made civil rights intemerata to the states. But they don't. The Freedman's Bureau sounded like an awesome government action, but 40 Acres and A Mule turns out to be a really unpopular idea among the former confederate soldiers, and *Poof* Johnson sends it into the annals of history. (And is impeached, but not convicted, but not directly because of the Freedman's Bureau... but over issues related to Reconstruction) And in walks the concept of Jim Crow South... untouched for nearly a hundred years.
And here I digress one more moment. It's fascinating to me that the courts didn't get involved in dismantling Jim Crow. Lord knows they had ample opportunity. But look at one man in particular... SCOTUS Associate Justice Oliver Wendell Holmes. Boston Brahmin. Son of an abolitionist. Friend to transcendentalist Ralph Waldo Emerson. Union officer and three-times wounded during the Civil War. Wizard of Mustachery. Yet, what he learned (and transferred this knowledge into his legal theory) is not to exalt the individual. He feared that the individual's belief that their own convictions are absolutely right is what causes strife in our world. (Eh-hem. Abolitionists. They're kind of absolutists... and look at what that got Holmes. Three ridiculous wounds, illness, a front seat to the butchery at the Wilderness, and a lot of lost compadres.)
Look to Buck v Bell, and you see affirmation for a state law permitting involuntary sterilizations to the mentally incompetent, stating,"[w]e have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for lesser sacrifices." I doubt such a man would look to the conditions of the south ex-slaves and view on their behalf. I speculate that is one more war he would not be willing to be party to.
And yet, that is not how it is. Not today. We gots this thing called Cooperative Federalism. (marble cake federalism. get hungry) The kids get that things changed... and going back to the previous post... it's when those in power (usually the WASPs, but certainly the entrepreneurs... as we are just dabbling into corporate enterprise systems with boards of directors, etc.) SO when all these folks can no longer use social darwinsim and to a degree eugenics to explain why the people and the states are to look out for health and welfare... we see the election of a new breed of Democrat... and with it comes green lights on reinterpreting the implied powers. Times, they were a changing... and we were moving from entrepreneurs, the "good" stock who this country should exhalt... to corporate structures with boards of directors. And... all these WASPy, good stock-y kind of people lost their shirt in the Great Depression. Folks like Dewey and Jane Addams in the face of the horror of the Pullman Strike, etc.. start to win out on this argument. That maybe there is more going on here than just the superiority of the British culture (After all, Dewey was a pluralist, to boot... and said !!Shocking!! things like, "I want to see this country American and that means the english tradition reduced to a strain along with others." May not sound contriversial, but take a walk on the wild side and read The Metaphysical Club to find out how counter-culture this really was.)
So after FDR tried to pack the court to change the judicial philosophy but failed, he eventually gained traction in his later administrations and we set about rewriting laws with the most revolutionary definition of federalism. Try as conservatives have to revert back to the previous model (Nixon, and again Reagan. Don't you dare put W. in this camp. He missed this history lesson) we are in a decidedly different era. But don't go too far down the laurel path thinking that we're not living with the ghosts of Dual Federalism. The Nullificaiton Doctrine has been mentioned in discussions of drug policy, medicare, and most recently Obamacare. We have SIGs who are out there resurrecting Calhoun... And black Americans still have been victimized, just in different ways. Classifying agriculture and other industries as exempt from Social Security until 1950 prevented a generational wealth transfer which has exacerbated a wide range of national problems, including the Katrina fiasco... where cooperative federalism failed this population twice.
We had experiments in the reinvention of the relationship...
Regulated Federalism has the federal government mandating certain programs, like the Asbestos Hazard Emergency Act of 1986 or the Americans with Disabilities Act of 1990... where states were given marching orders and no way to pay for these programs aka unfunded mandates (so state dollars were unpopularly redirected.) This, in part, brought Newt Gingrich into our collective gaze, where he used these mandates as a rallying point in the GOP's Contract with America during the 94 Midterm elections. He was able to get GOP control of Congress, and pass legislation like the Unfunded Mandate Reform Act of 94... which as far as I can tell is window dressing. And oh, yeah, He impeached Clinton.
New Federalism, a coinage of Nixon and reconstituted by Reagan, flips this relationship on its head... where the federal government has taken many of the programs (usually social) and devolved much of that authority to the states through Block grants. The biggest example: Welfare Reform of 1996 (Technically called he Personal Responsibility and Work Opportunity Reconciliation Act) as a block grant with several different welfare programs at work in the states. If you want a better view of what this feels like, read Flat Broke with Children by Sharon Hays. A great excerpt is floating around in the Lanahan Readings in the American Polity 5E.
And Fiscal Federalism? I have my kids read this article from the Cato Institute and an excerpt from Andrew Karch's Democratic Laboratories (found in the Lanahan Readings in the American Polity 5E).They're a bit old, but they gets to the heart of the matter. I ask them to read and figure out two things. What the devil is fiscal federalism? (A system of taxing and spending where the federal government is able to prod states into compliance with a federal initiative that is usually outside of the scope of the Constitution) They are able to get this for the most part... and then we come up with a couple of pros and cons... I do this all on Socrative.
I then find a policy example to illustrate Federalism. I wanted to do PPACA this year, but the kids wanted to talk about Katrina. Maybe we'll tackle Obamacare next year.
To round this out, they read an article by Birkland & Waterman critiquing the federal, state, and local response to Katrina.
And then we watch this video. My students are predominantly from VA, and were too young to remember Katrina... so this video is a rude awakening. We have some great discussions, as a result. When I have more time, I do utilize a part of the Youth Leadership Initiative's lesson on Federalism. They do a great role play activity where kids get to act as the different levels of government discussed in Birkland and again in the video excerpt below.
I didn't have time this year to really delve in as much as I would like to... there are some great resources out there that I flit through in class one day...
Here they are, in no particular order:
Peter Sagal's Constitution USA: A More Perfect Union
Scholarly article from Constitution Center
PBS Learning Plan about Federalism
Pew Fiscal Federalism Infographic
Sequestration Analysis: Virginia, California, Michigan, & Alabama
Cataolog of Federal Domestic Assistance
I want to start by thanking Mr. Snowden and Mr. Greenwald for their uncompromising dedication to giving the NSA violations air time and transparency. I wanted to share some of the most important things I have learned from this book bef...
tagged: nerdcation and to-read
tagged: nerdcation and to-read
tagged: nerdcation and to-read
by Bill Bishop
tagged: nerdcation and to-read
I lovgov. LOVE IT! I love teaching government, learning about it, debating, discussing, asking questions about government. And not the standard boiler plate questions, but the hard ones that are NOT in the books.